Appeal from the Judgment of Sentence entered June 4, 2012 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0003231-2010
BEFORE: LAZARUS, OLSON AND FITZGERALD, [*] JJ.
Appellant, Danielle Dickson Gatlos, appeals from the judgment of sentence entered June 4, 2012, committing her to an aggregate sentence of eight to 23 months' incarceration followed by three years' probation for convictions of driving under the influence ("DUI") of alcohol or controlled substance,  aggravated assault by vehicle while DUI,  four counts of recklessly endangering another person,  possession of a small amount of a controlled substance (marijuana),  careless driving,  and reckless driving. For the following reasons, we affirm.
The trial court set forth the relevant factual and procedural background of this matter as follows:
On Friday, March 12, 2010, at about 8:30 p.m., twenty-one year old Alejandro Bernard was driving north on Route 1 in Chester County from Oxford toward Kennett Square, Pennsylvania when [Appellant's] car, heading south on Route 1, struck another southbound car, then crossed the median and hit Mr. Bernard's vehicle on the side. [Appellant] and Mr. Bernard were each driving alone. There was a light rain and Mr. Bernard was driving 55 mph. He remained conscious and remembers that "the car ended up to the side to a dirt embankment, and then the medics got there and I got out of the car and I could not breathe." He got out of his vehicle but he could not walk. Mr. Bernard was taken by ambulance to a hospital in Christiana, Delaware, where he remained for three days. He had two broken ribs, a cut in his spleen and a cut on his arm. He went to therapy for about four months. At the preliminary hearing he was still not back to normal. He still feels pain. Four vehicles were involved in the crash and there were five or six officers at the scene.
Pennsylvania State Police Trooper Katherine Miller of Troop J, Avondale, had been employed by Troop J for four months at the time of the crash. She had to do the crash reports and investigation. Her job that night was to determine the injuries sustained by the people involved and try to figure out what had happened. Because [Appellant] was nonresponsive and was being transported to a hospital, they needed to identify her right away. Trooper Miller and Trooper Martin went into [Appellant's] vehicle looking for her license. They also attempted to find her insurance information. The inside of her vehicle looked destroyed. The air bag had deployed and belongings were throughout the inside of the car. Neither item was in the glove compartment.
Trooper Martin found [Appellant's] purse inside the vehicle. Inside of the purse they found her driver's license. While looking in the purse for the license, they found an empty cigar box and a box of cigars that was missing one cigar. The purse was secured by the troopers to make sure [Appellant's] belongings were safe. They did not go through the other three vehicles because two of the drivers were on scene and able to provide identification and secure their vehicles. Mr. Bernard had called friends who arrived immediately, provided information and secured his vehicle.
Trooper Scott Endey of the Pennsylvania State Police Troop J Avondale Barracks assisted Trooper Miller with the vehicle accident investigation. He was sent by Corporal Steven Ranck to Christiana Medical Center[, in Christiana, Delaware, ] to interview two of the operators that were involved in the crash. He arrived at the hospital around 10:30 p.m. and interviewed both Mr. Bernard and [Appellant]. [Appellant] was in a hospital room, lying in bed, wearing a neck brace.
Trooper Endey told [Appellant] that he was a member of the state police and was there to ask her questions about the accident. He asked her if she was willing to answer questions. She replied yes, and said she was in the left lane, driving southbound on Route 1. As she passed a large vehicle she thought she was struck on the right side of her vehicle by the other vehicle and then recalled waking up in the hospital bed.
He asked her if she had cigars in the car and she said yes. He asked what she was going to use them for and she said some of her friends smoke and she had them for her friends. She was planning to meet them later in the evening and they were going to smoke the cigars. He asked if the cigars were used for smoking tobacco or smoking marijuana, to which she did not reply. When asked if she had ever smoked marijuana, she replied yes, but it had been approximately three weeks earlier.
