J. S90041-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,                   :   IN THE SUPERIOR COURT OF
                                                :        PENNSYLVANIA
                           Appellee             :
                    v.                          :
                                                :
JORGE LUIS ARROYO-O’NEILL,                      :
                                                :
                           Appellant            :   1090 EDA 2016

          Appeal from the Judgment of Sentence February 18, 2016
               In the Court of Common Pleas of Pike County
            Criminal Division at No(s): CP-52-CR-0000415-2014


COMMONWEALTH OF PENNSYLVANIA,                   :   IN THE SUPERIOR COURT OF
                                                :        PENNSYLVANIA
                           Appellant            :
                    v.                          :
                                                :
JORGE LUIS ARROYO-O’NEILL,                      :
                                                :
                           Appellee             :   1161 EDA 2016

          Appeal from the Judgment of Sentence February 18, 2016
               In the Court of Common Pleas of Pike County
            Criminal Division at No(s): CP-52-CR-0000415-2014

BEFORE: OTT, J., SOLANO, J. AND JENKINS, J.

MEMORANDUM BY OTT, J.:                              FILED FEBRUARY 10, 2017

     Jorge Luis Arroyo-O’Neill appeals from the judgment of sentence

imposed on February 18, 2016, in the Court of Common Pleas of Pike

County.      A jury convicted Arroyo-O’Neill of possession of a controlled

substance, possession with intent to deliver a controlled substance (“PWID”),

possession     of   a    small   amount    of   marijuana,   possession   of   drug




                                          -1-
J. S90041-16


paraphernalia, fleeing or eluding a police officer (“fleeing or eluding”), and

driving under the influence (“DUI”).1     The jury found that Arroyo-O’Neill

possessed with the intent to deliver 27.01 grams of heroin, 73.19 grams of

cocaine and 14.31 grams of cocaine.       In finding Arroyo-O’Neill guilty of

fleeing or eluding, the jury specifically found that Arroyo-O’Neill endangered

a law enforcement officer or member of the general public by engaging in a

high speed chase.2 The trial court sentenced Arroyo-O’Neill to an aggregate

term of 8½ to 20 years’ imprisonment and ruled that he was eligible for a

Recidivism Risk Reduction Incentive (“RRRI”) minimum sentence of 84

months and 20 days.       The trial court denied Arroyo-O’Neill’s and the

Commonwealth’s post-sentence motions, and both Arroyo-O’Neill and the

Commonwealth filed timely appeals that we have consolidated as cross-

appeals. Both parties and the trial court complied with Pa.R.A.P. 1925.

      Based upon the reasons discussed below, we affirm Arroyo-O’Neill’s

judgment of sentence in part, and vacate in part. The judgment of sentence

of 8½ to 20 years’ imprisonment is affirmed, and the RRRI minimum

sentence of 84 months and 20 days is vacated.

1
 35 P.S. § 780-113(a)(16), (30), (31), (32), 75 Pa.C.S. §§ 3733(a), and 75
Pa.C.S. § 3802(a)(1), respectively.
2
  See 75 Pa.C.S. § 3733(a.2)(2)(iii) (high speed chase graded as a third
degree felony). With respect to fleeing and eluding, the jury also found
Arroyo-O’Neill committed a violation of Section 3802 of the Pennsylvania
Motor Vehicle Code (relating to driving under the influence of alcohol) during
the commission of the offense. See 75 Pa.C.S. § 3733(a.2)(2)(i) (violation
of Section 3802 graded as a third degree felony).



                                    -2-
J. S90041-16




                       APPEAL OF ARROYO O’NEILL
                            1090 EDA 2016

      Arroyo-O’Neill raises eight issues in his direct appeal, which we re-

order for purposes of disposition:

      1. Whether the evidence was insufficient to establish [Arroyo-
      O’Neill’s] conviction of [PWID][?]

      2. Whether the evidence was insufficient to establish [Arroyo-
      O’Neill’s] conviction of [DUI][?]

      3. Whether the verdict was against the weight of the evidence
      because the evidence did not establish [Arroyo-O’Neill’s]
      conviction of [PWID][?]

      4. Whether the verdict was against the weight of the evidence
      because the evidence did not establish [Arroyo-O’Neill’s]
      conviction of [DUI][?]

      5. Whether the [t]rial [c]ourt erred and abused its discretion by
      denying [Arroyo-O’Neill’s] Motion to Suppress Evidence because
      the traffic stop initiated by the Pennsylvania State Police was
      illegal[?]

      6. Whether the [t]rial [c]ourt erred and abused its discretion by
      denying [Arroyo-O’Neill’s] [m]otion in limine requesting the
      preclusion of [Arroyo-O’Neill’s] medical records from Wayne
      Memorial Hospital because said records were hearsay
      evidence[?]

      7. Whether the [t]rial [c]ourt erred and abused its discretion in
      admitting into evidence [Arroyo-O’Neill’s] medical records from
      Wayne Memorial Hospital[?]

      8. Whether the [t]rial [c]ourt erred and abused its discretion by
      running [Arroyo-O’Neill’s] sentence consecutive to [Arroyo-
      O’Neill’s] sentence from Lackawanna County, Pennsylvania
      because the Lackawanna County Sentencing Order indicated the
      Pike County, Pennsylvania sentence was concurrent to the
      Lackawanna County sentence[?]


                                     -3-
J. S90041-16



Arroyo-O’Neill’s Brief at 9-10.

      In his first two arguments, which we review together, Arroyo-O’Neill

challenges the sufficiency of the evidence underlying his convictions for

PWID and DUI. When examining a challenge to the sufficiency of evidence,

our standard of review is as follows:

      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.

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

      The trial court accurately summarized the evidence adduced during

trial as follows:

      Two Pennsylvania State Police Troopers testified to the following.
      On June 29, 2014, at approximately 2:15 a.m., Troopers




                                        -4-
J. S90041-16


     [Jeremy] Carroll[3] and [Mark] Pajalich [who were state troopers
     for nine and sixteen years, respectively,] were patrolling State
     Route 739 in Lords Valley, Pike County in a marked state police
     patrol car equipped with overhead LED lights and Mobile Video
     Recording Camera (“MVR”), which starts recording video about
     fifteen seconds prior to activation of the overhead lights. The
     [t]roopers were stopped in the southbound lane at a temporary
     red light when [Arroyo-O’Neill’s] vehicle approached and drove
     past them in the northbound lane. After observing the vehicle
     cross the double yellow line1 into the southbound lane while still
     heading northbound, the [t]roopers said to each other that the
     driver must be drunk and initiated a U-turn to pursue the
     vehicle. The [t]roopers fully caught up to the vehicle about half
     a mile away after observing it touch/partially cross the fog line
     multiple times, giving further indication of impaired driving.2
     Upon catching up to the vehicle, the [t]roopers activated the
     overhead lights. At that point, the vehicle signaled for a left turn
     onto the onramp for Interstate 84 westbound and, while making
     the turn, crossed fully over the fog line. While on the onramp,
     the vehicle signaled four times as if to pull over, slowed, started
     to pull over, and then accelerated away from the [t]roopers.
     The vehicle then entered Interstate 84 westbound, at which
     point Trooper Pajalich executed a non-deadly PIT maneuver,
     causing the vehicle to spin and stop. The [t]roopers exited the
     patrol car and approached the vehicle, at least one having drawn
     his gun and shouting to exit the vehicle. The vehicle then
     accelerated eastbound on the westbound lane, despite the
     [t]roopers ordering it to stop, and drove the wrong direction on
     the onramp back to Route 739. The [t]roopers reentered the
     patrol car and pursued the vehicle on Route 739. It appears that
     there were no other vehicles around [Arroyo-O’Neill’s] vehicle
     during the incident. After speeding and crossing the center line,
     the vehicle eventually stopped on Route 739, and the driver,
     identified as [Arroyo-O’Neill], ran into the woods.

           _________________________
           1
              Trooper Carroll testified to seeing the vehicle cross the
           line once, while Trooper Pajalich testified to seeing it cross
           the line twice from the side-view mirror.


