J-S75041-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                               :          PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    JOSEPH F. PORTERFIELD,                     :
                                               :
                      Appellant                :          No. 898 WDA 2017

              Appeal from the Judgment of Sentence May 30, 2017
                in the Court of Common Pleas of Mercer County,
              Criminal Division at No(s): CP-43-CR-0001760-2016

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

MEMORANDUM BY MUSMANNO, J.:                               FILED JANUARY 30, 2018

        Joseph F. Porterfield (“Porterfield”) appeals from the judgment of

sentence imposed following his conviction of two counts of driving under the

influence of alcohol (“DUI”).1 We affirm.

        At approximately 1:00 a.m. on July 2, 2016, Porterfield entered a DUI

checkpoint on the Shenango Valley Freeway in Sharon, Pennsylvania, and

his vehicle was stopped.2 Pennsylvania State Police Trooper Sherry Hogue

(“Trooper     Hogue”)    approached       Porterfield’s   vehicle.   Trooper   Hogue

immediately detected an odor of alcoholic beverages coming from inside of

the vehicle, and asked Porterfield to exit the vehicle. Trooper Hogue smelled

alcohol on Porterfield’s breath and noticed that his eyes were glassy and


____________________________________________


1
    See 75 Pa.C.S.A. § 3802(a)(1) and (b).
2
    Porterfield’s ten-year-old daughter was a passenger in the vehicle.
J-S75041-17



bloodshot. Porterfield admitted to Trooper Hogue that he had consumed a

six-pack of beer, but alleged that he was not drunk because he was

“immune” to alcohol.         Trooper Hogue asked Porterfield to perform field

sobriety tests.    However, Porterfield replied that he could not perform the

tests because of a herniated disk in his back.                 Trooper Hogue then

administered a portable breath test, which was positive for alcohol.

       Trooper Hogue placed Porterfield under arrest for suspicion of DUI,

and transported him to Sharon Regional Hospital for a chemical test of his

blood alcohol content (“BAC”).3                At the hospital, Trooper Hogue read

Porterfield the warnings contained on the Pennsylvania Department of




____________________________________________


3
  Trooper Hogue did not have a warrant to compel Porterfield to submit to
the blood test.


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Transportation DL-26 form (“DL-26 form”),4 in accordance with the mandate

of 75 Pa.C.S.A. § 1547 (concerning blood or breath testing to determine

amount of alcohol/controlled substance, and the consequences for refusal to

submit to a test).       After Trooper Hogue read Porterfield the DL-26 form

warnings, both she and Porterfield signed the form.              Porterfield then

submitted to a blood test.        A subsequent chemical analysis of Porterfield’s

blood sample revealed that he had a BAC of .13 percent (hereinafter

referred to as “the blood test result”).


____________________________________________


4
  Notably to the instant appeal, the DL-26 form that Trooper Hogue read to
Porterfield was the new version, which had been revised in response to the
decision of the United States Supreme Court in Birchfield v. North
Dakota, 136 S. Ct. 2160 (2016). The Birchfield Court held that, because
the taking of a blood sample is a search within the meaning of the Fourth
Amendment to the United States Constitution, police officers may not
compel the taking of a blood sample without a search warrant, absent an
applicable exception. See id. at 2185. After concluding that “the search
incident to arrest doctrine does not justify the warrantless taking of a blood
sample,” id., the Birchfield Court considered whether implied-consent laws,
which require cooperation with blood-alcohol testing as “a condition of the
privilege of driving on state roads,” could provide an exception to the
warrant requirement consistent with the federal constitution. Id. at 2169,
2185-86. The Birchfield Court held that, although implied-consent laws
that impose civil penalties and evidentiary consequences for refusing to
consent are constitutional, implied-consent laws that impose criminal
penalties for refusing to consent to a blood test are unconstitutional because
“motorists cannot be deemed to have consented to submit to a blood test on
pain of committing a criminal offense.” Id. at 2185-86. Importantly, in the
instant case, the post-Birchfield DL-26 form that Trooper Hogue read to
Porterfield did not contain any reference to enhanced criminal penalties for
refusal to submit to a blood test (though the form did state that such refusal
would result in the motorist’s operating privileges being suspended for at
least a year). See N.T. (Suppression Hearing), 4/6/17, at 6 (wherein
Trooper Hogue read into the record the contents of the DL-26 form at issue).


