J-S33005-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     :     IN THE SUPERIOR COURT OF
                                                 :          PENNSYLVANIA
                                                 :
                      v.                         :
                                                 :
RACHEL ELIZABETH STIGER                          :
                                                 :
                              Appellant          :
                                                 :     No. 228 WDA 2015

              Appeal from the Judgment of Sentence January 9, 2015
       in the Court of Common Pleas of Allegheny County Criminal Division
                        at No(s): CP-02-CR-0005651-2014

BEFORE: GANTMAN, P.J., OLSON, J., AND FITZGERALD,* J.

MEMORANDUM BY FITZGERALD, J.:                                 FILED MAY 05, 2016

        Appellant, Rachel Elizabeth Stiger, appeals from the judgment of

sentence imposed in the Allegheny County Court of Common Pleas following

her convictions for two counts of driving under the influence (“DUI”)1 and

one count of failure to stop at a red signal.2             Appellant argues the Port

Authority officer did not have authority to stop Appellant’s vehicle, she was

arrested    without        probable   cause,   and   the   Commonwealth   unlawfully

obtained a blood sample in the absence of a warrant. We affirm.

        On December 8, 2013, Officer Dominic Ravotti, of the Port Authority of

Allegheny County Police Department, arrested Appellant for DUI. On August


*
    Former Justice specially assigned to the Superior Court.
1
    75 Pa.C.S. § 3802(a)(1), (c).
2
    75 Pa.C.S. § 3112(a)(3)(i).
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19, 2014, Appellant filed an omnibus pretrial motion alleging Officer Ravotti

exceeded his “limited jurisdiction” when he stopped her, he did not have the

requisite reasonable suspicion or probable cause to stop Appellant, and he

unlawfully coerced her consent to have her blood drawn. Omnibus Pre-Trial

Mot., 8/19/14, at 3-8. The trial court held a hearing on October 10, 2014,

at which the only evidence introduced was the testimony of Officer Ravotti.

We summarize the salient facts from the hearing as follows.

      At the time of the hearing, Officer Ravotti had been a police officer for

ten years and employed by the Port Authority of Allegheny County Police

Department for one year. N.T. Suppress Hr’g, 10/10/14, at 4. He is dually

certified as a railway officer and through the Municipal Officer’s Education

and Training Commission.     Id. at 4-5.   He described his duties as a Port

Authority officer:

            As an officer for Port Authority we are to patrol and
            protect all Port Authority property, all Port Authority
            bus routes, light rail transit routes and [] bus stops
            and whatnot . . . [D]epending on the hours of the
            day we do different duties. On a daylight shift, it’s
            more the downtown area with the large amount of
            traffic downtown. On midnight we are put more
            towards checking on bus shelters due to a large
            amount of vandalism and people sleeping in bus
            shelters and keeping – setting up homes in basically
            shelters so that people can use our shelters correctly
            whenever morning comes.

Id. at 5.

      On December 8, 2013, Officer Ravotti was “patrolling the Liberty

Avenue area” in Pittsburgh checking multiple bus stops and shelters along


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that road.3 Id. at 6. He testified there is a busway ramp at Liberty Avenue

and 16th Street. Id. He recounted what drew his attention to Appellant:

                   That night I was stopped at a traffic light on 16th
                Street at Liberty Avenue, I was behind another
                private auto. I noticed our light turn green; the
                private auto kept on to travel and turned outbound
                onto Liberty Avenue. At that time the vehicle got
                about halfway into the intersection and had to come
                to a complete stop. At that time I had to come to a
                complete stop almost striking the vehicle in front of
                me. I noticed a green colored Subaru traveling
                outbound on Liberty Avenue go through a steady red
                signal.

Id.

      Officer Ravotti then activated his emergency lights and effected a

traffic stop.    Id. at 6-8.   When he approached the vehicle, Officer Ravotti

observed that Appellant, the driver of the vehicle, had bloodshot, glassy

eyes, detected an odor of alcohol, and noticed Appellant’s speech was

“slurred.”   Id. at 9.     Appellant admitted she had consumed alcohol.    Id.

