J. A34015/14


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                      v.                 :
                                         :
BRANDIN LEE MITCHELL,                    :         No. 13 MDA 2014
                                         :
                           Appellant     :


            Appeal from the Judgment of Sentence, August 19, 2013,
                 in the Court of Common Pleas of York County
               Criminal Division at No. CP-67-CR-0003155-2012


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STABILE, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED MAY 12, 2015

      Appellant appeals from the judgment of sentence entered following

appellant’s conviction on two driving under the influence (“DUI”) of alcohol

offenses.    Finding no merit in the issues on appeal, we affirm as to those

issues; however, we also find, sua sponte, that appellant has been

sentenced to an illegal sentence.      Consequently, we will vacate one of

appellant’s sentences.

      Appellant was charged with DUI as a result of an accident on West

Market Street in West York Borough on February 19, 2012. Appellant filed a

pre-trial motion seeking to suppress the results of a blood alcohol test taken

after the accident. A hearing on the motion adduced the following facts.

      Appellant’s 1998 Audi A6 collided with a Dodge Durango parked on the

side of the street.    (Suppression notes of testimony, 8/2/12 at 6.)   There
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were no skid marks indicating appellant applied his brakes. (Id. at 9.) The

impact was so powerful that the Durango was pushed partially onto the

grass along the street, and also struck the vehicle in front of it, which vehicle

struck the vehicle in front of it. (Id. at 7, 11.) The airbag in appellant’s car

deployed.          (Id.   at   12.)     When    Police   Officer   Michael   Carricato

(“Officer Carricato”) arrived, he found appellant very disoriented and with

very bloodshot eyes. (Id. at 8-9.) Appellant was unable to relate where he

was coming from or where he was going to at the time.                     (Id. at 8.)

Officer Carricato did not conduct a field sobriety test at the scene because

appellant had a leg injury and was limping. (Id. at 17-18.) Appellant was

transported to York Hospital where Officer Carricato followed and requested

that appellant submit to a blood draw to which he consented. (Notes of trial

testimony, 6/27/13 at 26.)            Appellant’s blood alcohol concentration was

measured at 0.120%. (Id. at 80.)

        Following a bench trial on June 27, 2013, appellant was convicted of

DUI -- general impairment and DUI -- high rate of alcohol.1 On August 19,

2013, appellant was sentenced to two concurrent sentences of 6 months’

intermediate punishment with 90 days’ house arrest.                This timely appeal

followed.

        Appellant raises the following issues on appeal:

              A.      DID THE TRIAL COURT COMMIT AN ERROR OF
                      LAW WHEN IT DENIED APPELLANT’S MOTION

1
    75 Pa.C.S.A. §§ 3802(a)(1) and 3802(b), respectively.


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                  TO SUPPRESS EVIDENCE REGARDING BLOOD
                  ALCOHOL CONCENTRATION BECAUSE THE
                  ARRESTING    OFFICER  LACKED   EVEN   A
                  SCINTILLA OF PROBABLE CAUSE TO SUPPORT
                  ANY VIOLATION OF 75 PA. C.S.A. §3802
                  RELATING    TO   DRIVING   UNDER    THE
                  INFLUENCE OF ALCOHOL OR A CONTROLLED
                  SUBSTANCE?

            B.    DID THE TRIAL COURT COMMIT AN ERROR OF
                  LAW IN ALLOWING THE CONVICTION TO
                  STAND AS THE EVIDENCE PRESENTED AT
                  TRIAL  ALONG    WITH   ALL   REASONABLE
                  INFERENCES    DRAWN    THEREFROM    WAS
                  LEGALLY INSUFFICIENT AS A MATTER OF LAW
                  TO SUSTAIN A VERDICT OF GUILTY?

Appellant’s brief at 5. We will address these issues in the order presented.

            Our standard of review in addressing a challenge to a
            trial court’s denial of a suppression motion is limited
            to determining whether the factual findings are
            supported by the record and whether the legal
            conclusions drawn from those facts are correct.

            [W]e 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. Gillespie, 103 A.3d 115, 118 (Pa.Super. 2014), quoting

Commonwealth v. Williams, H., 941 A.2d 14, 26-27 (Pa.Super. 2008)

(en banc) (internal citations and quotation marks omitted).