The trooper asked [Appellant] if she would voluntarily submit to a blood test. He told her she was not under arrest. At first she agreed and she and her mother looked over the paperwork for the voluntary consent. She then decided that she would not volunteer to a blood draw. Trooper Endey confirmed that [Appellant] would not voluntarily give a blood sample. [Appellant] was 19 or 20 years old. The trooper did not ask the hospital to draw blood for any purpose other than ordinary medical purposes. The hospital personnel told him that they would keep the records for 72 hours.
Brian Chew, owner and operator of Chew Towing in Oxford, Pennsylvania, responded to the crash scene on March 12, 2010. Trooper Miller ordered that [Appellant's] car and the other three vehicles be held at Chew's Towing. It was protocol to hold [Appellant's] vehicle in case it was involved in a fatality, which concerned them because of Mr. Bernard's condition at the scene. He towed the four vehicles involved in the crash to his property in Oxford. The property has two buildings and a barrier around it with a gate. He secured [Appellant's] inoperable 2007 Ford Fusion behind the fenced gate. He said it was being stored there for the insurance company. Trooper Katherine Miller testified that she told him that she would come out to take pictures of all four vehicles and make sure she had all insurance information for all of the investigations.
Trooper Miller first testified that on the Monday after the accident she went to Chew's to take pictures of all vehicles and to get insurance information from all vehicles. She wanted to look for an insurance card in [Appellant's] vehicle. She said another driver had been calling asking for [Appellant's] insurance. She testified at the second hearing date that she was also looking for the registration card. Trooper Miller interviewed [Appellant] by telephone on March 13, or 14, 2010. At the time she did not ask her for her insurance information. At that time she did not ask for her consent to search her car. She did not have [Appellant's] permission to search the vehicle for the insurance information.
Mr. Chew accompanied Trooper Miller to the vehicle. He testified that she told him she was there to look for an insurance card; she never told him she was there to do an inventory. He opened the door to assist her. It was not until she entered the vehicle and started looking for paperwork that Mr. Chew noticed something brown in shape which appeared to be a cigar on the passenger floor board. He noticed it as he stood outside the passenger door, which he had opened. He could have seen it through the window. When he saw the cigar he pointed it out to Trooper Miller and picked it up for her. Trooper Miller transported it back to the station where a field test tested positive for the presence of marijuana. It was then [sent] to Lima Lab. The lab test reflected, "The cigar butt…was found to contain marijuana…net weight of thirty-one hundredths (0.31) of a gram."
Trooper Miller called the hospital after visiting Chew's, spoke with someone in the lab, and asked if there were blood samples from [Appellant]. They said yes, it was standard. She told them she was attempting to get a search warrant and asked how long samples are held, to which they indicated 72 hours. She asked them to put [Appellant's] blood samples aside for her in order to obtain it through a search warrant. They agreed. She called back every day or so to make sure they still had the blood samples.
Trooper Miller prepared an application for a search warrant and signed it on March 16, 2010. She called the Chester County District Attorney's office and on-call Assistant District Attorney Donna Murphy approved the search warrant application. The search warrant application was never submitted to a magistrate or judge to determine whether probable cause existed.
Trooper Miller then called the Delaware State Police and asked for the protocol to obtain blood and medical records from Christiana Hospital. She was referred to the Attorney General's Office in Delaware. There, she spoke to a few different people and ultimately called the Delaware State Police again. They then gave her the name of Attorney General Karin Volker. She emailed Ms. Volker trying to obtain the proper paperwork to get the medical records and blood samples from the hospital. She forwarded to Ms. Volker a copy of the draft search warrant. After several communications with Ms. Volker, Trooper Miller received an e-mail or phone call from Robin Quillen with the Delaware Attorney General's office. Ms. Quillen explained that the paperwork was complete and asked her to meet her at the hospital on a specific day. It was about ten days after the crash. Ms. Quillen and Trooper Miller went to the hospital lab where Ms. Quillen gave the trooper the paperwork that was prepared by the Attorney General's office, which was a subpoena with the trooper's search warrant application attached to it. The paperwork was shown to the hospital personnel and they then turned over the blood samples. Trooper Miller left the hospital with custody of the blood. Thus, the medical records and blood were seized pursuant to a subpoena.
