J-S65018-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

BARRY E. RANKIN,

                        Appellant                   No. 2765 EDA 2014


        Appeal from the Judgment of Sentence September 8, 2014
          In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0014425-2013


BEFORE: BENDER, P.J.E., SHOGAN, and JENKINS, JJ.

MEMORANDUM BY SHOGAN, J.:                      FILED DECEMBER 07, 2015

     Appellant, Barry E. Rankin, appeals from the judgment of sentence

entered following his convictions of fleeing and driving under the influence.

We affirm.

     The trial court summarized the factual history of this case as follows:

            On September 23, 2013, at approximately 1:28 in the
     morning, Pennsylvania State Trooper Brendan Connor was on
     duty patrolling Interstate 95, near the Allegheny Avenue exit, in
     the city and county of Philadelphia, when he observed a
     motorcycle being operated by Appellant on the highway without
     rear lights. He attempted to close the gap between his patrol
     car and the motorcycle, and was initially unsuccessful, even after
     accelerating to speeds exceeding one hundred and ten miles per
     hour. Trooper Connor was able to get close enough to observe
     that the motorcycle had a driver, a passenger, and no
     registration tag.       Trooper Connor observed Appellant’s
     motorcycle traveling at high speeds, making multiple lane
     changes without signaling, and passing other vehicles in an
     unsafe manner. Trooper Connor activated his lights and sirens
     and Appellant continued to accelerate on the highway. Trooper
     Connor’s vehicle was between five yards and twenty yards
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     behind the Appellant at various points of the pursuit while his
     lights and sirens were activated.

           [Appellant] exited Interstate 95 at the Academy Road exit.
     After momentarily slowing down at a split in the road, Appellant
     accelerated again toward Academy Road.                Trooper Connor
     observed the passenger look back towards him multiple times
     during the pursuit. Eventually, Appellant slowed his motorcycle
     and Trooper Connor accelerated past and “boxed the motorcycle
     in” prior to the intersection of Frankford Avenue and Academy
     Road. Appellant and his male passenger put up their hands and
     were taken into custody.         Trooper Connor estimated that
     Appellant drove for approximately one mile or less after he
     activated his lights and sirens to initiate a traffic stop.

            Trooper Connor observed that Appellant had extremely
     watery, red, glassy, blood shot eyes. He asked the Appellant for
     his driver’s license, and Appellant replied that it was in his wallet
     in his pocket.       Trooper Connor retrieved the wallet with
     Appellant’s permission. While retrieving his license, Trooper
     Connor observed a small clear baggy containing a green leafy
     substance, alleged marijuana. Trooper Connor inquired whether
     Appellant’s eyes were red, watery, and glassy because Appellant
     had been using marijuana. Appellant admitted that he had used
     marijuana earlier in the day.

           Appellant was arrested and transported to the Philadelphia
     Police headquarters. Trooper Connor read him his O’Connell
     Warnings and Appellant agreed to a blood draw. The blood
     samples were marked with the case number K011942027, and
     Trooper Connor transported them to an evidence locker. An
     evidence custodian eventually transported the blood to DrugScan
     for analysis.

            Dr. Richard Cohn, forensic toxicologist and pharmacologist
     for DrugScan, a federally certified laboratory, testified that the
     blood associated with case number K011942027 was analyzed at
     his direction. Dr. Cohn’s analysis of the data generated was that
     5 nanograms of Delta 9 THC, marijuana constituent per milliliter
     and greater than 50 nanograms of Delta 9 Carboxy THC, or
     marijuana metabolite per milliliter was present in Appellant’s
     blood. Dr. Cohn opined that the person whose blood was
     analyzed had used marijuana not more than three or four hours
     prior to the blood draw and that the marijuana impaired his

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      ability to judge and perceive his surroundings, make safety
      sensitive decisions, and adversely impacted his cognitive
      faculties and motor skills to the extent it rendered him unfit to
      safely operate a motor vehicle on the highway.

