Opinion
1185 WDA 2022 J-A18002-23
01-11-2024
COMMONWEALTH OF PENNSYLVANIA v. MICHAEL JOSEPH HILLIARD Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Judgment of Sentence Entered September 21, 2022 In the Court of Common Pleas of Butler County Criminal Division at No(s): CP-10-CR-0001703-2019
BEFORE: BENDER, P.J.E., LAZARUS, J., and KUNSELMAN, J.
MEMORANDUM
BENDER, P.J.E.
Appellant, Michael Joseph Hilliard, appeals from the judgment of sentence of 6 to 12 years of incarceration imposed following his convictions for several crimes, all of which related to Appellant drunkenly crashing his vehicle. Appellant challenges the trial court's denial of his motion to suppress hospital records and evidence regarding Appellant's blood alcohol content (BAC). We affirm.
On April 13, 2019, Appellant, his cousin Kenneth Kline, and Betty McCandless-Meadows, who was dating Kline, drank at the Rock Ann Haven Bar. Lori Kerr, a bartender there, testified that Appellant paid the bill at 1:30 a.m. The bar's manager, Lynsie Roxbury, explained that last call is at 1:30 a.m., but customers may purchase "chips" that can be turned in for drinks until 2:00 a.m. At that point, drink service is stopped, and all customers must leave by 2:30 a.m. Appellant and his companions left at approximately that time. Both Kline and McCandless-Meadows testified that Appellant drove the three individuals to and from the bar.
The vehicle crashed sometime between 2:30 a.m. and 3:00 a.m. Pennsylvania State Police Trooper Matthew Kephart arrived shortly after 3:00 a.m. Several firefighters were on scene, as well as two EMS units and multiple police officers. Trooper Kephart saw Appellant and McCandless-Meadows on the ground, and Kline walking nearby. The trooper spoke with Appellant at approximately 3:25 a.m., asking how the crash occurred. Appellant did not admit to driving the vehicle, instead stating that he had too much to drink. Appellant, however, told one of the paramedics that he was the driver. Appellant was airlifted to Allegheny General Hospital (AGH).
McCandless-Meadows was also airlifted. She suffered serious injuries, including two skull fractures, 12 broken ribs, a punctured lung, and 10 fractured vertebrae. Kline injured his shoulder and head.
Kathyrn Stewart, a registered nurse, testified that she was responsible for Appellant's hospital lab work. The staff classified Appellant as a trauma patient and, per standard operating procedure, his blood was collected and tested. She drew his blood at 5:11 a.m. Another AGH employee testified that Appellant's blood was spun to separate the solid portions of the blood from the liquid plasma. The hospital records reported Appellant's BAC as .196. The Commonwealth called Kari Midthun, Ph.D., a forensic toxicologist for NMS Labs. She converted the hospital's blood result from plasma to whole blood, calculating Appellant's BAC at three values: low, mean, and high. She testified the respective BAC levels for these values was .161, .168, and .181.
Appellant was charged with several crimes, including Aggravated Assault by DUI and DUI (fifth offense). Appellant testified in his own defense, stating that McCandless-Meadows was the driver. He was convicted of all crimes following a two-day jury trial. Prior to sentencing, Appellant filed a post-trial motion for a new trial based on an after-discovered witness. The court denied that request. Appellant was sentenced on September 8, 2022, and an amended sentence was docketed on September 22, 2022. Appellant filed a timely notice of appeal and complied with the trial court's order to file a concise statement of matters complained of on appeal. The trial court authored an opinion in response, and Appellant now raises three issues on appeal:
It appears that the amended sentence was limited to merging several of the sentences, which had previously been set to run concurrently.
1. Whether the trial court abused its discretion and committed an error of law in denying … Appellant's pretrial motion for suppression of evidence; specifically, the results of testing of … Appellant's blood plasma, obtained in violation of his rights precluding unreasonable search and seizure without legitimate warrant and without consent.
2. Whether the trial court abused its discretion and committed an[] error of law in denying ... Appellant's motions in limine seeking to preclude the testimony of the Commonwealth's proffered witness relative to the whole blood alcohol content of the blood purportedly "converted" from the test of the blood plasma sample obtained, (a) without … [Appellant]'s consent or legitimate search warrant, (b) more than two (2) hours following the time at which … [A]ppellant was alleged to have been driving,
and (c) without the requisite accuracy to amount to an admissible expert opinion which would assist the fact finder at trial.
