J-A23028-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                    Appellant             :
                                          :
                                          :
              v.                          :
                                          :
                                          :
 KAREN ANN HOYLE                          :   No. 99 WDA 2018

                 Appeal from the Order December 19, 2017
    In the Court of Common Pleas of Greene County Criminal Division at
                      No(s): CP-30-CR-0000175-2017


BEFORE: BOWES, J., SHOGAN, J., and STABILE, J.

MEMORANDUM BY SHOGAN, J.:                         FILED FEBRUARY 6, 2019

      The Commonwealth appeals from the order granting the pretrial motion

to suppress evidence filed by Appellee, Karen Ann Hoyle. We affirm.

      On the night of September 1, 2016, Pennsylvania State Trooper John

Pash pulled over Appellee when he observed that one-half of her tail light and

one-half of her brake light were not functioning. Upon approaching Appellee’s

vehicle, the trooper noticed a strong odor of alcohol coming from Appellee’s

breath and that her eyes were bloodshot. The officer conducted a portable

breath test and, based on the results, (1) the trooper arrested Appellee, (2)

transported her to the hospital, and (3) asked her to submit to a blood test.

The trooper alleged that, at the hospital, he read Appellee her implied consent
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warnings from Pennsylvania Department of Transportation form DL-26.1

However, neither Trooper Pash nor Appellee signed a DL-26 form, and

Appellee has testified that she did not receive such warnings. The results of

the blood test indicated that Appellee had a blood alcohol content (“BAC”) of

0.184%. Appellee was charged with two counts of driving under the influence

(“DUI”) and one count of reckless driving.2

        On September 25, 2017, Appellee filed a motion to suppress the results

of the blood test. which challenged the validity of the blood draw. The trial

court held a suppression hearing on December 4, 2017. On December 19,

2017, the trial court entered an order determining that the seizure of

Appellee’s blood was not voluntary or consensual and ordered that the results

of the blood test be suppressed pursuant to Birchfield v. North Dakota, 136

S.Ct. 2160 (2016).3 The Commonwealth filed this timely appeal. Pursuant to

Pa.R.A.P. 311(d), the Commonwealth certified in its notice of appeal that the

order appealed from substantially handicapped or terminated the prosecution




____________________________________________


1 Form DL-26 is issued by Pennsylvania’s Department of Transportation
describing Pennsylvania’s implied consent law, 75 Pa.C.S. § 1547.

2   75 Pa.C.S. §§ 3802(c), 3802(a)(1), and 3712(a).

3Birchfield held that the Fourth Amendment to the United States Constitution
does not permit warrantless blood tests incident to arrests for drunk driving
and that a state may not criminalize a motorist’s refusal to comply with a
demand to submit to blood testing. Birchfield, 136 S. Ct. at 2185-2186.

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of Appellee. Both the Commonwealth and the trial court have complied with

Pa.R.A.P. 1925.

     The Commonwealth presents the following issue for our review:

     DID THE COURT ERR IN DELCARING THE APPELLEE’S CONSENT
     TO A BLOOD DRAW INVOLUNTARY AND SUPPRESSING THE
     EVIDENCE OBTAINED AS A RESULT?

Commonwealth’s Brief at 9.

     In its sole issue, the Commonwealth argues that the trial court erred in

granting Appellee’s motion to suppress. Commonwealth’s Brief at 14-18. The

Commonwealth contends that the decision in Birchfield did not hold that an

individual has a Constitutional right to refuse a warrantless blood draw.

Rather, the Commonwealth posits that Birchfield forbids the imposition of

criminal penalties for non-compliance with implied consent laws.         The

Commonwealth claims that the trial court, in determining whether Appellee’s

consent was voluntary, erred in considering whether Appellee was expressly

informed of her right to refuse the blood draw. The Commonwealth asserts

that, because Appellee was never warned of enhanced criminal penalties for

refusing a blood draw, there was no reason to declare her consent to be

involuntary.

     The standard of review an appellate court applies when considering an

order granting a suppression motion is well established and has been

summarized as follows:

           We begin by noting that where a motion to suppress
           has been filed, the burden is on the Commonwealth to

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            establish by a preponderance of the evidence that the
            challenged evidence is admissible. In reviewing the
            ruling of a suppression court, our task is to determine
            whether the factual findings are supported by the
            record. If so, we are bound by those findings. Where,
            as here, it is the Commonwealth who is appealing the
            decision of the suppression court, we must consider
            only the evidence of the defendant’s witnesses and so
            much of the evidence for the prosecution as read in
            the context of the record . . . remains uncontradicted.

      Moreover, if the evidence when so viewed supports the factual
      findings of the suppression court, this Court will reverse only if
      there is an error in the legal conclusions drawn from those
      findings.

Commonwealth v. Lindblom, 854 A.2d 604, 605 (Pa. Super. 2004)

(citations omitted). In addition, our scope of review from a suppression ruling

is limited to the evidentiary record that was created at the suppression

hearing. In re L.J., 79 A.3d 1073, 1087 (Pa. 2013).

            With respect to factual findings, we are mindful that it is the
      sole province of the suppression court to weigh the credibility of
      the witnesses. Further, the suppression court judge is entitled to
      believe all, part or none of the evidence presented. However,
      where the factual determinations made by the suppression court
      are not supported by the evidence, we may reject those findings.
      Only factual findings which are supported by the record are
      binding upon this court.

