J-S20027-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    CRAIG BRIAN WEINER                         :   No. 1803 MDA 2017

                Appeal from the Order Entered October 25, 2017
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0001704-2017


BEFORE: GANTMAN, P.J., OTT, J., and KUNSELMAN, J.

MEMORANDUM BY OTT, J.:                                    FILED JUNE 11, 2018

       The Commonwealth appeals from the order entered October 25, 2017,

in the Court of Common Pleas of Berks County, that granted appellee’s, Craig

Brian Weiner’s, motion to suppress blood test results obtained after he gave

consent to a blood draw during the course of a driving under the influence

(DUI) investigation,1 and granted his motion for writ of habeas corpus as to

Count 2, DUI – 75 Pa.C.S. § 3802(c). The Commonwealth contends (1) the

trial court erred in suppressing evidence pursuant to Birchfield v. North

Dakota, 136 S.Ct. 2160 (2016),2 where the DL-26B form read to appellee
____________________________________________


1The Commonwealth has certified that the trial court’s ruling terminated or
substantially handicaps the prosecution of this case.

2 Birchfield “prohibit[s] states from imposing criminal penalties upon an
individual’s refusal to submit to a warrantless blood test.” Commonwealth
v. Smith, 177 A.3d 915, 921 (Pa. Super. 2017), citing Birchfield, 136 S.Ct.
at 2185.
J-S20027-18



had been modified to remove the objectionable language regarding the

enhanced penalties for a blood testing refusal, rendering the consent to the

blood draw voluntary, (2) the trial court erred in suppressing evidence

pursuant to Birchfield, supra, where the totality of the circumstances

indicates that the consent to the blood draw was voluntary, and (3) the trial

court erred in granting the request for a writ of habeas corpus for Count 2,

DUI -75 Pa.C.S. § 3802(c), without permitting the Commonwealth to appeal

from the adverse suppression ruling. See Commonwealth Brief at 4. Based

upon the following, we reverse the trial court’s suppression order, reinstate

the dismissed DUI charge at Count 2, and remand for further proceedings.

        On December 10, 2016, Trooper James Green of the Pennsylvania State

Police arrested appellee for suspected DUI.3 Appellee was transported to the

Berks    County    DUI    Processing     Center.   Trooper   Green   read   appellee

Pennsylvania Department of Transportation (PennDOT) Form DL-26B.4 The
____________________________________________


3   75 Pa.C.S. § 3802.

4   The DL-26B form provided, in relevant part:

        It is my duty as a police officer to inform you of the following:

        1. You are under arrest for driving under the influence of
        alcohol or a controlled substance in violation of Section 3802
        of the Vehicle Code.

        2. I am requesting that you submit to a chemical test of blood.

        3. If you refuse to submit to the blood test, your operating
        privileges will be suspended for at least 12 months. If you



                                           -2-
J-S20027-18



DL-26B form that Trooper Green used to obtain consent for blood testing was

updated following Birchfield to remove previous DL-26 language regarding

enhanced criminal penalties for refusal to submit to a blood test. Appellee

signed the DL-26B form and submitted to the blood draw.              The testing

revealed a BAC of .204.

        On December 28, 2016, appellee was charged with DUI,5 illegally

operating a motor vehicle not equipped with ignition interlock,6 and related

offenses. On June 7, 2017, appellee filed an omnibus pretrial motion, seeking

to suppress the blood test results. A hearing was held on August 14, 2017.

Thereafter, on October 25, 2017, the trial court issued findings of fact and

conclusions of law and granted appellee’s suppression motion as well as

appellee’s motion for writ of habeas corpus as to Count 2, DUI – 75 Pa.C.S. §

3802(c). This appeal by the Commonwealth followed.



____________________________________________


        previously refused a chemical test or were previously
        convicted of driving under the influence, you will be suspended
        for up to 18 months.

