J-S51028-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TAROUN HAND,                               :
                                               :
                       Appellant               :   No. 2272 EDA 2017

              Appeal from the Judgment of Sentence June 5, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0009972-2014

BEFORE: DUBOW, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY NICHOLS, J.:                          FILED NOVEMBER 26, 2018

        Appellant Taroun Hand appeals from the judgment of sentence following

a bench trial and convictions for aggravated assault by vehicle while driving

under the influence,1 driving under the influence of a controlled substance or

metabolite,2 driving under the influence of a controlled substance – impaired

ability,3 recklessly endangering another person,4 and simple assault.5

Appellant challenges the trial court’s order denying his motion to suppress the

evidence of his blood test results. We affirm.

____________________________________________


1
    75 Pa.C.S. § 3735.1(a).
2
    75 Pa.C.S. § 3802(d)(1).
3
    75 Pa.C.S. § 3802(d)(2).
4
    18 Pa.C.S. § 2705.
5
    18 Pa.C.S. § 2701(a).
J-S51028-18


       We adopt the facts and procedural history set forth in the trial court’s

opinion. See Trial Ct. Op., 3/16/18, at 1-4. Appellant timely appealed and

timely filed a court-ordered Pa.R.A.P. 1925(b) statement.           He raises the

following issues:

       1. Did not the [trial] court err in denying Appellant’s motion to
       suppress physical evidence where Appellant was subjected to
       coercive warnings before he consented to have his blood drawn?

       2. Did not the [trial] court err in denying Appellant’s motion to
       suppress physical evidence where, in the absence of exigent
       circumstances, the police failed to obtain a warrant to draw
       Appellant’s blood?

       3. Did not the [trial] court err in denying Appellant’s motion to
       suppress physical evidence where probable cause did not exist?

Appellant’s Brief at 3.

       We summarize Appellant’s arguments together.6 He primarily asserts

that the suppression court erred in finding exigent circumstances existed to

justify the warrantless blood draw.            Id. at 16-17.   Appellant discusses

Commonwealth v. Trahey, 183 A.3d 444 (Pa. Super. 2018), appeal

granted, No. 232 EAL 2018 (Pa. Oct. 23, 2018),7 and contends that the instant

____________________________________________


6
  We note that Appellant argued that his consent was invalid under Birchfield
v. North Dakota, 136 S. Ct. 2160 (2016). The suppression court agreed with
that argument, but denied Appellant’s motion to suppress because it found
exigent circumstances.
7
  We note that Trahey was decided eight months after Appellant filed his
appeal. Recently, the Pennsylvania Supreme Court granted the Trahey
defendant’s petition for allowance of appeal on the issue of whether “the facts
and circumstances in [Trahey] justify a warrantless blood draw under the



                                           -2-
J-S51028-18


facts, unlike the facts in Trahey, do not support a finding of exigency. Id. at

18-19. Appellant also suggests that the police could have obtained a warrant

earlier than it did. Id. at 20-21. He maintains that the police lacked probable

cause to arrest him and therefore the results of any blood test was fruit of the

poisonous tree. Id. at 22. Appellant challenges the police testimony that he

was under the influence of drugs as internally contradictory. Id. at 23-24.

       The standard of review follows:

       When reviewing the grant of a suppression motion, we must
       determine whether the record supports the trial court’s factual
       findings and whether the legal conclusions drawn from those facts
       are correct. We may only consider evidence presented at the
       suppression hearing. . . . We may reverse only if the legal
       conclusions drawn from the facts are in error.

Commonwealth v. Ennels, 167 A.3d 716, 718 (Pa. Super. 2017) (internal

quotation marks and citations omitted). “[W]e are limited to considering only

the evidence of the prevailing party, and so much of the evidence of the non-

prevailing party as remains uncontradicted when read in the context of the

record as a whole.” In re L.J., 79 A.3d 1073, 1080 (Pa. 2013) (citation and

footnote omitted).