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        The Commonwealth charged Porterfield with two counts of DUI, and

one count each of careless driving5 and recklessly endangering another

person (“REAP”).6 Prior to trial, Porterfield filed an Omnibus Pretrial Motion

(hereinafter “Motion to Suppress”), seeking, inter alia, to suppress the blood

test result.    Porterfield argued that the blood test result was unlawfully

obtained without a warrant, and his consent to the blood draw was

unknowing, involuntary, and coerced.

        After conducting an evidentiary hearing, the trial court entered an

Order denying the Motion to Suppress. Concomitantly with this Order, the

trial court issued Findings of Fact. Therein, the court found that Birchfield

was inapplicable to the instant case, and the warrantless blood draw was

thus not illegal, since the new, post-Birchfield DL-26 form that Trooper

Hogue read to Porterfield contained no mention of enhanced criminal

penalties for refusal to submit to a blood test.

        The matter then proceeded to a non-jury trial on May 12, 2017. When

the Commonwealth sought to admit the blood test result, Porterfield’s

counsel objected, asserting that the chain of custody concerning this

evidence was deficient. The trial court overruled the objection and admitted

the blood test result.       Prior to the close of trial, the trial court granted

Porterfield’s Motion for judgment of acquittal on the charges of careless

____________________________________________


5
    See 75 Pa.C.S.A. § 3714(a).
6
    See 18 Pa.C.S.A. § 2705.


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driving and REAP. The court then found Porterfield guilty of two counts of

DUI.

       On May 30, 2017, the trial court sentenced Porterfield to serve not less

than 48 hours nor more than 6 months in the Mercer County Jail, plus a

$1,000 fine and court costs. Porterfield timely filed a Notice of Appeal.

       On June 19, 2017, the trial court issued an Order directing Porterfield

to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal within 21 days.7 Porterfield did not file his Concise Statement until

July 18, 2017, nine days late.           The trial court thereafter issued a Rule

1925(a) Opinion, addressing the merits of the issues raised by Porterfield

despite the lateness of his Concise Statement.8

       Porterfield now presents the following issues for our review:

       1. [Whether] the suppression court erred in              allowing   a
          warrantless withdrawal of Porterfield’s blood[?]


____________________________________________


7
  The trial court’s docket indicates that Porterfield was given notice of the
entry of the June 19, 2017 Order.
8
  Though we could find that Porterfield waived his issues on appeal based on
the untimeliness of his Concise Statement, see Commonwealth v.
Castillo, 888 A.2d 775, 776 (Pa. 2005), we decline to do so because the
trial court addressed the merits of Porterfield’s issues in its Opinion. See
Commonwealth v. Thompson, 39 A.3d 335, 340 (Pa. Super. 2012)
(declining to find waiver because the trial court had addressed the issues
raised in the untimely concise statement); see also Commonwealth v.
Burton, 973 A.2d 428, 433 (Pa. Super. 2009) (en banc) (stating that
“[w]hen counsel has filed an untimely Rule 1925(b) statement and the trial
court has addressed those issues[,] we need not remand and may address
the merits of the issues presented.”).


                                           -5-
J-S75041-17


       2. [Whether] the trial court erred in admitting the results of
          testing on Porterfield’s blood without a proper chain of
          custody[?]

Brief for Appellant at 5 (capitalization omitted).

      In his first issue, Porterfield argues that the trial court erred in denying

his Motion to Suppress, where the blood test result was unlawfully obtained

under Birchfield, supra, and his consent to the blood draw was invalid.

