J-A29029-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    CLIFFORD LENNOX CALDWELL, JR.,

                             Appellant               No. 3861 EDA 2016


           Appeal from the Judgment of Sentence November 30, 2016
             in the Court of Common Pleas of Montgomery County
               Criminal Division at No.: CP-46-CR-0003062-2015


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

MEMORANDUM BY PLATT, J.:                         FILED FEBRUARY 15, 2018

        Appellant, Clifford Lennox Caldwell, Jr., appeals from the judgment of

sentence imposed following his bench trial conviction of Driving Under the

Influence (DUI) - Unsafe Driving/Controlled Substance. Appellant challenges

the admission of a response he made to a hospital intake nurse in a pre-

screening interview, that he was taking oxycodone. He also challenges the

sufficiency of the evidence. We affirm.

        We derive the facts of the case from the trial court’s opinion and our

independent review of the record. The trial court found the following facts:

              On March 9, 2015, [Appellant] was involved in a [two-] car
        accident early in the morning [at 4:53 a.m.]. [Jenkintown] Police

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*   Retired Senior Judge assigned to the Superior Court.
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       [Officer David Sangree] arrested [him] for [three counts of] DUI
       -Controlled Substances.      On August 11, 2016, a Motion to
       Suppress Hearing was held, and on September 6, 2016, that
       Motion was granted in part and denied in part. Evidence seized
       as a result of the blood draw from [Appellant] and statements
       from the administration of the DL-26 form were suppressed
       pursuant to Birchfield v. North Dakota, 136 S. Ct. 2160 [ ]
       (2016). [Appellant’s] Motion to Suppress the statement made to
       hospital personnel was denied. On November 30, 2016, after a
       bench trial, [Appellant] was found guilty of one count, DUI- Unsafe
       Driving/Controlled Substance [75 Pa.C.S.A. § 3802(d)(2)], and
       sentenced to fifteen days to six months incarceration.          On
       December 14, 2016, this timely notice of appeal was filed.

(Trial Court Opinion, 2/24/17, at 1).1

       Additionally, we note that Officer Sangree testified that he chose not to

have Appellant perform any field sobriety tests, in part because the sidewalk

was icy and slippery from recent snow. (See N.T. Trial, 11/30/16, at 33).

However, Officer Sangree arrested Appellant at the accident scene, and

escorted him to the hospital for a blood draw, based on his training,

experience and observation that he (Appellant) exhibited signs of drug

impairment, including bloodshot, glassy eyes, unsteady gait, slurred, impaired

speech and incoherent, sometimes incomprehensible responses to questions

asked, as well as the collision itself. (See id. at 31-34).

       Furthermore, the trial court accepted Donna Papsun as an expert in the

field of forensic toxicology, without objection. (See id. at 46-47). Ms. Papsun



____________________________________________


1Appellant filed a concise statement of errors on February 2, 2017. The trial
court filed its opinion on February 24, 2017. See Pa.R.A.P. 1925.


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testified to a reasonable degree of scientific certainty that the behaviors

exhibited by Appellant, as testified to by Officer Sangree, were consistent with

the effects of a central nervous system (CNS) depressant, such as oxycodone.

(See id. at 51-53).

       Appellant exercised his constitutional right not to testify. (See id. at

58).   After presenting one character witness, the defense rested.       In final

argument, defense counsel suggested that Appellant’s incoherent responses

might just have been a result of being in a crash, (see id. at 60), or the police

officer’s misinterpretation of Appellant’s North Carolina accent) (see id., at

61). The trial court found Appellant guilty of DUI-controlled substance (count

three), (see id. at 72), and sentenced him to a term of incarceration of not

less than fifteen days and not more than six months, (see id. at 83).2

       On appeal, Appellant presents two questions for our review:

              1. Whether the trial court committed an error of law and/or
       abused its discretion in denying Appellant’s motion to suppress his
       statement provided to the nurse taking his blood sample and
       overheard by the arresting officer insofar as the [statement]
       constitutes fruit of the poisonous tree where the Appellant would
       not have been in the position to make such a statement had the
       officer not taken him into custody for the purposes of a blood draw
       that was concededly[3] unconstitutional pursuant to Birchfield[,
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2The Commonwealth did not proceed on counts one and two, so no further
penalty was imposed on those counts. (See N.T. Trial, at 85).