       After careful consideration of the record, the parties’ briefs, and the trial

court’s opinion, we perceive no error in the trial court’s legal conclusions based




____________________________________________


exigent circumstances exception to the warrant requirement.” Trahey, 232
EAL 2018 (Pa. Oct. 23, 2018) (order).


                                           -3-
J-S51028-18


upon the record before it. See Ennels, 167 A.3d at 718. Therefore, we affirm

on the basis of the trial court’s reasoning. See Trial Ct. Op. at 4-11.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/26/2018




                                     -4-
                                                                                                     Circulated 10/29/2018 04:14 PM


                                                                                                                               ---,.. ......   .   ....



                                                                                                                 FILED
                                         IN THE COURT OF COMMON PLEAS
                                   J?lRST JUDICIAL DISTRICT OF PENNSYLVANIA                               Z,018.HAR J 6 PH            z: 37
                                       TRIAL DIVISION -CRIMINAL SECTION                                . OFFICE: Of Jl/0/C/;\l RE.
                                                                                                                          o1vrs10JORos
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                                                                                                           I lh.,T.JU(iJC)AL
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                                                                                                                                   �· . T
COMMONWEALTH OF PENNSYLVANIA                                                       CP-51-CR-0009972-2014              .�.. ,ANIA .

                                          v.
            TAROUNHAND                                                             2272 EDA 2017


                   . .. - _ . - .  ....                        ..
                                                                    OPINION
                                                                     ' . ......,
                :' CP·51-CR.ooo9972,2014 Colr,n. v.Haod, Taioon
                                                   Op'l\ion




                                                      I II I
LANE,J,                                                                                            March 16, 2018

                                          ltl1ll\lllll    \11111\1
                                                 8083421711
                .'-.:...   .....

                                           OVERVIEW AND PROCEDURAL llISTORY

       On April 5, 2017, Taroun Hand (herein "Defendant"), was found guilty after a waiver trial

of Simple Assault, 18 Pa.C.S.A. § 2701 (a), two counts of Recklessly Endangering another Person,

18 Pa.C.S.A. § 2705, Driving under the Influence ("DlJI"); Controlled Substance or Metabolite P1

Offense, 75 Pa.C.S.A. § 3802(d)(I), Aggravated Assault by Vehicle While DUI, 75 Pa.C.S.A. §

3735.1, and Driving Under Influence of Alcohol or Controlled Substance- Impaired Ability, 75

Pa.C.S.A. § 3802(d)(2). Defendant was sentenced to five to ten years of confinement on the

§3735,1 conviction, two years of probationafter release on the § 270 I (a), $1 ,000.00 in fines, a

twelve-month license suspension, seventy-two hours to six months of concurrent confinement for

the§ 3802(d)(2), Alcohol Highway Safety classes, and Drug and Alcohol Assessment; Defendant

also received credit for time served. The§ J802(d)( I) conviction merged with (d)(2) for sentencing

purposes.

       On June S, 2017, Defendant filed a timely post-sentence motion. This court denied the

post-sentence motion at a hearing on June 23, 2017. On July 18, 2017, Defendant riled a timely
Cont. v. Taroun Hand
appeal. On July 19, 2017, the trial court ordered Defendant to file a Statement of Errors

Complained of on Appeal within twenty-one days. Defense counsel requested an extension to file

Defendant's Statement of Errors after the Notes of Testimony were transcribed. The court ordered

that a statement be filed within twenty-one d�ys of receiving the transcripts. A Statement of

Matters Complained on Appeal pursuant to the 1925(b) Order was filed on October 20, 2017.

Defendant raises the following issues on appeal:

    a. Did the court err in denying the Motion to Suppress wh�n it found that probabJe
       cause existed to stop, transport, and arrest, Mr. Hand for driving under the influence
       and subsequently draw his blood for potential prosecution?
    b. In light of recent decisions foltowing Birchfield v, North Dakota, namely
       Commonwealthv. Myers, did the court err in denying the Motion to Suppress where
       the police failed to obtain a warrant to draw the defendant's blood, where exigent
       circumstances were not present and specific [sic] Mr. Hand's right to privacy, and
       where the police read coercive warnings to Mr. Hand to obtain his consent to a
       blood draw?
    c. Did the trial court err at sentencing when it considered defendant's illegally
       obtained chemical test results and applied enhanced DUL sentencing penalties? .