See Brief for Appellant at 10-17.

            [O]ur 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. 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. Yandamuri, 159 A.3d 503, 516 (Pa. 2017) (citations

omitted).

             The Fourth Amendment to the United States Constitution
      and Article I, Section 8 of the Pennsylvania Constitution protect
      citizens    from     unreasonable   searches    and     seizures.
      Commonwealth v. McAdoo, 2012 PA Super 118, 46 A.3d 781,
      784 (Pa. Super. 2012). Blood tests constitute searches under
      the Fourth Amendment[,] as they implicate privacy concerns.
      Birchfield, 136 S.Ct. at 2173[; s]ee also Commonwealth v.
      Ellis, 415 Pa. Super. 220, 608 A.2d 1090, 1091 (Pa. Super.
      1992) (providing that “the administration of a blood test is a
      search within the meaning of the Fourth Amendment if it is
      performed by an agent of the government”).



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J-S75041-17


            “A search conducted without a warrant is deemed to be
      unreasonable and therefore constitutionally impermissible,
      unless an established exception applies.” Commonwealth v.
      Strickler, 563 Pa. 47, 56, 757 A.2d 884, 888 (2000) (citations
      omitted). Those exceptions include voluntary consent. Id. “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.” Id.

Commonwealth v. Smith, 2017 PA Super 416, at *9 (Pa. Super. 2017).

      In Smith, which is directly on point, this Court recently discussed

Birchfield, and the admissibility of warrantless blood test results obtained

after the motorist’s signing of a post-Birchfield DL-26 form, and consenting

to the blood test. In Smith, as here, the appellant was arrested by Trooper

Hogue in Mercer County for suspicion of DUI, and taken to a hospital for a

blood test. Id. at *3. Trooper Hogue read the appellant the warnings on

the post-Birchfield DL-26 form, which did not contain any information

regarding enhanced criminal penalties for refusal to submit to a blood test.

Id. The appellant signed the DL-26 form and the blood test was performed,

which later revealed that the appellant’s BAC was well above the legal limit.

Id.

      On appeal, the appellant in Smith raised a virtually identical claim to

Porterfield’s above-mentioned claim, challenging the suppression court’s

denial of her motion to suppress the warrantless blood testing results, and

relying upon Birchfield.   Id. at *8.   This Court addressed the appellant’s

claim and summarized the applicable law as follows:



                                    -7-
J-S75041-17


     In Birchfield, the High Court reviewed a consolidated case in
     which one of the petitioners, Steve Michael Beylund, was
     arrested for DUI and informed that the refusal to submit to blood
     testing constituted a crime itself under North Dakota law.
     Thereafter, petitioner Beylund argued that his consent had been
     coerced by the officer’s warning. Relevant to the instant case,
     the United States Supreme Court held that a state may not
     “insist upon an intrusive blood test, but also … impose criminal
     penalties upon the refusal to submit to such a test.” Birchfield,
     136 S.Ct. at 2185. Moreover, the High Court emphasized that
     “motorists cannot be deemed to have consented to a blood test
     upon pain of committing a criminal offense.” Id. at 2186. As
     petitioner Beylund had consented to a blood test only after police
     had erroneously informed him that he could be criminally
     penalized if he refused to do so, the Birchfield Court remanded
     for the trial court to “reevaluate Beyland’s consent given the
     partial inaccuracy of the officer’s advisory.” Id.

     Nevertheless, the Birchfield Court emphasized that its holding
     did not apply to the imposition of civil penalties and evidentiary
     consequences upon motorists suspected of DUI who refused
     blood testing upon their arrest:

        It is well established that a search is reasonable when the
        subject consents, and that sometimes consent to a
        search need not be express but may be fairly inferred
        from context.        Our prior opinions have referred
        approvingly to the general concept of implied-consent
        laws that impose civil penalties and evidentiary
        consequences on motorists who refuse to comply.
        Petitioners do not question the constitutionality of those
        laws, and nothing we say here should be read to cast
        doubt on them.