3. Whether the trial court erred and abused its discretion in denying … [Appellant]'s motion in arrest of judgment and in refusing to order a new trial upon the proffer of testimony of a witness not available at trial and whose testimony would likely have changed the outcome of the trial.Appellant's Brief at 4-5.
Appellant's first issue concerns his motion to suppress medical records. The Commonwealth obtained those records from two search warrants. The trial court opined that the first warrant may have been defective, but concluded that the second warrant was valid and therefore cured any defect in the first warrant.
On September 28, 2020, Appellant filed a motion to suppress, seeking, among other things, suppression of his hospital records. Appellant sought suppression pursuant to this Court's decision in Commonwealth v. Jones-Williams, 237 A.3d 528 (Pa. Super. 2020), aff'd in part, vacated in part, 279 A.3d 508 (Pa. 2022). As Jones-Williams involved obtaining hospital records without a warrant, Appellant sought suppression on the alternative basis that the warrant provided in discovery was an unsigned copy. As another alternative, Appellant argued that the warrant was defective because it identified the items to be searched and seized as being located at UPMC Mercy Hospital, instead of AGH where Appellant was treated.
An evidentiary hearing was held on December 17, 2020. The Commonwealth informed the court, "we have not been able to get a signed copy of that warrant. We have checked a number of places." N.T., 12/17/20, at 6. The Commonwealth indicated those efforts were ongoing and cited the possibility of "hav[ing] a new warrant served." Id. The court then heard testimony from Trooper Kephart regarding the warrant. He said that he typed the search warrant and affidavit of probable cause and sent those to "an individual by the name of Trooper Eric [Fisher] out of the Pittsburgh barracks," due to the proximity of his location to AGH and the local magistrates. Id. at 10. Trooper Fisher obtained the search warrant, served it on AGH, and then "dr[o]ve up in person to Butler" to deliver the records. Id. at 11.
Both parties accepted the court's invitation to file briefs if they wished. Appellant's argument primarily focused on the applicability of Jones-Wiliams. Anticipating the Commonwealth's response that the case did not apply because the evidence was obtained via warrant, Appellant argued that "the warrant produced is not signed, either by the officer or the issuing authority." Brief in Support of Motion to Suppress, 12/20/30, at unnumbered 4. Alternatively, even if signed, Appellant maintained that suppression was warranted per Pa.R.Crim.P. 203(B), which states that: "No search warrant shall issue but upon probable cause supported by one or more affidavits sworn to before the issuing authority in person or using advanced communication technology." Pa.R.Crim.P. 203(B). Appellant averred that Trooper Kephart was required to appear before the magistrate as "Trooper Eric Fisher... [was] not involved in the case and has no knowledge of the facts of this case." Brief in Support of Motion to Suppress, 12/20/30, at unnumbered 5.
The Commonwealth's brief sought permission to reopen the record, as following the hearing it "obtained] a signed copy of the search warrant used to obtain [Appellant's blood sample." Commonwealth's Brief in Opposition, 1/8/21, at unnumbered 2. The Commonwealth further stated that, "subsequent to the [hearing], Trooper Kephart successfully presented new search warrants to obtain [Appellant's blood sample and one of his passenger's medical records." Id.
This appears to be a mistake, as AGH tested the plasma content of the blood and the authorities recovered a copy of that lab report. Those results were then sent to a separate lab for conversion. The Commonwealth does not appear to have obtained the actual blood sample.
The trial court granted the request for a second hearing, which took place on February 8, 2021. Trooper Fisher confirmed that Trooper Kephart sent him a signed affidavit of probable cause and search warrant application. Trooper Fisher "check[ed] for typos, looking for certain aspects that Allegheny County Court wants on their search warrants, in their affidavits." N.T., 2/8/21, at 4. He noticed that Trooper Kephart listed the wrong hospital and corrected the mistake. Trooper Fisher testified that it was the usual practice to have him present search warrant applications from troopers not located in Allegheny County when they seek records from Pittsburgh-area hospitals. See id. at 7 (stating that this he has presented warrants from other troopers close to 100 times in the last six years). Thus, as he acknowledged on cross-examination, Trooper Fisher did not perform any independent examination of the facts and did not speak to Trooper Kephart about his investigation before seeking the warrant. The Commonwealth then called Trooper Kephart, who stated that he appeared before the magistrate to execute a warrant based on the same affidavit of probable cause he had sent to Trooper Fisher. During the execution of this warrant, Trooper Kephart obtained the original search warrant documentation from the AGH's records department.