The blood samples were turned into evidence and sent to Drug Scan for testing. Dr. Richard Cohen's Drug Scan report reflects that the blood contained marijuana, 2.4 nanograms of Delta 9, THC which is a marijuana concentrate, per millimeter serum, and 61 nanograms THC which is a marijuana metabolite, milliliters per serum.
Robin Quillen, a detective with the Delaware Attorney General's office testified. She was asked by Deputy Attorney General Karen Volker, in March of 2010, to assist the Pennsylvania State Police in obtaining a blood sample from Christiana Hospital. Ms. Volker provided her with a subpoena and asked her to arrange with the Pennsylvania trooper to meet at the hospital with the subpoena to transfer blood evidence over to the trooper. Attached to it was the application for search warrant from Pennsylvania. Detective Quillen confirmed that she and Trooper Miller met at the hospital, they hand delivered the subpoena to the woman in the lab and she brought them the requested sample on the same day.
Per a stipulation, Deputy Attorney General Karin Volker's testimony would be that she authorized the subpoena that was issued in this case that resulted in the obtaining of [Appellant's] blood. Further, she would testify that the subpoena was inappropriate under Delaware state law and that she should have approved a search warrant for the seizure of the blood. The Commonwealth stipulated that the subpoena was inappropriate for the seizure of everything; the blood and the medical records.
Corporal Steven Ranck, a patrol unit supervisor at Troop J Avondale testified. He had been a trooper for 15 years and previously a police officer for six years. He was offered by the Commonwealth, with no objection, as an expert in narcotics investigations. [Corporal Ranack testified that, in his experience as a narcotics investigator, cigars and cigar wrappers are used for smoking marijuana.]
Corporal Ranck was the ranking trooper at the scene of the crash on March 12, 2010. [Appellant's] car had severe damage and was not drivable. [Appellant] was still in the vehicle and was unresponsive. She was taken away by ambulance. The vehicle was blocking traffic. He testified that the Pennsylvania State Police have a policy for removing vehicles from a crash scene. They have to inventory the vehicle. They look for any valuables to secure for the driver/owner in the event that they are not able to do it for themselves or unable to have somebody there to take care of it for them. Normal procedure when they have vehicles to be towed is to contact the nearest available tow company, which in this case was Chew's [T]owing. He testified that it is a written policy of the Pennsylvania State Police.
Before [Appellant's] vehicle was towed by Chew's Towing, Troopers Martin and Miller advised Corporal Ranck that they found cigars. There were two boxes, one was empty and one had one cigar missing. He recalls the empty box was a small [rectangular shaped] cigar box. Corporal Ranck told the other troopers that the cigars were significant. He considered it as an indicator which raised his suspicion: [Appellant] being relatively young, having cigars and the fact that they were in the vehicle. Trooper Miller took the cigars into custody.
A couple of days later Trooper Miller contacted him and brought him the cigar from the car at Chew's Towing: a small, one inch or so, part of a cigar, like the end of a cigar. When the Corporal saw it, the piece of cigar appeared to be a roach, from his training and experience. He could see that it had what appeared to be a little bit of marijuana in the end of it. Just by looking at it he believed immediately that it was contraband. Because of its appearance he field tested it and it was positive for marijuana. Exhibit C-5 is the cigar, but it is torn up more and some of the wrapper has come off since he first saw it when it was just one piece, intact. He sent it to the lab where, in his experience, substances get distorted or change in appearance because of the examination and testing.
Trial Court Opinion, 11/23/2011, at 2-9 (footnotes in original).
