J-A22027-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

TATIA LEA BLACKWELL

                            Appellant                   No. 1965 MDA 2014


            Appeal from the Judgment of Sentence October 23, 2014
                In the Court of Common Pleas of Centre County
              Criminal Division at No(s): CP-14-CR-0000032-2013


BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY JENKINS, J.:                           FILED OCTOBER 02, 2015

        Tatia Blackwell files this direct appeal from a judgment of sentence of

90 days to 6 months’ imprisonment for driving under the influence (second

offense) (“DUI”).1 Blackwell’s principal argument is that the arresting officer

lacked probable cause or reasonable suspicion to stop her car on the

roadway, and therefore the trial court erred by refusing to suppress all

evidence arising from the traffic stop.        The trial court properly held that

probable cause existed to stop Blackwell’s car for speeding. For this reason

and other reasons provided below, we affirm.



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    75 Pa.C.S. § 3802(a)(1).
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        On December 1, 2012, following a traffic stop, Blackwell was charged

with DUI and other offenses.2          Blackwell filed an omnibus pretrial motion

requesting, inter alia, suppression of all evidence arising from the traffic

stop.     On April 29, 2013, the trial court ordered Blackwell to file a

memorandum in advance of the hearing on her suppression motion. On May

16, 2013, Blackwell submitted her memorandum; the Commonwealth

submitted an opposing memorandum sixteen days later.

        On August 29, 2013, the trial court held a hearing on Blackwell’s

motion to suppress. At the conclusion of the hearing, the court denied the

motion.

        On September 16, 2014, following a one-day trial, a jury found

Blackwell guilty of DUI.        The jury specifically found beyond a reasonable

doubt that Blackwell was informed of her implied consent warnings but still

refused to submit a blood sample on the night in question. On October 23,

2014, the court imposed sentence. Blackwell filed a timely notice of appeal,

and both Blackwell and the trial court complied with Pa.R.A.P. 1925.

____________________________________________


2
  In addition to the DUI charge, Blackwell was charged with one felony
(aggravated assault), two misdemeanors (simple assault and resisting
arrest) based on her conduct at the scene of the traffic stop. She also was
charged with two summary offenses (failure to carry a driver’s license and
failure to exhibit driver’s license on demand). The jury acquitted Blackwell
of aggravated assault, simple assault and resisting arrest. The trial court
found Blackwell guilty of failure to carry a driver’s license and sentenced her
to a fine of $25.00, and Blackwell did not appeal this summary conviction.
None of these charges are at issue in this appeal.



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      Blackwell raises three issues on appeal:

      Whether the briefing schedule that was ordered by the
      suppression court is violative of [Pa.R.Crim.P. 581] and the Due
      Process clauses of the Fifth and Fourteenth amendments of the
      United States Constitution[,] since it improperly required
      [Blackwell] to file a pre-hearing brief regarding the
      unconstitutionality of the traffic stop[,] in that [] Blackwell had
      already satisfied her initial and only burden by filing an omnibus
      pre-trial motion after which time the Commonwealth had the
      burden of production and the burden of persuasion at the
      suppression hearing?

      Whether the suppression court erred in refusing to declare the
      traffic stop illegal under Article I, section 8 of the Pennsylvania
      Constitution as well as the Fourth Amendment and the
      Fourteenth Amendment of the United States Constitution and
      suppress all fruit of the poisonous tree, which was derived from
      the illegal traffic stop[,] since the ‘MVR’ [motor vehicle recording
      device] irrefutably demonstrated that Trooper Barry Rowland did
      not have reasonable suspicion or probable cause to effectuate
      the traffic stop?

      Whether the evidence was insufficient to support [] Blackwell’s
      conviction [under] 75 Pa.C.S. § 3802(a)(1)(driving under the
      influence – general impairment – incapable of safe driving -
      refusal - second offense)(M1)?

Brief For Appellant, p. 8.

