J-A08018-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    RAYMOND SCOTT KING                         :
                                               :   No. 3891 EDA 2016
                       Appellant               :

       Appeal from the Judgment of Sentence Entered December 1, 2016
     In the Court of Common Pleas of Montgomery County Criminal Division
                       at No(s): CP-46-CR-0001074-2016


BEFORE:      PANELLA, J., LAZARUS, J., and STRASSBURGER*, J.

MEMORANDUM BY LAZARUS, J.:                                 FILED JUNE 27, 2018

        Raymond Scott King appeals from his judgment of sentence, entered in

the Court of Common Pleas of Montgomery County, following his conviction

after a non-jury trial of one count of Driving Under the Influence (DUI) —

highest rate of alcohol,1 and one count of DUI — general impairment.2 After

careful review, we affirm.

        The trial court summarized the relevant facts underlying this case as

follows:

        On September 5, 2015, at roughly 10:49 P.M., Officer [Matthew]
        Musselman (“the affiant”) of the Lower Pottsgrove Township Police
        Department was dispatched to 2596 Pruss Hill Road in
        Montgomery County, Pennsylvania, upon report of a motor vehicle
        accident. The affiant arrived on [the] scene and found [King]
____________________________________________


1   75 Pa.C.S. § 3802(c).

2   75 Pa.C.S. § 3802(a)(1).
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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     sitting in the middle of the road, with his black motorcycle laying
     nearby. The affiant noticed [King’s] bloodshot eyes and detected
     an alcohol[] odor emanating from his person. However, when
     asked, [King] told the affiant he had not been drinking. The affiant
     also observed blood on the seat of [King’s] motorcycle and on his
     pants.

     First responder to the scene, Matthew Burfete (“the paramedic”),
     testified at the December 1, 2016, bench trial as to his
     observations of the scene of [King’s] motorcycle accident and the
     resulting injuries on September 5, 2015. The paramedic was a
     firefighter and paramedic for about five (5) years at the time of
     the incident, and in that time had previously encountered and
     became familiar with the effects of alcohol on a person. The
     paramedic found [King] in the middle of the roadway and his
     motorcycle lying on its side nearby in a ditch. According to the
     paramedic, [King] acted, ‘slightly confused and somewhat
     uncooperative[,]’ while he was being examined for injuries.
     [King’s] injuries included a right femur fracture and a dislocation
     or fracture of the right knee; yet, [King] initially refused any offer
     to help him stand and be placed onto the litter (‘gurney’), insisting
     he be allowed to do so himself. The paramedic testified individuals
     who suffer the type of injury [King] suffered typically are
     unwilling, not to mention unable, to stand, as the case ultimately
     turned out to be for [King]. [King] was eventually convinced to
     allow paramedics to help him onto the gurney and in the back of
     the ambulance, after which paramedics more thoroughly
     examined [King] and obtained his vital signs. While en route to
     the hospital the paramedic spoke with [King] to determine, inter
     alia, how the accident occurred and whether [King] had been
     drinking. [King] admitted to drinking two (2) glasses of wine to
     the paramedic, which contrasted with his previous statement to
     the affiant that he had not been drinking anything[.]

     At the   end of his direct examination, the paramedic testified that
     based    upon his observations, i.e., odor of alcohol; bloodshot,
     glassy   eyes; strange, uncooperative behavior, it was his belief
     [King]   was intoxicated on the night of the incident, September 5,
     2015.

     [King] was taken to nearest trauma center at West Reading
     Hospital, approximately thirty (30) to forty (40) minutes away
     from the scene of the accident. The affiant was stationed outside
     [King’s] hospital room, whereupon he observed an intravenous
     (IV) line in [King’s] arm and medical personnel with several vials

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      of [King’s] blood (from a blood draw conducted by the hospital in
      treating [King’s] injuries) inside the trauma bay. Later, when the
      affiant was able to enter [King’s] hospital room, he read to [King]
      the DL-26 form containing an enhancement penalty clause for
      refusal to submit to blood testing, after which [King’s] blood was
      drawn (“‘legal’ blood draw”), this at the affiant’s direction; then
      placed in signed, sealed vials and given to the affiant to be sent
      to a lab for further testing. [King’s] blood was first drawn at the
      hospital’s direction for medical treatment purposes in accordance
      with hospital procedure (“‘medical’ blood draw”), before [King]
      was read the DL-26 form.