3 At the hearing on the defense’s motion to suppress, the Commonwealth
conceded, for purposes of this case, that Appellant’s blood sample would be
suppressed pursuant to Birchfield, supra. (See N.T. Motion to Suppress,
8/11/16, at 3).



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       supra,] and insofar as the Appellant was subjected to a custodial
       interrogation by the Commonwealth agent (nurse) without having
       been provided his Miranda4 warnings[?]

             2. Whether [Appellant’s] conviction for driving under the
       influence was supported by legally sufficient evidence of
       impairment [?]

(Appellant’s Brief, at 7) (unnecessary capitalization omitted).5

       In his first issue, Appellant argues that his statement to the intake nurse

should have been suppressed as “fruit of the poisonous tree.”6 (See id. at

26).     He maintains that the nurse was acting as an agent of the

Commonwealth and that her question to him (which resulted in his statement


____________________________________________



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

5 We observe that in Appellant’s brief, among numerous procedural errors,
counsel fails to abide by either the letter or the spirit of Pennsylvania Rule of
Appellate Procedure 2116. Rule 2116 provides in relevant part that “[t]he
statement of the questions involved must state concisely the issues to be
resolved, expressed in the terms and circumstances of the case but without
unnecessary detail.” Pa.R.A.P. 2116(a) (emphasis added). Furthermore,
counsel failed to include “an answer stating simply whether the court . . .
agreed, disagreed, did not answer, or did not address the question.” Id.
Counsel also failed to comply with Rule 2117, which provides in pertinent part
that the Statement of the Case be “[a] closely condensed chronological
statement”, with “[a]ll argument to be excluded.”                Pa.R.A.P. 2117
(emphasis in original). The Table of Contents does not correspond to the
respective sections of the brief. See Pa.R.A.P. 2174. The Summary of the
Argument extends to three pages. See Pa.R.A.P. 2118 Note: “Although the
page limit on the summary of the argument was eliminated in 2013, verbosity
continues to be discouraged. The appellate courts strongly disfavor a
summary that is not concise.”
6   See Wong Sun v. United States, 371 U.S. 471 (1963).



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J-A29029-17


to her that he was taking oxycodone, overheard by the investigating officer),

was designed to extract incriminating evidence from him.      (See id.).    We

disagree.

     Our standard of review is well-settled.

            Our standard of review of a denial of suppression 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. Reppert, 814 A.2d 1196, 1200 (Pa. Super. 2002) (en

banc) (citations and quotation marks omitted).

     Here, counsel for the defense declined to present any evidence at the

suppression hearing. (See N.T. Motion to Suppress, at 17). Therefore, the

evidence of the Commonwealth remains uncontradicted.           See Reppert,

supra at 1200.

     Preliminarily, we observe that in its opinion, the trial court expressly

disclaimed reliance on the statement by Appellant that he had taken

oxycodone. (See Trial Ct. Op., at 12 n.2). Instead, the trial court relied on

the testimony of investigating Officer Sangree and forensic toxicologist Ms.

Papsun. (See id.). Accordingly, we conclude that Appellant’s objection to the

admission of the response he gave to the intake nurse is moot.




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      A case is moot when a determination is sought on a matter which,
      when rendered, cannot have any practical effect on the existing
      controversy. Stated differently, [a]n issue before a court is moot
      if in ruling upon the issue the court cannot enter an order that has
      any legal force or effect.

Commonwealth v. Nava, 966 A.2d 630, 632–33 (Pa. Super. 2009) (citations

and quotation marks omitted).

      In its opinion, the trial court confirmed that Appellant’s statement that

he had taken oxycodone “was not relevant to the [c]ourt’s finding of [g]uilt.”

(Trial Ct. Op., at 12 n.2) (emphasis added).

      Therefore, on appeal, the exclusion of the statement could not have any

practical effect on the existing controversy, where the trial court had already

disregarded the contested statement as irrelevant to the verdict.              See

Commonwealth v. Brown, 476 A.2d 969, 971 (Pa. Super. 1984) (“Thus, in

light of the trial judge’s express statement that he looked exclusively to the

evidence ‘without any reference to any other question’ dealing with appellant’s

arrest record in rendering his verdicts, appellant’s claim cannot prevail.”)