Officer Ravotti requested that Appellant perform field sobriety tests.     Id.

Appellant was “unsteady” as she left her vehicle and “was having a hard

time standing still.” Id. at 10. Officer Ravotti asked Appellant to recite the

“ABCs” beginning with “C.” Id. Appellant began by reciting “A,” stopped on

a letter twice, and “slurred a couple letters.” Id. Officer Ravotti then asked


3
 Officer Ravotti indicated there is a bus stop at approximately every block
and a bus shelter approximately every other block along Liberty Avenue.
N.T. at 6.




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Appellant to complete “the finger touch test.” Id. He demonstrated how to

perform the task for Appellant; however, when she attempted, she counted

incorrectly and used the wrong fingers. Id. at 10-11. Lastly, Officer Ravotti

asked Appellant to perform “the nose touch test;” Appellant missed her nose

and used the wrong hand on two of her attempts.           Id.    Officer Ravotti

determined Appellant failed all three tests and arrested her for DUI. Id. at

9, 11.

         Officer Ravotti transported Appellant to Allegheny General Hospital for

a blood test. Id. at 11. He testified Appellant consented to the blood draw.

Id. at 12.     He specifically noted he reviewed with Appellant the PennDOT

DL-26 form,4 which he and Appellant signed, and she signed a separate

hospital consent form.5 Id. at 12-13. Appellant had a blood alcohol content

(“BAC”) of .184%. Id. at 14.

         The trial court permitted the parties to file memoranda and heard oral

arguments on November 21, 2014.              The court denied the motion to

suppress, and Appellant proceeded to a stipulated nonjury trial at which she

was found guilty of the aforementioned offenses.6 On January 9, 2015, the


4
    See 75 Pa.C.S. § 1547.
5
  We note the DL-26 form and the hospital consent form were admitted
without objection into evidence. However, they do not appear in either the
certified or the reproduced record.
6
   The trial court acquitted Appellant of careless driving, 75 Pa.C.S.
§ 3714(a).



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court sentenced Appellant to ninety days of intermediate punishment and a

concurrent term of eighteen months’ probation for DUI—highest rate of

alcohol. Sentencing Order, 1/9/15. The court granted Appellant’s request

for bail pending appeal.

      Appellant filed a timely notice of appeal on February 6, 2015, and a

court-ordered Pa.R.A.P. 1925(b) statement on March 10, 2015.         The trial

court authored a responsive opinion.

      On appeal, Appellant raises the following issues:

            A. Whether or not Port Authority Officer Ravotti had
            the jurisdictional authority under the Railroad and
            Street Railway Police Act, 22 Pa.C.S.A. § 3303(a), to
            perform a traffic stop of [] Appellant’s vehicle while
            she was driving on a public highway, not a roadway
            that was used exclusively for Port Authority vehicles?

            B. Whether or not there was probable cause to arrest
            [Appellant] for the offense of DUI when Port
            Authority Officer Ravotti did not administer
            standardized field sobriety tests but instead, relied
            on arbitrary testing that has not been standardized
            or associated with alcohol impairment on any
            scientific level?

            C. Whether or not [Appellant] was subjected to an
            unlawful search and seizure of her blood when the
            Port Authority officer failed to obtain a search
            warrant before conducting a blood draw?

Appellant’s Brief at 4.

      Appellant first argues that “Officer Ravotti was not acting within his

primary jurisdiction for the Port Authority when he stopped Appellant’s

vehicle.” Id. at 11. She contends the intersection where the stop occurred



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was a public highway, and the evidence did not establish that the

intersection is “in the immediate and adjacent vicinity of Port Authority

Property.” Id. at 12. She argues further that Officer Ravotti did not have

extraterritorial jurisdiction.   Id. at 15.   Appellant reasons that because no

bus service was running at the time, “then the bus stops and shelters were

empty and no passengers were present.” Id. Moreover, she contends there

was insufficient evidence to establish her conduct placed Port Authority

personnel, property, or passengers in jeopardy. Id. at 16. Appellant posits

that affirming the trial court “will permit Port Authority police to patrol

throughout the county under the ruse that they are checking bus shelters.”