      The separate, ‘legal’ blood draw was conducted subsequent to the
      DL-26 form being read to [King], (again, the ‘medical’ blood draw
      preceded this ‘legal’ blood draw); the affiant collected the vials of
      blood from that ‘legal’ blood draw; and sent the samples to an
      independent lab for further testing.          The affiant specifically
      recalled the procedure in Montgomery County at the time was, in
      fact, to place collected blood vials in kits to be sent to a lab for the
      appropriate testing, as opposed to the hospital testing the blood-
      alcohol concentration (“BAC”) of individuals at the hospital. The
      trial court asked the affiant to clarify for the record, as follows:

         [THE COURT]:           Officer, let me just make sure I
                                understand. The blood that you had
                                taken as the result of the DL-26—

         [THE WITNESS]:         Yes?

         [THE COURT]:           -- did you take that blood with you for
                                testing or was that testing done at the
                                hospital?

         [THE WITNESS]:         No. That was taken with me back to
                                the station.

      The affiant received vials of [King’s] blood taken from the ‘legal’
      blood draw at 12:41 A.M. on September 6, 2015.

Trial Court Opinion, 8/7/17, at 1-4 (internal citations and footnotes omitted).

      On July 12, 2016, King filed his first motion to suppress, objecting to

the admission of the results of the ‘legal’ blood draw that was conducted



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pursuant to the DL-26 form. In this first motion, King argued that, pursuant

to Birchfield v. North Dakota, 136 S. Ct. 2160 (2016),3 the warrantless

blood    draw    was     unconstitutional,     because   there   were   no   exigent

circumstances to overcome the warrant requirement and King’s consent to the

‘legal’ blood draw was coerced by the threat of enhanced criminal penalty in

the pre-Birchfield DL-26 form.

        Because of the challenge to the ‘legal’ blood draw, the affiant prepared

and filed the first search warrant application and an affidavit of probable cause

on July 27, 2016, seeking the results of the ‘medical’ blood draw that was

ordered by the hospital in conjunction with its treatment of King. Though it

contained irrelevant references to the affiant’s training and familiarity with

illegal controlled substances, the affidavit primarily consisted of the facts and

circumstances surrounding the September 5, 2015 motorcycle accident.

Specifically, observations of King’s bloodshot, glassy eyes, the scent of alcohol

coming from him, and King’s admission to drinking before the crash served as

probable cause to search the medical records from West Reading Hospital.

The first search warrant (the “July Warrant”) was executed on the same day,

seizing the results of King’s ‘medical’ blood draw, which had to be sent to NMS
____________________________________________


3 In Birchfield, the United States Supreme Court held that because the taking
of a blood sample is a search within the meaning of the Fourth Amendment to
the Constitution, police officers may not compel the taking of a blood sample
without a search warrant. Birchfield, 136 S. Ct. at 2184. The Birchfield
court found laws that impose criminal penalties for refusing to consent to a
blood test are unconstitutional because “motorists cannot be deemed to have
consented to submit to a blood test on pain of committing a criminal offense.”
Id. at 2185.

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Labs to be converted from ethanol to blood alcohol concentration.           The

toxicology report from NMS Labs reflects the conversion to blood alcohol

concentration, which was at the high rate of 0.272%.

      On August 11, 2016, a suppression hearing was held on King’s July 12,

2016 motion to suppress the blood results derived from the ‘legal’ blood draw.

The trial court granted King’s motion, reasoning the ‘legal’ blood draw

conducted on King pursuant to the DL-26 form was unconstitutional in

accordance with the United States Supreme Court’s holding in Birchfield.

      On August 17, 2016, King filed his second motion to suppress, this time

seeking to suppress the results of the ‘medical’ blood draw seized through the

July Warrant. In his second motion, King argued the July affidavit of probable

cause contained “misleading and/or         inaccurate   information” that the

magisterial district judge used to form the basis for the issuance of the search

warrant and that the results of the ‘medical’ blood draw were “fruit of the

poisonous tree” suppressed by the trial court at the first suppression hearing

on August 11, 2016.

      Because of King’s challenges to the July Warrant, on September 17,

2016, the affiant filed a second search warrant application and affidavit of

probable cause. Therein, the affiant sought additional medical records in order

to assist the Commonwealth in proving the ‘medical’ blood draw was

legitimately conducted by medical personnel for purposes of independent

medical treatment and the results thereof were not fruit of the warrantless

‘legal’ blood draw. The September affidavit contained the same observations

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to support probable cause as the July affidavit, though the September affidavit

omitted the irrelevant information and immaterial references to illegal drugs

included in the July affidavit, i.e., the affiant’s law enforcement background in

investigating illegal controlled substances crimes, and a note about Reading

Hospital’s “common practice . . . to test a patient’s blood for alcohol and or

illegal narcotics.” N.T. Suppression Hearing, 11/9/16, at 53-56, 60. A warrant

was issued pursuant to the September 17, 2016 application (the “September

Warrant”) on the same day. The September Warrant authorized the seizure

of the relevant records, which indicated the ethanol test of King’s blood was

ordered by medical personnel, Elaine Miller, R.N., for the purpose of safely

treating King’s extensive injuries.

