J-S49006-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

RICHARD H. PHILLIPS

                            Appellant                  No. 3190 EDA 2015


              Appeal from the Judgment of Sentence April 21, 2015
                In the Court of Common Pleas of Monroe County
               Criminal Division at No(s): CP-45-CR0000624-2014


BEFORE: PANELLA, J., OLSON, J., and STEVENS, P.J.E.

MEMORANDUM BY PANELLA, J.                        FILED SEPTEMBER 30, 2016

        Appellant, Richard H. Phillips, appeals from the judgment of sentence

entered in the Monroe County Court of Common Pleas, following his bench

trial convictions for driving under influence of alcohol or controlled substance

(“DUI”), general impairment, and the summary traffic offenses of maximum

speed limits and driving on roadways laned for traffic.1 We affirm.

        The relevant facts of this case as taken from the certified record are as

follows. On December 28, 2013, at approximately 2:42 a.m., Pennsylvania

State Trooper Michael Thomas observed a black GMC Envoy proceeding west

on Interstate 80. Trooper Thomas followed the vehicle, observed it swerve
____________________________________________



    Former Justice specially assigned to the Superior Court.
1
    75 Pa.C.S.A. §§ 3802(a)(2), 3362, 3309, respectively.
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over the centerline and fog line three times, and clocked the vehicle

traveling 72 miles per hour in a posted 55 miles per hour zone. Trooper

Thomas then initiated a traffic stop and made contact with Appellant, asking

for his vehicle paperwork. During the course of the stop, Trooper Thomas

smelled the odor of alcohol emanating from Appellant’s vehicle and observed

Appellant fumbling his vehicle paperwork. Trooper Thomas also observed

Appellant had bloodshot, glassy eyes and mumbled, slurred speech. At

Trooper Thomas’s request, Appellant exited his vehicle and performed field

sobriety tests, including the one-leg stand test, the walk-and-turn test, and

the portable breath test. Trooper Thomas indicated that Appellant had not

performed well on the one-leg stand test and the walk-and-turn test, so

Trooper Thomas administered the portable breath test, which indicated

Appellant’s blood alcohol content (“BAC”) exceeded the legal limit.

      Thereafter, Trooper Thomas took Appellant to the Monroe County DUI

Center where Appellant consented to a blood draw. A phlebotomist drew

Appellant’s blood into a tube, properly labeled it, and placed it in a

refrigerator in view of the Center’s camera. The blood tube then was

transported to Wyoming Regional Laboratory, where a forensic scientist

analyzed the blood sample and issued a report indicating Appellant’s BAC

was 0.091%. The forensic scientist testified that the standard tube used in

blood draws is a gray-top tube, which contains sodium fluoride and

anticoagulants, and when the forensic scientist analyzed Appellant’s blood
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sample, he checked the integrity of the blood sample and confirmed it

contained Appellant’s blood.

      Procedurally,   the   Commonwealth    filed   a   criminal   complaint   on

February 27, 2014. On March 25, 2014, Appellant waived his right to a

preliminary hearing. The Commonwealth charged Appellant on April 23,

2014, with two counts of DUI, general impairment, (incapable of safe driving

and BAC between 0.08% and 0.10%) and three summary traffic offenses

(maximum speed limits, driving on roadways laned for traffic, and careless

driving).

      Appellant filed an omnibus pretrial motion requesting the following: (a)

to order the laboratory to provide blood testing procedure documents; and

(b) to suppress evidence related to the vehicle stop based on Appellant’s

assertion that the police did not have probable cause to stop him or

reasonable suspicion to conduct field tests or blood draws. After briefing and

a suppression hearing, the court denied Appellant’s requests.

      The court held a bench trial and found Appellant guilty of one count of

DUI, general impairment (BAC between 0.08% and 0.10%), and the

summary traffic offenses of maximum speed limits and driving on roadways

laned for traffic. The court sentenced Appellant on April 22, 2015, to

electronic monitoring/house arrest for a period of 30 days for DUI, to pay

fines and costs, to complete a drug and alcohol treatment program

successfully, and to undergo a license suspension for a period of 12 months.
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The court also sentenced Appellant to pay fines and costs for the summary

traffic offenses. Appellant filed a timely post-sentence motion, challenging

the weight and sufficiency of the evidence and seeking reconsideration of the

court’s suppression ruling. The court denied Appellant relief. Appellant timely

filed a notice of appeal.