Id. at 18. We disagree.

      Our standard of review is well settled.

             An appellate court may consider only the
             Commonwealth’s evidence 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 record supports the factual findings of the
             trial court, the appellate court is bound by those
             facts and may reverse only if the legal conclusions
             drawn therefrom are in error. However, it is also
             well settled that an appellate court is not bound by
             the suppression court’s conclusions of law.

                                    *    *     *

             In appeals from suppression orders, our scope of
             review is limited to the evidence presented at the
             suppression hearing.

Commonwealth v. Caple, 121 A.3d 511, 517-18 (Pa. Super. 2015)

(citations and footnote omitted).


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      Further, it is within the sole province of the suppression court to

determine the credibility of witnesses and the weight to afford testimony.

Commonwealth v. Angel, 946 A.2d 115, 117 (Pa. Super. 2008).

      The power of Port Authority officers is codified at 22 Pa.C.S. § 3303

and provides, in relevant part:

            (a) General powers.—Railroad and street railway
            policeman shall severally possess and exercise all the
            powers of a police officer in the City of Philadelphia,
            in and upon and in the immediate and adjacent
            vicinity of, the property of the corporate authority or
            elsewhere within this Commonwealth while engaged
            in the discharge of their duties in pursuit of railroad,
            street railway or transportation system business.

22 Pa.C.S. § 3303(a).

      Our Supreme Court noted, “the Act plainly includes aspects of both

primary or derivative jurisdiction . . . and a distinct, direct grant of

extraterritorial authority . . . .” Commonwealth v. Firman, 813 A.2d 643,

647 (Pa. 2002). The Court acknowledged:

            by conditioning the grant of extraterritorial
            jurisdiction on engagement in the discharge of duties
            in pursuit of transportation system business, the
            General Assembly intended to require a closer
            connection     between   the    interests   of   the
            transportation system and encounters in which police
            powers are to be exercised than mere “on-duty”
            status of transportation system police on the
            observation of offenses.

Id.

      The Court held the following situation creates a sufficient connection

enabling an officer to exercise extraterritorial jurisdiction:


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            In circumstances in which a motorist’s conduct
            on a public highway jeopardizes Port Authority
            personnel, property, or passengers (here the
            transportation system officer and the authority
            vehicle that he was operating), we conclude
            that a sufficient connection to transportation
            system business arises such that extrajudicial
            jurisdiction of Port Authority policeman is
            implicated.     Once police power is so enabled,
            absent a sufficient break in the encounter, its
            exercise may continue through an investigatory stop
            and/or arrest, where otherwise warranted.

Id. at 648 (emphasis added and footnote omitted).

      Instantly, the uncontradicted testimony of Officer Ravotti established

that while he was on duty and driving toward an intersection on a public

roadway, with a green traffic light, Appellant drove through a steady red

light on the intersecting road.   N.T. at 6. His unrebutted testimony further

demonstrated he was patrolling bus stations and shelters to protect them

from vandalism and unauthorized occupants and ensure they were in good

order for morning commuters.       Id. at 5; accord 22 Pa.C.S. § 3303(a).

While discharging his duties, Appellant’s traffic violation caused the vehicle

directly in front of Officer Ravotti to come to an abrupt stop in the middle of

the intersection and forced him to bring his vehicle to a complete stop to

avoid an accident with said vehicle. N.T at 5.   Accordingly, we conclude the

suppression record amply supports the trial court’s determination, and we




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discern no legal error.7 See Caple, 121 A.3d at 517-18; Firman, 813 A.2d

648.

       Moreover, in light of the facts of this case, i.e., Appellant’s actions

causing a disturbance in traffic and a near-accident between Officer Ravotti

and another motorist, we are unpersuaded by Appellant’s policy argument

that our ruling will permit Port Authority officials from patrolling beyond their

jurisdiction under the ruse of checking bus shelters. See Appellant’s Brief at

18. The Firman Court clarified that a Port Authority officer’s extraterritorial

jurisdiction is properly invoked when a motorist’s conduct jeopardizes Port

Authority personnel, property, or passengers, as Appellant’s actions in this

case did. See Firman, 813 A.2d at 648.