3
  We have corrected the spelling of Trooper Carroll’s name to the spelling
that appears in the record.



                                    -5-
J. S90041-16

           2
             The video recording, which was published to the jury,
           substantially corroborated both [t]rooper[s’] testimony
           regarding events just prior to activating the lights and
           through the pursuit and part of the foot chase into the
           woods, as well as after the search of [Arroyo-O’Neill’s]
           person.
           _________________________

     Trooper Pajalich stayed with the vehicles to detain the compliant
     passenger, while Trooper Carroll pursued [Arroyo-O’Neill].
     Despite orders to stop, [Arroyo-O’Neill] continued running.
     Trooper Carroll then deployed his Taser, which stunned [Arroyo-
     O’Neill] for five seconds and brought him down. Trooper Carroll
     also fell into a ditch with [Arroyo-O’Neill] at this point. Trooper
     Carroll attempted to handcuff [Arroyo-O’Neill], but [Arroyo-
     O’Neill] turned and grabbed the Taser.              Trooper Carroll
     attempted to [T]aser [Arroyo-O’Neill] a second time, but
     [Arroyo-O’Neill] had apparently dislodged the probes. Trooper
     Carroll then tried to use the front of the Taser to stun [Arroyo-
     O’Neill], but [Arroyo-O’Neill] slapped the Taser out of his hand.
     Trooper Carroll and [Arroyo-O’Neill] then fell in the ditch and
     struggled, and [Arroyo-O’Neill] broke free and ran. Trooper
     Carroll pursued him, ordering him to stop, and sprayed him in
     the back with mace, but [Arroyo-O’Neill] did not stop.

     Trooper Pajalich then arrived in the woods, [T]asered [Arroyo-
     O’Neill], and assisted with handcuffing him. Trooper Pajalich
     testified that while handcuffing [Arroyo-O’Neill], [Arroyo-O’Neill]
     was uncooperative and resistant and fighting them. [Arroyo-
     O’Neill] would not stand and walk, so both [t]roopers had to
     drag him out of the woods. When they brought him out of the
     woods, both [t]roopers, having been trained and experienced in
     field sobriety testing and detecting driver impairment, observed
     that [Arroyo-O’Neill] appeared to be under the influence of
     alcohol. The [t]roopers observed that [Arroyo-O’Neill] had an
     odor of alcohol, bloodshot, watery eyes, and slurred speech and
     determined that he was not able to safely operate a motor
     vehicle. They also found a cup with alcohol in the car’s console,
     and Trooper Pajalich testified that he heard [Arroyo-O’Neill]
     admit to hospital staff that he had been drinking. Trooper
     Carroll testified that they did not conduct field sobriety tests
     because [Arroyo-O’Neill] had been combative, physical, and
     running. In addition, both [t]roopers admitted that the pepper
     spray/mace that was used can cause watery, red eyes.


                                    -6-
J. S90041-16



     For safety purposes, Trooper Carroll then patted [Arroyo-O’Neill]
     down lightly for weapons, consisting of a frisk of the pockets (for
     safety reasons, without entering the pockets), front and back
     waistline, crotch area, and ankles. Trooper Carroll detected in
     the cargo shorts what felt like balled up socks but, upon
     removal, appeared to be cocaine, crack cocaine, and marijuana--
     there were four sandwich bags total that he placed first on the
     ground and then on the hood of the patrol car. Both [t]roopers
     stated that they had never encountered that amount of drugs.
     Trooper Carroll also found two cell phones and a wallet on
     [Arroyo-O’Neill] while on the roadside.

     At the roadside, [Arroyo-O’Neill] was complaining of a back
     injury, so the [t]roopers called in an ambulance, which took
     [Arroyo-O’Neill] to Wayne Memorial Hospital. Trooper Pajalich
     accompanied [Arroyo-O’Neill] to the hospital, and, while there,
     found $3,630.30 in cash in multiple denominations in [Arroyo-
     O’Neill’s] shorts.   Additionally, because [Arroyo-O’Neill] had
     refused to submit to a police requested blood test, Trooper
     Carroll obtained via a search warrant his medical records from
     the hospital visit. The medical records were admitted in court
     over [d]efense [c]ounsel’s objections.      Also over [d]efense
     [c]ounsel’s objection, Trooper Carroll was allowed to testify that
     the medical records showed that [Arroyo-O’Neill] tested positive
     for alcohol and marijuana, but negative for cocaine and opiates,
     such as heroin.

     At the barracks, Trooper Carroll conducted a field drug test on
     the substance that appeared to be marijuana, which tested
     positive as marijuana, and on one of the two bags that both
     appeared to be cocaine, which tested positive as cocaine.
     Trooper Carroll testified that one bag later tested positive as
     heroin, which people usually package in glassine packets of 0.2
     grams, so he estimated that [Arroyo-O’Neill] had the equivalent
     of over 1,000 of such packets. Trooper Carroll testified that
     suspected heroin [wa]s not field tested because it may [have]
     contain[ed] Fentanyl, a narcotic that can be lethal in a small
     do[se]. Trooper Carroll testified that the amount of cocaine for
     personal use is usually the equivalent of a thumbnail, and the
     amount of crack cocaine for personal use is usually the
     equivalent of a pebble. Both [t]roopers admitted to not being on
     the Drug Task Force, and Trooper Carroll admitted to giving
     inconsistent testimony at the preliminary hearing about the


                                    -7-
J. S90041-16


     presence of heroin but stated that the drug lab report was not
     yet available for that hearing.

     A forensic scientist of nearly sixteen years who worked in the
     Drug Identification Unit at the Wyoming Regional Laboratory and
     qualified as an expert witness testified that she tested the drugs
     found on [Arroyo-O’Neill] and prepared the lab report admitted
     as evidence. The testing consisted of receiving the substances in
     a sealed package, opening the package in a way to maintain the
     original seal, weighing the substances, and conducting both a
     presumptive and confirmatory test to identify whether a
     controlled substance is present. The forensic scientist identified
     17.97 grams of marijuana in one bag, 27.01 grams of heroin in
     the second bag, 73.19 grams of cocaine in the third bag, and
     14.13 grams of cocaine in the fourth bag. The scientist also
     testified that from experience, a person can kind of determine
     what a substance is but cannot do so definitively without the
     proper test.

     Pennsylvania State Trooper [Gina] Tasselmyer, who had twenty-
     five years of experience with the Pennsylvania State Police,
     serving exclusively in drug law enforcement since 1993, testified
     for the Commonwealth as an expert witness on drug
     investigation, identification, and packaging. As part of her
     experience, [Trooper] Tasselmyer received extensive drug law
     enforcement training, worked with federal agencies, worked
     undercover making drug purchases (including cocaine and
     heroin), worked with the Vice Unit on street-level drug
     operations, trained other officers on drug law enforcement, and
     testified as an expert witness about drug investigation,
     identification, and packaging. Trooper Tasselmyer testified that
     the typical packet of heroin in Pike County averages about 0.2
     grams at $10.00 per packet, and during undercover street
     purchases, she has purchased between one to fifty packets. She
     testified that cocaine sells for about $100 per gram. Trooper
     Tasselmyer also testified that drug dealers commonly carry two
     or more cell phones and do not use landlines. She further
     testified that users as opposed to dealers typically carry a device
     for drug use. In addition, Trooper Tasselmyer testified that she
     has encountered the amounts of heroin and cocaine identified in
     this case during search warrants but not street buys and that the
     amounts are consistent with drug dealing but not personal use.
     Finally, Trooper Tasselmyer testified that it is not unusual for



                                    -8-
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        drug dealers to carry large amounts of money in various
        denominations in order to conduct their business.

Trial Court Pa.R.A.P. 1925(a) Opinion, 6/9/2016, at 1-7 (record citations

omitted).

        To prove PWID,4 the Commonwealth must establish that the defendant

possessed     a   controlled    substance   and   intended   to   deliver   it.

Commonwealth v. Bostick, 958 A.2d 543, 560 (Pa. Super. 2008). Intent

to deliver may be inferred from the circumstances surrounding his

possession of the controlled substance. Id.          A factfinder may infer

possession with intent to deliver from the possession of a large quantity of a

controlled substance.    Id.    Other relevant factors include “the manner in

which the controlled substance was packaged, the behavior of the

defendant, the presence of drug paraphernalia, and large sums of cash

found in possession of the defendant.” Commonwealth v. Ratsamy, 934

A.2d 1233, 1237-1238 (2007) (citation omitted).          Expert testimony is

permissible to show the manner in which the defendant possessed the

controlled substance is consistent with an intent to deliver.     Id. at 1238

(citation omitted).

        The record establishes that Arroyo-O’Neill possessed plastic baggies

containing, respectively, approximately 27.01 grams of heroin, 73.19 grams

and 14.31 grams of cocaine.        Trooper Carroll and Trooper Pajalich both


4
    35 P.S. § 780-113(a)(30).