The trial court thereafter issued an order and memorandum denying Appellant's motion to suppress. The trial court expressed skepticism that the first warrant was valid, as Trooper Fisher "admitted] at the suppression hearing to not being fully aware of the facts" when presenting the warrant. Order and Opinion, 2/19/21, at 2. The trial court was troubled by the fact that Trooper Kephart did not brief Trooper Fisher about the information contained in the warrant. Instead, Trooper Kephart "simply sent the search warrant to Trooper Fisher and let him handle the matter." Id. at 6. The court did not explicitly decide whether the first warrant was valid or not, instead concluding that the second warrant cured any defects:
Looking at the totality of the circumstances, the second warrant is valid. The blood draw, which was performed by hospital staff prior to contact with law enforcement, and the records were kept at AGH throughout the process. The judge issued that search warrant properly after direct discussion with Trooper Kephart. Issuance of the second warrant was not based on any newly acquired information by the officer. No information acquired from the first warrant as used in either the second warrant or its affidavit of probable cause. In fact, the search warrants and affidavits are identical, except that, in addition to the information sought in the first warrant, the second search warrant sought any documents relating to the first warrant. Thus, any potential defects with the first was warrant was [sic] cured with the second warrant.Id. at 7.
On appeal, Appellant does not discuss the first warrant, averring that the trial court "implie[d] that the original search warrant" was invalid. Appellant's Brief at 20. Appellant argues that the second warrant was tainted by the execution of the invalid first warrant:
The Commonwealth also limits its discussion to the second warrant.
In essence, the Commonwealth would not have received evidence of … [Appellant]'s blood plasma and known of the same without violating the constitutional rights of [Appellant] in the first place. It is unclear as to why the trial court concluded that the subsequently undertaken search warrant for the same materials that the Commonwealth already had somehow excuses the original violation.Id. at 28.
Generally speaking, the Commonwealth's attempt to execute a second search warrant for the same evidence it obtained from an invalid first warrant is examined as an application of the "independent source" doctrine. The United States Supreme Court has held that, for purposes of the Fourth Amendment, the doctrine "allows trial courts to admit evidence obtained in an unlawful search if officers independently acquired it from a separate, independent source." Utah v. Strieff, 579 U.S. 232, 238 (2016) (citing Murray v. United States, 487 U.S. 533, 537 (1988)). Our Supreme Court has held that the doctrine also applies to an Article I, Section 8 claim. See Commonwealth v. Mason, 637 A.2d 251, 254 (Pa. 1993). Applying the doctrine to an Article I, Section 8 claim often implicates the fact that the good-faith exception to the exclusionary rule under the federal Constitution does not apply to an Article I, Section 8 claim. Thus, Pennsylvania law has further departed from federal law to account for that difference, as federal courts often resolve defective warrant claims based on the good-faith exception.
Appellant argued that the search violated both constitutions.
In Commonwealth v. Henderson, 47 A.3d 797 (Pa. 2012), our Supreme Court addressed whether the independent source doctrine requires the second investigative team to be "truly" independent. In that case, Detective Johnson obtained a search warrant for Henderson's blood, hair, and saliva. The DNA test implicated Henderson and charges were filed. Henderson filed "a pretrial motion to suppress on the ground that the detective's affidavit was insufficient to establish probable cause." Id. at 798. This motion "apparently raised concerns on the prosecution's part, as a decision was made to secure a second warrant." Id. A separate detective from the same police agency then prepared a second search warrant. He "spoke with Detective Johnson, reviewed the existing case file and the victim's medical records, conducted an inquiry into [Henderson]'s background, and interviewed one collateral witness. He then applied for and secured a second warrant, which was used to seize an additional sample of blood from [Henderson]." Id. at 799. Our Supreme Court "allowed a further discretionary appeal to consider whether the independent source doctrine validates a serial search warrant obtained from a second investigation conducted by a police officer from the same department." Id. at 800.
The Commonwealth conceded that the second investigation was not truly independent from the first detective's investigation, instead asserting that it was "'sufficiently removed' … to alleviate any taint." Id. at 802. The Court disagreed with Henderson's claim that Pennsylvania law requires true independence:
In the present circumstances, we are unwilling to enforce a "true independence" rule in the absence of police misconduct and on pain of the Commonwealth being forever barred from obtaining non-evanescent evidence connecting [Henderson] with his crimes. In answer to the specific question presented, we hold that suppression is not required on account of Detective Evans' status as a member of the same police department as Detective Johnson. Rather[,] … we deem it appropriate to limit the independent police team requirement to situations in which the rule prevents police from exploiting the fruits of their own willful misconduct. Where such malfeasance is not present, we agree with the Superior Court that the Murray standard strikes the appropriate balance between privacy and law enforcement.Id. at 804-05 (footnote and citation omitted).