                                               FACTS

                            .
             On July 9, 2014, at approximately 4: 14 PM, emergency medical 1echnicians and police

responded to a four-car accident in the area of 700 W. Lehigh-Avenue, (N.T. 6/01/16 at p. 6). It

was a clear and sunny day (Id, at 10). Several witnesses had observed as Defendant drove his car

into the wrong lane of traffic, a public bus, two parked cars, and finally into two children who had

been standing on the sidewalk with their mother. (Id. at 31-32).

             Upon arrival at the scene, police were met by a SEPTA (Southeastern Pennsylvania

Transportation Authority) bus driver, who reported that she had been driving her bus eastbound

when suddenly Defendant had driven into oncoming traffic, swerved, hit the passengerareaof her

bus, and conti'nued to drive away. (N.T. 6/01/16 at p. 31),




Com.   11.   Taroun Hand                                                                          2
        Police were next met by two more witnesses who identified Defendant as the driver of a

burgundy 1998 Dodge Caravan. (N.T. 6/01/16 at p. 32; N.T. 4/05/17 at p, 62). The first witness

pointed to Defendant and to Defendant's van and stated Defendant was driving the van at a high

rate of speed and recklessly, (N.T. 6/01 /16 at p. 9). The second witness also identified Defendant

as the driver. (Id. at 9-IO). Both witnesses told police that Defendant continued to travel in the

wrong lanes, driving westbound in the eastbound lanes. (Id at 31-32). Defendant.then struck two

parked vehicles: a Jeep Liberty and a Toyota Camry. (Id.). Both Defendant's van and the Jeep

Liberty ended up on the sidewalk. (Id.). The witnesses explained that the Jeep was· pushed by

Defendant's car into twochildren, (Id.).

       N.T. (thirteen years old) and E.F. (seven years old) had been standing on the sidewalk with

theirmother when the accident occurred. (N.T. 4/05/17 atpp, 61-62; N.T. 11/03/14 at p, 19). When

the car hit them, N.T. flewinto the alr, hit a wall, and lost consciousness. (N.T. 4/05/17 at pp. 6 l-

62). E.F.   was trapped under the Jeep with only her feet visible. (ld.; N.T.   11/03/14 at p. 20). The

girls' mother believed that E.F. was dead; however, she was eventually rescued from under the car

through the combined efforts offamily members and neighbors. (N.T. 4/05/17 at p. 62).

       After speaking with Defendant at the scene briefly, Officer McCarthy noted that Defendant

did not smell like alcohol but that he had red eyes and slurred speech to the point where he was

incoherent. (N.T. 6/01/16 at pp. 11-12, 18). Based on sixteen years of police experience, Officer

McCarthy determined that Defendant was under the influence ofnarcotics and was unfit to operate

a motor vehicle safely. (Id at 14-15). Officer McCarthy arrested Defendant and police-escorted

medics transported Defendant to the hospital. (N·,T. 6/01/16 alp. 24).

       At the hospital, Accident Investigation District ("AID") Officer Mark Minke read

Defendant his O'Connell warnings and 75-43 9 Form, which outlined his rights and the effects of


Com; v. Taroun Hand                                                                                  3
refusing to submit to a blood draw. (N.T. 6/10/16 at pp. 6-7). After going over the warnings with

Officer Minke, Defendant consented to a blood draw. (Id. at 9). Forensic toxicologist Dr. Richard

Cohn then tested Defendant's blood for drugs and found Clonazeparn (a schedule IV narcotic) and

Oxycodone (a schedule H narcotic). (N .T. 4/5/17 nt p. 69). He concluded that it was reasonably

scientifically certain that Defendant was impaired by these drugs and was unfit to operate a motor

vehicle safely on the highway at the time of the accident. (Id. at 69- 70).

