J-A26025-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellant

                     v.

COLBY MICHAEL SNYDER

                          Appellee                   No. 552 MDA 2017


                Appeal from the Order Entered March 3, 2017
            In the Court of Common Pleas of Cumberland County
            Criminal Division at No(s): CP-21-CR-0002727-2016

BEFORE:     BOWES, OLSON AND RANSOM, JJ.

MEMORANDUM BY OLSON, J.:                        FILED DECEMBER 29, 2017

      The Commonwealth of Pennsylvania appeals from the March 3, 2017

order granting Colby Michael Snyder’s (“Appellee’s”) suppression motion. We

affirm.

      The factual background of this case is as follows. At approximately 9:25

p.m. on June 11, 2016, Pennsylvania State Police Trooper Michael Rosewarne

noticed Appellee’s vehicle traveling at a high rate of speed, changing lanes

without a turn signal, and weaving on Interstate 81.      Trooper Rosewarne

initiated a traffic stop at which time he noticed an odor of alcohol emanating

from Appellee. When Appellee exited the vehicle he was staggering and had

trouble locating his license, registration, and insurance card. Appellee failed

multiple field sobriety tests.   A portable breathalyzer test showed a blood

alcohol concentration (“BAC”) of .121.
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        Appellee was transported to a local booking center where he was read

the then-current DL-26 warnings. Those warnings informed Appellee that he

would be subjected to increased criminal penalties if he refused to submit to

a blood draw. After being read the DL-26 warnings, Appellee submitted to a

blood draw. That blood draw indicated that Appellee had a BAC of .213.

        The procedural history of this case is as follows. On November 14, 2016,

the Commonwealth charged Appellee via criminal information with driving

under the influence (“DUI”) – general impairment,1 DUI – highest rate,2 and

three summary traffic offenses.          On December 16, 2016, Appellant filed a

motion to suppress the blood draw evidence in light of the Supreme Court of

the United States’ decision in Birchfield v. North Dakota, 136 S.Ct. 2160

(2016).    In Birchfield, the Supreme Court of the United States held that

police can compel a driver to give a breath sample without a warrant;

however, police cannot compel a driver to provide a blood sample without first

obtaining a search warrant except in certain limited circumstances. At the

conclusion of a suppression hearing on March 3, 2017, the trial court




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1   75 Pa.C.S.A. § 3802(a)(1).

2   75 Pa.C.S.A. § 3802(c).




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suppressed the blood draw evidence. This timely interlocutory appeal as of

right followed.3 See Pa.R.A.P. 311(d).

       The Commonwealth presents two issues for our review:

    1. Did the [t]rial [c]ourt improperly apply the exclusionary rule
       where there was established probable cause and the police were
       properly following established [] precedent?

    2. Did the [t]rial [c]ourt improperly suppress the results of
       [Appellee]’s blood draw when [Appellee] provided actual valid
       consent for the blood draw as demonstrated by his cooperative
       behavior and admittance that he had consumed too much alcohol?

Commonwealth’s Brief at 4.

       Both of the Commonwealth’s issues challenge the trial court’s

suppression of the blood draw evidence. “Once a motion to suppress evidence

has been filed, it is the Commonwealth’s burden to prove, by a preponderance

of the evidence, that the challenged evidence was not obtained in violation of

the defendant’s rights.” Commonwealth v. Evans, 153 A.3d 323, 327 (Pa.

Super. 2016) (citation omitted).          Our standard of review in addressing a

challenge to a trial court’s order granting a suppression motion is whether the

factual findings are supported by the record and whether the legal conclusions

drawn from those facts are correct. See Commonwealth v. Champney,

161 A.3d 265, 271 (Pa. Super. 2017) (en banc) (citation omitted). “[O]ur


____________________________________________


3 On March 30, 2017, the trial court ordered the Commonwealth to file a
concise statement of errors complained of on appeal (“concise statement”).
See Pa.R.A.P. 1925(b). On April 12, the Commonwealth filed its concise
statement. On April 19, 2017, the trial court issued its Rule 1925(a) opinion.
Both of the Commonwealth’s issues were included in its concise statement.

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scope of review is limited to the factual findings and legal conclusions of the

[trial] court.” In re L.J., 79 A.3d 1073, 1080 (Pa. 2013) (citation omitted).

“When the Commonwealth appeals from a suppression order, we . . . consider

only the evidence from the defendant’s witnesses together with the evidence

of the prosecution that, when read in the context of the entire record, remains

uncontradicted.” Commonwealth v. Young, 162 A.3d 524, 527 (Pa. Super.

2017) (citation omitted).         “Where the [trial] court’s factual findings are

supported by the record, we are bound by these findings and may reverse

only if the [trial] court’s legal conclusions are erroneous.” Commonwealth

v. Palmer, 145 A.3d 170, 173 (Pa. Super. 2016) (citation omitted).

       First, the Commonwealth argues that the good-faith exception to the

exclusionary rule, as set forth in Davis v. United States, 564 U.S. 229

(2011) and Illinois v. Krull, 480 U.S. 340 (1987), applies in this case. After

this case was fully briefed, this Court held that the Davis/Krull rule does not

apply to claims brought pursuant to Article I, Section 8 of the Pennsylvania

Constitution.     Commonwealth v. Carper, 172 A.3d 613, 618-620 (Pa.