      Appellant raises two issues for our review:

      WAS [APPELLANT’S] BLOOD DRAWN AS A RESULT OF CONSENT
      THAT WAS GIVEN WHILE HE WAS UNLAWFULLY DETAINED?

      HAS THE COMMONWEALTH PRODUCED SUFFICIENT EVIDENCE
      THAT [APPELLANT] WAS DRIVING AFTER IMBIBING [ALCOHOL]
      WITH A BLOOD ALCOHOL PERCENTAGE GREATER THAN .08[%]
      WHEN THE PHLEBOTOMIST [DID] NOT IDENTIFY THE MAN ON
      THE VIDEO FROM WHICH SHE DREW BLOOD AS [APPELLANT]
      AND NO EVIDENCE OF PROPER HANDLING OF THE BLOOD
      [WAS] ADMITTED?

Appellant’s Brief, at 5.

      For purposes of disposition, we address Appellant’s issues together.

Appellant argues Trooper Thomas did not possess reasonable suspicion that

Appellant was under the influence of alcohol to continue his detention, after

Trooper Thomas initiated the traffic stop. Appellant reasons the odor of

alcohol emanating from his vehicle, bloodshot eyes, and mumbled and

slurred speech do not constitute signs of impairment to suggest he was

driving under the influence. Appellant further explains Trooper Thomas was

unable to recall the specific details of Appellant’s field sobriety test failures

and is inherently biased because he presumes all vehicle stops are DUI-


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related unless convinced otherwise. So, Appellant insists Trooper Thomas’s

continued detention of Appellant after the initial traffic stop was unlawful and

Appellant’s later consent to withdraw blood should have been suppressed.

      Our standard of review of the denial of a motion to suppress evidence

is as follows:

      [An appellate court’s] 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 remains uncontradicted when read in the
      context of the record as a whole. Where the suppression court’s
      factual findings are supported by the record, [the appellate court
      is] bound by [those] findings and may reverse only if the court’s
      legal conclusions are erroneous. Where … the appeal of the
      determination of the suppression court turns on allegations of
      legal error, the suppression court’s legal conclusions are not
      binding on [the] appellate court, whose duty it is to determine if
      the suppression court properly applied the law to the facts. Thus,
      the conclusions of law of the [trial court are] subject to …
      plenary review.

Commonwealth v. Hoppert, 39 A.3d 358, 361-62 (Pa. Super. 2012).

      The suppression court’s factual findings are supported by the record.

Accordingly, we focus our attention on the propriety of the suppression

court’s legal conclusions—most importantly, that the stop was lawful.

      The Fourth Amendment to the United States Constitution and Article I,

Section   8      of   the   Pennsylvania    Constitution   protect   citizens   from

unreasonable searches and seizures. See Commonwealth v. Carter, 105


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A.3d 765, 768 (Pa.Super. 2014) (en banc), appeal denied, 117 A.3d 295

(Pa. 2015). “While warrantless seizures such as a vehicle stop are generally

prohibited, they are permissible if they fall within one of a few well-

delineated exceptions.” Commonwealth v. Brown, 996 A.2d 473, 476 (Pa.

2010) (citation omitted). For purposes of this case, a pertinent exception is a

traffic stop authorized by 75 Pa.C.S.A. § 6308(b).

      Under § 6308(b),

      when considering whether reasonable suspicion or probable
      cause is required constitutionally to make a vehicle stop, the
      nature of the violation has to be considered. If it is not necessary
      to stop the vehicle to establish that a violation of the Vehicle
      Code has occurred, an officer must possess probable cause to
      stop the vehicle. Where a violation is suspected, but a stop is
      necessary to further investigate whether a violation has
      occurred, an officer need only possess reasonable suspicion to
      make the stop.