While the trial court did not explicitly rely upon the independent source doctrine in holding that the second warrant was valid, instead citing the totality of the circumstances, we determine that the second warrant constitutes an independent source of the hospital records and affirm on that basis. See Commonwealth v. Ani, 293 A.3d 704, 729 (Pa. Super. 2023) (affirming trial court's decision that warrant was defective for an alternative reason supported by the record). We acknowledge that this case differs from Henderson in that the second search warrant here constituted a "redo" of the warrant by the original affiant, whereas in Henderson the second affiant attempted to reproduce what the original affiant had done. Simultaneously, there is no police malfeasance here, and we reject Appellant's argument that the "obtaining of records pursuant to the second search warrant was instead fruit of the original poisonous tree and tainted with the original Constitutional violation." Appellant's Brief at 22.
Appellant's argument appears to be that if the Commonwealth obtains evidence pursuant to a defective search warrant, then it cannot subsequently obtain a second warrant for the same items. Henderson rejects this approach. Appellant must show that the execution of the first warrant tainted the application for the second warrant, and he fails to do so. The second warrant application did not cite anything learned from the execution of the first warrant; the Commonwealth always knew that Appellant was treated at AGH, and the second warrant application relied on Trooper Kephart's observations of intoxication that he learned of the morning of the accident. Moreover, both Henderson and this case involved the Commonwealth's seeking a second warrant in response to a motion to suppress. Thus, the fact that the Commonwealth obtained the blood records pursuant to a warrant that we accept arguendo was defective does not per se preclude the Commonwealth from obtaining a second warrant.
We also stress that Henderson announced a refusal "to enforce a Mrue independence' rule in the absence of police misconduct and on pain of the Commonwealth being forever barred from obtaining non-evanescent evidence connecting [Henderson] with his crimes." Henderson, supra at 804. The hospital records at issue here are not evanescent. On this point, we are persuaded by Justice Saylor's concurring opinion in Commonwealth v. Ruey, 892 A.2d 802 (Pa. 2006) (OAJC), a case preceding Henderson. Ruey, like this case, involved a warrant for medical records. Ruey's vehicle collided head-on with a vehicle, killing one of the occupants and seriously injuring the other. The investigating trooper did not speak to Ruey or the other injured party due to their injuries, but was told by medical personnel that Ruey appeared to be drunk and smelled of alcohol. Ruey was transported to the hospital for treatment, where staff tested his blood for alcohol.
The investigating trooper applied for a search warrant and obtained the records. Ruey filed a motion to suppress, arguing that the affidavit failed to establish probable cause as the trooper "failed to indicate … either that the information he received from the E.M.S. personnel was reliable or that he believed them to be credible witnesses." Id. at 805. Before the suppression court ruled on the motion, a second trooper applied for a second search warrant for the same medical records. The affidavit of probable cause reflected that he conducted interviews with the medical personnel and also spoke to the original investigator. The trial court suppressed the evidence, and the Commonwealth appealed. This Court, sitting en banc, reversed, concluding that the independent source doctrine applied.
The Supreme Court granted discretionary review of this Court's decision and affirmed in an opinion announcing the judgment of the Court. The lead opinion concluded that there was no need to examine the independent source doctrine because the first warrant was, at most, technically defective. "[I]t is important to distinguish between a violation of the fundamental constitutional guarantees of Article I, Section 8 and mere technical noncompliance with the Pennsylvania Rules of Criminal Procedure." Id. at 808. The opinion then concluded that the Commonwealth had preserved an argument that the first warrant was nonetheless supported by probable cause, and the Court agreed. The lead Justices further concluded that the failure to specifically state the medical personnel were reliable was a technical defect not warranting suppression.