      On November 7, 2016, King filed his third motion, seeking to suppress

his medical records documenting the parties responsible for ordering the

‘medical’ blood draw, and the reasoning for same. In this third motion to

suppress, King argued the September affidavit of probable cause, like the July

affidavit, contained “misleading and/or inaccurate information” that the

magisterial district judge used to form the basis for the issuance of the

subsequent search warrant, and that specific medical records were “fruit of

the poisonous tree” suppressed by the trial court at the first suppression

hearing on August 11, 2016.

      On November 9, 2016, a second suppression hearing was held to

address King’s second and third motions to suppress the results of the

‘medical’ blood draw, seized upon the execution of the July Warrant, and the

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medical records documenting the parties responsible for ordering the ‘medical’

draw and the reasoning for same, which were seized upon the execution of

the September Warrant. After the hearing, the trial court concluded that the

‘medical’ and ‘legal’ blood draws were separate and distinct, the first being

legitimately conducted for medical treatment purposes, and the latter being

done for purposes of criminal prosecution and pursuant to the DL-26 form.

Trial Court Opinion, 8/7/17, at 8. Therefore, King’s second and third motions

to suppress were denied.

      After a bench trial before the Honorable Gail A. Weilheimer on December

1, 2016, King was found guilty of driving under the influence — highest rate

of alcohol and driving under the influence — general impairment. The court

sentenced King to seventy-two (72) hours’ to six (6) months’ imprisonment,

and ordered him to submit to both Court Reporting Network and drug and

alcohol evaluations, to comply with subsequent treatment recommendations,

to attend safe-driving school, and to surrender his driver’s license to the clerk

of courts.

      King filed a timely notice of appeal and court-ordered Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal.           On appeal, King

presents the following issues for our consideration:

      1. Whether the trial court erred in denying [King’s] [m]otion to
      [s]uppress because the affidavit of probable cause used to obtain
      the July 27, 2016 search warrant contained material
      misstatements of fact which caused the neutral and detached
      magistrate to erroneously believe that [King] was under
      investigation for driving under the influence of illegal drugs?


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        2. Whether the trial court erred in denying [King’s] [m]otion to
        [s]uppress because the affidavit of probable cause used to obtain
        the September 17 [sic], 2016 search warrant was misleading and
        the evidence obtained through this warrant was not from an
        independent source?

        3. Whether the evidence at trial was insufficient to prove [King]
        guilty [of DUI — highest rate] beyond a reasonable doubt where
        the Commonwealth produced no evidence to prove the time at
        which the accident occurred, and if [King’s] medical records are
        suppressed by this Court, the Commonwealth produced no
        evidence to prove [King’s] blood alcohol concentration?[4]

Appellant’s Brief, at 5.

        Our standard of review when assessing a challenge to the denial of a

motion to suppress is well-established.          Review is limited to whether the

record supports the suppression court’s factual findings and whether the legal

conclusions drawn from those facts are correct. Commonwealth v. Jones,

988 A.2d 649, 654 (Pa. 2010). Where the record supports the factual findings

of the suppression court, we are bound by those findings and reverse only if

the court’s legal conclusions are erroneous.         Id.   When the appeal of the

determination of the suppression court turns on allegations of legal error, the

legal conclusions of the suppression court are not binding on the appellate

court, which must determine if the law was properly applied to the facts. Id.

        In essence, King attacks the trial court’s denial of his motions to

suppress on the grounds that the affidavits of probable cause for both search

warrants contained material misstatements of fact that should invalidate the

warrants.     Misstatements of fact in a search warrant affidavit will invalidate

____________________________________________


4   King does not challenge his DUI — general impairment conviction.

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a search and require suppression only if they are deliberate and material.

Commonwealth v. Mickell, 598 A.2d 1003, 1010 (Pa. Super. 1991); see

also Commonwealth v. Zimmerman, 422 A.2d 1119, 1124 (Pa. Super.

1980) (“appellant must establish that the police (1) made a misstatement,

which is both (2) deliberate and (3) material”). A material fact is one “without

which probable cause to search would not exist.”          Commonwealth v.

Minoske, 441 A.2d 414, 418 (Pa. Super. 1982).           In deciding whether a

misstatement is material, the test is if the misstatement is essential to the

affidavit.   Mickell, 598 A.2d at 1010.    In order to determine whether the

misstatements are essential, they must be deleted from the application, and

if probable cause still exists within the affidavit, the misstatements are

immaterial. Commonwealth v. Yucknevage, 390 A.2d 225, 227 (Pa. Super.

1978).