                                      -9-
J. S90041-16


testified that they had never seen so large an amount of narcotics on one

person in their police careers.          Arroyo-O’Neill also had a large amount of

cash on his person. There was no evidence that any paraphernalia that the

troopers found was used for actual consumption of narcotics.                   Trooper

Tasselmyer provided an expert opinion, based on her training and

experience, that the drugs in Arroyo-O’Neill’s possession were for the

purpose of drug dealing, not for his own personal use. This evidence was

sufficient to support Arroyo-O’Neill’s conviction for PWID.

        To prove DUI – general impairment,5 the Commonwealth must prove

“the accused was driving, operating, or in actual physical control of the

movement of a vehicle during the time when he or she was rendered

incapable    of   safely   doing    so    due    to   the   consumption   of   alcohol.”

Commonwealth v. Segida, 985 A.2d 871, 879 (Pa. 2009). A person is

incapable of safe driving when “alcohol has substantially impaired the

normal mental and physical faculties required to safely operate the vehicle.”

Commonwealth v. Palmer, 751 A.2d 223, 228 (Pa. Super. 2000), citing

Commonwealth v. Montini, 712 A.2d 761, 768 (Pa. Super. 1998).

“Substantial      impairment,      in    this   context,    means   a   diminution   or

enfeeblement in the ability to exercise judgment, to deliberate or to react

prudently to changing circumstances and conditions.” Montini, 712 A.2d at

768.     Factors such as erratic driving, failing field sobriety tests, and the

5
    75 Pa.C.S. § 3802(a)(1).



                                           - 10 -
J. S90041-16


defendant’s blood alcohol level are indicative of substantial impairment. Id.

Additional factors include an officer’s observations that the defendant smells

of alcohol, has glassy or bloodshot eyes, and has difficulty walking. Palmer,

751 A.2d at 228.

      The troopers observed Arroyo-O’Neill driving erratically by swerving

into the wrong lane, fleeing from the police, and driving the wrong way on

the highway and its on-ramp.     When the troopers ultimately apprehended

Arroyo-O’Neill, he smelled of alcohol and slurred his speech.         A cup of

alcohol was found in the center console of Arroyo-O’Neill’s vehicle and

Trooper Pajalich testified he heard Arroyo-O’Neill admit to hospital staff that

he had been drinking. This evidence was sufficient for the jury to conclude

that the Commonwealth proved beyond a reasonable doubt that Arroyo-

O’Neill was in actual physical control of a motor vehicle and was intoxicated

by alcohol to a degree that rendered him incapable of safe driving.

      In his third and fourth arguments, which we review together, Appellant

contends that his guilty verdicts for PWID and DUI are against the weight of

the evidence. The law pertaining to weight of the evidence claims is well-

settled.

      A motion for a new trial based on a claim that the verdict is
      against the weight of the evidence is addressed to the discretion
      of the trial court. Commonwealth v. Widmer, 560 Pa. 308,
      319, 744 A.2d 745, 751-52 (2000); Commonwealth v. Brown,
      538 Pa. 410, 435, 648 A.2d 1177, 1189 (1994). A new trial
      should not be granted because of a mere conflict in the
      testimony or because the judge on the same facts would have
      arrived at a different conclusion. Widmer, 560 A.2d at 319-20,


                                    - 11 -
J. S90041-16


      744 A.2d at 752. Rather, “the role of the trial judge is to
      determine that ‘notwithstanding all the facts, certain facts are so
      clearly of greater weight that to ignore them or to give them
      equal weight with all the facts is to deny justice.’” Id. at 320,
      744 A.2d at 752 (citation omitted). It has often been stated that
      “a new trial should be awarded when the jury’s verdict is so
      contrary to the evidence as to shock one’s sense of justice and
      the award of a new trial is imperative so that right may be given
      another opportunity to prevail.” Brown, 538 Pa. at 435, 648
      A.2d at 1189.

      An appellate court’s standard of review when presented with a
      weight of the evidence claim is distinct from the standard of
      review applied by the trial court:

         Appellate review of a weight claim is a review of the
         exercise of discretion, not of the underlying question of
         whether the verdict is against the weight of the evidence.
         Brown, 648 A.2d at 1189. Because the trial judge has
         had the opportunity to hear and see the evidence
         presented, an appellate court will give the gravest
         consideration to the findings and reasons advanced by
         the trial judge when reviewing a trial court’s
         determination that the verdict is against the weight of the
         evidence. Commonwealth v. Farquharson, 467 Pa. 50,
         354 A.2d 545 (Pa. 1976). One of the least assailable
         reasons for granting or denying a new trial is the lower
         court's conviction that the verdict was or was not against
         the weight of the evidence and that a new trial should be
         granted in the interest of justice.

      Widmer, 560 Pa. at 321-22, 744 A.2d at 753 (emphasis added).

Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013)

      With   regard   to   PWID,   Arroyo-O’Neill   claims   the   evidence   was

“contradictory” because “the amount of the drugs was only enough to fit into

one pocket of [Arroyo-O’Neill’s] cargo shorts,” no scales or additional bags

were used for packaging, and the troopers did not discover cash on Arroyo-

O’Neill’s person during their initial search at the scene of his arrest. Arroyo-


                                     - 12 -
J. S90041-16


O’Neill’s Brief at 30-31. Arroyo-O’Neill ignores the Commonwealth’s expert

testimony that the amounts of drugs in Arroyo-O’Neill’s possession were

consistent with drug dealing and the troopers’ testimony that they had never

seen such a large amount of drugs on one person.         The trial court acted

within its discretion in determining that the verdict did not shock its

conscience.

      With regard to DUI, Arroyo-O’Neill contends that he only crossed the

fog line once; the troopers failed to conduct field sobriety tests; and he had

bloodshot and watery eyes because the troopers tased and pepper-sprayed

him, not because he was intoxicated.         Arroyo-O’Neill ignores the police

observations of his manner of driving, the odor of alcohol emanating from

his person, his slurred speech, the cup of alcohol discovered in his vehicle,

and his admission to hospital staff that he had been drinking. Once again,

the trial court acted within its discretion in determining that the verdict did

not shock its conscience.

      In his fifth issue on appeal, Arroyo-O’Neill argues that the trial court

erred in denying his motion to suppress evidence seized as a result of his

traffic stop.

      This Court applies the following standard in reviewing the denial of a

motion to suppress:

      [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


                                    - 13 -
J. S90041-16


     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 an 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 courts below are subject to [ ]
     plenary review.

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010). “Further, [i]t is

within the suppression court’s sole province as factfinder to pass on the

credibility of witnesses and the weight to be given their testimony.”

Commonwealth v. Houck, 102 A.3d 443, 455 (Pa. Super. 2014) (citations

omitted). Our scope of review from a suppression ruling is limited to the

evidentiary record created at the suppression hearing. In re L.J., 79 A.3d

1073, 1087 (Pa. 2013).

     Arroyo-O’Neill argues:

     Trooper Carroll indicated during the [s]uppression [h]earing that
     he first noticed [Arroyo-O’Neill] driving northbound on State
     Route 739 and the reason for the stop was because [Arroyo-
     O’Neill] was traveling northbound in the southbound lane on
     State Route 739 and continued to drive in that lane. (S.H.T.
     12/18/2014, pg. 7:15-21). However, it is important to note that
     Trooper Carroll also contradicted said testimony at both the
     [p]reliminary [h]earing[6] and [s]uppression [h]earing by

6
  The preliminary hearing transcript is not in the record. Therefore, Arroyo-
O’Neill has waived his right to argue that Trooper Carroll’s testimony during
the suppression hearing contradicted his preliminary hearing testimony.



                                   - 14 -
J. S90041-16


      indicating that [Arroyo-O’Neill] was first observed at the
      temporary red light on State Route 739. (S.H.T. 12/18/2014, pg.
      8:14-23) (emphasis added).

      Despite Trooper Carroll’s testimony[,] when viewing the dash
      camera video it is evident that [Arroyo-O’Neill] is driving
      northbound in the northbound lane. At no point in the video is
      [Arroyo-O’Neill] driving northbound in the southbound lane.
      Trooper Carroll follows [Arroyo-O’Neill] for about a quarter mile
      and then activates his lights for an alleged infraction that
      occurred a quarter mile back down the road. (S.H.T.
      12/18/2014, pg. 9:9-21).      Despite the claim that [Arroyo-
      O’Neill] was driving northbound in the southbound lane no
      summary citation was issued to [Arroyo-O’Neill] for the initial
      infraction which begs one to question if the initial infraction ever
      actually occurred.