Trial Court Opinion, 3/12/15, at 2-4 (internal citations omitted).

      As a result of this incident, Appellant was charged with fleeing or

attempting to elude police when given a visual or audible signal to stop,

driving under the influence (“DUI”) of a controlled substance, reckless

endangerment, and possession of marijuana.          Appellant filed a pretrial

motion to suppress his statement admitting to previous marijuana use and

his blood sample results.    The trial court granted the motion as to the

statement but denied suppression of the blood sample results. Following a

bench trial, Appellant was convicted of fleeing, as a felony of the third

degree, and driving under the influence. Appellant was acquitted of reckless

endangerment and possession of marijuana. Appellant was sentenced to the

mandatory minimum sentence of seventy-two hours to six months of

incarceration for the DUI, first offense conviction, and a consecutive six

months of probation for the fleeing conviction.       Appellant filed a timely

notice of appeal.    Both the trial court and Appellant complied with the

requirements of Pa.R.A.P. 1925.

      Appellant presents the following issues for our review:

      1. Because the drawing and testing of [A]ppellant’s blood
      occurred in violation of the Implied Consent law and the
      probable cause requirements of the federal and state
      constitutions, was not the denial of [A]ppellant’s suppression
      motion an error of law?

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      2. Was not the evidence of fleeing or attempting to elude police
      insufficient where the unrefuted trial evidence proved [A]ppellant
      stopped his motorcycle as soon as he could do so safely after he
      saw the patrol car’s lights and any contrary testimony from the
      suppression hearing was never incorporated into the trial record?

Appellant’s Brief at 4.

      When an appellant raises both a sufficiency-of-the-evidence issue and

a suppression issue, we address the sufficiency of the evidence supporting

the conviction first, and we do so without a diminished record:

      [W]e are called upon to consider all of the testimony that was
      presented to the jury during the trial, without consideration as to
      the admissibility of that evidence. The question of sufficiency is
      not assessed upon a diminished record.          Where improperly
      admitted evidence has been allowed to be considered by the
      jury, its subsequent deletion does not justify a finding of
      insufficient evidence. The remedy in such a case is the grant of
      a new trial.

Commonwealth v. Sanford, 863 A.2d 428, 431–432 (Pa. 2004) (emphasis

in original). Thus, we begin by addressing the sufficiency of the evidence, as

“[t]he Double Jeopardy Clause bars retrial after a defendant’s conviction has

been overturned because of insufficient evidence.”       Commonwealth v.

Mullins, 918 A.2d 82, 85 (Pa. 2007) (citations omitted).

      Appellant asserts that there was insufficient evidence to establish that

Appellant fled from police. Appellant’s Brief at 20. Appellant contends that

the only evidence presented at trial regarding how Appellant came to a stop

was from Appellant’s passenger, who testified that once Appellant became

aware of the police car’s lights, he pulled over as soon as it was safely

possible to do so.    Id.   Appellant maintains that there was no contrary


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evidence because the Commonwealth failed to move for admission of the

suppression hearing testimony into the trial record. Id. at 21. As a result,

Appellant argues that the evidence cannot sustain his conviction for fleeing

or eluding the police. Id.

      In reviewing the sufficiency of the evidence, we must determine

whether the evidence admitted at trial and all reasonable inferences drawn

therefrom, viewed in the light most favorable to the Commonwealth as

verdict winner, were sufficient to prove every element of the offense beyond

a reasonable doubt. Commonwealth v. Rivera, 983 A.2d 1211, 1220 (Pa.

2009). “It is within the province of the fact-finder to determine the weight

to be accorded to each witness’s testimony and to believe all, part, or none

of the evidence.”   Commonwealth v. Jackson, 955 A.2d 441, 444 (Pa.

Super. 2008). The Commonwealth may sustain its burden of proving every

element of the      crime    by   means   of wholly   circumstantial   evidence.