      Blackwell’s first argument on appeal is that the trial court violated her

procedural and constitutional rights by ordering her to file a memorandum in

support of her motion to suppress in advance of both the Commonwealth’s

opposing memorandum and the suppression hearing.            Blackwell contends

that the court’s order effectively shifted the burden of proof to her and gave

the Commonwealth unfair advantage by permitting it to preview Blackwell’s

defense theories and adjust its strategy accordingly.


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        Blackwell waived this argument by failing to object to the April 29,

2013 order either in her memorandum in support of her motion to suppress

or during the suppression hearing. Pa.R.A.P. 302(a) (“issues not raised in

the lower court are waived and cannot be raised for the first time on

appeal”); ABG Promotions v. Parkway Pub., Inc., 834 A.2d 613, 619

(Pa.Super.2003) (waiver applies even if issue raised for first time on appeal

is constitutional question).

        Even if Blackwell preserved this issue for appeal, it is devoid of merit.

We see nothing in the Rules of Criminal Procedure that prohibits the trial

court from directing the defendant to file a memorandum in advance of a

suppression hearing or in advance of the Commonwealth’s opposing

memorandum. Nor do we consider such a directive to shift the burden of

proof    to   Blackwell   in   violation    of   her   constitutional   rights.   The

Commonwealth bears the burden to prove at the suppression hearing that

the defendant’s rights were not infringed.         Commonwealth v. Enimpah,

106 A.3d 695, 701 (Pa.2014). A pre-hearing memorandum merely educates

the trial court about the applicable law; it does not realign the burden of

proof in any way.         Even assuming the order to file a pre-hearing

memorandum constituted a technical violation of Blackwell’s rights, she fails

to demonstrate that it caused actual prejudice, i.e., that the burden of proof

actually shifted.     The trial court’s analysis at the conclusion of the

suppression hearing indicates that it applied the proper burden of proof and


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found that the Commonwealth met its burden of proving probable cause.

N.T.,    8/29/13,        at    54-56.        Moreover,       Blackwell’s    claim     that   the

Commonwealth was able to change its strategy in response to the

memorandum          is        speculative,      because      she    fails   to   identify    the

Commonwealth’s           strategy       prior    to   her    memorandum          or   how    the

Commonwealth changed its strategy afterward.

        In her second argument, Blackwell contends that the trial court erred

by denying her motion to suppress.                     In an appeal from the denial of

suppression, our standard of review

        is whether the record supports the trial court’s factual findings
        and whether the legal conclusions drawn therefrom are free from
        error. Our scope of review is limited; we may consider only the
        evidence of the prosecution 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 findings of
        the suppression court, we are bound by those facts and may
        reverse only if the court erred in reaching its legal conclusions
        based upon the facts.

Commonwealth              v.    Wilson,      111      A.3d   747,    754    (Pa.Super.2015).

Moreover, “[i]t is within the suppression court’s sole province as factfinder to

pass on the credibility of witnesses and the weight to be given to their

testimony. The suppression court is free to believe all, some or none of the

evidence presented at the suppression hearing.”                         Commonwealth v.

Elmobdy, 823 A.2d 180, 183 (Pa.Super.2003).

        During the suppression hearing, one of the arresting officers, State

Trooper Rowland, testified that he has received training in DUI enforcement


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and has been a patrol officer for 8½ years, during which time he has

encountered numerous individuals driving under the influence.                 N.T.,

8/29/13, at 9. In the early morning hours of December 1, 2012, Trooper

Rowland, accompanied by Trooper Buchheit, observed Blackwell’s car driving

northbound on Route 64 near its intersection with Route 445 in Centre

County. Id. at 11-12. Trooper Rowland followed Blackwell’s car in his patrol

vehicle, and he observed Blackwell’s car speeding and weaving across the

double yellow lines. Id. at 12-13. Trooper Rowland “paced” Blackwell’s car

for approximately one half mile, i.e., he “[got] behind the vehicle and

follow[ed] it at the speed or approximately the same speed as the vehicle is

going,” using a speedometer to calculate the vehicle’s speed.3 Id. at 14, 16.