      [Arroyo-O’Neill] respectfully argues that no infraction occurred
      and the [t]roopers did not have reasonable suspicion to pull
      [Arroyo-O’Neill’s] vehicle over[.]

Arroyo-O’Neill’s Brief at 20-21.

      Arroyo-O’Neill misconstrues the evidence.      Trooper Carroll, the sole

witness during the suppression hearing, testified on cross-examination, as

follows:

      Q. Trooper Carroll, when you saw [Arroyo-O’Neill] driving his
      vehicle, at what point on [State Route] 739 did you see him?

      A. We saw him just south of the Weis market there was a
      temporary construction traffic light there.
      .
      Q. You were stopped at the red light?

      A. We were stopped at the red light, yes.

See Commonwealth v. Houck, 102 A.3d 443, 456-57 (Pa. Super. 2014)
(where appellant has not made transcript of proceedings at issue part of
certified record, any claims that cannot be resolved in absence of necessary
transcript must be deemed waived).



                                     - 15 -
J. S90041-16



     Q. During your preliminary – there was a Preliminary Hearing
     held in this matter, correct?

     A. Yes.

     Q. During that hearing you took an oath similar to the oath you
     took today?

     A. Correct.
     Q. During that hearing you indicated that [Arroyo-O’Neill] was
     traveling northbound in the southbound lane, correct.

     A. Correct.

     Q. That was the reason that you pulled him over?

     A. Correct.

     Q. Additionally, during that period you also stated that he
     continued to drive northbound in the southbound lane, correct?

     A. Correct.

     Q. You still agree today that that would be the case?

     A. That’s correct.

     Q. Now, today you said that you turned the camera on around
     the bridge right before 84?

     A. Correct.

     Q. So, it was not prior to you getting to the bridge?

     A. The lights – when the lights go on, the camera is activated
     and there’s an approximate delay – it goes back a little bit
     before you turn the switch on, so I’m not sure exactly where the
     camera went on, but it was around the bridge, yes.

     Q. Now, also during your Preliminary Hearing that was held on
     cross examination you indicated that you first noticed [Arroyo-
     O’Neill’s] car when you were stopped at the red light on 739,
     correct and that it was traveling northbound?


                                   - 16 -
J. S90041-16



     A. Correct.

     Q. However, then when asked where [Arroyo-O’Neill’s] car was
     located, you said at the temporary light, red light on State Route
     739, correct?

     A. Correct.

     Q. Now, at that light that’s when you turned around?

     A. Yes.

     Q. To follow [Arroyo-O’Neill]?

     A. Correct.

     Q. So, before turning around you never activated the video?

     A. Correct.

     Q. You begin following [Arroyo-O’Neill]?

     A. Yes.

     Q. You did not immediately activate your lights, correct?

     A. We turned the lights on when we caught up to him.

     Q. About a half mile later?

     A. Around the bridge.


N.T., 12/18/2014, at 7-9.

     The suppression hearing transcript reflects Trooper Carroll testified

that he first observed Arroyo-O’Neill driving his vehicle while the trooper

himself was stopped at a temporary construction red light.       Furthermore,

Trooper Carroll confirmed that at the preliminary hearing he indicated



                                      - 17 -
J. S90041-16


Arroyo-O’Neill was driving northbound in the southbound lane. Id.       Trooper

Carroll agreed that at the preliminary hearing that “when asked where

[Arroyo-O’Neill’s] car was located, you said at the temporary light, red light

….” Id., at 7-8. Trooper Carroll also agreed, “Now, at that light that’s when

you turned around?” Id., at 8.

       Accepting the trooper’s testimony as credible, the trial court found that

“Trooper Carroll witnessed [Arroyo-O’Neill] driving in the officer’s lane of

traffic and proceeding thereafter along that road in the opposite lane of

traffic.”   Suppression Order, 2/11/2015, at 4 (unnumbered). The record

supports the court’s finding of fact. Further, Arroyo-O’Neill’s argument that

“at no point in the video” was he driving in the wrong lane is is unavailing

since Trooper Carroll testified that the video did not activate until he turned

on the police vehicle’s overhead lights “when we caught up to him.” N.T.,

12/18/2014, at 9.

       Here, Trooper Carroll witnessed Arroyo-O’Neill driving northbound in

the southbound lane of Route 739 in violation of the Motor Vehicle Code.

This conduct was sufficient to support a finding that Trooper Carroll had

probable cause to initiate the traffic stop. See Commonwealth v. Salter,

121 A.3d 987, 993 (Pa. Super. 2015) (“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.”); Commonwealth

v. Enick, 70 A.3d 843 (Pa. Super. 2013) (holding officer had probable cause



                                     - 18 -
J. S90041-16


to stop vehicle after observing vehicle briefly cross double yellow line into

oncoming traffic).    Accordingly, the trial court properly denied Arroyo-

O’Neill’s suppression motion.

      In his sixth issue, Arroyo-O’Neill contends that the trial court erred and

abused its discretion in denying his motion in limine to preclude medical

records from Wayne Memorial Hospital because the records were hearsay

evidence.

      The relevant facts are as follows: In October of 2014, almost one year

before trial, the Commonwealth provided Arroyo-O’Neill with a copy of his

hospital records from the night of his arrest. On September 11, 2015, the

date of jury selection, the court scheduled trial for September 21, 2015. On

Friday, September 18, 2015, the Commonwealth provided Arroyo-O’Neill

with a Certification of Hospital Records that it planned to use to enter the

records into evidence during trial without a witness.       On September 21,

2015, Arroyo-O’Neill filed an amended motion in limine, objecting to the

Commonwealth’s plan to admit the records through the certification instead

of through testimony by a records custodian. That same day, prior to the

commencement of trial, the court heard argument on Arroyo-O’Neill’s

motion.     Arroyo-O’Neill contended, inter alia, that (1) the Commonwealth

violated Pa.R.E. 902(11) by failing to provide the certification until “the 11 th




                                     - 19 -
J. S90041-16


hour,”7 and (2) testimony about the substance of the records violated his

constitutional right to cross examine his accuser.      The court denied the

motion.     Subsequently, over Arroyo-O’Neill’s renewed objection, the trial

court permitted Trooper Carroll to testify that the records showed that

Arroyo-O’Neill tested positive for alcohol and marijuana on the night of his

arrest.

        Regarding Arroyo-O’Neill’s hearsay objection, we review evidentiary

rulings for abuse of discretion.   Commonwealth v. Poplawski, 130 A.3d

697, 716 (Pa. 2015).      We will not find abuse of discretion merely because

we might have reached a different conclusion but only on the basis of

manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such

lack of support so as to be clearly erroneous. Id.

        Pennsylvania Rule of Evidence 803 provides, in relevant part:

        The following are not excluded by the rule against hearsay,
        regardless of whether the declarant is available as a witness: …

           (6) Records of a Regularly Conducted Activity. A record
           (which includes a memorandum, report, or data
           compilation in any form) of an act, event or condition if,

           (A) the record was made at or near the time by--or from
           information transmitted by--someone with knowledge;

           (B) the record was kept in the course of a regularly
           conducted activity of a “business”, which term includes
           business, institution, association, profession, occupation,
           and calling of every kind, whether or not conducted for
           profit;

7
    N.T., 9/21/2015, at 12.



                                     - 20 -
J. S90041-16


         (C) making the record was a regular practice of that
         activity;

         (D) all these conditions are shown by the testimony of
         the custodian or another qualified witness, or by a
         certification that complies with Rule 902(11) or
         (12) or with a statute permitting certification; and

         (E) neither the source of information nor              other
         circumstances indicate a lack of trustworthiness.

Pa.R.E. 803(6)(emphasis added).

      Rule 902 provides in relevant part:

      The following items of evidence are self-authenticating; they
      require no extrinsic evidence of authenticity in order to be
      admitted …


      (11) Certified Domestic Records of a Regularly Conducted
      Activity. The original or a copy of a domestic record that meets
      the requirements of Rule 803(6)(A)-(C), as shown by a
      certification of the custodian or another qualified person that
      complies with Pa.R.C.P. No. 76. Before the trial or hearing, the
      proponent must give an adverse party reasonable written
      notice of the intent to offer the record – and must make the
      record and certification available for inspection – so that the
      party has a fair opportunity to challenge them.