Justice Saylor concurred, concluding that the first warrant was invalid but that the independent source doctrine applied to justify the admission of the records recovered from the second warrant. Justice Saylor observed that "inadvertence rather than police misconduct is involved, and the police had ample grounds to believe that [Ruey]'s medical records reposited at the University of Pittsburgh Medical Center contained incriminating evidence, without any resort to the records obtained pursuant to the defective affidavit and warrant." Id. at 818 (Saylor, J., concurring). In a footnote accompanying this discussion, Justice Saylor described Ruey as advancing the proposition that "by virtue of the deficiencies in the initial warrant, all of the legitimate evidence supporting probable cause ... must be viewed as tainted." Id. at 818 n.2. Justice Saylor rejected this argument because "the taint referenced in the cases ... refers to evidence that has been obtained by unlawful or unjustified police conduct, and none of the above evidence was so garnered." Id.
We agree with these observations, which are consistent with Henderson. We recognize that in Henderson and Ruey, the second warrant was executed by an officer other than the one who originally sought a warrant. We do not view this distinction as requiring a different outcome. Significantly, unlike Henderson or Ruey, Appellant does not point to any defect in the first warrant with respect to the affidavit establishing probable cause. The only defect cited is Trooper Kephart's failure to personally appear before the magistrate. That defect was remedied when Trooper Kephart applied for a second warrant, and we therefore agree with the trial court that the evidence was admissible under the second warrant. In other words, there was nothing to "fix" with respect to the affidavit of probable cause other than a personal appearance before the magistrate.
We do not suggest that an affiant's personal appearance is insignificant or may be characterized as a mere technical defect, as an affiant must swear an oath that the facts related are true. Because the Commonwealth does not defend the first warrant, we decline to address whether the first warrant violated this requirement. Additionally, determining whether Trooper Kephart's sworn statements as sent to Trooper Fisher were sufficiently sworn is impossible without the second warrant; the original documents were lost and obtained from the hospital's records department. Thus, we would need to assess the validity of the second warrant in any event.
Appellant's second issue concerns his motion to suppress the BAC results because the blood was drawn, by the Commonwealth's own concession, more than two hours after the vehicle crashed. Proof of a specific BAC level is an element of several of the crimes charged, implicating 75 Pa.C.S. § 3802(g), which states:
(g) Exception to two-hour rule.--Notwithstanding the provisions of subsection (a), (b), (c), (e) or (f), where alcohol or controlled substance concentration in an individual's blood or breath is an element of the offense, evidence of such alcohol or controlled substance concentration more than two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle is sufficient to establish that element of the offense under the following circumstances:
(1)where the Commonwealth shows good cause explaining why the chemical test sample could not be obtained within two hours; and
(2)where the Commonwealth establishes that the individual did not imbibe any alcohol or utilize a controlled substance between the time the individual was arrested and the time the sample was obtained.75 Pa.C.S. § 3802(g).
We note that the statutory text is phrased in terms of sufficiency of the evidence to satisfy the elements of the crime, i.e., we would examine the evidence at trial to determine whether the Commonwealth established good cause. At the same time, Section 3802(g) has been viewed as a basis for seeking suppression. For example, as stated in Commonwealth v. Benvenisti-Zarom, 229 A.3d 14 (Pa. Super. 2020), an assertion that the blood draw was not acquired within two hours can be raised in a motion to suppress. A successful motion would preclude the Commonwealth from introducing the test results for purposes of establishing DUI crimes that specifically require the Commonwealth to prove a certain BAC threshold. Id. at 22 ("[Benvenisti-Zarom] also asserts that her BAC test results should have been suppressed as officers did not have good cause to obtain the warrantless blood test outside the two-hour window after the accident in violation of 75 Pa.C.S.[] § 3802(g).").
We raise this issue because the Commonwealth cites the evidence presented at trial as a basis for determining that it established good cause for obtaining Appellant's blood more than two hours after he last operated the vehicle. However, our scope of review when examining suppression rulings is limited to the evidentiary record created at the suppression hearing. Id. Accordingly, there is a question of whether the Commonwealth failed to establish the good cause exception by failing to produce testimony on the issue in a pre-trial evidentiary hearing. We conclude that, while the preferred course is to decide the issue at a suppression hearing, under these circumstances we may examine the trial testimony.