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

Moreover, as an appellate court, we may not re-weigh the evidence and

substitute our judgment for that of the fact-finder.       Commonwealth v.

Kelly, 78 A.3d 1136, 1139 (Pa. Super. 2013).

      The offense of fleeing a police officer is defined as follows:

      § 3733. Fleeing or attempting to elude police officer

      (a) Offense defined. -- Any driver of a motor vehicle who
      willfully fails or refuses to bring his vehicle to a stop, or who
      otherwise flees or attempts to elude a pursuing police officer,
      when given a visual and audible signal to bring the vehicle to a
      stop, commits an offense as graded in subsection (a.2).

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75 Pa.C.S. § 3733(a).

       We first address Appellant’s claim that there was no evidence contrary

to the motorcycle passenger’s testimony because the Commonwealth failed

to move for admission of the suppression hearing testimony, which included

Trooper Brendan Connor’s testimony, at trial.              Trooper Connor testified

during the suppression hearing immediately prior to the bench trial in this

case regarding Appellant’s actions.            Appellant maintains that because the

suppression motion testimony was not incorporated, the only evidence this

Court may review for sufficiency purposes is the trial evidence. Appellant’s

Brief at 21.

       We find this argument lacks merit on several grounds. First, Appellant

did not raise this issue before the trial court, either by objecting to reference

to the suppression hearing testimony during trial,1 or by specifically raising

this claim in his Pa.R.A.P. 1925(b) statement. See Hansley, 24 A.3d at 415

(explaining that appellant’s Rule 1925(b) statement must be specific enough

for the trial court to identify and address the issue an appellant wishes to

raise on appeal, or the court may find waiver).            As a result, this issue is

waived.


____________________________________________


1
  We note that both parties and the trial court referenced the testimony
provided at the suppression hearing during the trial portion of this
proceeding.



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      Additionally, even if Appellant had properly preserved this claim, we

cannot agree that the trial court was prohibited from considering the

testimony provided in the context of evidence on Appellant’s motion to

suppress.    A review of the transcript reveals that the suppression hearing

merged seamlessly into the trial.                  The transcript itself reflects one

proceeding.      The testimony related to the suppression hearing ended with

the trial judge’s decision to suppress Appellant’s statement only.                  N.T.,

9/8/14, at 32-33. The court further stated that there was probable cause to

obtain the blood test results and there was, therefore, enough evidence to

proceed     to   trial.     Id.   at   32-33.       With   that   pronouncement,     the

Commonwealth called to the witness stand, expert witness Dr. Richard Cohn,

to testify regarding the blood test results.           Id. at 33.   The trial continued

with the parties calling the remaining witnesses. Id. at 52-83.

      In this case the suppression hearing and the trial proceeded before the

same judge.       There was no jury to empanel or any other break in the

proceedings. Additionally, given the fact that it was a bench trial, the trial

judge could have taken judicial notice of the suppression proceedings. See

Pa.R.E. 201(b) (a court may take judicial notice of “a fact that is not subject

to reasonable dispute because it: (1) is generally known within the trial

court’s territorial       jurisdiction; or   (2) can be       accurately and readily

determined       from      sources     whose    accuracy     cannot    reasonably     be

questioned.”); Commonwealth v. Brown, 839 A.2d 433, 435 (Pa. Super.


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2003).      Thus, while we acknowledge Appellant’s objection that the

suppression testimony was not formally incorporated into the trial, we

cannot agree that in this case the testimony from the suppression hearing

should be excluded from the trial court’s consideration. “To hold otherwise

would elevate form over substance, something this Court has repeatedly

refused to do.” Commonwealth v. Bricker, 581 A.2d 147, 160 (Pa. 1990).