Pa.R.E. 902(11) (emphasis added).

      Arroyo-O’Neill contends the Commonwealth did not properly satisfy the

requirements of Rule 902(11).         Arroyo-O’Neill acknowledges that the

Commonwealth had presented counsel with the medical records, but argues

the Commonwealth did not provide a certification for purposes of entry of

the medical records until three days before trial.    Arroyo-O’Neill maintains

that “providing [Arroyo-O’Neill] with the Certification three days before trial,




                                     - 21 -
J. S90041-16


after the jury has been selected, is in no way reasonable.” Arroyo-O’Neill’s

Brief at 22. We are not persuaded by this argument.

       Here, the Commonwealth provided the medical records to Arroyo-

O’Neill approximately 11 months prior to trial. Furthermore, during the on-

the-record argument, the Commonwealth’s attorney told the court that she

had talked with Arroyo-O’Neill’s attorney “about this issue … [a]t [j]ury

selection in July    when the     Commonwealth requested a continuance

[because] this is just really an issue of the Commonwealth having the

Certification.”   N.T., 9/21/2015, at 12.        In response, Arroyo-O’Neill’s

counsel stated she was aware that the medical records would be brought

into evidence, but anticipated an individual to be present.

      The trial court in support of its ruling reasoned:

      As Pennsylvania case law has established, [Arroyo-O’Neill’s]
      medical records meet the business records exceptions to the
      hearsay rule, and the contents found present in [Arroyo-
      O’Neill’s] blood constituted facts and not opinions within those
      records. Folger v. Dugan, 876 A.2d 1049, 1055-56;
      [Commonwealth v.] Seville, 405 A.2d at 1265-66.
      Additionally, the [Commonwealth] provided the necessary
      certification to make the records self-authenticating. Pa. R.E.
      902(11); Dugan, 876 A.2d 1049, 1055-56. Furthermore, the
      [Commonwealth] provided Defense Counsel with a copy of the
      medical records in October of 2014, almost a year before trial,
      giving [Arroyo-O’Neill] ample time to challenge the records.
      Compare Pa.R.E. 902(11) with Trial Transcript at 5 -6, 10.
      Additionally, even though Defense Counsel only had
      approximately four days to review the certification itself, Trial
      Transcript at 5, 7, 11, the [Commonwealth] argued that Defense
      Counsel      was   aware     since  jury  selection    that    the
      [Commonwealth] intended to admit the medical records by way
      of certification and was simply waiting on the certification. Trial
      Transcript at 12. While Defense Counsel countered that she


                                     - 22 -
J. S90041-16


      anticipated having someone to cross-examine, Counsel’s
      contention seemed to rest primarily with the [Commonwealth’s]
      choice on how to proceed, not with any flaw in the certification
      itself. See Trial Transcript at 13.

Trial Court Opinion, 6/9/2016, at 30-31.

      On this record, we find no abuse of discretion in the trial court’s denial

of the motion in limine. In light of the fact that Arroyo-O’Neill’s counsel had

significant time to review and challenge the medical records, had been made

aware prior to receiving the certification that the Commonwealth planned to

admit the medical records by way of the certification, and was provided with

the certification prior to trial, we conclude Arroyo-O’Neill’s argument

warrants no relief.

      In his seventh issue, Arroyo-O’Neill contends the testimony of Trooper

Carroll regarding statements in the medical records violated Arroyo-O’Neill’s

Sixth Amendment confrontation rights.         Whether Arroyo-O’Neill’s rights

under the Confrontation Clause were violated is an issue of law for which our

standard of review is de novo and our scope of review is plenary.

Commonwealth v. Yohe, 79 A.3d 520, 530 (Pa. 2013), cert. denied, Yohe

v. Pennsylvania, 134 S. Ct. 2662 (2014).

      The Confrontation Clause of the Sixth Amendment, made applicable to

the States via the Fourteenth Amendment, Pointer v. Texas, 380 U.S. 400

(1965), provides that “[i]n all criminal prosecutions, the accused shall enjoy

the right . . . to be confronted with the witnesses against him. . . .”      In

Crawford v. Washington, 541 U.S. 36 (2004), the United States Supreme


                                    - 23 -
J. S90041-16


Court held that the Sixth Amendment guarantees a defendant’s right to

confront those “who bear testimony” against him, and defined “testimony”

as “[a] solemn declaration or affirmation made for the purpose of

establishing or proving some fact.” Id. at 51. The Court explained that the

Confrontation Clause prohibits out-of-court testimonial statements by a

witness unless the witness is unavailable and the defendant had a prior

opportunity for cross-examination. Id. at 53–56.

      In the present case, the trial court permitted Trooper Carroll to testify

that the medical records indicated Arroyo-O’Neill had tested positive for

marijuana and alcohol. The trial court, in support of its ruling, opines that

the medical tests were not conducted for testimonial purposes at trial. Trial

Court Opinion, 6/6/2016, at 32.        Arroyo-O’Neill maintains the medical

records “are clearly testimonial as they indicate what substances were in

[Arroyo-O’Neill’s] system and the Commonwealth failed to present the

person who tested the blood and prepared the lab report.” Arroyo O/Neill’s

Brief at 24.

      In order to determine if a document or statement created out-of-court

is testimonial in nature, our Supreme Court looks at the primary purpose of

the document or statement. Yohe, 79 A.3d at 531-532 (citations omitted).

A document or statement is testimonial if its primary purpose is “to establish

or prove past events potentially relevant to later criminal prosecution.” Id.

at 531. (citation omitted). A document or statement has such a primary



                                    - 24 -
J. S90041-16


purpose if it is created or given “under circumstances which would lead an

objective witness reasonably to believe that the [document or] statement

would be available for use at a later trial[.]” Id. (citation omitted).

      At issue in Yohe was whether Dr. Blum, Assistant Laboratory Director

at National Medical Services Labs (“NMS”), could testify about the toxicology

report regarding the defendant’s blood sample, drawn at a hospital following

the defendant’s DUI arrest, where (1) other lab technicians at NMS

performed the actual tests on the defendant’s blood and assembled the data

from the tests, and (2) Dr. Blum analyzed the data and prepared the report,

but did not personally test the defendant’s blood sample. The Yohe Court

held there was no Confrontation Clause violation because “the testimonial

document was the certified Toxicology Report prepared and signed by Dr.

Blum, and [] the Commonwealth met its obligation to present the analyst

who signed the certificate to testify at trial[.]” Yohe, 79 A.3d at 541.

      Here, the medical records at issue are not the same as the blood-

alcohol analysis that was conducted in Yohe for the purpose of establishing

the defendant’s blood alcohol level. In fact, Arroyo-O’Neill refused a blood

test. N.T., 9/21/2015, at 177. Nonetheless, we conclude that, in light of the

circumstances under which Arroyo-O’Neill was taken to the hospital

emergency room by police, i.e., complaining of back pain following police

investigation   and   apprehension    during   which   he   evidenced     signs   of

intoxication, the medial records are testimonial as to the charge of DUI.



                                      - 25 -
J. S90041-16


      In the present case, Trooper Carroll is not a qualified analyst or

medical witness and did not play any part in Arroyo-O’Neill’s treatment at

the hospital following his arrest. Nevertheless, the trial court permitted him

to testify that the medical records showed that Arroyo-O’Neill tested positive

for marijuana and alcohol.          Since no qualified medical witness or lab

technician testified, Arroyo-O’Neill could not cross-examine any medical

witness or technician as to the accuracy of the records.                 Accordingly, we

conclude     that     Trooper    Carroll’s   testimony       violated     Arroyo-O’Neill’s

Confrontation Clause rights.

      In any event, any error in the trial court’s ruling admitting Arroyo-

O’Neill’s   medical    records    through    certification     and      Trooper   Carroll’s

testimony would be harmless error.

       Error is harmless if (1) the error did not prejudice the defendant or

the prejudice was de minimis; (2) the erroneously admitted evidence was

merely cumulative of other untainted, substantially similar evidence; or (3)

the properly admitted and uncontradicted evidence of guilt was so

overwhelming, and the prejudicial effect of the error was so insignificant by

comparison, that the error could not have contributed to the verdict.

Commonwealth v. Atkinson, 987 A.2d 743, 752 (Pa. Super. 2009)

(concluding Sixth Amendment confrontation violation that occurred was

harmless error).