Appellant was charged with the aforementioned crimes. Prior to trial, Appellant filed a motion to suppress evidence that Appellant believed the state police illegally seized. That motion addressed items seized in the search of Appellant's purse on March 12, 2010, the search of Appellant's vehicle on March 15, 2010, and all medical records, blood samples and toxicology reports received from Christiana Hospital on or about March 23, 2010. On April 19, 2011, the trial court held a suppression hearing. On November 23, 2011, the trial court entered an order denying all aspects of Appellant's motion to suppress.
On April 4, 2012, following the completion of a jury trial, Appellant was found guilty of DUI controlled substance, aggravated assault by vehicle while DUI, and four counts of recklessly endangering another person. The trial court then found Appellant guilty of the summary offenses of possession of a small amount of marijuana, careless driving, and reckless driving. The trial court sentenced Appellant on June 4, 2012. This timely appeal followed.
Appellant presents two issues for appeal:
Whether the [t]rial [c]ourt erred and/or abused its discretion in failing to grant [Appellant's] motion to suppress?
Whether the trial court erred and/or abused its discretion in failing to grant [Appellant's] motion to preclude the trial testimony of Dr. Cohn?
Appellant's Brief at 2.
Appellant's first issue challenges the trial court's ruling on her motion to suppress. When reviewing the denial of a motion to suppress, we must consider only the evidence of the prosecution and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Commonwealth v. Foglia, 979 A.2d 357, 360 (Pa. Super. 2009). We are bound by the suppression court's findings if they are supported by the record. Id. "Factual findings wholly lacking in evidence, however, may be rejected." Commonwealth v. Dangle, 700 A.2d 538, 539-540 (Pa. Super. 1997), citing Commonwealth v. Johnson, 663 A.2d 787, 789 (Pa. Super. 1995). We may only reverse the suppression court if the legal conclusions drawn from the findings are in error. Foglia, 979 A.2d at 360.
In this appeal, Appellant argues that the trial court erred in not suppressing three sets of evidence: (1) cigar boxes and their contents recovered from Appellant's purse (located in her vehicle) on March 12, 2010; (2) a cigar containing marijuana recovered from Appellant's vehicle on March 15, 2010, and the lab analysis thereof; and (3) Appellant's medical records and blood samples obtained from Christiana Hospital, located in the state of Delaware.
We begin by considering the legality of the search conducted on March 12, 2010. The certified record reflects that, on March 12, 2010, Appellant was involved in a motor vehicle accident that left her unresponsive and in need of immediate medical attention. Furthermore, unlike the other individuals involved in the accident, no one at the accident scene was able to identify Appellant. Because she was unresponsive and unknown, Trooper Martin searched Appellant's vehicle for her purse in an attempt to learn her identity. During that search, Trooper Martin found not only documents identifying Appellant, but also two cigar boxes, one of which was empty and one which had a single cigar missing. Trooper Martin placed Appellant's purse, including the two cigar boxes, into inventory for safekeeping. The cigar boxes and their contents were eventually entered into evidence.
On appeal, Appellant argues that the March 12, 2010 search of her vehicle and purse were illegal because the police did not have a warrant, did not have probable cause, and did not have Appellant's consent to conduct the search. Appellant's Brief at 17-19. On that basis, Appellant argues that the evidence discovered in the warrantless search should have been suppressed. Id.
The trial court denied Appellant's motion to suppress, holding that, because the motor vehicle accident rendered Appellant unresponsive, and because no one at the scene was able to identify her, exigent circumstances provided Trooper Martin with the legal justification to search Appellant's vehicle and purse for identification. Trial Court Opinion, 11/23/2011, at 10-11.
We conclude that, under the emergency circumstances in this matter, the state troopers lawfully entered Appellant's vehicle to learn her identity, and that within the lawful search for Appellant's identity, the troopers inadvertently discovered the cigar boxes. Consequently, we hold that the trial court did not err in denying ...