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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                    :
                                          :
REGIS BURLEY,                             :           No. 1480 EDA 2016
                                          :
                         Appellant        :


             Appeal from the Judgment of Sentence, April 27, 2016,
                in the Court of Common Pleas of Lehigh County
               Criminal Division at No. CP-39-CR-0003070-2015


BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MOULTON, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED FEBRUARY 08, 2017

        Regis Burley appeals from the judgment of sentence entered April 27,

2016,1 in the Court of Common Pleas of Lehigh County, following his

conviction in a waiver trial of two counts of driving under the influence of a

controlled substance (“DUI”).2       The trial court sentenced appellant to

72 hours to 6 months of imprisonment. We affirm.

        The trial court summarized the facts as follows:

              On November 1, 2014, at approximately 3:10 A.M.,
              Trooper Eddie Pagan of the Pennsylvania State
              Police, Bethlehem Barracks, was dispatched to the

1
  Although appellant identifies his appeal as lying from the order finding him
guilty, the appeal properly lies from the judgment of sentence. We will,
therefore, treat this appeal as having been properly taken from the
judgment of sentence. See Commonwealth v. O’Neill, 578 A.2d 1334,
1335 (Pa.Super. 1990).
2
    75 Pa. C.S.A. §§ 3802(d)(1)(ii) and 3802(d)(3).
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          scene of a one (1) car vehicular accident on Irving
          Street, near the intersection with Postal Road,
          Allentown, Lehigh County, Pennsylvania.        This
          location was approximately two (2) to three (3)
          miles from Trooper Pagan’s then present location.
          The accident had been called in by a witness to the
          accident at about 3:00 A.M.[Footnote 3]

               [Footnote 3] The witness who had called
               911 remained on the scene and Trooper
               Pagan had the opportunity to speak with
               him.

                      In addition, Trooper Hodgskins
               testified that the area of the crash is an
               industrial/commercial location, and there
               is typically medium to heavy traffic on
               Irving Street at that time of night due to
               truck deliveries. Therefore, this Court
               found that the circumstantial evidence
               overwhelmingly showed that the accident
               occurred within minutes of it being called
               into the telecommunication center by the
               passerby. In addition, the fact that the
               [appellant’s] nose was bleeding further
               supported that no substantial time
               passed between the accident and the
               troopers’ arrival on scene.

          Trooper Pagan, in full uniform and in a marked police
          cruiser, responded to the scene, along with his
          partner, Trooper Michael Hodgskins.[Footnote 4]
          Upon arriving on scene, Trooper Pagan and
          Trooper Hodgskins observed a red Toyota Celica at
          the bottom of a hill, pressed against a tree in a
          grassy area approximately one hundred (100) feet
          off   the    roadway.         Trooper   Pagan    and
          Trooper Hodgskins walked down the hill and
          approached the driver’s side of the vehicle.
          [Appellant] was seated in the driver’s seat, holding
          the steering wheel.      Trooper Pagan spoke with
          [appellant], who exited the subject vehicle.
          Trooper Pagan and Trooper Hodgskins posed general
          questions to [appellant] to determine if medical


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          treatment was necessary and in furtherance of the
          investigation.[Footnote 5]

               [Footnote 4]       Five (5) troopers
               responded to the scene, because initially
               the extent of the injuries were [sic]
               unknown.

               [Footnote 5] At the time of the bench
               trial, this Court denied [appellant’s]
               Motion to Suppress his Statements.
               [Appellant] argued that he was in
               custody at the time that he made a
               statement to the authorities, and
               consequently it was obtained in violation
               of his rights.      However, the video
               evidence         demonstrated        that
               Trooper Hodgskins stated to another
               trooper that “This is a DUI.” Unsolicited
               and without prompting, [appellant]
               stated, “It is a DUI. I should be home.”
               Consequently, this Court found that the
               statement made by Trooper Hodgskins
               was not made to elicit an incriminating
               response from [appellant], and therefore
               [appellant’s] spontaneous comment was
               not suppressed.

          Trooper Pagan and Trooper Hodgskins noted that
          [appellant’s] nose was bleeding and that he had his
          eyes closed. When [appellant] opened his eyes,
          Trooper Pagan observed that his eyes were glassy
          and bloodshot. Furthermore, Trooper Pagan and
          Trooper Hodgskins smelled alcohol on [appellant’s]
          breath. [Appellant] was disoriented, unsteady on his
          feet, and incoherent. Indeed, [appellant] did not
          know where he was and could not respond
          appropriately to the basic questions posed to him by
          Trooper Pagan.      Also, [appellant’s] speech was
          slurred and he appeared disheveled.

          Trooper Pagan and Trooper Hodgskins could not
          successfully administer field sobriety tests to
          [appellant] because he was unable to follow


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          directions, and they was [sic] not certain [of] the
          extent of [appellant’s] injuries.

