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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA           :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                                        :
                  v.                    :
                                        :
                                        :
       TAWANA GEANI RHODES              :
                                        :
               Appellant                :         No. 2250 EDA 2017

           Appeal from the Judgment of Sentence June 5, 2017
 In the Court of Common Pleas of Northampton County Criminal Division at
                     No(s): CP-48-CR-0003709-2016


BEFORE: BOWES, J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY BOWES, J.:                           FILED MARCH 27, 2018

     Tawana Geani Rhodes appeals from the judgment of sentence of three

days to six months imprisonment for driving under the influence (“DUI”) of a

controlled substance (marijuana). After careful review, we affirm.

     The pertinent facts underlying Appellant’s conviction are as follows. At

approximately 12:36 a.m. on August 25, 2016, Walnutport Police Officer

Antonio Tramonte observed Appellant’s vehicle traveling on Main Street with

a non-functioning passenger side rear light.      Officer Tramonte stopped

Appellant’s vehicle. As he requested Appellant’s license and registration, the

officer detected the smell of burnt marijuana coming from the vehicle and

observed that Appellant had bloodshot, glassy eyes. Officer Tramonte asked

Appellant if there was anything he should be worried about, and Appellant

volunteered that she had smoked marijuana earlier that day.             When
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Appellant exhibited signs of impairment on field sobriety tests, Officer

Tramonte arrested her and transported her to Palmerton Hospital.

       At the hospital, Officer Tramonte asked Appellant to submit to a blood

draw. After informing Appellant of her rights in this regard, the officer read

from Pennsylvania Department of Transportation (“PennDOT”) Form DL-26B,

which explained that refusal to submit to blood testing would result in the

suspension of driving privileges.         Appellant signed the form consenting to

the blood draw, which revealed positive levels of delta nine THC, consistent

with marijuana use.

       Appellant was charged with DUI, a schedule I controlled substance

(marijuana); DUI, impairment; and no rear lights.             On March 31, 2017,

Appellant filed an omnibus pretrial motion seeking to suppress the results of

the blood draw on several grounds.             Following a hearing, the suppression

court denied Appellant’s motion.

       A non-jury trial was held on June 5, 2017, and the court found

Appellant guilty of both DUI counts and driving without rear lights. 1

Following her sentencing, Appellant filed a timely notice of appeal. The trial

court directed Appellant to file a Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal, she complied, and the trial court authored

its Rule 1925(a) opinion.
____________________________________________


1 For sentencing purposes, the trial court merged the DUI impairment
conviction with the DUI (marijuana).



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      Appellant presents four issues that we have reordered for ease of

disposition:

      I.       Whether the evidence at trial was sufficient to find the
               Defendant guilty.

      II.      Whether the Honorable Craig A. Dally, erred in not
               granting Defendant’s motion to dismiss the charges
               against her as the Commonwealth had no cause to stop
               her vehicle when, at the suppression hearing testimony
               showed that the Defendant’s vehicle did not have a faulty
               rear light as claimed by the Officer?

      III.     Whether the Honorable Craig A. Dally, erred in not
               suppressing the results of the draw of the Defendant’s
               blood which was obtained after an illegal stop and without
               a search warrant and when the Defendant was without the
               benefit of the warning necessitated by 75 Pa.C.S. Section
               1547(b)(2).

      IV.      The Learned Trial Judge, the Honorable Emil A. Giordano,
               erred in not suppressing the results of the blood draw of
               the Defendant which was obtained after an illegal stop and
               without a search warrant and when the Defendant was
               without the benefit of the warning necessitated by 75
               Pa.C.S. Section 1547(b)(2).

Appellant’s brief at 5-6.

      First, Appellant argues that the only evidence supporting her DUI

convictions was the warrantless blood draw.       She contends that since her

consent to the blood test was not valid, the results should have been

suppressed.      Without the results, she maintains that the evidence was

legally insufficient to sustain the DUI convictions. The Commonwealth

counters that Appellant waived her sufficiency claim by failing to provide the

required specificity in her Rule 1925(b) statement. See Commonwealth v.


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Garland, 63 A.3d 339, 344-45 (Pa.Super. 2013) (“In order to preserve a

challenge to the sufficiency of the evidence on appeal, an appellant’s Rule

1925(b) statement must state with specificity the element or elements upon

which the appellant alleges that the evidence was insufficient.”).

