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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                  v.                    :
                                        :
MICHAEL LAMONT ELLIS,                   :          No. 1560 WDA 2013
                                        :
                       Appellant        :


           Appeal from the Judgment of Sentence, July 24, 2013,
             in the Court of Common Pleas of Allegheny County
              Criminal Division at No. CP-02-CR-0003801-2012


BEFORE: FORD ELLIOTT, P.J.E., WECHT AND STRASSBURGER,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:             FILED DECEMBER 18, 2014

     Following a jury trial, Michael Ellis was convicted of fleeing or elluding,

driving under the influence (“DUI”) .16 or higher, DUI-causing accident,

DUI-general impairment, recklessly endangering another person (“REAP”),

driving under suspension, and numerous summary offenses.            Herein, he

appeals from the judgment of sentence entered July 24, 2013, in the Court

of Common Pleas of Allegheny County. We affirm.

     Officers Jeffrey Labella and Elizabeth Vitalbo of the Pittsburgh Police

Department were on patrol duty in the early morning hours of December 31,

2011, in the Point Breeze/Squirrel Hill area of the city.    At approximately

3:40 a.m., the officers observed the black Jeep on Penn Avenue swerving on

the roadway. Appellant’s vehicle made a right-hand turn against a red light

on South Dallas Avenue without stopping or signaling.          On Dallas, the


* Retired Senior Judge assigned to the Superior Court.
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officers observed the Jeep continue to swerve and cross the centerline and

travel off the roadway to the right-hand side. After observing these traffic

violations, the officers activated their lights and sirens and attempted a

traffic stop.   The Jeep did not come to a complete stop, but the engine

remained on and the officers testified that the Jeep appeared to inch forward

as they approached. Using the police vehicle’s P.A. system, the officers got

appellant to finally put his vehicle in park. (Id. at 39.) However, appellant

did not pull over to the curb, but stopped the car in the middle of the road.

(Id. at 56.) When the officers approached, they suspected that he might be

intoxicated upon observing his glassy and bloodshot eyes and hearing his

slurred speech. (Id. at 41-42.)

      Appellant failed to comply with the officers’ verbal instructions to put

the car in park.   Instead, he turned the steering wheel in the direction of

Officer Labella and drove away at a rapid speed.            (Id. at 42-43.)

Officer Labella had to jump backwards into the opposing lane of traffic to

avoid being struck by appellant’s car.      (Id. at 43, 56.)     The officers

immediately pursued appellant’s vehicle.

      Appellant drove erratically through a residential neighborhood; he was

driving approximately 60 miles per hour in a 25-miles-per-hour zone. (Id.

at 44.) He went through two red lights without pausing or stopping, at the

corner of Wilkins and Beechwood and one at Wilkins and Shady. (Id.) Near

the intersection of Wilkins and Wightman, appellant’s vehicle crossed the



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opposite lane of traffic and went up on the sidewalk.    (Id. at 44-45, 72.)

The vehicle then hit several parked vehicles and two telephone poles. (Id.)

The vehicle finally came to rest head-on with a tree.

        The officers approached with guns drawn and instructed appellant to

show his hands; appellant did not comply.       (Id. at 74-75.)   To remove

appellant from the vehicle, Officer Labella had to smash the passenger side

window, as the doors would not open.        Appellant was pulled through the

window and placed under arrest. (Id. at 74-76.)

        Appellant was transported to Mercy Hospital where Officer Kevin

Walters, an impaired driving specialist, obtained his consent to a blood draw

for chemical testing. (Id. at 112-113.) As he consented, refusal warnings

were not read to appellant.      Appellant’s blood alcohol content was .242.

(Id. at 129.)

        Appellant filed a motion to suppress.      Following a hearing, the

Honorable Jill E. Rangos denied appellant’s motion. A jury trial was held on

April 17-18, 2013, and appellant was convicted of the aforementioned

crimes.1 On July 24, 2013, appellant was sentenced to an aggregate term of

12 to 72 months’ incarceration with a consecutive period of three years’

probation. Appellant’s post-sentence motion was denied on August 5, 2013.

