J-A26033-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    STEPHANIE LYNN MACCARTNEY                  :
                                               :
                       Appellant               :   No. 410 WDA 2019

       Appeal from the Judgment of Sentence Entered February 11, 2019
      In the Court of Common Pleas of Greene County Criminal Division at
                        No(s): CP-30-CR-0000006-2018


BEFORE: SHOGAN, J., LAZARUS, J., and OLSON, J.

MEMORANDUM BY OLSON, J.:                            FILED DECEMBER 12, 2019

        Appellant, Stephanie Lynn MacCartney, appeals from the judgment of

sentence entered on February 11, 2019, as made final by the denial of a

post-sentence motion on March 1, 2019, following her bench trial convictions

for driving under the influence of alcohol (DUI) (general impairment)1 and

violating 75 Pa. C.S.A. § 3301(a) (driving on right side of the roadway). We

affirm.

        The facts and procedural history of this case are as follows. In the early

morning hours of October 28, 2017, members of the Jefferson Volunteer Fire

Department (Fire Department) responded to a single motor vehicle accident

in Morgan Township, Pennsylvania. N.T. Trial, 12/13/18, at 13. Upon arrival,

Appellant’s car was found “located off the roadway, several yards up against
____________________________________________


1   75 Pa.C.S.A. § 3802(a)(1).
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[a] barn.” Id. at 14. Appellant was in the front of the car, lying across both

the driver’s and passenger’s seat. Id. At that time, Appellant was “alert,

answering questions” and “for the most part, cooperative.”        Id. at 14-15.

Eventually, Appellant was extricated from the vehicle via a spine board and

“loaded into the ambulance for treatment.”         Id. at 16.       While in the

ambulance, members of the Fire Department made an initial assessment of

Appellant and found no signs of head trauma. Id. at 22. Appellant, however,

did have a laceration above her eye. Id. at 22.

      Prior to Appellant’s transfer to the hospital, Trooper Kevin Kara of the

Pennsylvania State Police arrived at the scene.      Id. at 26.     Upon arrival,

Trooper Kara attempted to speak with Appellant in the ambulance. Id. at 27.

Initially, Appellant was unable to provide “some basic information in regard to

the crash.” Id. Trooper Kara noted that Appellant’s speech was “slow and

sluggish” and that he detected a “strong smell of alcohol.”       Id.   The Fire

Department then transported Appellant to the hospital.        Id.     Thereafter,

Trooper Kara inspected the scene, including Appellant’s vehicle. Id. at 28. In

Appellant’s vehicle, Trooper Kara found a can of Miller Lite beer that had “some

liquid still in it” and a woman’s shoe in the passenger compartment of the

vehicle. Id. at 28 and 37.

      Subsequently, Trooper Kara arrived at the hospital and resumed

questioning Appellant.    Id. at 38-39.      Eventually, Trooper Kara asked

Appellant to consent to a blood draw. Id. at 39. Appellant indicated that she

did, in fact, consent. Id. at 30. A blood test was completed at 6:10 a.m. Id.

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An analysis was later conducted which revealed that Appellant’s blood alcohol

content (BAC) was 0.269+/- 0.014. Id. at 7.

       On January 12, 2018, the Commonwealth filed a criminal information

against Appellant, charging her with DUI: highest rate, DUI: general

impairment, and violating 75 Pa. C.S.A. § 3301(a) (driving on right side of the

roadway).     Bill of Information, 1/12/18, at 1-3.        On February 14, 2018,

Appellant filed a motion to suppress the results of the blood draw. Appellant’s

Motion to Suppress, 2/14/18, at 1-5. A hearing was held on April 24, 2018,

and the matter was continued until June 5, 2018. Ultimately, on July 5, 2018,

the trial court denied Appellant’s motion. Trial Court Order, 7/5/18, at 1-7.

       Appellant’s bench trial commenced December 13, 2018, during which

the court found Appellant not guilty of DUI: highest rate, but found her guilty

of DUI: general impairment and violating Section 3301(a) of the Vehicle Code.

Trial Court Order, 12/13/18, at 1-2. On February 11, 2019, the trial court

sentenced Appellant to “not less than 30 days nor more than six months

[incarceration], with [Appellant] to serve 15 days in Greene County Prison

followed by 15 days of house arrest.”            Trial Court Opinion, 5/3/19, at 2.