      Here, King objects to the inclusion of the affiant officer’s employment

background and familiarity with illegal substances, because the affiant only

suspected King of driving under the influence of alcohol, not a controlled

substance. Appellant’s Brief, at 25-26. The July 27, 2016 affidavit contained

seven (7) references to illegal drugs, while the September 17, 2016 affidavit

contained four (4), which King deems “still too many.” Id. at 34. King claims

that these “misleading” references caused the magisterial district judge to

believe King was under investigation for illegal drugs. Id. at 21-25. King

asserts the misstatements were material and, by omitting them, probable

cause to search King’s medical records did not exist. We disagree.

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      The alleged “defects” in the July 27, 2016 warrant’s affidavit of probable

cause were not essential because without them, probable cause remained.

Yucknevage, supra.        The statements included in the affidavit were not

deliberate; the affiant, himself, classified the references to his experience with

illegal controlled substances, which were irrelevant to King’s case, as “clerical

errors.”   N.T. Suppression Hearing, 11/9/16, at 67, 69.            Without the

statements regarding the affiant’s background and the hospital’s typical

practices of testing for alcohol and illegal controlled substances, the affidavit

still contained descriptions of King’s bloodshot, glassy eyes, the scent of

alcohol emanating from him, and King’s admission to drinking before the

crash. The affiant made an immaterial error by including his experience with

controlled substances in the July 27, 2016 affidavit, and, without those

statements, probable cause remained to search King’s medical records for

blood tests and his blood alcohol concentration.

      Because the September 17, 2016 affidavit of probable cause listed these

same factual underpinnings, with fewer references to illegal drugs, probable

cause also existed for the issuance of the second search warrant. Further, the

September Warrant sought additional information, specifically, the medical

personnel responsible for the draw and the reasons for same.          The affiant

applied for this second warrant after the challenge to the July Warrant, in

order to assist the Commonwealth in proving the ‘medical’ blood draw was

distinct from the ‘legal’ blood draw. This court has held that results from blood

draws conducted for independent medical treatment of DUI suspects, which

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are seized through a validly obtained and executed search warrant, should not

be suppressed. Commonwealth v. Miller, 996 A.2d 508, 515-16 (Pa. Super.

2010). On appeal, King does not dispute that the ‘medical’ blood draw was

legitimately conducted for independent medical treatment.         Because the

‘medical’ blood draw was legitimately conducted for the purpose of

independent medical treatment, the trial court did not err in denying King’s

motions to suppress.5

       Finally, King argues the evidence was insufficient to prove beyond a

reasonable doubt that his blood alcohol concentration was in the highest rate

within two hours of the accident.6 Appellant’s Brief, at 47-61. We find this

argument to be meritless.

       In assessing the sufficiency of the evidence, we must view “all evidence

and reasonable inferences therefrom in the light most favorable to the

Commonwealth, as the verdict winner, and consider whether the trier of fact

could have found that each element of the offense charged was supported by

evidence and inference[s] sufficient to prove guilt beyond a reasonable

doubt.” Commonwealth v. Brown, 701 A.2d 252, 254 (Pa. Super. 1997)

____________________________________________


5 King claims that because the warrants are invalid, the Commonwealth cannot
prove his blood alcohol concentration beyond a reasonable doubt. Given our
finding that the warrants were valid, we do not need to address this part of
his sufficiency claim.

6 (As required to support a conviction for DUI — highest rate of alcohol under
75 Pa.C.S. § 3802(c)). Although the Commonwealth argues that the issue of
timing has been waived, we find that the issue has been preserved for our
review. See, Appellant’s Concise Statement, 2/3/2017.

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(citations omitted). The Commonwealth “may sustain its burden by proving

the crime’s elements with evidence which is entirely circumstantial and the

trier of fact, who determines credibility of witnesses and the weight to give

the evidence produced, is free to believe all, part, or none of the evidence.”

Id.

       Here, the evidence adduced at trial demonstrated the following: the

affiant received a call at 10:49 P.M. from dispatch, which came after a witness

reported a one-vehicle motorcycle accident; the affiant arrived on the scene

to find still-wet blood on the seat of the motorcycle and pooled beneath King,

indicating the accident had occurred recently; and, after the paramedic team

transported King to West Reading Hospital, the ‘medical’ blood draw was

ordered at 11:55 P.M., only one hour and six minutes after the call to the

affiant. This blood draw showed a blood alcohol concentration of 0.272%.

From these circumstances, it was reasonable for the trial court to infer that

King’s blood alcohol concentration was above the highest rate of alcohol7

within two hours of operating his motorcycle. Accordingly, King’s sufficiency

claim is meritless.

       Judgment of sentence affirmed.




____________________________________________


7See 75 Pa.C.S. § 3802(c) (classifying a blood alcohol concentration of 0.16%
or higher as the highest rate of alcohol).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/27/18




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