Super. 2017).4 This Court explained that “the fact that police acted in good-

faith reliance on appellate precedent was irrelevant when determining if the

blood draw evidence was admissible at trial.” Id. at 620. Therefore, the trial



____________________________________________


4 The District Attorney of Cumberland County upheld the highest ideals of the
legal profession by filing an application for post-submission communication
which noted that Carper may control the first issue presented in this case.

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court correctly held that the blood draw evidence was not admissible pursuant

to the good-faith exception to the exclusionary rule as set forth in Davis and

Krull.

      In its second issue, the Commonwealth argues that, notwithstanding the

partially inaccurate DL-26 warnings, Appellee’s consent was voluntary.

Appellee argues that we cannot reach this question because it is a factual

question “outside the plenary review of pure questions of law.” Appellee’s

Brief at 7. This argument confuses this Court’s standard of review with our

power to review trial court decisions. As noted above, we may reverse a trial

court’s   factual   findings   when   they   are   unsupported   by   the   record.

Champney, 161 A.3d at 271. Thus, we have both the power and obligation

to review the trial court’s factual findings to determine if they are supported

by the record.

      When a defendant is given partially inaccurate DL-26 warnings, the trial

court must evaluate his or her “consent based on the totality of all the

circumstances and given the partial inaccuracy of the officer’s advisory.”

Evans, 153 A.3d at 331 (internal ellipses and alterations omitted), quoting

Birchfield, 136 S.Ct. at 2186. Our Supreme Court has explained that:

      While there is no hard and fast list of factors evincing
      voluntariness, some considerations include: 1) the defendant’s
      custodial status; 2) the use of duress or coercive tactics by law
      enforcement personnel; 3) the defendant’s knowledge of his right
      to refuse to consent; 4) the defendant’s education and
      intelligence; 5) the defendant’s belief that no incriminating
      evidence will be found; and 6) the extent and level of the
      defendant’s cooperation with the law enforcement personnel.

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Commonwealth v. Gillespie, 821 A.2d 1221, 1225 (Pa. 2003) (Eakin, J.,

opinion announcing the judgment of the court) (internal quotation marks

omitted), citing Commonwealth v. Cleckley, 738 A.2d 427, 433 n.7 (Pa.

1999).

      In this case, we conclude that the trial court’s factual finding that the

Commonwealth failed to prove by a preponderance of the evidence that

Appellee’s consent was voluntary is supported by the record. Contrary to the

Commonwealth’s argument, Appellee was clearly in custody. He was placed

in handcuffs and transported in the back of a police cruiser to the local booking

center. The fact that other people were present during the blood draw fails to

indicate Appellee was not in custody. Thus, the first Cleckley factor weighed

against a finding of consent.

      Second, the Commonwealth used coercive tactics, i.e., Trooper

Rosewarne read Appellee the partially incorrect DL-26 warnings.              We

acknowledge that Trooper Rosewarne acted in good-faith reliance on then-

binding appellate precedent when reading the partially incorrect DL-26

warnings. Nonetheless, Trooper Rosewarne reading the partially incorrect DL-

26 warnings was coercive. Thus, the second Cleckley factor weighed against

a finding of consent.

      The Commonwealth argues that Appellee knew he had a right to refuse

a blood draw because the DL-26 warnings informed him of this right.


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Moreover, the Commonwealth contends that the license suspension that

follows from refusing a blood draw was akin to the increased criminal

penalties.    This Court has previously rejected similar arguments.          In

Commonwealth v. Ennels, 167 A.3d 716 (Pa. Super. 2017), the defendant

was facing the same criminal penalties whether he consented to a blood draw

or not. This Court held that this fact was “irrelevant to the voluntary-consent

analysis.” Id. at 724. Instead, this Court held that the fact that the DL-26

warnings incorrectly informed the defendant that he faced increased criminal,

i.e., not civil, penalties if he refused a blood test was the relevant factor.

Therefore, the third Cleckley factor weighed against a finding of consent.

      Next, the Commonwealth contends that Appellee’s prior DUI arrests

evidence his education regarding the DUI arrest process. We agree with this

assertion; however, we disagree with the inference the Commonwealth draws

from this assertion. These prior arrests for DUI indicate that Appellee was not

aware of his right to refuse a blood draw.     As noted above, the partially

inaccurate DL-26 warnings informed Appellee, although he could refuse a

blood draw, he would face increased criminal penalties if he did so. This was

not the first time that Appellee was read these warnings. He was read the

warnings during his prior DUI arrests. Therefore, he was informed on multiple

occasions, by separate law enforcement officers, that refusing to consent to a

blood draw would result in stiffer penalties. Thus, the fourth Cleckley factor

weighed against a finding of consent.


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      Finally, the Commonwealth argues that Appellee’s cooperation in

performing field sobriety tests and taking a portable breathalyzer test

indicates his cooperation with law enforcement.     We agree that this factor

weighs in favor of a finding of consent. There were no signs that Appellee

stopped cooperating with law enforcement. Even his refusal to perform one

field sobriety test was done in order to speed the process along.

      Although the trial court did not cite Cleckley, it carefully weighed these

factors and found that Appellee’s consent was involuntary. See Trial Court

Opinion, 4/19/17, at 3-4. As an appellate court, we may not reweigh these

factors. See Commonwealth v. Baker, 24 A.3d 1006, 1020 (Pa. Super.

2011), aff’d, 78 A.3d 1044 (Pa. 2013). Accordingly, we conclude that the

record supports the trial court’s factual finding and affirm the order granting

Appellee’s suppression motion.

      Application to file a post-submission communication granted.        Order

affirmed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/29/17




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