Commonwealth v. Hand, 1359 EDA 2020

• Decision Date: 28 May 2021
• Docket Number: No. 1359 EDA 2020,1359 EDA 2020
• Citation: 252 A.3d 1159
• Parties: COMMONWEALTH of Pennsylvania v. Taroun HAND, Appellant
• Court: Pennsylvania Superior Court

252 A.3d 1159

COMMONWEALTH of Pennsylvania

v.Taroun HAND, Appellant

No. 1359 EDA 2020

Superior Court of Pennsylvania.

Filed: May 28, 2021

Peter A. Levin, Philadelphia, for appellant.

Lawrence J. Goode, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Robert F. Petrone, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: BENDER, P.J.E., DUBOW, J., and STEVENS, P.J.E.^*

OPINION BY STEVENS, P.J.E.:

Appellant Taroun Hand appeals from the Order entered in the Court of Common Pleas of Philadelphia County on July 13, 2020, denying his first petition filed pursuant to the Post Conviction Relief Act.¹ Following our review, we affirm.

The trial Court detailed the procedural history and facts herein as follows:

On April 5, 2017, following a waiver trial, Taroun Hand ("Appellant") was found guilty of two counts of simple assault and recklessly endangering another person ("REAP"); and one count of driving under the influence ("DUI")-controlled substance or metabolite 1^st offense; aggravated assault by vehicle while DUI; and DUI of alcohol or controlled substance-impaired ability.¹ On June 5, 2017, this court sentenced Appellant to an aggregate term of five to ten years’ incarceration,² followed by two years of probation. This court further ordered Appellant to pay $1,000.00 in fines, undergo a twelve-month license suspension, and complete alcohol highway safety classes and drug and alcohol assessment.

I. Procedural History-Appellant's Direct Appeal

On June 8, 2017, Appellant filed a timely post-sentence motion, arguing that his sentence was excessive and "based on the wrong guidelines"; this court denied that motion on June 23, 2017.³ On July 18, 2017, Appellant timely filed a notice of appeal. On July 19, 2017, the trial court ordered Appellant to file a statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Appellant timely filed a 1925(b) statement on October 20, 2017, arguing, inter alia , this court erred "in denying [his] Motion to Suppress where the police failed to obtain a warrant to draw the defendant's blood, where exigent circumstances were not present and specific."

This court issued an opinion, on March 16, 2018, asserting that each issue raised by Appellant was without merit. The Superior Court affirmed Appellant's convictions and judgment of sentence in an unpublished memorandum on November 26, 2018. Commonwealth v. Hand, No. 2272 EDA 2017, 2018 WL 6167262 (Pa. Super. Nov. 26, 2018). The Superior Court specifically affirmed "on the basis of the trial court's reasoning." Id. at *2.

II. Procedural History-Appellant's Current Appeal

Appellant filed a pro se petition under the Post Conviction Relief Act⁴ ("PCRA") on January 16, 2019. Attorney Peter A. Levin was appointed to represent Appellant on January 24, 2019, and he filed an amended PCRA petition on July 12, 2019 ("Appellant's PCRA petition"). In his petition, Appellant asserted (1) trial counsel "was ineffective at [the] suppression hearing"; and (2) trial counsel was "ineffective at sentencing." (PCRA Mem. at 12-14). The Commonwealth filed a Motion to Dismiss Appellant's petition on January 22, 2020.

After reviewing Appellant's petitions, the Commonwealth's response, and all relevant matters of record, this court determined that Appellant's claims were meritless, did not raise any issue of material fact, and did not warrant an evidentiary hearing. Accordingly, on February 26, 2020, this court issued an order informing Appellant that his petition would be dismissed pursuant to Pa.R.Crim.P. 907, and formally dismissed the petition on July 13, 2020.

Two days later, on July 15, 2020, Appellant timely filed a notice of appeal. On July 17, 2020, this court ordered Appellant to file a statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Appellant timely filed his 1925(b) statement on August 4, 2020[.]

***

FACTS

Appellant's charges arise from a pre- Birchfield incident, during which he caused a four-vehicle accident and injured two minor pedestrians while driving under the influence of narcotics.

On July 8, 2014, around 4:00 p.m., Officer Robert McCarthy ("Officer McCarthy") and Officer Phillip Scratchard ("Officer Scratchard") responded to reports of a four-car accident on the 700 block of Lehigh Avenue in Philadelphia. (N.T. 6/1/16 at 6). Upon their arrival, the officers observed a red 1998 Dodge Caravan on the sidewalk, and witnesses identified Appellant as the operator of the vehicle. (Id. at 9-10). A SEPTA (Southeastern Pennsylvania Transportation Authority) bus driver informed the officers that she was traveling eastbound on Lehigh Avenue when Appellant, traveling westbound, drove his vehicle across several lanes of traffic and continued into oncoming traffic. (Id. at 31); see also, (N.T. 4/5/17 at 61). Appellant attempted to swerve around the bus, but crashed into the bus's rear, passenger-side tire. (N.T. 6/1/16 at 31). Appellant did not attempt to stop his vehicle, and continued traveling westbound into eastbound traffic. (Id. at 31).