The speedometer calculated Blackwell’s car as traveling 53 miles per hour in

a 45 mile per hour zone. Id. at 18. Trooper Rowland pulled over Blackwell’s

car on Washington Avenue slightly beyond the intersection of Washington

Avenue and Route 64, approximately one mile from where the trooper first

observed Blackwell’s car. Id. at 12, 23.

       The Commonwealth introduced a Google map which illustrated Route

64’s   northerly    course    between      Route   445   and   Washington   Avenue.

Commonwealth Exhibit 1.
____________________________________________


3
  On September 14, 2012, the Department of Transportation certified as
accurate the speedometer that Trooper Rowland used to pace Blackwell’s
car. Commonwealth’s Exhibit 2.




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       Most of Trooper Rowland’s pursuit of Blackwell’s car was videotaped on

an MVR affixed to the rear view mirror in the trooper’s vehicle.                 The

Commonwealth        introduced     the    MVR    video   during   Trooper   Rowland’s

testimony at the suppression hearing, but neither party moved for its

admission into evidence.

       The trial court denied Blackwell’s motion to suppress. It ruled, on the

basis of the video, that reasonable suspicion existed to stop Blackwell’s car

for DUI:

       And what I’m seeing on the video is a vehicle reacting to an
       oncoming vehicle by crossing the fog line substantially. And
       then on two other occasions from the [per]spective of the
       videocamera it appears that the vehicle is riding the center line
       [without] cross[ing]. And then at the very end before turning
       onto Washington Avenue there is a substantial period of time
       where the vehicle has again crossed the white fog line and then
       pulled back onto the road …

N.T., 8/29/13, at 54-55.4 The trial court also found that Blackwell’s rate of

speed during the “pacing” period was 53 miles per hour, eight miles per hour

over the speed limit.         Id. at 55.       Thus, the court concluded, Trooper

Rowland had probable cause to pull over Blackwell’s car for speeding. Id.

       Presently, Blackwell contends that the video demonstrates that her car

did not cross the fog lines or touch the center line during the pursuit.           In

____________________________________________


4
 As discussed below in footnote 6, we need not address whether reasonable
suspicion existed to stop Blackwell’s car for DUI. We only cite the trial
court’s ruling on this subject to demonstrate that the trial court based its
decision to deny Blackwell’s motion to suppress on the video.



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addition, Blackwell claims that the video shows that she was not speeding,

because (1) it is approximately one mile from Route 445 and the site of the

traffic stop on Washington Road, (2) the video shows that the pursuit lasted

one minute and sixteen seconds until Blackwell’s car stopped, and (3)

dividing the distance of one mile by the time of one minute and sixteen

seconds equals a speed of 42.6315 miles per hour, 2.3685 miles per hour

below the speed limit. Brief For Appellant, pp. 37-38.

       Although the trial court never formally admitted the video into

evidence during the suppression hearing,5 the court regarded the video as

admissible for purposes of this hearing, because it based its denial of

Blackwell’s suppression motion on the video.          Moreover, both parties

regarded the video as admissible for purposes of the suppression hearing,

because they both contend in this Court that the video supports their

respective positions on the suppression issue. Under these circumstances,

we will deem the video admitted as a suppression hearing exhibit so that we

can incorporate it into our review of Blackwell’s suppression argument. This

solution is consistent with Pa.R.A.P. 1926(b)(1)’s directive that “[i]f anything

material to a party is omitted from the record by error, breakdown in

processes of the court, or accident or is misstated therein, the omission or


____________________________________________


5
  During trial, the video was formally admitted into the trial record as
Commonwealth exhibit 2. N.T., 9/16/14, p. 233.



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misstatement may be corrected … by the … appellate court … on its own

initiative at any time.”

      We now examine the record to determine whether the trial court

properly held that the state troopers had probable cause to stop Blackwell’s

car for violating 75 Pa.C.S. § 3362 (Maximum Speed Limits). Section 3362

provides in relevant part:

      Except when a special hazard exists that requires lower speed
      for compliance with [75 Pa.C.S. §] 3361 (relating to driving
      vehicle at safe speed), the limits specified in this section or
      established under this subchapter shall be maximum lawful
      speeds and no person shall drive a vehicle at a speed in excess
      of the following maximum limits: … Any other maximum speed
      limit established under this subchapter.