A timely notice of appeal followed, and the following issues have been

preserved for our review:


1
    Appellant was found not guilty of escape.


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            I.     WAS THE EVIDENCE INSUFFICIENT TO
                   SUPPORT THE CONVICTION FOR RECKLESSLY
                   ENDANGERING ANOTHER PERSON, WHERE
                   THE EVIDENCE FAILED TO ESTABLISH EITHER
                   THAT OFFICER LABELLA WAS PLACED IN
                   ACTUAL DANGER OR THAT THE REQUISITE
                   MENS REA OF RECKLESSNESS COULD BE
                   PROPERLY INFERRED?

            II.    DID THE TRIAL COURT ERR IN DENYING THE
                   MOTION TO SUPPRESS THE BLOOD TEST
                   EVIDENCE WHERE [APPELLANT] WAS NOT IN A
                   PHYSICAL OR MENTAL STATE IN WHICH HE
                   COULD FREELY AND VOLUNTARILY GIVE
                   CONSENT DUE TO THE NATURE OF HIS
                   INJURIES    AND    ONGOING     MEDICAL
                   TREATMENT?

            III.   DID   THE   TRIAL  COURT   ABUSE    ITS
                   DISCRETION IN IMPOSING A MANIFSTLY [sic]
                   EXCESSIVE AND UNREASONABLE SENTENCE
                   WHICH FAILED TO CONSIDER REHABILITATIVE
                   NEEDS?

Appellant’s brief at 7.

      Appellant first argues that the evidence was insufficient to support his

conviction for REAP.       Specifically, appellant argues that there was no

evidence to support a finding that appellant placed Officer Labella in actual

danger or that he acted with the requisite mens rea. We disagree.

      In reviewing a claim challenging the sufficiency of the evidence to

support the verdict, we:

            view[] all the evidence admitted at trial in the light most
            favorable to the verdict winner, [and determine if] there
            is sufficient evidence to enable the fact-finder to find
            every element of the crime beyond a reasonable doubt.
            In applying [the above] test, we may not weigh the
            evidence and substitute our judgment for the fact-finder.


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            In addition, we note that the facts and circumstances
            established by the Commonwealth need not preclude
            every possibility of innocence. Any doubts regarding a
            defendant’s guilt may be resolved by the fact-finder
            unless the evidence is so weak and inconclusive that as a
            matter of law no probability of fact may be drawn from
            the combined circumstances. The Commonwealth may
            sustain its burden of proving every element of the crime
            beyond a reasonable doubt by means of wholly
            circumstantial evidence. Moreover, in applying the above
            test, the entire record must be evaluated and all evidence
            actually received must be considered. Finally, the trier of
            fact[,] while passing upon the credibility of witnesses and
            the weight of the evidence produced, is free to believe all,
            part or none of the evidence.

Commonwealth v. Troy, 832 A.2d 1089, 1092 (Pa.Super. 2003) (citations

omitted).

      Pursuant to 18 Pa.C.S.A. § 2705, “[a] person commits a misdemeanor

of the second degree if he recklessly engages in conduct which places or

may place another person in danger of death or serious bodily injury.”

“Serious bodily injury” is defined as injury that “creates a substantial risk of

death or which causes serious, permanent disfigurement, or protracted loss

or impairment of the function of any bodily member or organ.” 18 Pa.C.S.A.

§ 2301. To sustain a conviction for REAP, “the Commonwealth must prove

that the defendant had an actual present ability to inflict harm and not

merely the apparent ability to do so.”     Commonwealth v. Hopkins, 747

A.2d 910, 915 (Pa.Super. 2000). “Danger, not merely the apprehension of

danger, must be created.”      Id. at 916.     “The mens rea for recklessly




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endangering another person is ‘a conscious disregard of a known risk of

death or great bodily harm to another person.’” Id.