                                         - 26 -
J. S90041-16


      Even without the medical records, there remained ample evidence to

convict Arroyo-O’Neill on the DUI charge.      The troopers identified Arroyo-

O’Neill as the driver, and the videotape of the traffic stop confirmed their

identification.   Both troopers testified that the vehicle touched or partially

crossed the fog line multiple times. The troopers testified, and the videotape

shows, that while turning left onto the onramp to I-84, Arroyo-O’Neill’s

vehicle fully crossed the fog line. The vehicle then slowed and started to pull

over multiple times before accelerating away from the troopers. Instead of

stopping after the troopers carried out a PIT maneuver, Arroyo-O’Neill

resumed driving the wrong way on Interstate 84 and the onramp.           When

apprehended, Arroyo-O’Neill smelled of alcohol, slurred his speech, and had

bloodshot eyes.      The troopers also found a cup with alcohol in Arroyo-

O’Neill’s vehicle, and Trooper Pajalich testified Arroyo-O’Neill admitted to

hospital staff he had been drinking.     Given this overwhelming evidence of

guilt, the court’s admission of Arroyo-O’Neill’s medical records does not

warrant a new trial on the DUI charge.

      In his eighth and final claim, Arroyo-O’Neill argues that the court

abused its discretion by running his sentence consecutive to a sentence

previously imposed in another county (Lackawanna County),8 because the


8
  Arroyo-O’Neill was sentenced in Lackawanna County on November 18,
2015. In the present case, the court sentenced Arroyo-O’Neill on December
3, 2015, and resentenced him on February 18, 2016.




                                     - 27 -
J. S90041-16


Lackawanna County judge ordered that Arroyo-O’Neill’s sentence in the

present case would run concurrently with the Lackawanna County sentence.9

      Arroyo-O’Neill challenges the discretionary aspects of his sentence.

Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013) (en

banc) (objection to consecutive sentences implicates discretionary aspects of

sentence).     There is no absolute right of appeal to challenge the

discretionary aspects of sentence.     Commonwealth v. Hornaman, 920

A.2d 1282, 1284 (Pa. Super. 2007). Before we can address a discretionary

challenge, we must determine: (1) whether appellant has filed a timely

notice of appeal; (2) whether the issue was properly preserved at sentencing

or in a motion to reconsider and modify sentence; (3) whether appellant’s

brief has a fatal defect under Pa.R.A.P. 2119(f); and (4) whether there is a

substantial question that the sentence appealed from is not appropriate

under the Sentencing Code.     Commonwealth v. Swope, 123 A.3d 333,

337 (Pa. Super. 2015).

      Although Arroyo-O’Neill filed a timely notice of appeal, properly raised

his discretionary aspects of sentencing claim at sentencing, and included the

requisite Rule 2119(f) statement in his brief, he fails to raise a substantial

question that his sentence is inappropriate “for reasons of partiality.”

Arroyo-O’Neill’s Brief at 32 (Rule 2119(f) Statement). Here, the trial judge


9
  The docket in the Lackawanna County case states that Arroyo-O’Neill’s
sentence in that case “is concurrent” with the present case.



                                     - 28 -
J. S90041-16


acted properly and within his discretion in ordering Arroyo-O’Neill’s sentence

to run consecutive to the Lackawanna County sentence. See Pa.R.Crim.P.

705 (“judge shall state whether the sentences run concurrently or

consecutively”);    42   Pa.C.S.   §   9721     (court   “may   impose   [sentence]

consecutively or concurrently”). The Lackawanna County judge did not have

the authority to order its sentence to run concurrent to the present

sentence, which came second in time. See Commonwealth v. Holz, 397

A.2d 407, 408 (Pa. 1979) (finding court erred in sentencing defendant to

serve a term of imprisonment to run consecutively with a judgment of

sentence which had not yet been imposed). As such, Arroyo-O’Neill fails to

present a substantial question.

        Accordingly, having reviewed the arguments of Arroyo-O’Neill, we find

they present no basis upon which to grant relief from the judgment of

sentence.

                         APPEAL OF COMMONWEALTH
                              1161 EDA 2016

        The Commonwealth appeals the trial court’s determination that

Arroyo-O’Neill is eligible for a sentence pursuant to the Risk Recidivism

Reduction Incentive (RRRI) Act.10

        The RRRI Act “seeks to create a program that ensures appropriate

punishment for persons who commit crimes, encourages inmate participation


10
     61 Pa.C.S. §§ 4501, et seq.



                                       - 29 -
J. S90041-16


in evidence-based programs that reduce the risks of future crime and

ensures the openness and accountability of the criminal justice process while

ensuring fairness to crime victims.” 61 Pa.C.S. § 4502. As part of achieving

that aim, the RRRI Act requires the trial court to determine at the time of

sentencing whether the defendant is an “eligible offender.”      61 Pa.C.S. §

4505(a). If the court finds the defendant to be an eligible offender, or if the

prosecuting attorney waives the eligibility requirements under section

4505(b), the trial court must calculate minimum and maximum sentences,

and then impose the RRRI minimum sentence, which “shall be equal to

three-fourths of the minimum sentence imposed when the minimum

sentence is three years or less,” or “shall be equal to five-sixths of the

minimum sentence if the minimum sentence is greater than three years.”

61 Pa.C.S. § 4505(c).    If an eligible offender “successfully completes the

program plan, maintains a good conduct record and continues to remain an

eligible offender,” he or she may “be paroled on the RRRI minimum sentence

date unless the Board determines that parole would present an unreasonable

risk to public safety or that other specified conditions have not been

satisfied.” 37 Pa. Code § 96.1(b).

      To become eligible for a RRRI minimum sentence, the RRRI Act

provides that a defendant must satisfy each of the following requirements,

the first of which is presently at issue in the case at bar. Specifically, a

defendant must establish that he:



                                     - 30 -
J. S90041-16


     (1) Does not demonstrate a history of present or past
     violent behavior.

     (2) Has not been subject to a sentence the calculation of which
     includes an enhancement for the use of a deadly weapon as
     defined under law or the sentencing guidelines promulgated by
     the Pennsylvania Commission on Sentencing or the attorney for
     the Commonwealth has not demonstrated that the defendant
     has been found guilty of or was convicted of an offense involving
     a deadly weapon or offense under 18 Pa.C.S. Ch. 61 (relating to
     firearms and other dangerous articles) or the equivalent offense
     under the laws of the United States or one of its territories or
     possessions, another state, the District of Columbia, the
     Commonwealth of Puerto Rico or a foreign nation.

     (3) Has not been found guilty of or previously convicted of or
     adjudicated delinquent for or an attempt or conspiracy to commit
     a personal injury crime as defined under section 103 of the act
     of November 24, 1998 (P.L. 882, No. 111) [18 P.S. § 11.10311],
     known as the Crime Victims Act, except for an offense under 18
     Pa.C.S. § 2701 (relating to simple assault) when the offense is a
     misdemeanor of the third degree, or an equivalent offense under
     the laws of the United States or one of its territories or
     possessions, another state, the District of Columbia, the
     Commonwealth of Puerto Rico or a foreign nation.

     (4) Has not been found guilty or previously convicted or
     adjudicated delinquent for violating any of the following
     provisions or an equivalent offense under the laws of the United
     States or one of its territories or possessions, another state, the
     District of Columbia, the Commonwealth of Puerto Rico or a
     foreign nation:

           18 Pa.C.S. § 4302(a) (relating to incest).
           18 Pa.C.S. § 5901 (relating to open lewdness).
           18 Pa.C.S. Ch. 76 Subch. C (relating to Internet child
           pornography).



11
   The record does not reflect that Arroyo-O’Neill has ever committed a
“personal injury crime.”




                                   - 31 -
J. S90041-16


           Received a criminal sentence pursuant to 42 Pa.C.S. §
           9712.1 (relating to sentences for certain drug offenses
           committed with firearms).
           Any offense for which registration is required under 42
           Pa.C.S. Ch. 97 Subch. H (relating to registration of sexual
           offenders).

     (5) Is not awaiting trial or sentencing for additional criminal
     charges, if a conviction or sentence on the additional charges
     would cause the defendant to become ineligible under this
     definition.

     (6) Has not been found guilty or previously convicted of violating
     section 13(a)(14), (30) or (37) of the act of April 14, 1972 (P.L.
     233, No. 64), ... known as The Controlled Substance, Drug,
     Device and Cosmetic Act, where the sentence was imposed
     pursuant to 18 Pa.C.S. § 7508(a)(1)(iii), (2)(iii), (3)(iii), (4)(iii),
     (7)(iii) or (8)(iii) (relating to drug trafficking sentencing and
     penalties).