      The trial court recognized from Appellant’s concise statement that she

was challenging the sufficiency of the evidence supporting her DUI

convictions. See Pa.R.A.P. 1925(a) Statement, 7/19/17, at 1. (concluding

that, “the record will speak for itself and demonstrate the Commonwealth

met its burden of proving beyond a reasonable doubt that the Defendant

operated a motor vehicle under the influence of a controlled substance.”).

We find it deducible from Appellant’s Rule 1925(b) statement, viewed in its

entirety, that her sufficiency challenge pertained to the DUI convictions, and

thus, we decline to find waiver.

      Our standard of review when considering a challenge to the sufficiency

of the 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. 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. 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

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      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.   Sweitzer,   2017     Pa.Super.LEXIS    1078,   at   *6-7

(Pa.Super. 2017) (citations and quotation marks omitted). Furthermore, in

“evaluating the sufficiency of the evidence, we do not review a diminished

record.”   Commonwealth v. Hilliard, 172 A.3d 5, 10 (Pa.Super. 2012)

(citations omitted).

      Rather, the law is clear that we are required to consider all
      evidence that was actually received, without consideration as to
      the admissibility of that evidence or whether the trial court’s
      evidentiary rulings were correct. Where improperly admitted
      evidence has been considered by the trier-of-fact, its subsequent
      deletion does not justify finding of insufficient evidence; the
      remedy in such a case is the grant of a new trial.

Id.

      Appellant’s sufficiency argument is premised on this Court’s disregard

of the blood test results. Since we are compelled to consider all evidence

actually   received     when   reviewing     a   sufficiency   determination,   even

improperly admitted evidence, her argument ignores our standard of review.

The blood test results alone were sufficient to support her DUI convictions.

      Next, Appellant contends that the suppression court erred in finding

there was probable cause for the traffic stop.         The Commonwealth asserts

waiver based upon Appellant’s failure to argue and cite authorities in her

brief in support of that position.         Appellant’s discussion of this issue is

limited to the following: “[w]ith the permission of the Court, Defendant will

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not argue the point of Defendant’s Motion, probable cause to stop the

vehicle, and move directly onto the crux of the matter, that is, did the

Defendant knowingly and voluntarily consent to the blood draw.” Appellant’s

brief at 11.

      This Court has held that, “it is an appellant’s duty to present

arguments that are sufficiently developed for our review. . . . The brief must

support the claims with pertinent discussion, with references to the record

and with citations to legal authorities.”   Commonwealth v. Hardy, 918

A.2d 766, 771 (Pa.Super. 2007) (citations omitted). Since Appellant did not

provide any pertinent discussion, references to the record, or citations to

legal authorities regarding the legality of the stop, we find that Appellant

waived this claim. See Commonwealth v. Ramsden, 94 A.3d 1080, 1088-

89 (Pa.Super. 2014) (finding claims waived for failure to develop argument

and lack of supporting authority); see also Pa.R.A.P. 2119 (“The argument

shall be divided into as many parts as there are questions to be argued; and

shall have at the head of each part . . . the particular point treated therein,

followed by such discussion and citation of authorities as are deemed

pertinent.”).

      Appellant’s third and fourth issues challenge the trial court’s denial of

her motion to suppress the blood draw on the ground that her consent was

invalid. In addressing a challenge to the denial of a suppression motion,

      Our standard of review . . . is limited to determining whether the
      factual findings are supported by the record and whether the

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     legal conclusions drawn from those facts are correct. 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 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. Singleton, 169 A.3d 79, 82 (Pa.Super. 2017)

(citations omitted).

     Appellant alleges that the trial court erred in refusing to suppress the

results of the blood test. The Commonwealth argues that Appellant’s failure

to include the transcript of the suppression hearing in the certified record is

fatal to her claims. We note, however, that Appellant sought and obtained

a court order for the transcript, and that it should have been included in the

record. Accordingly, we located it and made it part of the certified record.

Thus, we can meaningfully review the issue.

     The following principles apply to the validity of a warrantless search:

     A search conducted without a warrant is deemed to be
     unreasonable and therefore constitutionally impermissible,
     unless an established exception applies. Those exceptions
     include voluntary consent. The central Fourth Amendment
     inquiries in consent cases entail assessment of the constitutional
     validity of the citizen/police encounter giving rise to the consent;
     and, ultimately, the voluntariness of consent.