       Next, Appellant contends there was no probable cause to arrest her for

DUI because the field sobriety exercises Officer Ravotti asked Appellant to

perform “are not standardized or associated with alcohol impairment on any

scientific level.”   Appellant’s Brief at 18.   She argues, “the information

gathered from these tests is untrustworthy and does not provide an

objective basis to establish probable cause” and that without consideration


7
  We note the trial court relied primarily on Officer Ravotti’s testimony that
there were bus stops every block and bus shelters every other block in
determining he exercised primary jurisdiction. Trial Ct. Op., 7/8/15, at 3
(unpaginated). Although our reasoning differs than the trial court’s, we
agree Officer Ravotti was acting within his jurisdiction. Furthermore, we
may affirm on any basis. Commonwealth v. Clouser, 998 A.2d 656, 661
n. 3 (Pa. Super. 2010).




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of Officer Ravotti’s testimony, the trial court could not find there was

probable cause to arrest. Id. at 21, 23. Appellant is due no relief.

      This Court has explained:

            [p]robable cause exists where the officer has
            knowledge of sufficient facts and circumstances to
            warrant a prudent person to believe that the driver
            has been driving under the influence of alcohol or a
            controlled substance. Additionally, [p]robable cause
            justifying a warrantless arrest is determined by the
            totality of the circumstances. Furthermore, probable
            cause does not involve certainties, but rather the
            factual and practical considerations of everyday life
            on which reasonable and prudent [persons] act.

Angel, 946 A.2d at 118 (citations and quotation marks omitted).

      Viewing the uncontradicted evidence presented by the Commonwealth,

under the totality of the circumstances, Officer Ravotti had knowledge of

sufficient facts and circumstances to warrant the belief that Appellant had

been driving under the influence of alcohol.      See Freeman, 128 A.3d at

1240; Angel 946 A.2d at 118.         After stopping Appellant, Officer Ravotti

detected classic signs of intoxication, i.e., odor of alcohol, Appellant’s glassy

eyes and slurred speech. N.T. at 9; see Angel, 946 A.2d at 118. Appellant

admitted to Officer Ravotti she had consumed alcohol, she was unsteady on

her feet, and she was unable to follow his instructions.          N.T. at 9-11.

Specifically, she was unable to recite the alphabet as instructed, unable to

touch her fingers to her thumb according to Officer Ravotti’s direction and

after he modeled how to perform the task, and she was unable to touch her

nose as instructed. Id. Appellant asks this Court to reassess the officer’s


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credibility and reweigh his testimony.        See Appellant’s Brief at 23 (“[t]he

trial court’s finding . . . is based on the weight given to the unvalidated

exercises”). Pursuant to our standard of appellate review over suppression

challenges, we decline to do so. See Angel, 946 A.2d at 117. Accordingly,

the record supports the trial court’s ruling, and we discern no error of law.

See Caple, 121 A.3d at 517-18.

     For   Appellant’s   last   issue,    she     argues   the   blood   sample   the

Commonwealth tested to determine her BAC was taken without a warrant in

“contravention” of her constitutional rights.        Appellant’s Brief at 24.     She

relies on this Court’s decision in Commonwealth v. Myers, 118 A.3d 1122

(Pa. Super. 2015), appeal granted, 131 A.3d 480 (Pa. 2016), “for the

proposition that the implied consent statute does not provide the actual

consent that is necessary to obtain a chemical result and it is not an

exception to the warrant requirement.” Id. at 27. She posits that there was

“no exception to the warrant requirement” present in this case. Id. at 28.

We find Appellant’s reliance on Myers misplaced.

      The administration of a blood test is a search under the Fourth

Amendment of the U.S. Constitution and Article I, Section 8 of the

Pennsylvania Constitution.      Commonwealth v. Kohl, 615 A.2d 308, 312,

315 (Pa. 1992).