        Aftertheaccident the children N.T. and E.f'. were taken to St. Christopher's Hospital. (N.T.

4/05/17 at pp. 66-68). N.T. was treated for abrasions and minor injuries arid was discharged from

the hospital that night. (Id. at 66-67). She had soreness in her neck and head after this accident

(Id. at 67). E.F. sustained the most serious injuries from this accident, including a broken pelvis, a

broken leg, and a lacerated liver from the impact of the vehicle. (rd. at 67-68). She spent

approximately three weeks in the hospital. (Id,). She then spent another three weeks on bedrest at

her home. (Id at 68). The middle of her body and her right leg were' placed into full casts. (Id).

She continued physical therapy throughout the following school year and was on crutches for the

majority of that school year. (Id.).

                                          DISCUSSION

[, The trial court did not err in denying the Motion to Suppress when lt found that probable
cause existed to stop and arrest Defendant.

        Defendant first contends that the court erred in denying his Motion to Suppress because

the police had no probable cause to arrest him. In reviewing the denial of a motion for suppression,

the court is limited to considering the suppression hearing record and has the following standard

of review:

       We are bound by the suppression court's factual findings so long as they are
       supported by the record; our standard of review on questions of law is de novo,
       Where, as here, the defendant is appealing the ruling of the suppression court, we
Com. v. Taroun Hand                                                                                 4
            may consider only the evidence of the Commonwealth and so much of the evidence
            for the defense as remains uncontradicted. Our scope of review of suppression
            rulings includes only the suppression hearing record and excludes evidence elicited
            at trial.

Commonwealth v, Smith, 2017 Pa. Super. 416, 2 (Pa. Super. Ct.2017) (citations omitted).

            Police need to have probable cause before making an arrest and before asking for a blood

sample. In re J.G., 145 AJd 1179, 1185 (Pa. Super. Ct. 2016); Commonwealth v. Aiello, 675 A2d

1278, 1280 (Pa. Super. Ct. 1996). The Supreme Court has laid out a "well-established legal

standard" for determining probable cause;

            Probable cause is made out when "the facts and circumstances which are within the
            knowledge of the officer at the time of the arrest, and of which he has reasonably
            trustworthy information, are sufficient to warrant a man of reasonable caution in
            the belief that the suspect has committed or is committing a crime." ... [We] require
            only a "probability, and not a prima fade showing, of criminal activity}' In
            determining whether probable cause exists, we apply a totality of the circumstances
            test.

Commonwealth v. Thompson, 985 A.2d 928, 931 (Pa. 2009) (citations omitted). In addition

probable cause only requires criminality to be one possible reasonable inference from the

circumstances: criminality does not even need to be the most likely inference. Commonwealth v.

Salter, 12 l A.3d 98 7, 994 (Pa. Super. Ct. 2015) (citin:g Commonwealth v. Spieler, 887 A.2d 1271,

1275(Pa, Supe�200S».

            In the present case, the court did not err when it ruled that the police had probable cause to

stop and arrest Defendant, who had just caused a multi-car "major accident." (N.T. 6/01/16 at p.

19). When pollce arrived, Defendant's car was up on the sidewalk, and he was immediately

identified to policeby bystanders as the man who had just been driving extremely recklessly. (Id.

at 9). There was no other obvious reason besides intoxication why Defendantwas continuously

driving erratically this way down the street oh a clear and sunny afternoon. (Id at 10-14).

Bystanders also identified Defendant as responsible for the destruction at the scene, which
Com.   v,   Taroun Hand

                                 ·'
included grievously injured children and wrecked cars. (id at 9-10, 32); The police observed that

Defendant was incoherent and had red eyes ai;i,d sl�rred speech. (Id. at 11-12, 18). The officer who

arrested Defendant had sixteen years of police experience and training dealing with drug DUls and

based on his observations, concluded that Defendant had been driving while under the influence

of drugs. (Id at l 4-15). After observing the totality of the circumstances, police could reasonably

conclude that Defendant could have been driving under the influence or recklessly endangering
                                                         .                                      .



the Jives ofothers, The totality of the evidence is more than sufficient to stop, arrest, and request

blood from Defendant.