     Birchfield, 136 S.Ct. at 2185 (emphasis added) (citations
     omitted).[FN]
        [FN]
             We observe that the Pennsylvania Commonwealth
        Court held that Birchfield does not affect the imposition
        of civil license suspension for refusal to submit to a blood
        test.       Boseman v. Commonwealth, Dep’t of
        Transportation, Bureau of Driver Licensing, 157
        A.3d 10, 21 (Pa. Cmwlth. 2017)[; see also
        Commonwealth v. Bell, 167 A.3d 744, 750 (Pa. Super.
        2017) (same).]

                                   -8-
J-S75041-17



           Thereafter, this Court decided Commonwealth v. Evans,
     2016 PA Super 293, 153 A.3d 323 (Pa. Super. 2016), in which
     the appellant had similarly argued that his consent to blood
     testing after his arrest for DUI was coerced as he only consented
     after the police warned him that his refusal to submit to blood
     testing would result in harsher penalties upon conviction.
     Although the Evans [C]ourt recognized that Pennsylvania’s
     implied consent law did not make refusal to submit to a blood
     test a crime, the panel emphasized that the law “undoubtedly
     impose[s] criminal penalties on the refusal to submit to a
     test.” Evans, 153 A.3d at 331 (quoting Birchfield, 136 S. Ct.
     at 2185-86). This Court pointed [] to the DUI penalty provisions
     set forth in 75 Pa.C.S.A. § 3804:

           Section 3804(c) provides that an “individual who
           violates section 3802(a)(1)[, DUI, general impairment]
           and refused testing of blood” is punished more severely
           than an individual who commits the stand-alone DUI,
           general impairment offense under Section 3802(a)(1)—
           and to the same extent as an individual who
           violates Section 3802(c), relating to DUI, highest rate of
           alcohol. 75 Pa.C.S.A. § 3804(c). As such Birchfield
           controls the case at bar.

     Id.

            Since the appellant in Evans had argued that he agreed to
     submit to blood testing only after being informed that harsher
     penalties would apply if he refused, this Court held that the
     officer’s advisory to Evans was “partially inaccurate[,]”
     as Birchfield prohibits states from imposing criminal penalties
     for the refusal to submit to blood testing. Evans, 153 A.3d at
     331. As a result, this Court vacated the appellant’s sentence
     and the suppression order and remanded with instructions for
     the trial court to reevaluate the voluntariness of appellant’s
     consent in light of this inaccurate warning and the totality of the
     circumstances.

            The instant case is factually distinguishable from
     Birchfield and Evans. To reiterate, the decision in Birchfield,
     which was controlling law at the time of [a]ppellant’s arrest,
     prohibited states from imposing criminal penalties upon an
     individual’s refusal to submit to a warrantless blood test.
     Birchfield, 136 S. Ct. at 2185. The trial court in this case[, as

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J-S75041-17


      in Porterfield’s case,] found Birchfield was inapplicable since
      [a]ppellant was never advised that she would be subject to
      enhanced criminal sanctions upon refusal of blood testing. Our
      review of the record confirms this finding; both parties agree
      that Trooper Hogue only informed [a]ppellant that her driver’s
      license would be suspended if she refused blood testing.
      Appellant signed a DL-26 form acknowledging that she was
      advised of this particular consequence. This form does not
      contain any reference to enhanced criminal penalties.        See
      Commonwealth’s Exhibit 1, DL-26 form. Thereafter, [a]ppellant
      agreed to submit to blood testing, which revealed a blood alcohol
      level of 0.274 [percent]. We cannot conclude that the trial court
      erred in denying [a]ppellant’s suppression motion ….

Smith, 2017 PA Super 416, at **10-13 (footnote in original).        The sound

rationale of Smith is controlling in the instant case, and compels an identical

result. See id.