      In his first issue, appellant contends that Officer Carricato did not have

reasonable suspicion to justify a request for a blood test from appellant. We



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note that chemical testing of drivers is done with implied consent where the

police officer has reasonable grounds to believe that the operator is under

the influence of drugs or alcohol:

            (a)   General rule.--Any person who drives,
                  operates or is in actual physical control of the
                  movement of a vehicle in this Commonwealth
                  shall be deemed to have given consent to one
                  or more chemical tests of breath, blood or
                  urine for the purpose of determining the
                  alcoholic content of blood or the presence of a
                  controlled substance if a police officer has
                  reasonable grounds to believe the person to
                  have been driving, operating or in actual
                  physical control of the movement of a vehicle:

                  (1)   in violation of section 1543(b)(1.1)
                        (relating to driving while operating
                        privilege is suspended or revoked),
                        3802 (relating to driving under
                        influence of alcohol or controlled
                        substance) or 3808(a)(2) (relating
                        to illegally operating a motor
                        vehicle not equipped with ignition
                        interlock);

75 Pa.C.S.A. § 1547(a)(1).

      Thus, the issue is whether Officer Carricato had reasonable grounds to

believe appellant was under the influence of alcohol.     Appellant contends

that “[Officer] Carricato in fact relied solely on the circumstance of the

automobile accident as his ‘reasonable grounds’ to obtain the sample.”

(Appellant’s brief at 20.)      Appellant calls attention to the fact that

Officer Carricato admitted that appellant did not have an odor of alcohol on

him, nor did appellant exhibit slurred speech.       Appellant also tries to



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minimize other existing factors, such as suggesting that appellant’s

bloodshot eyes may have been caused when the car’s airbag deployed.

Finally, appellant calls attention to the fact that Officer Carricato performed

no field sobriety tests as indicating that Officer Carricato did not believe that

appellant was under the influence.      We find that Officer Carricato stated

reasonable grounds.

      There are three factors present that indicate that appellant may have

been under the influence: 1) very bloodshot eyes; 2) extreme disorientation

to the extent that appellant could not even say where he was coming from

or where he was going to; and 3) the nature of the accident:           appellant

struck a stationary object at high speed without attempting to brake.        We

think the coalescence of these diverse factors provided Officer Carricato with

the reasonable grounds to suspect appellant may have been under the

influence such that he could request a blood test. It is true that individual

factors might have innocent explanations.       For instance, a person might

smell of alcohol because a drink was spilled on him, or in appellant’s case,

he might have bloodshot eyes because of allergies or because an airbag

deployed. However, these factors are also symptomatic of alcohol ingestion,

and where a number of suspicious factors come together, reasonable

grounds exist to suspect that an individual has been drinking.

      Finally, we do not believe that Officer Carricato’s failure to administer

field sobriety tests is indicative that Officer Carricato did not believe that



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appellant was under the influence. Officer Carricato testified that he did not

conduct sobriety tests because appellant’s leg was injured and he was

worried about appellant’s safety. Moreover, “[t]he definition of reasonable

grounds does not include, as a prerequisite, failure of field sobriety tests.”

McDonald v. Com., Dept. of Transp., Bureau of Driver Licensing, 567

A.2d 1127, 1129 (Pa.Cmwlth. 1989).       We find that sufficient factors were

presented that Officer Carricato had reasonable grounds to believe that

appellant was under the influence of alcohol and was justified in requesting a

blood test. The suppression court properly denied suppression.

      In his second issue, appellant argues that the evidence was not

sufficient to support his convictions.   We apply the following standard of

review:

            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


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            received must be considered. 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. Harden, 103 A.3d 107, 111 (Pa.Super. 2014), quoting

Commonwealth v. Phillips, 93 A.3d 847, 856 (Pa.Super. 2014) (citations

omitted; bracketed material in original).

      Appellant first challenges the sufficiency of the evidence as to his

conviction for DUI -- general impairment:

            (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).

      This offense has two elements:        1) the defendant was driving,

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

2) during the time when he or she was rendered incapable of safely doing so

due to the consumption of alcohol.     Commonwealth v. Teems, 74 A.3d

142, 145 (Pa.Super. 2013), appeal denied, 79 A.3d 1098 (Pa. 2013).

Appellant concedes that the evidence was sufficient as to the first element,

actual physical control. (Appellant’s brief at 22.) We find that the evidence

as to the second element was likewise sufficient.