Two additional witnesses, Alicia Ford and Myra Alicia, told officers that after Appellant collided with the bus, he struck a second vehicle (a parked, red 1992 Toyota Camry), before colliding with a yet another parked vehicle (a white 2004 Jeep Liberty). (Id. at 31-32). Appellant struck the third vehicle with such force that it was forced onto the sidewalk, where the vehicle struck and injured two pedestrian children. (Id. at 32); (N.T. 4/5/17 at 61).

The children's mother, Santa Caraballo ("Caraballo"), testified that she and her two daughters were standing on the sidewalk when they saw Appellant's vehicle "come across multiple lanes of Lehigh Avenue, hit a SEPTA bus, hit two parked cars -- including a white jeep that hit both of her daughters." (Id. at 61). When the Jeep struck the girls, N.T. (who was thirteen years old at the time) flew through the air, struck a nearby wall, and lost consciousness. (Id. at 61-62). The other minor, E.F. (who was only seven years old), was trapped under the Jeep. (Id. at 62). Caraballo testified E.F.'s body was crushed under the vehicle, and observers were only able to see the child's feet. (Id.). Thankfully, several bystanders managed to remove the minor from under the Jeep. (Id.).

Both minors were subsequently transported to St. Christopher's Hospital. (N.T. 4/5/17 at 66-68). Doctors treated N.T. for abrasions and minor injuries, and discharged her from the hospital that night. (Id. at 66-67). After the incident, she continued to suffer from. soreness in her neck and head. (Id. at 67). However, E.F. sustained several severe injuries, including a broken pelvis, a broken leg, and a lacerated liver. (Id. at 67-68). E.F. was hospitalized for nearly three weeks and bedridden for an additional three weeks in her home. (Id. at 68). Doctors placed E.F.’s torso and right leg into full casts, and the child required physical therapy and crutches throughout the majority of the following year. (Id.).

As the complainants received medical care, responding officers interviewed Appellant at the scene of the incident. Officer McCarthy noted that Appellant did not smell like alcohol, but he had bloodshot eyes and his speech was so slow and slurred that he was "incoherent" (N.T. 6/1/16 at 11-13, 17-18). Based on the officer's sixteen years of experience, he believed that Appellant was under the influence of narcotics and unfit to safely operate a motor vehicle. (Id. at 14-15). Officer McCarthy arrested Appellant, and police-escorted medics transported him to the hospital. (Id. at 24).

At the hospital, Accident Investigation District ("AID") Officer Mark Minke read Appellant his O'Connell⁶ warnings and a 75-439 Form, which outlined his rights and the potential criminal consequences of refusing to submit to a blood draw. (N.T. 6/10/16 at 6-7). After reviewing the warnings with Officer Minke, Appellant consented to a blood draw. (Id. at 9). Forensic toxicologist Dr. Richard Cohn then administered a DRUGSCAN blood test and determined that Appellant's blood contained traces of Clonazepam (a schedule IV narcotic) and Oxycodone (a schedule II narcotic). (N.T. 4/5/17 at 69). He concluded to a reasonable degree of scientific certainty that Appellant had recently used "multiple psychoactive agents taken concomitantly or at close time proximity to one another," and he had used "toxicologically significant dosage amounts," such that he was unfit to safely operate a motor vehicle at the time of the accident. (Id. at 69-70).

Prior to trial, Appellant moved to suppress evidence of the blood draw, arguing that he had been arrested without sufficient probable cause. Following a bifurcated hearing on June 1, 2016 and June 10, 2016, this court denied Appellant's motion. Less than two weeks later, the Supreme Court of the United States issued its opinion in Birchfield v. North Dakota, holding that "motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense." [––– U.S. ––––], 136 S. Ct. 2160, 2186 [195 L.Ed.2d 560[ (2016). Accordingly, this court granted reconsideration of Appellant's motion. During the reconsideration hearing, the Commonwealth conceded that Appellant's consent was invalid, arguing instead that exigent circumstances namely the natural dissipation of intoxicants in the blood stream-justified a warrantless blood draw. (N.T. 4/5/17 at 6).

To show that there was exigency in the case at bar, the Commonwealth offered testimony from Philadelphia Police Officer William Lackman ("Officer Lackman"), who specialized in major crashes and DUIs.⁷ (Id. at 10). He opined, after reviewing the record in this specific case, that it would have taken at least six hours to obtain [a] warrant for the underlying blood draw. (Id. at 14). He further explained that the DRUGSCAN test used in this case could only detect traces of illicit substances injected or ingested within six hours of the tests’

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