      The trial court provided the following analysis in support of its

conclusion that Appellant was guilty of fleeing an officer:

             Trooper Connor observed Appellant operating a motorcycle
      at extremely high speeds, without a rear light, and without an
      appropriate registration tag. Trooper Connor engaged his lights
      and sirens, and pursued Appellant with the vehicles in close
      proximity, such that the flashing lights of Trooper Connor’s
      vehicle would have been apparent to Appellant. Appellant did
      not stop immediately, but continued for nearly one mile before
      finally being boxed in by Trooper Connor. The evidence was
      sufficient to prove that Appellant willfully failed to bring his
      vehicle to a stop, but instead continued for nearly one mile.
      Therefore, Appellant was properly convicted of fleeing. Because
      the offense was committed concurrently with a violation of [75
      Pa.C.S.] section 3802, the offense was properly graded as a
      felony of the third degree.

Trial Court Opinion, 3/12/15, at 7.

      The trial court’s conclusion is supported by the evidence of record.

Viewing all evidence in the light most favorable to the Commonwealth, we

agree there was sufficient evidence to convict Appellant of fleeing from a

police officer.   The trial court found the testimony of Trooper Connor

credible.   As an appellate court, we may not re-weigh the evidence and




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substitute our judgment for that of the fact-finder. Kelly, 78 A.3d at 1139.

Appellant’s first claim fails.

      Next, Appellant argues that the state trooper did not have probable

cause to believe that Appellant was driving under the influence of alcohol or

a controlled substance and therefore, did not lawfully obtain Appellant’s

blood test results. Appellant’s Brief at 18. Id. Appellant contends that the

only indicia of intoxication was Appellant’s bloodshot, glassy eyes, which

Appellant asserts is consistent with driving a motorcycle at high rates of

speed.    Id.   Appellant also argues that his possession of marijuana and

admission to having smoked marijuana earlier in the day were not sufficient

to establish probable cause that Appellant was under the influence. Id. at

19.   Accordingly, Appellant maintains, the trooper did not have probable

cause to test Appellant for intoxication. Id. at 20. Appellant asserts that his

blood test results therefore were unlawfully obtained and should have been

suppressed. Id. Appellant argues that he is entitled to a new trial without

admission of the unlawfully seized evidence. Id. at 13.

      “When reviewing the propriety of a suppression order, an appellate

court is required to determine whether the record supports the suppression

court’s factual findings and whether the inferences and legal conclusions

drawn by the suppression court from those findings are appropriate.”

Commonwealth v. Foglia, 979 A.2d 357, 360 (Pa. Super. 2009) (en banc).

“Where the Commonwealth prevailed on the suppression motion, we


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consider only the evidence of the prosecution and so much of the defense

that remains uncontradicted.” Commonwealth v. Cooper, 994 A.2d 589,

591 (Pa. Super. 2010).

      With respect to factual findings, we are mindful that it is the sole
      province of the suppression court to weigh the credibility of the
      witnesses. Further, the suppression court judge is entitled to
      believe all, part or none of the evidence presented.

Commonwealth v. Swartz, 787 A.2d 1021, 1023 (Pa. Super. 2001) (en

banc).   To the extent that the suppression court’s factual findings are

supported by the record, “we are bound by those facts and will only reverse

if the legal conclusions are in error.”   Cooper, 994 A.2d at 591.       As an

appellate court, it is our duty “to determine if the suppression court properly

applied the law to the facts.”    Commonwealth v. Maldonado, 14 A.3d

907, 910 (Pa. Super. 2011) (citation omitted).

      Section 1547 of the vehicle code provides, in relevant part, as follows:

      § 1547. Chemical testing to determine amount of alcohol or
      controlled substance

      (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)



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              (relating to illegally operating a motor vehicle not
              equipped with ignition interlock); . . .