(citation omitted).

      “It is well established that appellate courts in Pennsylvania will not

ordinarily decide moot questions. Moreover, a question raised on appeal may

become    moot    by   events   which   occur   after   the   appeal   was   filed.”

Commonwealth. v. Kelly, 418 A.2d 387, 388 (Pa. Super. 1980) (citations

omitted). “The existence of an actual controversy is an essential to appellate

jurisdiction.   For this reason, if pending an appeal an event occurs which


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renders it impossible for the appellate court to grant any relief the appeal will

be dismissed.” Commonwealth ex rel. Watson v. Montone, 323 A.2d 763,

765 (Pa. Super. 1974) (citations and internal quotation marks omitted).

Accordingly, we dismiss Appellant’s first claim as moot. Moreover, it would

not merit relief.

      Appellant baldly asserts that the intake nurse was the agent of the

Commonwealth. (See Appellant’s Brief, at 26). Appellant offers no authority

in support of this initial claim. (See id.). Later, Appellant repeats the claim.

(See id. at 36). This second time, he cites Commonwealth v. Seibert, 799

A.2d 54, 63 (Pa. Super. 2002). (See id.).

      Appellant’s reliance is plainly misplaced. The only remotely comparable

issue addressed in Seibert is whether the hospital in that case drew blood at

the direction of the state trooper or not, a fact not at issue in the appeal now

before us.   In any event, the Seibert Court decided that when a hospital

withdrew an appellant’s blood on its own initiative for its own purposes, the

withdrawal of the blood did not implicate the appellant’s Fourth Amendment

rights. See Seibert, supra at 63.

      We recognize that under existing caselaw, if a nurse (or other medical

practitioner) provides blood samples or medical reports to law enforcement,

this Court has previously decided that the provider then acts as an agent of

the police. See Commonwealth Franz, 634 A.2d 662, 663-64 (Pa. Super.

1993); Commonwealth v. Cieri, 499 A.2d 317, 321 (Pa. Super. 1985).


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      However, if the medical provider, in pre-screening a patient about his

(or her) medical condition−as found here by the suppression court−is not

acting at the direction of the police, the agency rationale is no longer

applicable. (See Trial Ct. Op., at 4).

      Here, the nurse asked Appellant a series of questions−not only the

medication question emphasized by Appellant−designed on their face to elicit

relevant, appropriate, general medical information: “Are you injured in any

way? Do you need to see a doctor? Are you on any medication?” (Trial Ct.

Op., at 4 (quoting N.T. Motion to Suppress, at 11)).

      We find pertinent authority in Commonwealth v. Williams, 410 A.2d

880 (Pa. Super. 1979), cited by the trial court. (See Trial Ct. Op., at 6). In

Williams, this Court decided that the attending physician who questioned the

appellant concerning the cause of his wound (to determine if he needed to

probe the wound for a bullet or other foreign material), was not acting as an

agent of the police, (and Miranda warnings were not required). Although the

physician in Williams testified that the police had asked him to “find out what

happened,” he nevertheless repeatedly testified that he did not act on the

promptings of the police, but asked the appellant only those questions

necessary for the proper treatment of his wound. Williams, supra at 884.

      Here, we conclude that the suppression court properly determined that

the nurse’s questions were calculated to determine if Appellant required (or




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wanted) medical treatment.7 The record supports the court’s findings. Even

if the first issue were not moot, Appellant’s claim would not merit relief.

       In his second issue, Appellant challenges the sufficiency of the evidence.

(See Appellant’s Brief, at 7). He argues that “[e]ven if this Court does not

suppress the statement, the evidence would still not be sufficient to find

[A]ppelant guilty of DUI[.]” (Id. at 22). He maintains that “there was no

evidence presented from which the trial court could have determined whether

there was a detectable amount of any controlled substance in Appellant’s

blood.” (Id. at 22-23). Appellant’s claim does not merit relief.