IL The trial court did not err when fr denied Defendant's Motion to Suppress based on a
warrantless blood draw, because there were exigent circumstances.

       Both the United States Constitution and the Pennsylvania Constitution protect citizens

from unreasonable searches and seizures. Commonwealth v. McAdoo, 46 A.3d 781, 784 (Pa. Super.

Ct. io12). One search that mustbe reasonable is the drawing of blood performed atthe direction

of a police officer. Com. v, Kohl, 615 A.2d 308, 315 (Pa. 1992). "A search conducted without a

warrant is deemed to be unreasonable and therefore constitutionally impermissible, unless an

established exception applies." Commonwealth       v. Strickler, 757 A.2d 884, 888 (Pa. 2000). If a
search is unreasonable, it should be suppressed and on appeal should be governed by the standard

set forth in Smith, discussed supra. Strickler, 757 A.2d at 889; Smith, 2017 Pa. Super. at 2.

   A. Bircldield negates Defendant's affirma'tive consent.

       One accepted exception to a warrant!ess search is voluntary consent by the person whose

blood is to be drawn. Commonwealth       V;   Myers, 164 A.3d 1162, 1173, 1180 (Pa. 2017) (also

holding that in cases such as this one, PA's implied consent statute does not negate a need for

positive, voluntary consent from a defendant). In Birchfield v. North Dakota, the Supreme Court

concluded that "motorists cannot be deemed to have consented to subrn it to a blood test on pain of
Com. v. Taroun Hand                                                                                 6
                                                       .
committing a criminal offense." 136 S. Ct. 2160, 2186 (U.S. 2016). This decision led to the

issuance of Commonwealth v; Evans by the Pennsylvania Supreme Court, which held that "[ejven

though Pennsylvania's implied consentlaw does not make the refusal to submit to a blood testa

crime in and of itself," the law "undoubtably" imposed criminal· penalties to the point where

Birchfield controlled. 153 A.3d 323, 3:3 l (Pa. 2016). The decision Commonwealth v. Ennels

followed, which held that the prior decisions applied to drug-related DUls in addition to alcohol-

based DU1s, 167 A.3d 716, 724 (Pa. Super. Ct. 2017). Thus in cases where defendants had signed

Pennsylvania's pre-Birchfield consent form, defendant's consent now had to be re-evaluated.

Evans, J 53 A.3d at 33 J. The court also held that in Pennsylvania it is not an excuse that police

issued the pre-Birchfield consent form in good faith relying on former law. Commonwealth v.

Kurtz, i 72 A.3d 1153, 11 S9 (Pa. Super. Ct. 2017). This applied retroactively to cases stUJ open at

the time that Birchfield was decided if the issue was preserved at all stages. Commonwealth v.

Grays, 167 A.3d 793, 810 (Pa. Super. Ct. 2017).

       In the case at bar, Defendant signed a consent form and agreed to have blooddrawn. (N.T.

6/10/16. at pp. 6-9). However, he signed a pre-Birchfield consent form, (N.T. 4/0SJl 7 at p. 8).

Although Defendant's arrest occurred before Birchfield was decided, the case still applies, since

Defendant's case was open at the time of decision and he properly moved to suppress his blood

results.both before and after the Birchfield decision. Therefore, Defendant's affirmative consent

to have his blood drawn has been negated by Birchfield and its progeny.

   B. Specific exigent circumstances allowed for a warrantless blood .draw in this case,

       Another accepted exception to a warrantless search occurs when, due to exigent

circumstances, the needs of law enforcement are "so compelling that [a] warrantless search is

objectively reasonable." Missouri v, Mctieely, 569 U.S. 141, 148-49 (U.S. 2013) (quoting

Com. v. Taroun Hand                                                                               7
Kentucky v. King)563 U.S. 452, 460 (U.S. 2011)). This exception applies to controlled substance

DUis as well as drug DUls. Commonwealth v. Ennels, 167 A.3d 716, 721 (Pa. Super. Ct. 2017).