      Viewing    the   evidence    in   the   light   most   favorable   to   the

Commonwealth, as we must under our standard of review, we conclude the

evidence sufficiently supports appellant’s conviction.       The Commonwealth

presented the testimony of two police officers that witnessed appellant’s

actions. Officer Vitalbo testified that during the initial traffic stop, appellant

cut the wheel of his vehicle all the way to the left toward Officer Labella, who

was inches from the driver’s side door. (Notes of testimony, 4/17-18/13 at

42-43.) Officer Labella testified, “I asked him for his documents; his driver’s

license, proof of insurance.   He just kind of stared forward . . . He sort of

looked at me, cut the wheel as hard as he could to the left and just floored

it.” (Id. at 67.) Officer Labella testified that he had to jump backwards into

the opposing lane of traffic to avoid being hit by the car or getting his feet

run over. (Id. at 68, 70.)

      Clearly, these facts and the reasonable inferences drawn therefrom are

sufficient to permit the jury to have found appellant recklessly endangered

Officer Labella. At no time did it appear appellant was merely reckless; but

rather, he suddenly swerved his car purposefully toward the officer which

predictably would result in serious injury or even loss of life. The likelihood

that the officer would be injured or even killed was highly predictable.




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Appellant’s actions demonstrate the “conscious disregard of known risk”

which supports a conviction for REAP.

     Next, appellant argues that the trial court erred in denying the motion

to suppress.   When reviewing a challenge to a trial court’s denial of a

suppression motion, our standard of review is as follows:

           Our standard of review in addressing a challenge to
           the denial of a suppression motion is limited to
           determining whether the suppression court’s factual
           findings are supported by the record and whether
           the legal conclusions drawn from those facts are
           correct.     Because the Commonwealth prevailed
           before the suppression court, we may consider only
           the evidence of the Commonwealth and so much of
           the evidence for the defense as remains
           uncontradicted when read in the context of the
           record as a whole. Where the suppression court’s
           factual findings are supported by the record, we are
           bound by these findings and may reverse only if the
           court’s legal conclusions are erroneous. Where, as
           here, the appeal of the determination of the
           suppression court turns on allegations of legal error,
           the suppression court’s legal conclusions are not
           binding on an appellate court, whose duty it is to
           determine if the suppression court properly applied
           the law to the facts. Thus, the conclusions of law of
           the courts below are subject to our plenary review.

Commonwealth v. Hoppert, 39 A.3d 358, 361-362 (Pa.Super. 2012),

appeal denied, 57 A.3d 68 (Pa. 2012), quoting Commonwealth v. Jones,

988 A.2d 649, 654-656 (Pa. 2010).

     Specifically, appellant argues that the blood draw, which resulted in

the .242 BAC reading, was illegal as it was done without his consent and

there is no documentation supporting such a theory.     (Appellant’s brief at



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29.) Additionally, appellant avers that he was not in a physical or mental

state in which he could have voluntarily provided consent. (Id.)

      Initially, we keep in mind several principles. The withdrawal of blood

is a search subject to the protections of the Fourth Amendment to the United

States Constitution and Article I, Section 8 of the Pennsylvania Constitution.

Commonwealth v. Kohl, 615 A.2d 308, 312-315 (Pa. 1992). To require a

person to undergo a blood test, police must generally have probable cause

to believe the person has been driving under the influence of a controlled

substance. Id. at 313, 315-316; Commonwealth v. Thur, 906 A.2d 552,

567 (Pa.Super. 2006), appeal denied, 946 A.2d 687 (Pa. 2008). However,

it has long been established that absent probable cause, the withdrawal of

blood may be justified by showing the consent of the person in question.

See Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) (reiterating

that it is “well settled that one of the specifically established exceptions to

the requirements of both a warrant and probable cause is a search that is

conducted pursuant to consent.”).