        4. You have no right to speak to an attorney or anyone else before
        deciding whether to submit to testing. If you request to speak with
        an attorney or anyone else after being provided these warnings or
        you remain silent when asked to submit to a blood test, you will
        have refused the test.

N.T., 8/14/2017, Commonwealth’s Exhibit 1.

5   75 Pa.C.S. § 3802(a)(1) and (c).

6   75 Pa.C.S. § 3808(a)(1).

                                           -3-
J-S20027-18



      Our standard of review of the trial court’s suppression ruling is well

settled:

           When the Commonwealth appeals a suppression order, we
           consider only the evidence from [Appellee’s] witnesses
           together with the portion of the Commonwealth’s evidence
           which is uncontroverted. Our standard of review is limited
           to determining whether the suppression court’s factual
           findings are supported by the record, but we exercise de
           novo review over the suppression court's conclusions of
           law.

      Further, “[a]ppellate courts are limited to reviewing only the
      evidence presented at the suppression hearing when examining a
      ruling on a pre-trial motion to suppress.” “It 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. Thomas, 179 A.3d 77, 81 (Pa. Super. 2018) (citation

and internal citations omitted).

      The Commonwealth first contends “the trial court err[ed] in suppressing

evidence pursuant to Birchfield … where the DL-26B form was modified to

remove the objectionable language regarding the enhanced penalties for a

blood testing refusal, rendering the consent to the blood draw voluntary.”

Commonwealth Brief at 4. Appellee counters that “[a]t the time of the alleged

offense, our Legislature had not responded to Birchfield and hence, [75

Pa.C.S.] § 3804(c) and [75 Pa.C.S.] § 1547(b)(2) (both relating to penalties

for refusing chemical testing) remained unmodified.” Appellee’s Brief at 10.

      The identical claim presented by the Commonwealth in this appeal was

recently addressed in Commonwealth v. Robertson, ___ A.3d ___ [2018


                                     -4-
J-S20027-18


Pa. Super. LEXIS 426] (Pa. Super. May 3, 2018), where a panel of this court

found merit in the Commonwealth’s argument.              Accordingly, because

Robertson is controlling in this case, we simply reiterate its holding that

PennDOT had the authority to amend the DL-26 form prior to the legislation

that amended Section 3804, and that appellee was presumed to know both

statutory and case law.7 Accordingly, applying Robertson, we find merit in

the Commonwealth’s first issue.

       In the second issue, the Commonwealth contends the trial court erred

in suppressing evidence pursuant to Birchfield, supra, where the totality of

the circumstances indicates that the consent to the blood draw was voluntary.

In reviewing this claim, Robertson is instructive:

       Under [Commonwealth v.] Evans[,153 A.3d 323 (Pa. Super.
       2016)], a trial court must consider the totality of the
       circumstances when determining if a defendant’s consent to a
       blood draw was voluntary. Evans, 153 A.3d at 328 (citation
       omitted). As our Supreme Court explained:

           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.


____________________________________________


7 A three-judge panel of this Court is not empowered to overrule another
three-judge panel of the Superior Court. Commonwealth v. Beck, 78 A.3d
656, 659 (Pa. Super. 2013). See also Commonwealth v. Hull, 705 A.2d
911, 912 (Pa. Super. 1998).

                                           -5-
J-S20027-18


      Commonwealth v. Gillespie, 573 Pa. 100, 821 A.2d 1221, 1225
      (Pa. 2003) (Eakin, J., opinion announcing the judgment of the
      court) (cleaned up), citing Commonwealth v. Cleckley, 558
      Pa. 517, 738 A.2d 427, 433 n.7 (Pa. 1999).

Robertson, supra at *14-*15.

      The trial court and appellee take the position appellee’s consent was

involuntary because Form DL-26B did not correctly state the law since the

constitutional defects in Section 3804 had not been cured at the time of

appellee’s arrest. However, this reasoning fails because, as the Robertson

panel held, an individual is presumed to know statutory law and case law,

i.e., Birchfield. The trial court does not point to any other fact to justify its

finding of lack of voluntary consent.