61 Pa.C.S. § 4503 (emphasis added).

     Instantly, Arroyo-O’Neill is not disqualified from RRRI eligibility based

on any of the offenses enumerated in Section 4503.            See 61 Pa.C.S. §

4503(2)-(6). Rather, the question presented by the Commonwealth’s appeal

is whether Arroyo-O’Neill is ineligible for an RRRI sentence based on Section

4503(1), which disqualifies a defendant who has “a history of present or

past violent behavior.” 61 Pa.C.S. § 4503(1).

     The RRRI Act does not define “a history of present or past violent

behavior,” but several recent decisions have analyzed its meaning.             See

Commonwealth v. Chester, 101 A.3d 56 (Pa. 2014); Commonwealth v.

Finnecy, 135 A.3d 1028 (Pa. Super. 2016), appeal denied, ___ A.3d ___

(Pa. October 19, 2016); Commonwealth v. Cullen-Doyle, 133 A.3d 14



                                     - 32 -
J. S90041-16


(Pa. Super. 2016), appeal granted, 138 A.3d 609 (Pa. 2016) (argued

November 2, 2016).12

       In Chester, the Pennsylvania Supreme Court addressed whether a

conviction for first-degree burglary (burglary graded as a first degree felony)

demonstrates “violent behavior” under 61 Pa.C.S. § 4503(1) as a matter of

law.   The Chester Court held that the defendant’s history of first-degree

burglary convictions rendered him ineligible under Section 4503(1) for RRRI

treatment.    Although burglary is not listed as a crime that automatically

disqualifies a defendant from an RRRI sentence, see 61 Pa.C.S. § 4503(2)-

(6), the Court construed Section 4503(1) as a broad, “catchall” provision

that covers “violent behaviors not otherwise identified in the RRRI Act’s

definition of ‘eligible offender.’” Id., 101 A.3d at 63.

       The Chester Court reasoned first-degree burglary fit well within this

catchall category, given the long legal tradition of treating burglary as a

crime of violence because of the threat posed to citizens by intrusions into

their homes. Id. at 64-65. Significantly, the Court

12
  The Pennsylvania Supreme Court granted the petition for allowance of
appeal with regard to the following issue:

       Whether Petitioner is eligible for the RRRI program where he is
       convicted and being sentenced for a single count of first degree
       burglary, which he admits is a crime of violence, but where he
       has no other convictions demonstrating a “history of present or
       past violent behavior,” as that term is used in the RRRI statute.

Commonwealth v. Cullen-Doyle, 138 A.3d 609 (Pa. 2016).




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      decline[d] … to depart from our well established case law --
      finding burglaries to be violent by their very nature -- to instead
      engage in a case-by-case evaluation into whether a particular
      burglary conviction constitutes ‘violent behavior’ under Section
      4503(1) … [W]e believe a conviction for first-degree burglary, a
      crime of violence, constitutes violent behavior for purposes of
      Section 4503(1).

Id. at 65. Thus, the defendant’s multiple first-degree burglary convictions

were “more than sufficient to form a ‘history’ of ‘violent behavior’ under

section 4503(1).” Id.

      Subsequently, in Cullen-Doyle, this Court was faced with the question

of “whether a single first-degree burglary conviction constitutes ‘a history of

present or past violent behavior’ as that phrase is used in § 4503(1).” 133

A.3d at 20. This Court held that the trial court acted within its discretion by

denying RRRI treatment based on the defendant’s single conviction for first-

degree burglary. Id. at 21-22.

      In reaching its decision, the panel explained: “[W]hile the construction

of the RRRI Act involves a question of law, the predicate inquiry surrounding

Appellant’s admission to the RRRI program under § 4503(1) also implicates

the exercise of the court’s discretion.”   Id. at 20. The panel opined: “Of

course, Appellant’s quarrel is not that he did not commit a violent act but

that he has no ‘history’ or sufficiently established record of violent behavior.

In other words, Appellant’s claim focuses upon the quantity of disqualifying

behaviors that bar his admission to the RRRI program, not their quality.”

Id. at 21.



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J. S90041-16


      The panel determined Section 4503(1)’s phrase, “present or past

violent behavior,” is equivalent to “all violent behavior,” because “there can

be no other type of violent behavior than that which occurs either in the

present or in the past.” Id. at 21 (emphasis in original).   The panel stated:

“Thus, so long as the record reliably demonstrates an occurrence of violent

behavior, the trial court does not abuse its discretion in rejecting an

application to the RRRI program.”

      The Cullen-Doyle Court held: “[A] single conviction for first-degree

burglary, an admittedly violent act under long-standing Pennsylvania law, is

sufficient to establish a present history of violent behavior.     Hence, we

conclude that the trial court did not err[] in denying Appellant’s request for

sentencing under the RRRI Act.” Id. at 22 (emphasis supplied).

      One month after Cullen-Doyle, this Court in Finnecy considered

“whether a prior conviction for resisting arrest [18 Pa.C.S. § 5104] falls

within the meaning of ‘violent behavior’ as used in Section 4503(1),

rendering an offender ineligible for RRRI.”    Finnecy, 135 A.3d at 1034–

1035. Although resisting arrest is not enumerated as a disqualifying offense

in Section 4503, the Finnecy Court agreed with the trial court that resisting

arrest is “a crime of violence that permits a trial court to find that a

defendant has a history of violence such that he is ineligible for RRRI.” Id.

at 1037.




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J. S90041-16


      The Finnecy Court based its determination on (1) the language of 18

Pa.C.S. §      5104 that criminalizes resisting arrest where acts create

“substantial risk of bodily injury” to a public servant or anyone else or

require “substantial force to overcome the resistance”; and (2) decisions

sustaining convictions under Section 5104 for conduct that compelled police

officers to use substantial force in effectuating their arrests. Id. at 1035-36,

citing Commonwealth v. Thompson, 922 A.2d 926 (Pa. Super. 2007);

Commonwealth v. Clark, 761 A.2d 190 (Pa. Super. 2000).13 The Finnecy

Court reasoned:

      [C]onduct constituting resisting arrest, even by passive
      resistance, requires such a substantial use of force that an
      officer or offender may be harmed, thereby causing significant
      risk of injury, and invites the same potential for confrontation
      that greatly concerned the [Supreme] Court in considering the
      offense of first-degree burglary. Indeed, the Chester Court was
      concerned with ‘the possibility of the use of deadly force
      against either the offender or the victim’ and ‘not the behavior
      that is actually exhibited’ during the commission of the crime.

Id. at 1036, citing Chester, 101 A.3d at 65 (emphasis in original).

      Turning to the present case, the Commonwealth argues that Arroyo-

O’Neill is disqualified from RRRI eligibility because he has a “history of

present or past violent behavior.” 61 Pa.C.S. § 4503(1). Specifically, the

Commonwealth argues, “Although Arroyo-O’Neill was not taken to trial on

13
   The Finnecy court also took into account a federal decision that section
5104 was a “crime of violence” for sentencing purposes under federal
guidelines because “it involves conduct that presents a serious potential risk
of physical injury to another.” Id. at 1033, 1035, 1037 (citing United
States v. Stinson, 592 F.3d 460, 466 (3d Cir. 2010)).



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J. S90041-16


the charge of [r]esisting [a]rrest, his behavior as testified to by the

[t]roopers was such that he created a serious potential for the risk of injury

to the [t]roopers, to the other individual in his vehicle, and to the public.” 14

Commonwealth Brief at 15. In addition, the Commonwealth maintains:

      The jury made a specific finding on its verdict sheet that Arroyo-
      O’Neill ‘endangered a law enforcement officer or member of the
      general public by engaging in a high-speed chase.’ See Verdict
      Slip 9/22/2015. Consistent with the ruling in Finnecy, the
      Commonwealth believes that Arroyo-O’Neill’s actions should be
      considered violent behavior and as such should make him
      ineligible for RRRI.

Id. The Commonwealth further argues that Arroyo-O’Neill has a criminal

history of “15 arrests, including two arrests for Resisting Arrest in

conjunction with drug charges.” Id. at 15-16.