Commonwealth v. Salter, 121 A.3d 987, 993 (Pa. Super. 2015).

      The Motor Vehicle Code defines the offense of maximum speed limits

as follows:

      § 3362. Maximum speed limits

      (a) General rule.―Except when a special hazard exists that
      requires lower speed for compliance with section 3361 (relating
      to driving vehicle at safe speed), the limits specified in this
      section or established under this subchapter shall be maximum
      lawful speeds and no person shall drive a vehicle at a speed in
      excess of the following maximum limits:

                                    *    *    *

              (2) 55 miles per hour in other locations.


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The Motor Vehicle Code also defines the offense of driving on roadways

laned for traffic as follows:

      § 3309. Driving on roadways laned for traffic

             Whenever any roadway has been divided into two or more
      clearly marked lanes for traffic the following rules in addition to
      all others not inconsistent therewith shall apply:

            (1) Driving within single lane.―A vehicle shall be
      driven as nearly as practicable entirely within a single lane and
      shall not be moved from the lane until the driver has first
      ascertained that the movement can be made with safety.

                                  *    *    *

The Crimes Code defines the offense of DUI as follows:

      § 3802. Driving under the influence of alcohol.

      (a) General impairment.—

                                  *    *    *

      (2) 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 alcohol concentration in the
      individual’s blood or breath is at least 0.08% but less than
      0.10% within two hours after the individual has driven, operated
      or been in actual physical control of the movement of the
      vehicle.

      Instantly, the trial court analyzed Appellant’s first issue concerning the

evidence of the vehicle stop and ensuing DUI arrest as follows:

      In denying [Appellant’s] motion in this case, we specifically
      found that the State Police had probable cause to stop
      [Appellant]. Our finding was based on and fully supported by the
      testimony of Trooper [Thomas], whom was found credible, that
      he had clocked [Appellant] going 72 miles per hour (MPH) in a
      posted 55 MPH zone and that he observed [Appellant] sway
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      back-and-forth in his lane of travel and cross the fog line three
      times. Clocking a driver exceeding the posted speed limit by 17
      MPH and seeing the driver swerve across the fog line three times
      on an Interstate Highway clearly constitutes probable cause that
      the driver committed the violations of [maximum speed limits]
      and [driving on roadways laned for traffic].

      We also indicated that the above facts, coupled with other
      surrounding circumstances, probably constituted sufficient
      reasonable suspicion to stop [Appellant] for suspicion of DUI.
      Again, the testimony of Trooper [Thomas] supported our
      determination.

      Finally, we found that the above facts, coupled with Trooper
      [Thomas’s] sensory observations after stopping [Appellant] were
      constitutionally sufficient to justify a continuing investigatory
      detention, including the administration of field sobriety tests,
      and, as the investigation evolved, to support probable cause for
      an arrest and chemical testing of [Appellant’s] blood. This
      finding, in turn, was supported by the above facts plus Trooper
      [Thomas’s] credible testimony that he smelled alcohol
      [emanating from Appellant’s vehicle], that [Appellant’s] speech
      was slurred and mumbled, that [Appellant] had difficulty
      gathering his license and registration, and subsequently that
      [Appellant] failed a field test and a preliminary breath test for
      which he had trouble producing a breath sample.

Trial Court Opinion, filed December 21, 2015, at 5-6 (internal citations to the

record omitted). The record supports the trial court’s sound reasoning.

      Trooper Thomas had probable cause to initiate a valid traffic stop as he

observed Appellant violate the Vehicle Code by speeding and crossing the

centerline several times. See 75 Pa.C.S.A. §§ 3362, 3309. Once legally

stopped, he observed that Appellant’s eyes were glassy and bloodshot,

Appellant’s speech was mumbled and slurred, and Appellant’s vehicle

emanated the odor of alcohol. These conditions provided reasonable


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suspicion for Trooper Thomas to investigate further. Trooper Thomas then

removed Appellant from the vehicle and performed sobriety tests, which

Appellant failed.