           A search conducted without a warrant is
           constitutionally impermissible unless an established
           exception applies. A consensual search is one such
           exception, and the central inquiries in consensual


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           search cases entail assessment of the constitutional
           validity of the citizen/police encounter giving rise to
           the consent, and the voluntariness of the consent. . .
           . Where the underlying encounter is lawful, the
           voluntariness of the consent becomes the exclusive
           focus.

Commonwealth v. Caban, 60 A.3d 120, 127 (Pa. Super. 2012).

     In Myers, the defendant was arrested on suspicion of DUI and

transported to the hospital. Myers, 118 A. 3d at 1124. The police officer

who responded to the hospital observed the defendant unconscious and

unresponsive. Id. After attempts to have Appellant respond to the officer

were unsuccessful, the officer read the “standard informed consent

warnings” to the unconscious defendant. Id.    The defendant never signed

consent warnings, and no warrant for the defendant’s blood was secured;

however, the police officer obtained a warrantless blood sample from the

defendant. Id.

     The defendant sought suppression in the Municipal Court based on,

inter alia, the warrantless draw of his blood.    Id.   The Municipal Court

granted the suppression motion with respect to the blood because it

concluded the defendant was unconscious and could not consent, and “it was

not unreasonable” for the Commonwealth to obtain a warrant under the

circumstances.   Id. at 1124-25.   The Philadelphia Court of Common Pleas

affirmed the ruling, and the Commonwealth appealed to this Court. Id. at

1125. This Court acknowledged that defendant’s case was unique because

the defendant did not have an opportunity to refuse the blood draw:


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            Pennsylvania’s implied consent statute provides a
            driver under arrest with the statutory right of refusal
            to blood testing, see 75 Pa.C.S. § 1547(b)(1) (“If
            any person placed under arrest for a violation of
            Section 3802 is requested to submit to chemical
            testing and refuses to do so, the testing shall not be
            conducted. . . .”).     As discussed, Section 1547
            provides for chemical testing when consent is not
            withdrawn pursuant to subsection (b)(1), and
            precludes a blood draw when consent is withdrawn
            and imposes penalties. Here, [the defendant] was
            arrested for DUI and transported to the hospital, but
            was not given the applicable warnings until a later
            time, at which point he could not claim the statutory
            protection of Section 1547(b)(1).

Id. at 1129 (footnote omitted).       We affirmed the suppression court’s

determination concluding the defendant could not refuse testing or consent

to the blood test and exigent circumstances did not excuse the warrantless

blood draw.8

     As discussed supra, there was probable cause supporting Appellant’s

arrest. Therefore, our task is limited to evaluating the voluntariness of her

consent.   See Caban, 60 A.3d at 127.        Officer Ravotti testified Appellant

consented to the blood draw, he went over the implied consent form with

Appellant, both the officer and Appellant signed the form, and Appellant

signed a separate hospital consent form. N.T. at 12-13.            There is no


8
  We found the case was controlled by the United States Supreme Court
decision in Missouri v. McNeely, 133 S. Ct. 1552 (2013), which held “in
drunk-driving investigations, the natural dissipation of alcohol does not
constitute an exigency in every case sufficient to justify conducting a
blood test without a warrant.” Myers, 118 A. 3d at 1130 (discussing
McNeely, 133 S. Ct. at 1568).



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evidence of record to suggest Appellant was unable to consent like the

defendant in Myers or that Officer Ravotti coerced Appellant’s consent.

Rather, the uncontradicted evidence presented at the suppression hearing

was that Appellant consented, following her arrest, to having her blood

drawn. Id.; see Freeman, 128 A.3d at 1240          Appellant’s suggestion that

the trial court relied solely on the signed consent forms as evidence of her

consent is not supported by the record.       Thus, we conclude the record

supports the trial court’s finding that Appellant consented, and therefore, her

suppression motion was properly denied. See Caple, 121 A.3d at 517-18.

      Based on the foregoing, we affirm.

      Judgement of sentence affirmed.


Gantman, P.J. joins the Memorandum. Olson, J. Concurs in the
Result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/5/2016




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