      For his part, appellee relies on Commonwealth v. Myers, 164 A.3d

1162 (Pa. 2017) to argue his consent was involuntary. This argument,

however, was rejected in Commonwealth v. Miller, ___ A.3d ___ [2018 Pa.

Super.   LEXIS   427]   (Pa.   Super.    May   3,   2018),   which   was   issued

contemporaneously with Robertson. The Miller panel distinguished Myers,

which involved a defendant who was unconscious and incapable of consent to

a blood draw. Miller, supra, at *4-*5. In addition, we point out that in

Miller, the panel rejected the defendant’s argument that based on his prior

DUI convictions he had a subjective belief that he could not refuse a blood

test without criminal penalties. The Miller Court held, “Appellee’s failure to

recognize that [the police officer’s] warnings differed from those he received

in the past, and his reliance on the previous police interaction, cannot weigh

heavily against finding voluntary consent.” Miller, supra at *6.

                                        -6-
J-S20027-18



      Here, the trial court made the following findings of fact that are relevant

to the factors to be considered in determining voluntariness of consent. On

December 10, 2016, Trooper Green arrested appellee for suspected DUI and

transported him to the Berks County DUI Processing Center. Trooper Green

read the DL-26B form to appellee in a conversational tone. Trooper Green

testified he, the phlebotomist, his partner, and one or two Berks County

detectives were present in the room when he read the DL-26B form to

appellee. Trooper Green did not recall if appellee was in handcuffs, and if he

asked anything about the consequences of refusing the blood test. Trooper

Green testified appellee did not ask about Birchfield.      Appellee had been

convicted of DUI three or four times prior to the date that Trooper Green read

the DL-26B to appellee. Trooper Green did not inform appellee that he had a

constitutional right to refuse the blood test. Trooper Green did not advise

appellee he would not face increased criminal penalties if he refused the blood

test. Trooper Green did not have a warrant. Appellee submitted to the blood

draw. See Trial Court’s Findings of Fact and Conclusions of Law, 10/23/2017,

¶¶1-12.

      Based on our review, this Court concludes that the facts of the instant

case, set forth above, clearly weigh in favor of a finding of voluntariness. The

only factor that weighs against a finding of voluntariness is the fact that

appellee was in custody. While several law enforcement officers were present

in the room, there is no evidence of duress or coercive tactics. Trooper Green

properly advised appellee he could refuse the blood test and be subject to

                                      -7-
J-S20027-18



certain civil penalties. Furthermore, any subjective belief of appellee that he

could not refuse a blood test without criminal penalties does not weigh heavily

against voluntariness. No evidence was presented regarding whether appellee

was aware that incriminating evidence would be found in his blood. Lastly,

appellee cooperated with police. As such, this Court concludes no reasonable

factfinder could determine appellee’s consent was involuntary. Therefore, we

find merit in the Commonwealth’s second argument.

      The Commonwealth’s final claim is that the trial court erred in granting

the request for a writ of habeas corpus for Count 2, DUI - 75 Pa.C.S.

§ 3802(c), without permitting the Commonwealth to exercise its absolute

right to appeal from the adverse suppression ruling.           We agree.     In

Commonwealth v. Micklos, 672 A.2d 796, 801 (Pa. Super. 1996) (en banc),

this Court held that the trial court lacked the power to grant a writ of habeas

corpus before allowing the Commonwealth an opportunity to appeal the

adverse suppression ruling.    By entering an order granting suppression and

concurrently dismissing the DUI charge, “the trial court deprived the

Commonwealth from any opportunity to exercise its absolute right to appeal

from [the] adverse suppression ruling[].” Id.

      Accordingly, we reverse the trial court’s suppression order, reinstate the

DUI charge at Count 2, and remand for further proceedings consistent with

this memorandum.




                                     -8-
J-S20027-18



     Order reversed. Case remanded. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/11/2018




                                  -9-