Commonwealth v. Smith, 2017 Pa.Super.LEXIS 1108, at *9 (Pa.Super.

December 28, 2017) (quoting Commonwealth v. Strickler, 757 A.2d 884,

888 (Pa. 2000)) (quotation marks omitted).       Admittedly, no warrant was



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obtained for the blood test.   At issue in the trial court was the validity of

Appellant’s consent to the blood draw.

     Appellant cites Birchfield v. North Dakota, 136 S.Ct. 2160, 2185-86

(2016), for the proposition that a state cannot impose criminal penalties for

a blood test refusal. She then relies upon Commonwealth v. Evans, 153

A.3d 323 (Pa.Super. 2016), where we remanded for a hearing to determine

whether a partially inaccurate pre-Birchfield Form DL-26 threatening

enhanced criminal penalties for refusal to submit to a blood test was

coercive.   She concedes, however, that Officer Tramonte used a revised

form that did not reference criminal penalties for a blood test refusal.

However, she contends that she was not informed of all the circumstances

in play when she consented to the blood draw. For instance, she was not

told of the increased penalties that she would incur if the blood draw

revealed marijuana in her system.        Thus, she contends, her consent was

not voluntary.

     The trial court found that Officer Tramonte read to Appellant from the

revised Form DL-26B that properly advised that she would be subject only to

the civil penalty of license suspension if she refused to submit to a blood

test. Thus, the warning did not offend Birchfield. The court noted further

that, after Birchfield, defendants no longer could face enhanced criminal

penalties under 75 Pa.C.S. § 3804(c) for refusing chemical testing.      See

Commonwealth v. Giron, 155 A.3d 635 (Pa.Super. 2017). Furthermore,


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the court found no evidence that Appellant’s “consent was the product of

duress, coercion, or an overborne will.”     Trial Court Opinion, 6/1/17, at

unnumbered 6.     Moreover, the court rejected Appellant’s argument that

Birchfield required that she be apprised that she was subject to enhanced

penalties based on violations of 75 Pa.C.S. § 3802(a)(2), (b), (c), and

(d)(1)(i), if the blood draw showed a positive reading.

      We find that Birchfield and Evans are not implicated herein as the

Form DL-26B that Officer Tramonte read to Appellant did not threaten

criminal penalties for refusal to consent to a blood test.   The facts herein

mirror those in Smith, supra. Smith signed a DL-26 form acknowledging

that she was advised that a refusal could result in suspension of her driver’s

license, and which made no mention of criminal penalties.           We found

Birchfield inapplicable on those facts since Smith was never advised that

she would be subject to enhanced criminal sanctions should she refuse blood

testing.

      Appellant’s contention that her consent was involuntary because the

officer did not advise her that she was subject to increased criminal penalties

if the blood test revealed the presence of prohibited controlled substances in

her system is also without merit.    In Commonwealth v. Smith, 77 A.3d

562, 564 (Pa. 2013), the Supreme Court of Pennsylvania held that a police

officer was not required to “inform an individual that a positive result in a

blood test may have criminal repercussions . . . ” and rejected the notion


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that the failure to do so “renders any consent to the blood test invalid[.]”

The Court found therein that the appellee understood the purpose of the

test, was not injured in any way, was informed of the right to refuse the

test, and willingly participated in the blood draw. Id. at 573. Looking at the

totality of the circumstances, the Smith Court reasoned that, “a reasonable

person’s consent to [the] blood draw would have contemplated the

potentiality of the results being used for criminal, investigative, or

prosecutorial purposes.” Id.

       Herein, Officer Tramonte testified that Appellant was responsive when

he asked her to produce her license and registration.      She also complied

with his request that she submit to a field sobriety test, which indicated that

she was capable of understanding at the time of the stop.2 Appellant was

given proper information regarding civil penalties for the refusal to submit to

a blood test.     The trial court found that, on these facts, she voluntarily

signed the form consenting to the test. We find that the record supports the

trial court’s findings, and thus, we affirm the court’s order refusing to

suppress the blood test results.

       Judgment of sentence affirmed.




____________________________________________


2 Appellant does not argue that she was incapable of understanding and
consenting at the time.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/27/18




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