      Recently, in Commonwealth v. Smith, 77 A.3d 562 (Pa. 2013), our

supreme court reversed a decision of this court that vacated multiple

convictions related to a fatal motor vehicle accident, including several counts

of DUI and one count of homicide by vehicle. Our supreme court observed

that a panel of this court had held that “[the police] failure to inform [Smith]

of the criminal consequences of the blood test had the effect of misleading



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or coercing [Smith], rendering his consent unknowing and invalid.”    Id. at

567. However, in reaching its decision to reverse this court’s determination,

our supreme court stated the following:

            [T]his Court has been clear that no one fact or
            circumstance      can   be    talismanic   in    the
            evaluation of the validity of a person’s consent.
            Accordingly, to the extent the Superior Court held
            that police officers must explicitly inform drivers
            consenting to blood testing that the results of the
            test may be used against them in criminal
            prosecutions in order for the consent to be valid, it
            went too far.

Id. at 572 (emphasis added) (citations omitted).

      In Smith, our supreme court went on to explain the validity of consent

to a blood test following an accident as follows:

            In determining the validity of a given consent, the
            Commonwealth bears the burden of establishing that
            a consent is the product of an essentially free and
            unconstrained choice--not the result of duress or
            coercion, express or implied, or a will overborne--
            under the totality of the circumstances.         The
            standard for measuring the scope of a person’s
            consent is based on an objective evaluation of what
            a reasonable person would have understood by the
            exchange between the officer and the person who
            gave the consent.     Such evaluation includes an
            objective examination of the maturity, sophistication
            and mental or emotional state of the defendant . . . .
            Gauging the scope of a defendant’s consent is an
            inherent and necessary part of the process of
            determining, on the totality of the circumstances
            presented, whether the consent is objectively valid,
            or instead the product of coercion, deceit, or
            misrepresentation.     See Commonwealth v.
            Cleckley, 558 Pa. 517, 738 A.2d 427, 433 (1999)
            (“one’s knowledge of his or her right to refuse
            consent remains a factor in determining the validity


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            of consent . . .” and whether the consent was the
            “result of duress or coercion.”)

Id. at 573 (some internal citations and quotation marks omitted). The court

in Smith reviewed the totality of the circumstances of the case and

ultimately concluded that Smith had consented to the blood testing; it

provided the following analysis:

            Objectively     considering   the   totality  of   the
            circumstances, we find that the trial court correctly
            found that Officer Agostino did not use deceit,
            misrepresentation, or coercion in seeking [Smith’s]
            consent for the blood draw and testing, thus not
            invalidating the blood draw or the results therefrom
            on those bases. Here, the facts reveal that [Smith]
            was a college graduate, was not injured, and was
            explicitly informed of his right to refuse the test.
            [Smith] further understood that the test was to rule
            out the possibility that alcohol or drugs were factors
            in the accident. With all of these understandings in
            mind and his faculties fully about him, [Smith]
            willingly went to the hospital and participated in the
            blood draw. On the basis of the totality of the
            evidence, when viewed objectively, we conclude that
            a reasonable person’s consent to this blood draw
            would have contemplated the potentiality of the
            results being used for criminal, investigative, or
            prosecutorial purposes.       Thus, Officer Agostino
            validly obtained from [Smith] his consent for the
            blood alcohol test.

Id. at 573-574 (footnotes omitted).

      Our review of the record reflects that the trial court specifically found

that appellant consented to the blood test. Likewise, our review of the facts

presented to the trial court leads us to the same conclusion. Officer Walters

testified that he was informed there was a crash possibly involving a DUI



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and he was needed in connection with a blood draw. (Notes of testimony,

4/17-18/13 at 15-20.) The officer was provided with appellant’s identifying

information and then introduced himself to appellant at the hospital and

explained that he was an impairment expert.               (Id. at 4, 12-13.)