       Though the Supreme Court declined to create a per se rule for exigent circumstances in

DUI cases, it emphasized that "the natural dissipation of alcohol in the blood" still supports

findings of exigency in specific cases. McNeely, 569 U.S. at 156; see also Ennels, l 67 A.3d at 721

(noting case-specific exigencies apply for drug cases). "To determine whether a law enforcement

officer faced an emergency that justified acting without a warrant," the court must conduct a "case-

by-case" inquiry in which it looks to the "totality of circumstances." McNeely at 1556, 1559. The

specific exigent circumstances should be presented before the court. See Commonwealth v, Myers,

164 A.3d 1162, 1182 (Pa. 2017) (affirming the trial court's finding of no exigent circumstances

where the Commonwealth failed to address the issue or demonstrate how there were any exigent

circumstances in that specific situation). One factor the court may consider is whether there is "a

likelihood that evidence will be destroyed ff police take the time to obtain a warrant."

Commonwealth v, Wright; 961 A.2d l]9, 137 (Pa; 2008) (quoting Commonwealth v. Roland, 637

A.2d 269, 271 (Pa. 1994)); see also Ennels, 167 A.3d at 721 (explaining a warrantless blood draw

is allowed for drug DU!s when "time does not allow" officers to secure a warrant).

       The Supreme Court referenced Commonwealth v. Schmerber as an example of a DUI case

where the dissipation of drugs or alcohol in the blood stream was enough to invoke the exigency

exception. McNeely, 569 U.S. at 156. In Schmerber, defendant was arrested after having caused a

car accident and his blood was drawn without a warrantor voluntary consent. 384 U.S. 757 (U.S.

t 966). The court held that the blood 'draw was valid because the police officer involved "might

reasonably have believed that he was confronted with an emergency, in which the delay necessary




Com. v. Taroun Hand                                                                               8
to obtain a warrant, under the circumstances, threatened 'the destruction ofevidence.?' Id. at 770

(citation omitted).

        The necessity for a blood draw in the Instant.matter is analogous to Schmerber, if not more

emergent. Here, Defendant had just caused a multi-car accident by driving down the wrong side

of the street, swerving back and forth, and careening up onto the sidewalk in broad daylight on a

clear summer day, (N.T. 6/01/16 at pp. 31*32). He did not stop after he hit a public bus nor when

he hit two more cars. (Id.) He did not even help after he ran over two children in front of their

mother. (Id) As there was no other obvious explanation for the incident besides intoxication and

defendant showed clear signs of drug use, the urgent need for a blood draw to confirm these results

was apparent. (Id. at 11 • l i, 1 8)

        To show that there was exigency in the case at bar, the Commonwealth offered a

Philadelphia police officer (0 fflcer William Lackman) who specialized in major crashes and DUls.

(N.T. 4/05/17 at p. 10). He testified that, after reviewing the record in this specific case, there

would not be enough time to get a warrant for a blood draw. (Id. atlJ), The DRUGSCAN test that

would check Defendant's blood (or traces of drugs only goes back up to six hours pre-blood draw.

(Id. at38-40). However, based on his personal experience obtaining warrants, it would have taken

at least six hours to obtain one in this type of situation from the time the crash occurred. (Id. at 14);

He testified that this case would be especially difficult because of all of the victims and witnesses,

because of the commotion at the accident scene, and because there was an Aggravated Assault by

DUl charge. (Id. at 13�16).

       Officer Lackman explained in detail why a warrant would take too long to secure in this

case. (N.T, 4/05/17 at pp. l0-40). First, on the day of the incident, police arrived at the scene and

interviewed witnesses (which took an hour and a fifteen minutes here). (Id. at l 0). Then, the officer

Com. v. Taro1111 Hand                                                                                  9
responsible for getting the warrant would hnve to approach the scene and find the reporting officer

who would brief him (which would be lengthy here due to the large number of injuries and

witnesses). (Id. at 16-17). That officer would then travel twenty minutes away to Temple Hospital.