Appellant filed a post-sentence motion on February 15, 2019, which the trial

court denied on March 1, 2019. Trial Court Order, 3/1/19, at 1. This timely

appeal followed.2

____________________________________________


2 Appellant filed a notice of appeal on March 15, 2019. On March 20, 2019,
the trial court filed an order directing Appellant to file a concise statement of



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       Appellant raises the following issues on appeal:

        I.    Whether the suppression court erred in denying Appellant’s
              motion to suppress when her consent to a blood draw was
              obtained while she was in the emergency room receiving
              medical treatment and awaiting transport to a facility that
              could provide a higher level of care?

       II.    Whether the evidence was insufficient to sustain a
              conviction for driving under the influence (general
              impairment) when the Commonwealth presented no
              evidence that intoxication – rather than injuries sustained –
              were the cause of Appellant’s behavior following the crash?

Appellant’s Brief at 6.

       In Appellant’s first issue, she contends that the trial court erred in

denying her motion to suppress. Specifically, Appellant argues that, because

a blood draw constitutes a police search, the police were either required to

obtain a warrant or operate within one of the well-established exceptions to

the warrant requirement. Id. at 13. Per Appellant, because the police did not

have a warrant and her consent to the blood draw was not made knowingly

or voluntarily, the search was invalid. Id. at 13-18. We disagree.

       We adhere to the following standards:

       Our standard of review in addressing a challenge to the denial of
       a suppression motion is 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 defense as
____________________________________________


matters complained of on appeal pursuant to Pa.R.A.P. 1925(b)(1). Appellant
timely complied. The trial court issued an opinion pursuant to Pa.R.A.P.
1925(a) on May 3, 2019.

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      remains un[-]contradicted 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. 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 [trial court's]
      conclusions of law [ ] are subject to our plenary review.

      Moreover, appellate courts are limited to reviewing only the
      evidence presented at the suppression hearing when examining a
      ruling on a pre-trial motion to suppress.

Commonwealth v. Shreffler, 201 A.3d 757, 763 (Pa. Super. 2018) (internal

citation omitted).

      Initially, we set forth the following principles of law, which address the

validity of warrantless blood draws as follows:

      In Birchfield [v. North Dakota, 136 S.Ct. 2160 (2016)], the
      Supreme Court of the United States held that criminal penalties
      imposed on individuals who refuse to submit to a warrantless
      blood test violate the Fourth Amendment (as incorporated into the
      Fourteenth Amendment). Within one week of that decision, [the
      Pennsylvania Department of Transportation, in order to comply
      with Birchfield] revised the [standard consent form used by
      police, known as the] DL–26 form[,] to remove the warnings
      mandated by 75 Pa.C.S.A. § 3804 that theretofore informed
      individuals suspected of DUI that they would face enhanced
      criminal penalties if they refused to submit to a blood test[.] [The]
      revised form [is] known as Form DL–26B[.]

                                      ***

      This Court subsequently held that [ ] enhanced criminal penalties
      [imposed] for failure to consent to a blood draw constituted an
      illegal sentence because of Birchfield. See Commonwealth v.
      Giron, 155 A.3d 635, 639 (Pa. Super. 2017).

      On July 20, 2017, Governor Thomas W. Wolf signed into law Act
      30 of 2017, which amended 75 Pa.C.S.A. § 3804 to comport with
      Birchfield. Specifically, Act 30 provides for enhanced criminal
      penalties for individuals who refuse to submit to blood tests only

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      when police have obtained a search warrant for the suspect's
      blood. See 75 Pa.C.S.A. § 3804(c). Hence, from July 20, 2017
      onwards the DL–26B form conforms to the revised statutory law.

Commonwealth v. Venable, 200 A.3d 490, 495 (Pa. Super. 2018) (original

brackets omitted).

      With this backdrop in mind, we turn to Appellant's claim that her consent

was involuntary, and thus, invalid. Specifically, Appellant maintains that her

consent was not voluntary for two reasons.        First, Appellant posits that,

following her “severe accident,” she sustained “traumatic head injuries” which

“undoubtedly affected her ability to understand what was happening, including

her right to refuse a blood draw.” Appellant’s Brief at 17. Second, Appellant

cites the fact that she did not verbally consent to the officer’s request for a

blood draw or sign or read any consent forms. Id. at 18. Thus, per Appellant,

the Commonwealth did not sustain its burden of proving that her consent was

voluntary, and as such, the trial court erred in denying her motion to suppress

the results of the blood draw. Id. We disagree.