As previously stated, Appellant first filed a suppression motion in 2020. That motion did not cite a violation of the two-hour rule as a basis to suppress. Appellant then filed a second suppression motion on May 17, 2022, eight days before trial. The parties discussed the suppression motion immediately before opening statements. N.T., 5/25/22, at 5. Appellant's counsel asserted that Appellant left the bar at last call, at approximately 1:30 a.m. The
Commonwealth did not request to create a record, instead citing the evidence it expected to present at trial regarding Appellant's staying past last call. The Commonwealth also summarized what it expected to present during trial concerning the accident:
We have two people ejected from the [the] car, one who crawls out of the car. And then we have one of [the] victims, he has to go to three houses before he gets someone to call 911. Then all the ambulance people have to arrive. They're being treated. And then three of them are eventually Life Flighted. So, the fact that this probably exceeds the two-hour limit by minutes, I think, or, you know, even an hour at most, I think we have a good case for an exception, Judge.Id. It would have been preferable to address this matter at a pre-trial evidentiary hearing, as the Commonwealth outlined the evidence it intended to present at trial. However, the BAC evidence would have been admissible in any event, as Section 3802(g) only addresses crimes in which BAC is an element of the crime. Crimes such as general impairment, for which Appellant was also charged, do not include BAC as an element of the offense. See Commonwealth v. Segida, 985 A.2d 871, 879 (Pa. 2009) (noting that the Commonwealth may establish the elements of general impairment DUI through, among other evidence, blood alcohol levels, "although it is not necessary and the two hour time limit for measuring blood alcohol level does not apply"). See also Benvenisti-Zarom, supra at 24 ("[Benvenisti-Zarom]'s argument based on the Mtwo hour rule' does not entitle her to suppression of her BAC test results in her prosecution under Section 3802(a)(1) (DUI: general impairment - incapable of safely driving), as this subsection does not include language discussing the Mtwo hour' requirement."). Thus, the blood alcohol tests would have been admissible to support the general impairment crime, as well as the Aggravated Assault while DUI crime. Furthermore, Section 3802(g) addresses whether the evidence is sufficient to establish an element of the crime. We therefore conclude that our scope of review is not limited to a suppression hearing transcript under these circumstances.
If the Commonwealth failed to establish the good cause requirement, the evidence would be insufficient to convict, as the inability to present scientific evidence regarding the BAC would preclude a conviction. Appellant would thus be entitled to discharge on the applicable counts.
Turning to whether the BAC evidence was properly permitted to prove the crimes for which a specific BAC was an element, we agree with the trial court that the Commonwealth established good cause. Appellant's blood was drawn at 5:11 a.m., which was more than two hours after the vehicle crashed. On that point, we note that Appellant argued at trial that his group left the bar at approximately 1:30 a.m., while the Commonwealth asserted that the group left the bar sometime after 2:00 a.m. N.T., 5/25/22, at 34; 29. For ease of discussion, we will assume that the crash occurred at 2:00 a.m. due to the Commonwealth's concession to the trial court that "this probably exceeds the two-hour limit by minutes, I think, or, you know, even an hour at most ….". Id. at 5. An "hour at most" roughly corresponds to the crash occurring at 2:00 a.m., as in that circumstance the blood would have to be drawn by 4:00 a.m. We therefore assume for purposes of this issue that the blood draw in this case occurred approximately one hour and eleven minutes after the two-hour limit.
Additionally, Appellant states in his brief that "it was undisputed that (as noted by the trial court) the blood draw in fact occurred approximately a half hour outside of the two-hour rule.". Appellant's Brief at 30.
We agree with the Commonwealth that Benvenisti-Zarom, supra, supports the trial court's conclusion that the Commonwealth sufficiently established good cause. There, a Pennsylvania State Trooper investigated a head-on crash scene at 11:12 p.m. and spoke to Benvenisti-Zarom, who yelled at the trooper to "go away." Id. at 19. Emergency personnel arrived several minutes later and placed Benvenisti-Zarom into an ambulance and then transported her to a helicopter. She was then flown to a hospital. The trooper did not ask Benvenisti-Zarom for consent to draw blood while she was receiving treatment in the ambulance. Instead, he obtained consent at the hospital at 2:02 a.m. We concluded that there was "good cause" to excuse the failure to obtain blood within two hours, as she "appeared to be severely injured" and was treated by emergency personnel within minutes of the trooper's arrival. Id. at 24. "In light of the circumstances in this case, we agree with the trial court's finding that Trooper Neely had good cause to conclude that there was too much uncertainty surrounding [Benvenisti-Zarom]'s medical condition to order a blood test at the accident scene." Id. (quotation marks and citation omitted). This is in line with the trial court's conclusions.
Due to the possible catastrophic injuries of … [Appellant] and his passengers, he was transported by ambulance to an awaiting helicopter who transported him to Allegheny General Hospital in Pittsburgh. Upon arrival, his evaluation and treatment began where ultimately his blood was drawn at 5:11 A.M. The entire time … [Appellant] was in the care of the doctors and nurses, the sole concern was his physical care and wellbeing.