75 Pa.C.S. § 3362(a)(3). A vehicle’s rate of speed “may be timed on any

highway by a police officer using a motor vehicle equipped with a

speedometer. In ascertaining the speed of a vehicle by the use of a

speedometer, the speed shall be timed for a distance of not less than three-

tenths of a mile.” 75 Pa.C.S. § 3368(a).

      To justify the present stop, the trooper was required to possess

probable cause that Blackwell violated section 3362(a)(3). Commonwealth

v. Feczko, 10 A.3d 1285, 1291 (Pa.Super.2010) (“reasonable suspicion will

not justify a vehicle stop when the driver’s detention cannot serve an

investigatory purpose relevant to [a] suspected violation” of the Motor

Vehicle Code; instead, “[i]n such an instance, it is [incumbent] upon the

officer to articulate specific facts possessed by him, at the time of the


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questioned stop, which would provide probable cause to believe that the

vehicle or the driver was in violation of some provision of the [Code]”).

      The evidence supports the trial court’s finding that Blackwell was

speeding. Comparison of the landmarks on the video with the map of Route

64 shows that Trooper Rowland “paced” Blackwell’s car (followed Blackwell’s

car at approximately the same speed) between Myers Street and Cherry Run

Road. Given that the distance between Route 445 and Washington Road is

approximately one mile, the map shows that the “pacing” distance between

Myers Street and Cherry Run Road was approximately four tenths of one

mile, more than enough within which to time Blackwell’s speed under section

3368(a), and the distance between Cherry Run Road and the site of the stop

on Washington Avenue was approximately three tenths of one mile.            The

video shows that Trooper Rowland activated his emergency lights at Cherry

Run Road. In response, Blackwell’s car immediately slowed down and then

came to a stop on Washington Avenue. The video also demonstrates that

Trooper Rowland’s pursuit from Route 445 to the stop on Washington

Avenue took one minute and sixteen seconds.

      Although Blackwell’s average speed during the pursuit was 42.6315

miles per hour (one mile in 76 seconds), the video demonstrates that her

speed during the “pacing” period between Myers Street and Cherry Run

Road was faster than her speed after Cherry Run Road. This higher speed

corroborates the speedometer’s report of Blackwell’s rate of speed during


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the “pacing” period as 53 miles per hour. And because the “pacing” period

was more than three tenths of a mile, Trooper Rowland had probable cause

to stop Blackwell’s car for speeding under 75 Pa.C.S. §§ 3362(a)(3) and

3368(a).

      Blackwell protests that probable cause did not exist to stop her for

speeding because she ultimately was not charged with speeding.            We

disagree. Probable cause is an objective inquiry; probable cause to initiate a

traffic stop arises when “the circumstances, viewed objectively, justify that

action.”   Whren v. United States, 517 U.S. 806, 813 (1996).          “[I]t is

irrelevant to the probable cause analysis what crime a suspect is eventually

charged with.”    Sennett v. United States, 667 F.3d 531, 535 (6th Cir.

2012) (citing Devenpeck v. Alford, 543 U.S. 146, 153, 125 S.Ct. 588, 160

L.Ed.2d 537 (2004)); see also Sennett, 667 F.3d at 537 (citing Michigan

v. DeFillippo, 443 U.S. 31, 36 (1979) (“the fact that a suspect is never

charged with an offense does not conclusively establish that officers did not

have probable cause to arrest for the offense”).    As illustrated above, the

evidence, viewed objectively, established probable cause to stop Blackwell

for speeding.    The fact that she was not charged with speeding does not

show the lack of probable cause to stop her for this offense. Sennett, 667

F.3d at 535, 537.




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       Accordingly, the trial court properly denied Blackwell’s motion to

suppress.6

       In her third and final argument, Blackwell asserts that the evidence is

insufficient to support her conviction for DUI or the jury’s verdict that she

refused to submit to a blood test following her arrest.