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      The evidence at trial included testimony from Officer Carricato as to

his on-the-scene observations that appellant exhibited signs of intoxication

such as appellant being disoriented and appellant’s eyes being “glassy,

glazed, and bloodshot.” (Notes of testimony, 6/27/13 at 24-25.) The trial

evidence also showed that a blood test was performed approximately one

hour later. (Id. at 22, 28 (time of dispatch, time of test).) Finally, medical

testimony that the blood test showed a blood alcohol concentration of

0.120% proved that appellant was actually under the influence of alcohol at

the time of the accident.

      As to whether appellant’s consumption of alcohol rendered him

incapable of safely driving, we find that the circumstances of the accident

adequately demonstrate this. Appellant struck a car parked along the side

of the road at a very high rate of speed. This is not an instance where the

actions of another driver may have caused the accident. We find that the

nature of the accident itself is proof that appellant was incapable of safely

driving. The evidence was sufficient as to DUI -- general impairment.

      Appellant also questions his conviction as to DUI -- high rate of

alcohol:

            (b)   High rate of alcohol.--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 0.10% but less than
                  0.16% within two hours after the individual



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                 has driven, operated or been in actual physical
                 control of the movement of the vehicle.

75 Pa.C.S.A. § 3802(b).

     Again, this offense has two elements: 1) the defendant was driving,

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

2) while his or her blood alcohol concentration was at least 0.10%, but less

than 0.16% within two hours after driving.

     As previously noted, appellant conceded the first element and trial

evidence established the second element with the admission of the blood

test results of 0.120%. Consequently, the evidence at trial was sufficient to

support appellant’s conviction for DUI -- high rate of alcohol.    Appellant’s

arguments on appeal go to whether Officer Carricato had reasonable

grounds to request a blood test and whether appellant’s consent was valid.

Such concerns go to the suppression of the blood test results and not the

sufficiency of the evidence. As such, they are irrelevant to a determination

of the sufficiency of the evidence.   Moreover, we have already found that

Officer Carricato had reasonable grounds to request the test.      As for the

validity of appellant’s consent, this issue was not raised in the pre-trial

suppression motion, nor was it argued at the suppression hearing.




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Consequently, appellant is improperly raising that issue for the first time on

appeal and we find it waived.2 Pa.R.A.P., Rule 302(a), 42 Pa.C.S.A.

      Finally, we turn to the legality of appellant’s sentence.        Although

appellant does not raise this issue, “[i]t is settled that a legality-of-sentence

issue ‘may be reviewed sua sponte by this Court,’ due to the fact that an

‘illegal sentence must be vacated.’” Commonwealth v. Stradley, 50 A.3d

769, 774, (Pa.Super. 2012), quoting Commonwealth v. Randal, 837 A.2d

1211, 1214 (Pa.Super. 2003).

      The subsections of § 3802 are not separate offenses, and a defendant

may not be subjected to multiple penalties for violating more than one

subsection of the statute by a single criminal act.        Commonwealth v.

McCoy, 895 A.2d 18, 26 (Pa.Super. 2006), affirmed, 975 A.2d 586 (Pa.

2009).   See also Commonwealth v. Williams, 871 A.2d 254, 262-267

(Pa.Super. 2005). Thus, in McCoy we affirmed the trial court’s merging a

sentence for DUI -- general impairment with a sentence for DUI -- highest

rate of alcohol, 75 Pa.C.S.A. § 3802(c). Consequently, appellant’s separate,

concurrent sentence for DUI -- general impairment should have merged, for

sentencing purposes, with that for DUI -- high rate of alcohol. As vacating



2
   We note in passing that the Commonwealth’s brief raises several
complaints as to appellant’s brief, including that this issue is being raised for
the first time on appeal. The Commonwealth’s other complaints go to
appellant’s characterization of the evidence and the overlong length of his
summary of argument. These other matters do not impede appellate
review, and we will not address them further.


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this sentence will not upset the trial court’s sentencing scheme, we will

simply vacate the sentence without remand.

      Judgment of sentence as to 75 Pa.C.S.A. § 3802(b) affirmed.

      Judgment of sentence as to 75 Pa.C.S.A. § 3802(a)(1) vacated.

Jurisdiction relinquished.

Judgment Entered.




JosephD.Seletyn,Esq.
Prothonotary

Date: 5/12/2015




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