(Jd. at 17, 29). Then the officer would have to observe Defendant (for around ten minutes) to "see

what he was doing, see what he. looked J ike, et cetera." (Id. at 17}. Next, the officer at the scene

would brief him as to observations and medications, (Id. at 18). He would then travel back to his

office to "try and verify through Penn DOT files registration information that I was provided for

the crash itself for four _vehicles" and driver license information. (Id.). Next> he would verify the

level of injury of the child victims in the .accldent as that would also be necessary for the warrant

(he would try calling but because of HIP AA hemay additionally have to travel to St, Christopher's

Hospital to get this information). (Jd at 18, 35). Only then would he feel he had enough

information to realistically get a warrant and type up an affidavit of probable cause (which may

take around forty-five minutes). (Id. at 18, 35-36).

       At that point his affidavit would be sent through the proper channels at the District

Attorney's Office and the officer would request an expedited review. (N.T. 4/05/17 at p. 18-19,

36). An ADA would review it, choose whether to approve or deny lt, add amendments, and send

it back. (Id). Then the actual warrant would need to be typed, the officer would need to find a

supervisor to approve it, and the warrant would need to be entered into the Philadelphia tracking

system and assigned a number. (Id at 19-20). Then that warrant would need to be taken to the

court building to be reviewed and signed by the arraignment magistrate. (Id.). Assuming that it is

signed, he would have to. take it from court back Jo the hospital, find Defendant, and explain to his

medical staff the circumstances which brought him there. (Id at 20-21). Once the blood is secured,

it is taken back to police headquarters, placed on a property receipt, and sent off to be analyzed.

Com. v, Tarouu Hand                                                                               10
(Id. at 22); Officer Lackman testified that when calculating the total time this would take he

considered only the most optimistic scenarios and did not take into account common time-

consuming possibilities, such as that the DA's office would not immediately approve his warrant

or that the Temple Hospital staff would refuse to take blood and send him to the hospital's legal

department. (Id. at 13, 19, 21).

        Officer Lackman testified that this would take around four hours and forty-five minutes

from the blood draw (measured by the time when AID Officer Minke came into contact with

Defendant) and in this case, six hours from the accident overall (because it took around an hour

and fifteen minutes for Defendant in this case to get from the crash to the blood draw). (N.T.

4/05/17 at pp. 13-14, 22, 24). The realistic result of this lengthy process would be that the blood

draw would take place too late for the six-hour DRUGSCAN test to pick up on Defendant's

intoxication levels at the actual time of the accident. (Id. at 38-40). Sufficient evidence was

presented in this case to demonstrate that there were exigent circumstances. Cf Myers, 164 A.3d

at 1182 (finding no exigent circumstances when the Commonwealth did not present any additional

evidence of exigency). For those reasons, under the totality of circumstances, exigency existed in

this particular case and the needs of the police in investigating this multi-car, multi-victim accident

were sufficiently compelling to sanction a warrantless blood draw.

III. The trial conrt did not err when it applied enhanced DUI sentencing penalties.

       A trial court has broad discretion in sentencing because it ls in the "best position to

measure" the record as well as the defendant's character. Commonwealth v. Riggs, 63 AJd 780,

786 (Pa. Super. Ct. 2012). A sentence will not be disturbed on appeal "absent a manifest abuse of

discretion." Commonwealth v. Haynes, 125 A.3d 800, 808 (Pa. Super, Ct. 2015), appeal denied,

140 A3d 12 {Pa.2016). Additionally, unless a sentence is "clearly unreasonable," Pennsylvania


Com. v. Taroun Hand                                                                                 11
law will give deference to sentences that fall within state sentencing guidelines. Commonwealth v,

Coulverson, 34A.3d 135, 146 (Pa. Super. Ct. 2011) (quoting 42 Pa.C.S. § 9781(c)(2)). When

considering the reasonableness of a sentence, a court should focus on the nature of the offense, the

defendant's history, observations.of the defendant, the trial court's findings, and the sentence's

similarity to the guidelines. 42 Pa.C.S.A. § 978J(d). An unreasonable sentence would be one that

has been imposed by a.judge "irrationally." Riggs, 63 A.3d at 786.