      Based on his observations and the failed sobriety tests, Trooper

Thomas possessed probable cause to arrest Appellant for DUI. See 75

Pa.C.S.A. §    3802(a)(2);   Commonwealth v. Hilliar, 943           A.2d 984

(Pa.Super. 2008) (holding probable cause existed to arrest driver for DUI

where driver smelled of alcohol and his speech was slurred). Thus,

Appellant’s arrest for DUI did not violate his constitutional rights. The trial

court properly denied Appellant’s motion to suppress the evidence of DUI on

this ground. See Hoppert.

      In his final issue, Appellant avers the Commonwealth failed to present

sufficient evidence to prove that Appellant’s BAC was at least 0.08%, but

less than 0.10%, because Appellant was not connected to the blood draw.

Specifically, Appellant complains the Commonwealth failed to ask the

phlebotomist to identify Appellant in the video shown to her, which depicted

the night of Appellant’s blood draw. Alternatively, Appellant contends the

phlebotomist did not indicate that she mixed the blood sample by shaking it

after drawing Appellant’s blood into the gray-top tube, so Appellant asserts

the accuracy of the blood sample is flawed and the BAC results should be




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discarded. Appellant concludes this Court should vacate the judgment of

sentence and remand for further proceedings.2 We disagree.

       A challenge to the sufficiency of evidence implicates the following

principles:

       The standard we apply in reviewing 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 fact-finder 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
       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
       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.


____________________________________________


2
   Preliminarily, we observe any issues not raised in a Rule 1925(b)
statement will be deemed waived on appeal. See Commonwealth v.
Jackson, 10 A.3d 341, 347 n.4 (Pa. Super. 2010); Pa.R.A.P.1925(b)(4)(vii).
See also Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005) (“[I]n
order to preserve their claims for appellate review, appellants must comply
whenever the trial court orders them to file a[s]tatement of [m]atters
[c]omplained of on [a]ppeal pursuant to [Rule] 1925.”) Instantly, to the
extent Appellant argues the Commonwealth failed to present sufficient
evidence connecting Appellant to the blood draw, this argument is waived
for Appellant’s failure to include it in his Rule 1925(b) statement.


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Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011) (citations

omitted) (emphasis added).

     “There is no need for the Commonwealth to prove beyond a doubt the

sanctity of a blood sample after it is withdrawn from a driver. The

Commonwealth must simply establish a reasonable inference that the

sample was unimpaired until it was brought to court.” Commonwealth v.

Allen, 575 A.2d 131, 134 (Pa. Super. 1990) (citing Commonwealth v.

Miller, 339 A.2d 573 (Pa. Super. 1975)).

     With respect to Appellant’s complaint about the blood sample, the

court reasoned as follows:

     The [Appellant] was … transported to Monroe County DUI Center
     to have his blood drawn by the phlebotomist, Tracy Brown. The
     blood sample was then sent to the Wyoming [Regional
     Laboratory] where[, the forensic scientist,] John Schlenker[,]
     analyzed the blood sample. At the trial, John Schlenker testified
     as an expert and that he performed the analysis on the
     [Appellant’s] blood and that the result was 0.091% to a
     reasonable degree of scientific certainty. John Schlenker testified
     that he checked the integrity of the blood sample, that the test
     tube had the appropriate gray stopper top before he performed
     the test and that the tube contained the anticoagulants.

                                 *     *      *

     In the instant case, we find that, in viewing the evidence in the
     light most favorable to the Commonwealth, as the verdict
     winner, the evidence presented at the bench trial establishes
     each element of the crime charged and the commission thereof
     by the accused beyond a reasonable doubt.

Trial Court Opinion, filed September 24, 2015, at 3-4 (internal citations to

the record omitted). We agree.
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      We also note the Commonwealth did not need to prove the sanctity of

the blood sample by showing the phlebotomist mixed it; the Commonwealth

established a reasonable inference that the sample was unimpaired until it

was brought to court. See Allen. Based on the foregoing, we conclude

Appellant’s issues are without merit. Accordingly, we affirm.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/30/2016




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