             As a general matter, our standard of review of sufficiency
       claims requires that we evaluate the record in the light most
       favorable to the verdict winner giving the prosecution the benefit
       of all reasonable inferences to be drawn from the evidence.
       Evidence will be deemed sufficient to support the verdict when it
       establishes each material element of the crime charged and the
       commission thereof by the accused, beyond a reasonable doubt.
       Nevertheless, the Commonwealth need not establish guilt to a
       mathematical certainty.          [T]he facts and circumstances
       established by the Commonwealth need not be absolutely
       incompatible with the defendant’s innocence. Any doubt about
       the defendant’s guilt is to be resolved by the fact finder unless the
       evidence is so weak and inconclusive that, as a matter of law, no
       probability of fact can be drawn from the combined circumstances.

             The Commonwealth may sustain its burden by means of
       wholly circumstantial evidence. Accordingly, [t]he fact that the
       evidence establishing a defendant’s participation in a crime is
       circumstantial does not preclude a conviction where the evidence
       coupled with the reasonable inferences drawn therefrom
       overcomes the presumption of innocence. Significantly, we may
       not substitute our judgment for that of the fact finder; thus, so
____________________________________________


7 It bears noting that the victim of the collision, Marie Ranochak, was also
transported to a hospital. (See N.T. Trial, at 23).

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      long as the evidence adduced, accepted in the light most favorable
      to the Commonwealth, demonstrates the respective elements of
      a defendant’s crimes beyond a reasonable doubt, the appellant’s
      convictions will be upheld.

Commonwealth v. Pettyjohn, 64 A.3d 1072, 1074-75 (Pa. Super. 2013)

(citations, internal quotation marks, and other punctuation omitted). “Finally,

the finder 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. LaBenne, 21 A.3d 1287, 1289 (Pa. Super. 2011)

(citations omitted).

      In this case, the trial court found Appellant guilty of DUI−Unsafe

Driving/Controlled Substance, 75 Pa.C.S.A. § 3802(d)(2), which provides, in

pertinent part, that:

            (d) Controlled substances.−An individual may not drive,
      operate or be in actual physical control of the movement of a
      vehicle under any of the following circumstances:

                                  *     *      *

             (2) The individual is under the influence of a drug or
      combination of drugs to a degree which impairs the individual’s
      ability to safely drive, operate or be in actual physical control of
      the movement of the vehicle.

75 Pa.C.S.A. § 3802(d)(2).

      Appellant maintains that the victim, Ms. Ranochak, actually “caused the

accident because either her breaks (sic) were defective or she slid on the ice.”

(Appellant’s Brief, at 40). Contrary to the finding of the trial court, that Ms.

Ranochak testified credibly that she had the green light, Appellant posits that


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Ms. Ranochak actually had a red light. (Compare Appellant’s Brief, at 40

with Trial Ct. Op., at 9, 11).

      Appellant misapprehends our standard of review, which views all

evidence in the light most favorable to the Commonwealth as verdict winner,

and defers to the trial court on assessment of credibility. See Pettyjohn,

supra at 1074-75; LaBenne, supra at 1289. Appellant’s restatement of the

evidence in a light more favorable to himself invites us to engage in an

impermissible re-weighing of the evidence. We decline to do so. This is a

court of error correction. Weighing the evidence was the province of the trial

court, sitting as fact finder.

      We note that the trial court found the victim, Marie Ranochak, and the

responding officer, David Sangree, to be credible witnesses. (See Trial Ct.

Op., at 11). Conversely, the court found the argument of Appellant, that the

investigating officer misinterpreted his North Carolina accent as incoherence,

to be incredible. (See id.). It is the province of the trial court, sitting as

factfinder, to weigh the evidence, and assess credibility.      See LaBenne,

supra at 1289. “Furthermore, it is axiomatic that appellate courts must defer

to the credibility determinations of the trial court as fact finder, as the trial

judge observes the witnesses’ demeanor first-hand.”        Commonwealth v.

O'Bryon, 820 A.2d 1287, 1290 (Pa. Super. 2003) (citation omitted).

      Viewing all the evidence in the totality of circumstances and in the light

most favorable to the Commonwealth as verdict winner, together with all


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reasonable inferences, we have no difficulty in concluding that there was more

than sufficient evidence to convict Appellant.

      Judgment of sentence affirmed.             Appellant’s suppression claim

dismissed as moot.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/15/18




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