      Here, focusing on Arroyo-O’Neill’s conviction for fleeing and eluding

police in a high speed chase, we agree with the Commonwealth that this

offense is “violent behavior” within Section 4503(1).15 Specifically, the issue


14
  A charge of resisting arrest was set forth in the criminal complaint in this
case, but was not included in the Information filed by the Commonwealth.
The record does not disclose the reason the Commonwealth did not include
the offense of resisting arrest in the Information. The docket indicates this
charge was “Dismissed by Information.”
15
   The Commonwealth argues that Arroyo-O’Neill has a history of other
violent behavior that the trial court should have considered when assessing
his RRRI eligibility. Commonwealth’s Brief at 14-16. It points to the
resisting arrest charge that was “Dismissed by Information” based upon the
Commonwealth’s decision not to prosecute Arroyo-O’Neill on that charge. It
also points to Arroyo-O’Neill’s two prior arrests in Scranton and Lackawanna
County for resisting arrest that are listed in the presentence investigation
report but that did not result in convictions. Id. Although the presentence



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presented to this Court concerns the quality of Arroyo-O’Neill’s behavior,

i.e., Arroyo-O’Neill’s third degree felony conviction for fleeing and eluding

police. As this question involves a question of statutory interpretation, our

standard of review is de novo and the scope of review is plenary.             See

Chester, 101 A.3d at 60.

      Section 3733, entitled “Fleeing or attempting to elude police officer,”

provides, in relevant part:

      (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).

                                     ***
      (a.2) Grading.--

      (1) Except as provided in paragraph (2), an offense under
      subsection (a) constitutes a misdemeanor of the second degree.
      Any driver upon conviction shall pay an additional fine of $500.
      This fine shall be in addition to and not in lieu of all other fines,
      court expenses, jail sentences or penalties.

      (2) An offense under subsection (a) constitutes a felony of the
      third degree if the driver while fleeing or attempting to elude a
      police officer does any of the following:




investigation report states the Lackawanna County case and the present
case both involved Arroyo-O’Neill “running and ultimately resisting arrest,”
Arroyo-O’Neill has no prior resisting arrest convictions, and in the present
case the Commonwealth chose not to include the resisting arrest charge in
the Information. Presentence Investigation Report, at 4. In light of our
disposition, whether these non-convictions can or should have any bearing
on Arroyo-O’Neill’s RRRI eligibility is an issue that we need not and do not
address here.



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J. S90041-16


      (i) commits a violation of section 3802 (relating to driving under
      influence of alcohol or controlled substance);

      (ii) crosses a State line; or

      (iii) endangers a law enforcement officer or member of
      the general public due to the driver engaging in a high-
      speed chase.

Id. (emphasis added).

      The trial court opined that Section 4503(1) does not extend to fleeing

and eluding by a high speed chase, because (1) unlike the crime of burglary

at issue in Chester, this crime has not been historically recognized as a

violent crime; (2) Section 4503(1) should not be broadened to apply

whenever an offense has any risk of danger or harm; and (3) the definitions

of “danger” and “endanger[ing]” do not reference violence.        Trial Court

Opinion, 6/9/2016, at 22–23.          Although the trial court has authored a

thoughtful analysis, we disagree.

      Relevant to our decision are two cases, Commonwealth v. Bowen,

55 A.3d 1254 (Pa. Super. 2012) (holding the maximum sentence of 6

months’ incarceration set forth at 75 Pa.C.S. § 6503 for a second or

subsequent violation of Section 3733 does not apply to a second or

subsequent violation of Section 3733(a.2)(2)), appeal denied, 64 A.3d 630

(Pa. 2013), and In re R.C.Y., 27 A.3d 227 (Pa. Super. 2011) (holding

juvenile court correctly graded appellant’s adjudication of delinquency on

charges of fleeing and eluding as a third degree felony in violation of 75

Pa.C.S. § 3733(a.2)(2)(iii)).


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     In   R.C.Y.,   this   Court,   in   discussing   Section   3733(a.2)(2)(iii),

recognized that “[t]he legislature included this term [“high speed chase”] to

indicate the enhanced penalties applied only in cases where the defendant’s

actions created an extraordinary danger to the public at large or to

police officer.” Id. at 230 (emphasis added).

     Again, in Bowen, this Court discussed the legislative intent of 75

Pa.C.S. § 3733(a.2)(2), stating:

     Specifically, in their comments introducing Section 3733(a.2)(2) to
     the Pennsylvania Senate, the supporting senators stated as
     follows:

          Senator M.J. WHITE. Madam President, I apologize that
          my colleagues on the other side of the aisle did not have
          this amendment earlier. This is actually a rather simple
          amendment. The underlying offense in this bill refers to a
          driver of a motor vehicle who fails or refuses to stop
          when ordered to do so by a police officer. The existing
          amendment that was already there in the bill changes the
          grading of the offense.

          I serve on the Pennsylvania Commission on Sentencing,
          and one of the complaints I get most frequently from
          judges and from law enforcement people is that the
          offense of a high-speed chase is undergraded. It is
          currently a misdemeanor with a $500 fine. My
          amendment is upgrading an aggravated offense of fleeing
          or not stopping for a police officer under two
          circumstances, when the driver is under the influence of
          drugs or alcohol, or crosses a State line. My amendment
          would add a third aggravating factor that would
          move this into the felony classification, and that is
          when the driver endangers a law enforcement
          officer or a member of the general public due to
          engaging in a high-speed chase. I am told that
          these chases are extremely dangerous to the
          public, and I think they should be graded well
          beyond a $500 fine.


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J. S90041-16


         Thank you.

         The PRESIDENT. The Chair recognizes the gentleman
         from Berks, Senator O'Pake.

         Senator  O'PAKE.    Madam       President,  would      the
         gentlewoman consent to brief interrogation?

         The PRESIDENT. The gentlewoman indicates that she will.

         Senator  O'PAKE.   Madam    President,   under    the
         gentlewoman's amendment, what would the penalty be?

         Senator M.J. WHITE. Madam President, well, it would be a
         felony of the third degree. I am afraid it has been a long
         time since I practiced criminal law, so I do not remember
         what the range of penalties is for that particular offense.

         Senator O'PAKE. Madam President, counsel advises
         that in his opinion, the maximum would be up to 7
         years in jail.

         Senator M.J. WHITE. Madam President, the sentencing
         guidelines would apply to whatever the minimum and
         maximum are under criminal law for a felony of the third
         degree.

     Pennsylvania Senate Journal, 2006 Reg. Sess. No. 46 (emphasis
     added).

Id. at 1269.

     Our decisions recognize that the Legislature graded the crime of

fleeing and eluding as a felony of the third degree to address the “extreme[]

danger[]” presented to police and the public where a driver engages in a

high-speed chase. Id. In the same vein, in Chester, our Supreme Court

pointed out that the burglary statute in effect when the defendant was

charged distinguished first-degree burglary from second-degree burglary,




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“as first-degree burglary contemplates the potential for confrontation,

whereas second-degree burglary does not.” Chester, 101 A.3d at 64.

Likewise, resisting arrest entails “the same potential for risk of confrontation

that greatly concerned the High Court in considering the offense of first-

degree burglary [in Chester].” Finnecy, 135 A.3d at 1036.

      Based upon the Legislature’s decision to make a high speed chase an

aggravating factor for purposes of grading due to the exceptional danger

presented to police and the public, and guided by the rationales set forth in

Chester and Finnecy, we conclude that a third-degree felony conviction for

fleeing   and   eluding   police   in   a   high   speed   chase,   75   Pa.C.S.   §

3733(a.2)(2)(iii), is “violent behavior” under Section 4503(1). Furthermore,

pursuant to Cullen-Doyle, this single conviction constitutes a present

history of violent behavior. Therefore, we conclude the trial court erred in

granting Arroyo-O’Neill RRRI eligibility.

      Notwithstanding our disposition in the Commonwealth’s appeal, we

need not remand for resentencing because vacating the RRRI minimum

sentence does not disturb the court’s sentencing scheme.                 Compare

Commonwealth v. Goldhammer, 517 A.2d 1280, 1283–84 (Pa. 1986);

Commonwealth v. Williams, 871 A.2d 254, 266 (Pa. Super. 2005) (if trial

court errs in its sentence on one count in multi-count case, all sentences for

all counts will be vacated so court can restructure its entire sentencing

scheme).



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      Accordingly, we affirm the judgment of sentence in part, and vacate in

part. The judgment of sentence of 8½ to 20 years’ imprisonment is affirmed,

and the RRRI minimum sentence of 84 months and 20 days is vacated.

Jurisdiction relinquished.

      Judge Jenkins did not participate in the consideration or decision of

this case.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/10/2017




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