          [Appellant] was transported to Lehigh Valley Hospital
          – Muhlenberg Campus, via ambulance. At Lehigh
          Valley    Hospital,  Trooper    Pagan[Footnote    6]
          requested that blood be drawn from [appellant],
          because in his experience and training, he believed
          that [appellant] was under the influence of alcohol
          and incapable of safe driving based on his
          observations of [appellant] and the scene of the
          accident.     Consequently, in Trooper Pagan’s
          presence, blood was drawn from [appellant] at
          4:06 A.M. Trooper Pagan transported the blood to
          Health Network Laboratories to be tested.

               [Footnote 6]     Trooper Hodgskins also
               believed, in his training and experience,
               that [appellant] was under the influence
               of alcohol and incapable of safe driving.
               In fact, Trooper Hodgskins indicated that
               he believed that [appellant’s] blood
               alcohol content was going to be quite
               high, based on [appellant’s] behavior on
               [the] scene.        Indeed, inter alia,
               [appellant] was unsteady of [sic] his
               feet, unable to answer questions, and
               could not follow directions.

          [Appellant’s] blood alcohol content was .07. When
          Trooper Pagan received the laboratory results, he
          requested that the blood be retested for the
          presence of controlled substances due to his
          observations at the scene.[Footnote 7] [Appellant’s]
          blood was retested, and the lab results revealed that
          the blood sample contained 38.3 ng/ml PCP
          (Phencyclidine).[Footnote 8]

               [Footnote 7]     Initially Trooper Pagan
               believed that [appellant] was under the
               influence of alcohol. However, when the
               blood test result came back as .07%,
               Trooper Pagan then believed that



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                     [appellant] was under the influence of a
                     controlled substance.

                     [Footnote 8]        Melanie Stauffer, a
                     certifying scientist for Health Network
                     Laboratories, a licensed and approved
                     laboratory to determine blood alcohol
                     and drug content, testified with regard to
                     the chain of custody of the blood sample.
                     She explained that one (1) blood
                     specimen     had     been    drawn     from
                     [appellant].    Initially the blood was
                     tested for alcohol. This initial testing of
                     the blood occurred on November 3,
                     2014, at 11:02 P.M.        Thereafter, the
                     blood was placed in long term storage
                     until November 21, 2014. At that time,
                     the blood was retested for the presence
                     of a controlled substance.         Melanie
                     Stauffer acknowledged that the chain of
                     custody form failed to denote this second
                     testing, but that the blood was properly
                     maintained and retested according to lab
                     procedures.    Consequently, in light of
                     Melanie Stauffer’s testimony at trial, this
                     Court did not find a viable chain of
                     custody issue.

Trial court opinion, 6/3/16 at 2-5 (paragraph numbering and citations to trial

exhibits omitted).

      The record further reflects that appellant did not file post-sentence

motions. Rather, appellant filed a timely notice of appeal to this court, and

then complied with the trial court’s order directing him to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

The trial court then filed its Rule 1925(a) opinion.

      Appellant raises the following issues for our review:



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             I.     WHETHER THE TRIAL COURT ERRED IN
                    FAILING    TO   SUPPRESS      [APPELLANT’S]
                    STATEMENT MADE AFTER THE POLICE STATED
                    “THIS IS DEFININTELY [SIC] A DUI[?]”

             II.    WHETHER THE TRIAL COURT’S VERDICT WAS
                    AGAINST THE WEIGHT OF THE EVIDENCE
                    BECAUSE THE COMMONWEALTH DID NOT
                    PRESENT SUFFICIENT TESTIMONY REGARDING
                    THE CHAIN OF CUSTODY OF [APPELLANT’S]
                    BLOOD AND TESTING THEREOF[?]

             III.   WHETHER THE TRIAL COURT’S VERDICT WAS
                    AGAINST THE WEIGHT OF THE EVIDENCE
                    BECAUSE THE COMMONWEALTH DID NOT
                    PRESENT SUFFICIENT TESTIMONY REGARDING
                    THE ACTUAL OPERATION OF A MOTOR
                    VEHICLE[?]

             IV.    WHETHER THE COMMONWEALTH FAILED TO
                    PRESENT SUFFICIENT EVIDENCE TO SUSTAIN
                    A CONVICTION UNDER 75 PA. § 3802[?]

Appellant’s brief at 5.

        Appellant first complains that the trial court erred when it denied his

motion to suppress a statement he made because when appellant made that

statement, he was subject to a custodial interrogation and was not given his

Miranda3 warnings. Our standard of review for challenges to the denial of a

suppression motion is as follows:

             [We are] 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

3
    Miranda v. Arizona, 384 U.S. 436 (1966).


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             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 . . . 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. McAdoo, 46 A.3d 781, 783-784 (Pa.Super. 2012),

appeal denied, 65 A.3d 413 (Pa. 2013) (citations omitted).

        Here, no dispute exists that appellant was in police custody and had

not yet received his Miranda warnings when he stated, “This is definitely a

DUI.”     The inquiry, therefore, is whether the police were interrogating

appellant at the time he made the statement. Interrogation occurs when the

police should know that their words or actions are reasonably likely to elicit

an incriminating response, and the circumstances must reflect a measure of

compulsion     above   and    beyond    that   inherent   in   custody   itself.