             Here, the sentence at issue-five to ten years of Incarceration for the charge of Aggravated

Assault by DUI-fits neatly within Pennsylvania's suggested guidelines. (N.T. 6/05/17 atpp. 21,

25). Based on Defendant's offense gravity score and prior record score, the minimum suggested

sentencing guideline for this conviction would be four to five years ofincarceration (plus or minus

a year) and the maximum would be ten years of incarceration. (Id. at 3-4). In deciding upon a

sentence, court considered these guidelines and reviewed all reports that had been prepared for

sentencing. (Id. at 3-4, 20). The court also listened to several family members speaking on behalf

of Defendant and considered their arguments, while noting that "unfortunately some of il Wasn't

as helpful for [Defendant.]" (kj, at 20-21 ). The court finally considered the victim impact

statements by the two children who were injured by Defendant, noting that they were really hard

to hear and thatI'their lives were, really impacted by this accident!' (Id. at p. 20). The court then

handed down a sentence that is almostidenticalto the Pennsylvania suggested sentence. (Id. at 21,

25). Therefore the sentence was well-thought out and reasoned.

             Finally, Defendant assert� that the sentence was incorrect because the court considered

Defendant's "illegal" blood results. First, this goes more towards determinatlon of guilt than

sentencing. Second, the court asserts; 'supra, that these blood results were not illegal under the

exigency requirement. Assuming arguendo that the blood results should not have been considered


Com.   11.   Taroun Hand                                                                              12
(and even if the Section 3802(d�(l)    our   charge is reversed), this is harmless error in terms of

sentencing. The sentence of incarceration at issue is one for Aggravated Assault by DUI. For an

Aggravated Assault byOUI vi elation and sentence, there simply needs to have been any violation

of75 Pa.C.S.A. § 3802 (in addition to an assault). 75 Pa.C.S.A. § 3735. I. An accepted violation

of section J 802 for the purposes of an Aggravated Assault by DUI charge is a 3&02(d)(l) violation,

where no blood results are needed and a conviction can be found based on observation alone:

       Analogously to subsections 3802(a)(2), (b), and (c) (or alcohol intoxication,
       subsection J802(d)(l) requires a measurement to determine if any amount of a
       Schedule I, 11, or Ill controlled substance ls detectable in the defendant's blood.
       Second, and analogously to subsection 3802(a)(l) for alcohol intoxication,
       subsection 3802(d)(2) prohibits driving if one is "under the influence of a drug or
       combination of drugs io a degree which impairs [one's] ability to safelydrlve.t' This
       provision by its plain text does not require that a drug be measured in the
       defendant's blood, nor does it specify any particular manner by which the
       Commonwealth is required to prove that the defendant was under the influence of
       a drug. Like subsection 3802(a)(l)j [ ... ] subsection 3802(d)(2) does not limit,
       constrain, or specify the type of evidence that the Commonwealth can proffer to
       prove its case.

Commonwealth v. Griffith, 32 A.Jd 1231: 1239 (Pa. 20J l) (quoting 7 5 Pa.C.S.A. § 3 802). Though

Defendant was also convicted of a J802(d)( I) charge which would usually require a blood test, he

received no sentence for that 3802(d)( l) charge (as it merged into his 3802(d)(2) conviction). Since

Defendant was convicted of3802(d)(2) where no blood results are needed and that is an acceptable

basis for an Aggravated Assault by DUI conviction, on which Defendant's sentence is based, the

blood results are merely cumulative and Defendant's argument is without merit.




Com. v. Taroun Hand                                                                               13
                                         CONCLUSION

       After reading the applicable statute, case laws, and rules, the trial court was correct in

denying Defendant's Motion to Suppress his chemical test results and in sentencing him

accordingly. Therefore, the trial court's decision should be affirmed.




                                                     HONORABLE TIMIKA R, LANE




Com. v, Taroun Hand                                                                            14