Officer Walters was unaware of whether appellant had been treated with any

drugs or painkillers; however, when asked if appellant was lucid and

understood what he was saying, the officer testified that appellant was able

to answer all of the questions asked.      (Id. at 4-5, 10, 12.)    Specifically,

Officer Walters testified that appellant gave permission for blood that had

already been drawn to be tested for blood alcohol content. (Id. at 5, 12.)

The officer testified that if appellant had refused, he would have documented

the refusal in his paperwork. (Id. at 5-7.) Within a few hours of the blood

draw, appellant left the hospital on foot and under his own power. (Id. at

13-19.) There was no evidence presented at the suppression hearing that

appellant’s consent was the product of duress, coercion, or undue pressure.

Appellant himself testified that he was told he would be free to go and would

be contacted later about a citation. (Id. at 23.)

      Appellant’s argument is based on the assertion that he was a

“bloody mess.”    (Appellant’s brief at 21.)    We note that Officer Walters

conceded that appellant’s face was bloody. However, there is no support for

the assumption that the blood on appellant’s face or his physical injuries

resulted in his inability to give consent. The trial court also found appellant’s



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testimony was “not credible as his statements were inconsistent and

self-serving.” (Trial court opinion, 5/7/14 at 5.)

      We are constrained to conclude that under the totality of the

circumstances, appellant possessed the minimal awareness necessary to

consent to blood testing. As the court concluded in Smith, “[o]n the basis

of the totality of the evidence, when viewed objectively, we conclude that a

reasonable person’s consent to this blood draw would have contemplated the

potentiality of the results being used for criminal, investigative, or

prosecutorial purposes.” Smith, supra at 573.

      The final issue presented concerns the discretionary aspects of

sentencing. Appellant is challenging the discretionary aspects of sentencing

for which there is no automatic right to appeal. Commonwealth v. Koren,

646 A.2d 1205, 1207 (Pa.Super. 1994).           This appeal is, therefore, more

appropriately considered a petition for allowance of appeal.      42 Pa.C.S.A.

§ 9781(b).     Two requirements must be met before a challenge to the

judgment of sentence will be heard on the merits. Koren, supra. First, the

appellant must set forth in his brief a concise statement of the reasons relied

upon for allowance of appeal with respect to the discretionary aspects of his

sentence.    Id.; Pa.R.A.P. 2119(f).    Second, he must show that there is a

substantial question that the sentence imposed is not appropriate under the

Sentencing Code.     42 Pa.C.S.A. § 9781(b); Commonwealth v. Urrutia,

653 A.2d 706, 710 (Pa.Super. 1995).



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      The determination of whether a particular issue raises a substantial

question is to be evaluated on a case-by-case basis.     Commonwealth v.

Maneval, 688 A.2d 1198, 1199-1200 (Pa.Super. 1997).                Generally,

however, in order to establish a substantial question, the appellant must

show actions by the sentencing court inconsistent with the Sentencing Code

or contrary to the fundamental norms underlying the sentencing process.

Id.

      Appellant has included in his brief the mandatory concise statement of

reasons relied upon for allowance of appeal from the discretionary aspects of

his sentence. (Appellant’s brief at 7-8.) Therein, appellant complains that

his sentence, which was within the statutory limits, was manifestly excessive

because the court focused solely on the protective needs of the community

and failed to consider his rehabilitative needs.   (Appellant’s brief at 39.)

Such an argument does not raise a substantial question. Commonwealth

v. Edwards, 71 A.3d 323 (Pa.Super. 2013), appeal denied, 81 A.3d 75

(Pa. 2013), quoting Commonwealth v. Dunphy, 20 A.3d 1215, 1222

(Pa.Super. 2011) (a panel of this court has determined an allegation that the

sentencing court “failed to consider” or “did not adequately consider” various

factors does not raise a substantial question that the sentence was

inappropriate).




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     Judgment of sentence affirmed.



Strassburger, J. files a Concurring Memorandum.

Wecht, J. concurs in the result of the Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/18/2014




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