      We additionally note that Porterfield appears to argue that his consent

cannot be deemed knowing and voluntary where, at the time of his arrest,

the Pennsylvania DUI penalty provision allowing for enhanced penalties upon

refusal of blood testing had not yet been amended by the General Assembly

to conform with Birchfield and its progeny. See Brief for Appellant at 16-

17 (asserting, inter alia, that “Pennsylvania’s driving under the influence law

has been around long enough that this[, i.e., presumably, the pre-

Birchfield enhanced criminal penalty for refusal to submit to a blood test,

as previously contained in former 75 Pa.C.S.A. §§ 1547(b)(2)(ii) and




                                    - 10 -
J-S75041-17


3804(c)9,] is common knowledge to the motoring public[,] not to mention

that we are all presumed to know the law.”). However, our review of the

record discloses that at no time did Porterfield raise this claim before the

trial court. Accordingly, it is waived. See Pa.R.A.P. 302(a) (stating that a

claim    cannot    be   raised    for   the    first   time   on   appeal);   see   also

Commonwealth v. Phillips, 141 A.3d 512, 522 (Pa. Super. 2016) (stating

that a new theory of relief cannot be raised for the first time on appeal).

Thus, Porterfield’s first issue challenging the suppression court’s refusal to

suppress the blood test result fails.

        In his second issue, Porterfield contends that the trial court erred by

overruling his objection to the admission of the blood test result, where the

chain of custody concerning this evidence was lacking.                   See Brief for

Appellant at 18-21.        Porterfield advances scant substantive argument to

develop this claim, asserting as follows:                 “In Porterfield’s trial, the

Commonwealth failed to introduce any proper evidence to establish the

chain of custody between the time the arresting trooper placed the blood

into evidence and the time the chemist tested the same.” Id. at 21.

              The admissibility of evidence is a matter for the discretion
        of the trial court and a ruling thereon will be reversed on appeal
        only upon a showing that the trial court committed an abuse of
____________________________________________


9
  On July 20, 2017, the General Assembly amended sections 1547(b)(2)(ii)
and 3804(c), so as to eliminate enhanced criminal penalties for refusing a
warrantless test of one’s blood (and the warning associated therewith),
bringing these statutes into compliance with Birchfield. See Section 4 of
the Act of July 20, 2017, P.L. 333.


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J-S75041-17


      discretion. An abuse of discretion may not be found merely
      because an appellate court might have reached a different
      conclusion, but requires a result of manifest unreasonableness,
      or partiality, prejudice, bias, or ill-will, or such lack of support so
      as to be clearly erroneous.

Commonwealth v. Johnson, 42 A.3d 1017, 1027 (Pa. 2012) (citations and

quotation marks omitted).

      We review a challenge concerning a chain of custody under the

following standard:

       While the Commonwealth bears the burden of demonstrating
       some reasonable connection between the profe[]red exhibits
       and the true evidence, Commonwealth v. Pedano, 266
       Pa.Super. 461, 467, 405 A.2d 525, 528 (1979), it need not
       establish the sanctity of its exhibits beyond a moral
       certainty. E.g., Commonwealth v. Miller, 234 Pa.Super.
       146, 155, 339 A.2d 573, 578 (1975), aff’d, 469 Pa. 24, 364
       A.2d 886 (1976). The Commonwealth need not produce
       every individual who came into contact with an item of
       evidence, nor must it eliminate every hypothetical possibility
       of tampering. Commonwealth v. Rick, 244 Pa.Super. 33,
       38, 366 A.2d 302, 304 (1976). A complete chain of custody
       is not required so long as the Commonwealth’s evidence,
       direct and circumstantial, establishes a reasonable inference
       that the identity and condition of the exhibits have remained
       the same from the time they were first received until the time
       of trial. Commonwealth v. Oates, 269 Pa.Super. 157, 163,
       409 A.2d 112, 115 (1979); Commonwealth v. Miller,
       supra. Any gaps in testimony regarding the chain of custody
       go to the weight to be given the testimony, not to its
       admissibility. Commonwealth v. Bolden, 486 Pa. 383, 388-
       89, 406 A.2d 333, 335-36 (1979).