       Our standard of review for such challenges is well-settled:

       [W]hether[,] viewing all the evidence admitted at trial in the
       light most favorable to the [Commonwealth as the] verdict
       winner, 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. 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.

Commonwealth v. Gonzalez, 109 A.3d 711, 716 (Pa.Super.2015).

       The jury found Blackwell guilty under 75 Pa.C.S. § 3802(a)(1), which

provides that “an individual may not drive, operate or be in actual physical

control of the movement of a vehicle after imbibing a sufficient amount of

alcohol such that the individual is rendered incapable of safely driving,

____________________________________________


6
  Because the trial court properly determined that probable cause existed to
stop Blackwell’s car for speeding, we need not address the alternative
ground that the Commonwealth gave for denying Blackwell’s motion to
suppress, viz., reasonable suspicion existed to stop Blackwell for DUI.



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operating or being in actual physical control of the movement of the

vehicle.”

        The types of evidence that the Commonwealth may proffer in a

subsection 3802(a)(1) prosecution

        include but are not limited to, the following: the offender’s
        actions and behavior, including manner of driving and ability to
        pass field sobriety tests; demeanor, including toward the
        investigating officer; physical appearance, particularly bloodshot
        eyes and other physical signs of intoxication; odor of alcohol,
        and slurred speech. Blood alcohol level may be added to this list,
        although it is not necessary and the two hour time limit for
        measuring blood alcohol level does not apply. Blood alcohol level
        is admissible in a subsection [3802(a)(1)] case only insofar as it
        is relevant to and probative of the accused’s ability to drive
        safely at the time he or she was driving. The weight to be
        assigned these various types of evidence presents a question for
        the fact-finder, who may rely on his or her experience, common
        sense, and/or expert testimony. Regardless of the type of
        evidence that the Commonwealth proffers to support its case,
        the focus of subsection 3802(a)(1) remains on the inability of
        the individual to drive safely due to consumption of alcohol-not
        on a particular blood alcohol level.

Commonwealth v. Segida, 985 A.2d 871, 879 (Pa.2009).

        In addition, “an individual who violates section 3802(a)(1) where the

individual refused testing of blood or breath … and who has one or more

prior offenses commits a misdemeanor of the first degree.”7 75 Pa.C.S. §

3803(b)(4).       Such an individual is subject to a mandatory minimum

sentence of ninety days’ imprisonment. 75 Pa.C.S. § 3803(c)(2)(i).


____________________________________________


7
    Blackwell does not dispute that she has one or more prior DUI offenses.



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      The following evidence was adduced during trial: while “pacing”

Blackwell’s car on Route 64, Trooper Rowland determined that she was

driving 53 miles per hour in a 45 mile per hour zone. N.T., 9/16/14, at 58-

59.   Trooper Rowland stopped Blackwell for speeding.          There were two

individuals in the car: Blackwell was the driver, and she was not in

possession of her driver’s license.     Id. at 65-66.     While speaking with

Blackwell, Trooper Rowland detected an odor of alcohol and noticed that

Blackwell’s face was flushed, her eyes were glassy and bloodshot, and her

speech was slurred. Id. at 66, 136. Trooper Rowland asked Blackwell to

step out of the vehicle. When she did, she had difficulty with her balance.

Id. at 66-67. Trooper Rowland asked her to submit to field sobriety tests.

During the one-legged stand, she failed to follow instructions, swayed and

constantly put her foot down. Id. at 70-71; Commonwealth exhibit 2 (video

of traffic stop), time stamp 7:22-7:47.    During the walk-and-turn, Blackwell

failed to walk in a straight line, missed several heal-to-toe connections, had

difficulty maintaining her balance, and quit the test after falling off the line,

stating “this is ridiculous.” N.T., 9/16/14, at 72-74; Commonwealth exhibit

2, time stamp 7:47-8:55.      Trooper Rowland placed Blackwell under arrest

for DUI, but she resisted. She pulled away while being handcuffed, yelled at

her passenger, dragged her feet on the way to the police vehicle and

resisted Trooper Rowland’s attempts to place her in the back seat.         N.T.,

9/16/14, at 76-78.      Trooper Buchheit, who was accompanying Trooper


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Rowland, advised Blackwell that she would be tased if she did not cooperate.