      In examining whether consent is voluntary, we note:

      In determining the validity of a given consent, the Commonwealth
      bears the burden of establishing that a consent is the product of
      an essentially free and unconstrained choice—not the result of
      duress or coercion, express or implied, or a will overborne—under
      the totality of the circumstances. The standard for measuring the
      scope of a person's consent is based on an objective evaluation of
      what a reasonable person would have understood by the exchange
      between the officer and the person who gave the consent. Such
      evaluation includes an objective examination of the maturity,
      sophistication and mental or emotional state of the defendant.
      Gauging the scope of a defendant's consent is an inherent and
      necessary part of the process of determining, on the totality of the


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       circumstances presented, whether the consent is objectively valid,
       or instead the product of coercion, deceit, or misrepresentation.

       While there is no hard and fast list of factors evincing
       voluntariness, some considerations include: 1) the defendant's
       custodial status; 2) the use of duress or coercive tactics by law
       enforcement personnel; 3) the defendant's knowledge of his right
       to refuse to consent; 4) the defendant's education and
       intelligence; 5) the defendant's belief that no incriminating
       evidence will be found; and 6) the extent and level of the
       defendant's cooperation with the law enforcement personnel.

Venable, 200 A.3d at 497 (citations omitted).

       Herein, we conclude, as the trial court did, that, “given the totality of

the circumstances,” the “seizure of blood was voluntary and consensual.” Trial

Court Order, 7/5/18 at 5-7. At the hearing, Trooper Kara testified as follows:

       [Counsel]: And, when you got to the hospital, did you – where
       was [Appellant]?

       [Trooper Kara]: She was in the emergency room.

       [Counsel]: And, what did you indicate to her when you got to the
       hospital?

       [Trooper Kara]: When I got to the hospital, she was being looked
       [at in] the emergency room, I believe they were doing some –
       some tests on her. And, around 6:00 [a.m.], I asked if she would
       consent to a chemical test.

       [Counsel]: And, what did you do when you asked if she would
       consent to a chemical test?

       [Trooper Kara]: I asked if she would be willing to take the test
       and I read her the DL-26[B form].3


____________________________________________


3 The DL-26B form that was read to Appellant provided, in relevant part, as
follows:




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J-A26033-19


                                           ***

       [Counsel]: And, which sections did you read?

       [Trooper Kara]: I read sections, [one, two, three, and four].

                                           ***

       [Counsel]: And, what was her reaction when you read the
       DL-26[B]?

       [Trooper Kara]: No reaction. She was okay with it.

       [Counsel]: What did she indicate to you about the blood draw?

       [Trooper Kara]: She indicated that she would be willing to take
       it and that she – she could estimate her BAC.

       [Counsel]: What would – what [did she] estimate [was] her BAC?

       [Trooper Kara]: She estimated her BAC about [0].3.



____________________________________________


       It is my duty as a police officer to inform you of the following:

        I.    You are under arrest for driving under the influence of alcohol or
              a controlled substance in violation of Section 3802 of the Vehicle
              Code.

       II.    I am requesting that you submit to a chemical test of blood.

      III.    If you refuse to submit to the blood test, your operating privilege
              will be suspended for at least 12 months. If you previously
              refused a chemical test or were previously convicted of driving
              under the influence, you will be suspended for up to 18 months.

       IV.    You have no right to speak with an attorney or anyone else before
              deciding whether to submit to testing. If you request to speak
              with an attorney or anyone else after being provided these
              warnings or you remain silent when asked to submit to a blood
              test, you will have refused the test.


N.T. Pre-Trial Hearing, 4/24/18, Commonwealth’s Exhibit 2.


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N.T. Pre-Trial Hearing, 4/24/18, at 29-30.       We hold that an objective

evaluation of the aforementioned exchange would result in the conclusion that

Appellant voluntarily consented to the blood draw. See Venable, 200 A.3d

at 497. The fact that Appellant – herself - estimated her BAC to be “[0].3”

after being read the DL-26B form, evidences her willingness to allow a blood

draw and the voluntariness of her consent. N.T. Pre-Trial Hearing, 4/24/18,

at 30. Indeed, she clearly knew incriminating evidence would be found but

still cooperated with the police. Therefore, we conclude that the trial court’s

factual findings are supported by the record and as such, the denial of

Appellant’s motion to suppress was not erroneous.

      In Appellant’s second issue, she contends that the evidence was

insufficient to support her conviction of DUI: general impairment. Appellant’s

Brief at 18. Specifically, Appellant argues that the Commonwealth failed to

present evidence that “alcohol, rather than the injuries suffered from the

crash,” caused Appellant’s subsequent behavior, and therefore, “the [t]rial

[c]ourt erred in finding [that] there was sufficient evidence to convict

Appellant.” Id. at 20-21. We disagree.