Commonwealth v. Cugaini, 452 A.2d 1064, 1065 (Pa. Super. 1982).

      In its Opinion, the trial court addressed and rejected Porterfield’s

challenge to the admissibility of the blood test result, stating as follows:

            Turning to the [] issue of whether the Commonwealth
      established the chain of custody of the drawn blood such that

                                      - 12 -
J-S75041-17


     the lab results were admissible, the [trial c]ourt finds that the
     Commonwealth has met its burden. The facts reveal that there
     was sufficient chain of custody evidence produced establishing
     that the blood drawn at the hospital was the blood tested at the
     crime lab.

           Theresa Susak [(“Susak”)] testified at the trial of this case.
     She was [the] phlebotomist [at] Sharon Regional Hospital who
     performed the blood draw. [] Susak testified as to how she uses
     a kit and[,] after she withdrew the blood[,] she would hand it
     over to the police officer and would sign and initial all
     paperwork. (Trial transcript pp. 10-15).

           Trooper [] Hogue … testified[,] in pertinent part[,] that
     after taking [Porterfield] to the Sharon Regional Hospital[,] she
     was present when … Susak took [Porterfield’s] blood. (T.T. p.
     8). After the blood was drawn, Trooper Hogue testified that she
     retained control of the blood until it was entered into evidence[,]
     and then the evidence was ultimately sent to the Erie Crime Lab.
     (T.T. p. 8). Trooper Hogue further testified that the evidence
     taken from the hospital goes into the evidence locker and would
     either have been hand[-]delivered or picked up by UPS. (T.T. p.
     9).

           Neal Rerko [(“Rerko”)] testified that he is a forensic
     chemist employed by the Pennsylvania State Police at the Erie
     Regional Crime Laboratory. (T.T. p. 20). [] Rerko testified that
     the kit containing the blood draw was submitted to the
     laboratory on July 7, 2016, having arrived at 15:27 hours by
     Trooper Stuck[]y. Thus, the kit was hand[-]delivered to the
     laboratory[,] and then the laboratory chain of custody picked up
     from there. (T.T. p. 26). Once the crime lab received the
     evidence[,] it was entered into the laboratory information
     system and assigned a barcode and a laboratory number that is
     used to track the evidence as it moves through the laboratory.
     [] Rerko testified that the evidence was received by the evidence
     technician, [and] placed into refrigerator vault one on July 7,
     2016. The evidence technician then retrieved the evidence and
     gave it to [] Rerko[,] who destroyed the packaging and broke
     out the tubes of blood themselves and conducted his analysis.
     (T.T. p. 27).

           [Porterfield’s] allegation goes to the weight to be afforded
     the evidence. It is sufficient that the evidence, direct and
     circumstantial, establish a reasonable inference that the identity

                                    - 13 -
J-S75041-17


      and condition of the exhibit remain unimpaired until they are
      surrendered to the court. (Com[monwealth] v. Feliciano, 67
      A.3d 19 (Pa. Super. 2013)). There is no rule requiring the
      prosecution produce as witnesses all persons who are in a
      position to come into contact with the article sought to be
      introduced into evidence. Physical evidence may be properly
      admitted despite gaps in testimony regarding custody[.]
      (Com[monwealth] v. Jenkins, 332 A.2d 490, 492 (Pa. Super.
      1974)); Feliciano, supra at 29. [Porterfield’s] argument must
      fail on this issue[.]

Trial Court Opinion, 7/25/17, at 3-5.         We agree with the trial court’s

determination and sound analysis, which is supported by the record, and

therefore affirm on this basis in rejecting Porterfield’s second issue. See id.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/30/2018




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