Id. at 90, 188-89. Blackwell began kicking repeatedly at Trooper Buchheit,

who dry-stunned her in an attempt to induce her to cooperate. Id. at 80-

84. Blackwell continued to resist.             As Trooper Buchheit tried to reconnect

the taser cartridge, the instrument was still arcing, and its prongs deployed

into his hand. Id. at 195-96.

        After confining Blackwell inside the police car, the troopers transported

her to Mount Nittany Medical Center (“hospital”).              N.T., 9/16/14, at 88.

Trooper Rowland read Blackwell her implied consent warnings 8 from a DL-26

form, but she refused to sign the form or submit to a blood test, stating:

“This is bullshit” and “hell no.” Id. at 97, 127-28, 138-40, 169-70, 213-16.

Trooper Rowland transported Blackwell to the county prison, which would
____________________________________________


8
    The “implied consent” warnings

        originate in 75 Pa.C.S.A. § 1547[,] [which provides] that, in
        Pennsylvania, drivers impliedly consent to a chemical test of ‘breath,
        blood or urine for the purpose of determining the alcoholic content of
        blood or the presence of a controlled substance if a police officer has
        reasonable grounds to believe the person to have been driving ... a
        vehicle’ under the influence of alcohol or a controlled substance. 75
        Pa.C.S.A. § 1547(a)(1). Where an officer requests that an individual
        submit to chemical testing, Section 1547(b)(2) requires that the officer
        warn the person: ‘the person’s operating privilege will be suspended
        upon refusal to submit to chemical testing” and “if the person refuses
        to submit to chemical testing, upon conviction or plea for violating [75
        Pa.C.S.A. §] 3802(a)(1), the person will be subject to the penalties
        provided in [75 Pa.C.S.A. §] 3804(c) (relating to penalties).’ 75
        Pa.C.S.A. § 1547(b).

Commonwealth v. Barr, 79 A.3d 668, 670 n. 3 (Pa.Super.2013).



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not process her because she claimed to be suffering from a diabetic episode.

Id. at 88. Trooper Rowland drove Blackwell back to the hospital, where a

physician examined her and determined that her blood sugar levels were in

the normal range, and that she was intoxicated. Id. at 226-30.

      Construed in the light most favorable to the Commonwealth, this

evidence – in particular, her speeding, the odor of alcohol in her vehicle, her

flushed features, her glassy and bloodshot eyes, her slurred speech, her

demeanor during the traffic stop, her inability to perform field sobriety tests

satisfactorily, her combativeness at the time of arrest, her refusal to take a

blood draw while saying “this is bullshit”, and the physician’s conclusion that

she was intoxicated -- establishes Blackwell’s guilt beyond a reasonable

doubt for DUI under section 3802(a)(1). Cf. Commonwealth v. Graham,

81 A.3d 137, 146-47 (Pa.Super.2013) (evidence was sufficient to support

finding that defendant’s impairment which rendered her unable to drive

safely was caused by combined influence of alcohol and drug or combination

of drugs, as necessary to support DUI conviction without introduction of

expert testimony; police officer who had received extensive training with

respect to recognizing signs and behaviors of individuals driving under the

influence observed defendant’s erratic driving behavior, unsteadiness, and

inability to perform field sobriety tests, and defendant refused to submit to

chemical test of her blood).




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     Furthermore,    viewed   in   the      light   most   favorable   to   the

Commonwealth, the evidence supports the jury’s determination that Trooper

Rowland read Blackwell her implied consent warnings but that she refused to

submit to a blood test following her arrest.        Therefore, the trial court

properly graded Blackwell’s offense as a first degree misdemeanor for

purposes of sentencing, 75 Pa.C.S. § 3803(b)(4), and properly sentenced

Blackwell to a mandatory minimum of 90 days’ imprisonment under 75

Pa.C.S. § 3803(c)(2)(i).

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/2/2015




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