For the above reasons, it was shown by the Commonwealth that there was good cause as to why … [Appellant]'s blood was not drawn within the 2[]hours and thus satisfies 75 Pa.C.S. § 3802(g)(1).Trial Court Opinion (TCO), 1/27/23, at 10 (footnote omitted). We agree that the need for medical treatment constitutes good cause.
Separately, Appellant contends that the trial court erred by permitting the Commonwealth to introduce the BAC results because the hospital tested Appellant's plasma as opposed to the whole blood. Appellant argues:
[The] Commonwealth sought to offer expert testimony which only established a range of potential of blood alcohol content in whole blood from plasma readings in … [Appellant]'s medical records, [and] the issue of inadequate specificity of … Appellant's blood alcohol content was adequately preserved, and the reliance of the defense on Commonwealth v. Wanner, … 605 A.2[d] 805 ([Pa. Super.] 1992)[,] is well placed.Appellant's Brief at 31.
In Wanner, we held that the Commonwealth cannot establish the element of a specific BAC level by using a plasma test. Our decision in Commonwealth v. Michuck, 686 A.2d 403 (Pa. Super. 1996), aptly summarizes the scientific basis for this holding:
The distinction between whole blood and blood serum is significant. Serum is acquired after a whole blood sample is centrifuged, which separates the blood cells and fibrin, the blood's clotting agent, from the plasma-the clear liquid is the blood serum. When blood serum is tested the results will show a blood alcohol content which can range from between 10 to 20 percent higher than a test performed on whole blood. The reason for this is because the denser components of whole blood, the fibrin and corpuscles, have been separated and removed from the whole blood, leaving the less dense serum upon which the alcohol level test is performed. The value of the blood alcohol content in the serum is then determined. Because the serum is less dense than
whole blood, the weight per volume of the alcohol in the serum will be greater than the weight per volume in the whole blood. Thus, an appropriate conversion factor is required to calculate the corresponding alcohol content in the original whole blood sample.Id. at 807-09 (cleaned up).
Here, Appellant merely cites Wanner as a basis for relief without any further elaboration. Appellant's argument does not account for the fact that the Commonwealth called Dr. Midthun, who performed a test entailing an "appropriate conversion factor" to convert the plasma results to a whole blood result. Appellant's claim thus fails.
As the trial court notes, Appellant did not object to the expert's testimony, and thus waived any claim concerning the validity of those tests and the expert's qualifications. But even if Appellant had preserved a challenge to the expert's testimony, his brief does not develop an argument as to why the methodology employed was flawed or otherwise scientifically unreliable.
Appellant's third and final claim involves the trial court's denial of his motion for a new trial due to the post-trial discovery of witness Jamie Martin. The court held an evidentiary hearing on July 5, 2022. Appellant's counsel explained that, following the verdict, "Jamie Martin … contacted [Appellant] on his Facebook page and asked who was his lawyer." N.T., 7/5/22, at 6. Martin then contacted Appellant's attorney, who filed the motion. Martin testified that she noticed Appellant and his companions at the bar and left sometime between 1:30 and 2:00 a.m. Id. at 19. She saw Appellant get in the backseat while a woman entered the driver's seat. She briefly followed that vehicle before making a turn. Martin additionally stated that her adult son was in the car with her.
When asked why she contacted counsel, Martin stated that she does not pay attention to the news but her sister "sends me like clips of people that we happen to - might know or something from the bar. And she sent me the newspaper article that [Appellant] was, you know, charged with driving and all the other stuff." Id. at 16. She realized that "if I don't come forward, an innocent man may go to jail because of me." Id. On cross-examination, Martin stated that she has known Appellant about 20 years, but they did not "talk all the time or anything like that. I knew him to see him at the bar." Id. at 17.
The court found that Appellant failed to establish each of the four prongs applicable to after-discovered evidence.
A criminal defendant seeking to assail a guilty verdict and retry a case with after-discovered evidence must clear four hurdles. He must convince the trial court "that the evidence (1) could not have been obtained prior to the conclusion of the trial by the exercise of reasonable diligence; (2) is not merely corroborative or cumulative; (3) will not be used solely to impeach the credibility of a witness; and (4) would likely result in a different verdict if a new trial were granted." Commonwealth v. Padillas, 997 A.2d 356, 363 (Pa. Super. 2010). "The test is conjunctive; the defendant must show by a preponderance of the evidence that each of these factors has been met in order for a new trial to be warranted." Id.Commonwealth v. Felder, 247 A.3d 14, 17 (Pa. Super. 2021). We review the trial court's decision for an abuse of discretion. Id. at 18.