      In Commonwealth v. Hennigan, 753 A.2d 245 (Pa. Super. 2000), this

Court set forth the applicable standard for assessing a challenge to the

sufficiency of the evidence:

      “The standard we apply in reviewing the sufficiency of evidence is
      whether, viewing all the evidence admitted at trial in the light
      most favorable to the verdict winner, there is sufficient evidence
      to enable the factfinder to find every element of the crime beyond
      a reasonable doubt.” Commonwealth v. Heberling, 678 A.2d

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      794, 795 (Pa. Super. 1996), citing Commonwealth v. Williams,
      650 A.2d 420 (Pa. 1994)). In applying [the above] test, we may
      not weigh the evidence and substitute our judgment for that of
      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. Commonwealth v. Cassidy, 668 A.2d 1143,
      1144 (Pa. Super. 1995) (citations omitted). The Commonwealth
      may sustain its burden of proving every element of the crime
      beyond a reasonable doubt by means of wholly circumstantial
      evidence. Moreover, in applying the above test, the entire record
      must be evaluated and all evidence actually received must be
      considered. Finally, the trier of fact while passing upon the
      credibility of witnesses and the weight of the evidence produced,
      is free to believe all, part or none of the evidence.
      Commonwealth v. Valette, 613 A.2d 548, 549 (Pa. 1992)
      (citations and quotation marks omitted); Commonwealth v.
      Vetrini, 734 A.2d 404, 406–407 (Pa. Super. 1999).

Hennigan, 753 A.2d at 253 (parallel citations omitted).

      The trial court convicted Appellant of DUI: general impairment,

statutorily defined as follows:

      (a) General impairment.—

      (1) 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, operating or being in actual physical control of
      the movement of the vehicle.

75 Pa.C.S.A. § 3802(a)(1).        “In order to obtain a conviction pursuant to

Section 3801(a)(1), the Commonwealth must prove the accused was driving,

operating, or in actual physical control of the movement of a vehicle during

the time when he or she was rendered incapable of safely doing so due to the


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consumption of alcohol.” Commonwealth v. Karns, 50 A.3d 158, 165 (Pa.

Super. 2012) (internal quotations and citation omitted). Our Supreme Court

previously outlined the types of evidence the Commonwealth may proffer to

sustain a conviction under subsection 3802(a)(1). Such evidence includes the

following:

      the offender’s actions and behavior, including manner of driving .
      . . physical appearance, particularly bloodshot eyes and other
      physical signs of intoxication; odor of alcohol, and slurred speech
      [and BAC] . . . insofar as it is relevant to and probative of the
      accused’s ability to drive safely at the time he or she was driving.

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

      We conclude that the evidence, construed in the light most favorable to

the Commonwealth, was sufficient to sustain Appellant’s conviction under

subsection 3802(a)(1). The Commonwealth presented evidence that, in the

early morning hours of October 28, 2017, Appellant was in a single-vehicle

accident. N.T. Trial, 12/13/18, at 25-26. Appellant claimed that “she thought

she was pulling into her driveway,” but ended up “[striking] a mailbox and

utility pole,” resulting in her car being “off the roadway, up against a barn.”

Id. at 15 and 26; see Segida, 985 A.2d at 879 (explaining that the accident,

itself, “constitutes evidence that [Appellant] drove when [she] was incapable

of doing so safely”). Trooper Kara testified that, while interviewing Appellant,

her speech was “slow and sluggish,” that he detected a “strong smell of

alcohol,” and upon searching her vehicle, he found a can of Miller Lite beer

that had “some liquid still in it.” N.T. Trial, 12/13/18, at 27. Lastly, the blood



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test taken at the hospital revealed that Appellant’s BAC level was “0.269.” Id.

at 8. “The undisputed evidence of Appellant’s strikingly high [BAC] level [] is

noteworthy” and, contrary to Appellant’s assertions, “the fact-finder is not

required to suspend common sense and ignore the fact that [Appellant’s]

[BAC] was not just elevated, but enormously elevated.”      Segida, 985 A.2d

at 879; see also Commonwealth v. Eichler, 133 A.3d 775, 787 (Pa. Super.

2016) (“Section 3802(a)(1) does not include “two hour” language, so evidence

of blood tests taken more than two hours after driving is admissible under

subsection (a)(1)”). As such, we conclude that the evidence was sufficient to

convict Appellant under subsection 3802(a)(1).

      Judgment of sentenced affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/12/2019




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