75 Pa.C.S. § 1547.2

       The administration of a blood test is a search within the meaning of

Article I, section 8 of the Pennsylvania Constitution if performed by an agent

of, or at the direction of the government.         Commonwealth v. Kohl, 615

A.2d 308, 315 (Pa. 1992). “Generally, a search or seizure is unreasonable

unless conducted pursuant to a valid search warrant upon a showing of

probable cause. The ‘implied consent’ provision of the Motor Vehicle Code,

however, dispenses with the need to obtain a warrant.” Commonwealth v.

Miller, 996 A.2d 508, 512 (Pa. Super. 2010).

       [T]o administer a blood test under § 1547(a)(1), a police officer
       need only have reasonable grounds to believe that a person was
       driving under the influence of alcohol [or controlled substances].
       Reasonable grounds has been interpreted to mean probable
       cause; thus, the police officer must have knowledge of sufficient
       facts   and    circumstances,     gained    through    trustworthy
       information, to warrant a prudent man in the belief that a crime
       has been committed.

Commonwealth v. Jones, 121 A.3d 524, 528 (Pa. Super. 2015) (internal

citations and quotation marks omitted).

       In addressing this claim, the trial court provided the following analysis:

____________________________________________


2
  While our Supreme Court declared subsection (a)(2) unconstitutional,
Commonwealth v. Kohl, 615 A.2d 308 (Pa. 1992), this Court subsequently
reaffirmed the viability of the remaining provisions under subsection (a)(1).
Commonwealth v. Urbanski, 627 A.2d 789, 792 (Pa. Super. 1993).
Herein, Appellant’s arguments implicate subsection (1) only.



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            Here, Trooper Connor observed Appellant operating a
      motorcycle at extremely high speeds, without a rear light, and
      without an appropriate registration tag. Appellant failed to yield
      to Trooper Connor’s lights and sirens and pull over until the
      trooper actually cut him off, preventing further egress.
      Therefore, Appellant was subject to a lawful arrest for fleeing or
      attempting to elude police. Appellant gave Trooper Connor
      consent to open his wallet, and therefore, the packet of alleged
      marijuana found within was subject to seizure under the plain
      view doctrine.

             The court excluded from its analysis Appellant’s statement.
      Under the totality of the circumstances, Appellant’s reckless
      speeding, Appellant’s failure to yield to Trooper Connor’s signal,
      Appellant’s watery, bloodshot, glassy eyes, coupled with his
      contemporaneous possession of a controlled substance were
      sufficient for Trooper Connor to form a reasonable belief that
      Appellant was driving under the influence of a controlled
      substance. Therefore, Appellant’s motion to suppress blood
      evidence was correctly denied.

Trial Court Opinion, 3/12/15, at 5.

      The trial court’s summation of the evidence is supported by the

evidence of record. We agree with the trial court’s conclusion that Trooper

Connor had probable cause to believe that Appellant was driving under the

influence. We further note the distinction in cases involving alcohol-based

DUI’s and marijuana-based DUI’s:

      [T]he Vehicle Code treats consumption of alcohol differently from
      consumption of marijuana. The Vehicle Code does not preclude
      an adult from consuming any amount of alcohol and then
      operating a motor vehicle in Pennsylvania. See 75 Pa.C.S. §
      3802(a). Instead, the Vehicle Code precludes the operation of a
      motor vehicle only “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. § 3802(a)(1). On the other hand, the
      Vehicle Code precludes an individual from operating a motor
      vehicle with any amount of scheduled controlled substance, or a

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      metabolite thereof, in the driver’s blood. 75 Pa.C.S. § 3802(d).
      Because marijuana is a Schedule I controlled substance, the
      Vehicle Code prohibits an individual from operating a vehicle
      after consuming any amount of marijuana. As a result, unlike
      cases where police suspect alcohol-based DUI, evidence of
      operator consumption of any marijuana is enough to allow police
      to request a section 1547 blood test for suspected controlled
      substance-based DUI.

Jones, 121 A.3d at 529.      Thus, Appellant’s blood evidence was properly

obtained, and the trial court correctly declined to suppress this evidence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/7/2015




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