The trial court deemed Martin's testimony "largely not credible" and characterized her "demeanor and manner of answering the questions" as "high[ly] suspect." TCO at 7. Particularly, Martin was "eager to emphasize again that she only had those two drinks without a question about her alcohol consumption being asked a second time." Id.
As to the four legal prongs, the court first determined that Appellant "failed to establish that … Martin's testimony could not have been obtained prior to the conclusion of trial by the exercise of reasonable diligence." Id. at 12. Specifically, the trial court stated that Martin and Appellant "spoke to each other in the bar" the evening of the crash, and Appellant "failed to put on the record the … steps, if any, he took to locate possible witnesses." Id. at 13. The court also elaborated on its credibility assessment, noting that Martin's overall demeanor was suspect. The court further concluded that her testimony was "corroborative and cumulative with … [Appellant]'s own testimony." Id. Relatedly, that testimony "would have been used to solely impeach the testimony of McCandless-Meadows and Klein[,] … [who] testified at trial that … [Appellant] was driving the vehicle at the time of the accident." Id. Finally, addressing the fourth prong, the court "question[ed] the motive of … Martin coming forward when she did." Id. Martin frequented the bar and she testified that she learned about the accident shortly after it occurred, yet did not come forward at that time. Additionally, Martin testified she left the bar after last call, which was at 1:30 a.m., but other evidence at trial established that Appellant remained in the bar after that time.
In Commonwealth v. Small, 189 A.3d 961 (Pa. 2018), our Supreme Court stated that "the lodestar of the after-discovered evidence" is "whether the evidence would likely result in a different verdict[.]" Id. at 976 n.12. The Small Court confirmed that new evidence concerning a material fact that was always an issue at trial is not "merely" corroborative or cumulative; the "goal of the after-discovered evidence rule [is] to limit continued litigation without being so rigid as to shut out newly discovered evidence from a credible source which may lead to a true and proper judgment." Id. at 975. We thus disagree with the trial court that Martin's testimony, if accepted as true, would be merely corroborative or cumulative and would be used solely to impeach. Kline and McCandless-Meadows were biased witnesses, particularly McCandless-Meadows, who was implicated by Appellant as the driver. Martin's account, if accepted as true, constituted the only independent witness to corroborate Appellant's testimony that he was not the driver. We therefore do not agree with the trial court's analysis of the second and third prongs.
However, a litigant must establish all four prongs to merit relief, and we conclude that the fourth prong is dispositive. The trial court was skeptical of Martin's account of how she came to learn that Appellant was convicted and deemed her not credible. That credibility finding is within the exclusive province of the trial court and is supported by the record. "Traditionally, issues of credibility are within the sole domain of the trier of fact since it is the trier of fact who had the opportunity to personally observe the demeanor of the witnesses." Commonwealth v. Abu-Jamal, 720 A.2d 79, 99 (Pa. 1998) (citation omitted). Martin testified that she spoke to Appellant at the bar that evening. N.T., 7/5/22, at 24 ("Q. Did you guys communicate with each other that night? A. We exchanged pleasantries, like, Hey, how are you, and that's about it."). She estimated that she continued to visit the Rock Ann Haven about once a month after the incident. Yet, despite her friendship with Appellant and her frequent visits to the bar, she claimed that she was unaware of Appellant's criminal charges throughout the almost three years this case remained pending. When asked if the incident ever came up, she replied, "Only like when it first happened, they said, Hey, you know, [Appellant] was in an accident the other night whenever he left the bar." Id. at 26. She stated that the topic never came up again after that exchange. The trial court was entitled to conclude that it was rather unlikely that, having visited the bar dozens of times between the incident and trial, that the topic never came up again, especially given the fact that the Commonwealth called two of the bar's employees in its case-in-chief. The court was understandably skeptical that Martin's serendipitously learned of Appellant's charges right after he was convicted. We therefore find that the trial court did not abuse its discretion in declining to award a new trial.
We add that, with respect to the first prong, Appellant does not meaningfully address the trial court's conclusion that he could have learned of Martin's account through due diligence. Martin stated that she had a brief conversation with Appellant at the bar on the night of the crash. Appellant does not explain why he did not proactively seek out Martin, a known witness, to see if she had any helpful information.
Judgment of sentence affirmed.