Commonwealth v. Bracey, 461 A.2d 775, 780 (Pa. 1983).                The law is

clear, however, that a spontaneously volunteered statement is admissible

notwithstanding a prior assertion of constitutional rights.    In re D.H., 863

A.2d 562, 566 (Pa.Super. 2004) (citations omitted).            Indeed, as our

supreme court has held, “Miranda does not preclude the admission of

spontaneous utterances.”     Commonwealth v. Johnson, 42 A.3d 1017,



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1029 (Pa. 2012).      In fact, our supreme court has often repeated that

volunteered or spontaneous statements that are not the product of police

conduct are admissible even when the suspect has not received Miranda

warnings.    See Commonwealth v. Baez, 720 A.2d 711, 720 (Pa. 1998)

(reiterating that it is “well established in Pennsylvania that volunteered or

spontaneous utterances are admissible even though the declarant was not

‘Mirandized’”); see also Commonwealth v. Gibson, 720 A.2d 473, 480

(Pa. 1998) (repeating that “[i]t is well settled that a gratuitous utterance,

unsolicited by the police, is admissible and that Miranda warnings are

unnecessary under such circumstances”).

     Here, the record reflects that the trial court admitted video evidence at

trial. That evidence demonstrated that as troopers attempted to administer

field sobriety tests to appellant, Trooper Hodgskins said to his colleagues,

“This is a DUI.”       (Commonwealth Trial Exhibit 7.)        Appellant then

immediately stated, “This is definitely a DUI.” (Id.) This court’s review of

the video evidence supports the trial court’s conclusion that appellant’s

statement was not responsive to any question asked of him by law

enforcement. Rather, appellant’s statement was an unsolicited, spontaneous

remark.     Therefore, the trial court properly denied appellant’s motion to

suppress the statement.

     Appellant’s second and third issues challenge the weight of the

evidence.    Specifically, appellant complains that the testimony failed to



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adequately support the chain of custody of his blood draw, as well as his DUI

conviction. In order to raise a weight claim on appeal, Pennsylvania Rule of

Criminal Procedure 607 requires appellant to raise the claim with the trial

judge in a motion for a new trial “(1) orally, on the record, at any time

before sentencing; (2) by written motion at any time before sentencing; or

(3) in a post-sentence motion.” Pa.R.Crim.P. 607(A). “The purpose of this

rule is to make it clear that a challenge to the weight of the evidence must

be raised with the trial judge or it will be waived.”       Pa.R.Crim.P. 607,

comment.

      Our review of the certified record reveals that appellant failed to file

any post-sentence motions. Additionally, a review of the trial transcript and

the sentencing transcript reveals that appellant failed to raise his weight

claims with the trial judge at any time before sentencing.          Therefore,

appellant waives his second and third issues on appeal.

      Appellant finally challenges the sufficiency of the evidence to sustain

his DUI conviction. It is well settled that when challenging the sufficiency of

the evidence on appeal, that in order to preserve that issue for appeal, an

appellant’s Rule 1925(b) statement must specify the element or elements

upon which the evidence was insufficient. Commonwealth v. Gibbs, 981

A.2d 274, 281 (Pa.Super. 2009), appeal denied, 3 A.3d 670 (Pa. 2010)

(citation and internal quotation marks omitted). Here, in his Rule 1925(b)

statement, appellant frames his sufficiency challenge as follows:         “The



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Commonwealth did not present sufficient evidence to sustain a conviction

under 75 Pa.[C.S.A.] § 3802.” (Concise statement of matters complained of

on appeal, 6/2/16 at 1, ¶B; Docket #20.) Appellant’s sufficiency claim as

set forth in his Rule 1925(b) statement fails to identify which element or

elements of DUI the Commonwealth allegedly failed to prove. Accordingly,

appellant waives his sufficiency challenge on this basis alone.

      We do note, however, that a review of appellant’s brief on this issue

demonstrates that appellant does nothing more than incorporate his weight

challenges and rehash the trial evidence in an attempt to convince this court

that he did not drive under the influence of a controlled substance. In so

doing, appellant’s argument on this issue, therefore, challenges the weight

of the evidence, not its sufficiency. See, e.g., Gibbs, 981 A.2d at 281-282

(an argument that the fact-finder should have credited one witness’

testimony over that of another witness goes to the weight of the evidence,

not the sufficiency of the evidence); Commonwealth v. Wilson, 825 A.2d

710, 713-714 (Pa.Super. 2003) (a review of the sufficiency of the evidence

does not include a credibility assessment; such a claim goes to the weight of

the evidence); Commonwealth v. Gaskins, 692 A.2d 224, 227 (Pa.Super.

1997) (the fact-finder makes credibility determinations, and challenges to

those determinations go to the weight of the evidence, not the sufficiency of

the evidence).     As previously discussed, appellant waived all weight

challenges for failure to preserve them for appeal.



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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/8/2017




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