Commonwealth v. Benton, 655 A.2d 1030, 1032 (Pa. Super. 1995)

(citations omitted). Moreover, questions of the admission and exclusion of

evidence are within the sound discretion of the trial court and will not be

reversed on appeal absent an abuse of discretion. Commonwealth v. Freidl,

834 A.2d 638, 641 (Pa. Super. 2003).




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      Further, Pennsylvania Rule of Criminal Procedure 581, which addresses

the suppression of evidence provides, in relevant part, as follows:

      (H) The Commonwealth shall have the burden . . . of establishing
      that the challenged evidence was not obtained in violation of the
      defendant’s rights.

Pa.R.Crim.P. 581(H).

      Both the United States and Pennsylvania Constitutions prohibit

“unreasonable searches and seizures.” U.S. Const. amend. IV; Pa. Const. art.

1, § 8. As we have explained:

      “[a] search conducted without a warrant is deemed to be
      unreasonable and therefore constitutionally impermissible, unless
      an established exception applies.” Commonwealth v. Strickler,
      563 Pa. 47, 757 A.2d 884, 888 (2000). “Exceptions to the warrant
      requirement include the consent exception, the plain view
      exception, the inventory search exception, the exigent
      circumstances exception, the automobile exception . . ., the stop
      and frisk exception, and the search incident to arrest exception.”
      Commonwealth v. Dunnavant, 63 A.3d 1252, 1257 n.3 (Pa.
      Super. 2013).

      The “administration of a blood test . . . performed by an agent of,
      or at the direction of the government” constitutes a search under
      both the United States and Pennsylvania Constitutions.
      Commonwealth v. Kohl, 532 Pa. 152, 615 A.2d 308, 315
      (1992); Schmerber v. California, 384 U.S. 757, 770, 86 S.Ct.
      1826, 16 L.Ed.2d 908 (1966). Since the blood test in the case at
      bar was performed without a warrant, the search is presumptively
      unreasonable “and therefore constitutionally impermissible,
      unless an established exception applies.” Strickler, 757 A.2d at
      888.

Commonwealth v. Evans, 153 A.3d 323, 327-328 (Pa. Super. 2016). “One

such exception is consent, voluntarily given.”      Strickler, 757 A.2d 888

(citation omitted). Under the Fourth Amendment, where an encounter with



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law enforcement is lawful, voluntariness of consent to a search becomes the

exclusive focus. Id.

     Our Supreme Court has applied the following standard to determine

whether an individual has validly consented to a chemical test:

     In determining the validity of a given consent, the Commonwealth
     bears the burden of establishing that a consent is the product of
     an essentially free and unconstrained choice—not the result of
     duress or coercion, express or implied, or a will overborne—under
     the totality of the circumstances. The standard for measuring the
     scope of a person’s consent is based on an objective evaluation of
     what a reasonable person would have understood by the exchange
     between the officer and the person who gave the consent. Such
     evaluation includes an objective examination of the maturity,
     sophistication and mental or emotional state of the defendant.
     Gauging the scope of a defendant’s consent is an inherent and
     necessary part of the process of determining, on the totality of the
     circumstances presented, whether the consent is objectively valid,
     or instead the product of coercion, deceit, or misrepresentation.

Commonwealth v. Smith, 77 A.3d 562, 573 (Pa. 2013) (internal citations

and quotation marks omitted).

     The trial court offered the following analysis in reviewing the testimony

presented at the suppression hearing and determining that the results of the

blood draw must be suppressed:

           The [c]ourt notes that there was no refusal in the instant
     case and that blood was drawn which revealed a blood alcohol
     rating of 0.184 % this, however, was drawn without a search
     warrant. In light of Birchfield, a motorist’s implied consent to a
     blood draw, is no longer an exception to the Fourth Amendment
     [w]arrant requirement. Given the fact that no search warrant was
     issued for seizure of the blood, the [c]ourt must look to any
     exception, to the Fourth Amendment-particularly consent.




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               The [c]ourt will note that O’Connell Warnings 4 were not
        signed by [Appellee] or the arresting officer. The [c]ourt does not
        find this necessarily fatal to the Commonwealth’s case, as the
        O’Connell Warnings are generally related to the intent to inform
        the individual with regard to the right to remain silent and the
        right to counsel which do not attach under what remains of implied
        consent after Birchfield.

              O’Connell Warnings are not designed to replace informed
        consent. The [c]ourt must look to the totality of the circumstances
        to determine whether the seizure of blood was consensual and
        therefore, an exception to the [w]arrant [r]equirement. The
        [c]ourt will note that [Appellee] was subject to field sobriety
        testing, was in police custody from the time that her vehicle was
        stopped, presumably was transported in the back of a patrol
        vehicle, handcuffed and taken directly to the Waynesburg
        Hospital, where blood was drawn.

              The [c]ourt notes [Appellee’s] level of intoxication and also
        notes that the Commonwealth did not indicate (therefore failed to
        meet their burden of proof) that she had a right to refuse the draw
        of blood. The [c]ourt further notes that this failure to advise is
        not definitive, but is a factor to consider in the totality of the
        circumstances in determining consent. The right to refuse consent
____________________________________________


4   Our Supreme Court has stated:

        The phrase, “O'Connell warning”, is a shorthand expression for
        the duty imposed upon a police officer to inform a motorist, who
        has been asked to submit to chemical testing, that the Miranda
        rights are inapplicable to a request for chemical testing under the
        Implied Consent Law.          Commonwealth, Department of
        Transportation v. O’Connell, 521 Pa. 242, 555 A.2d 873
        (1989).     The O’Connell warning must specifically inform a
        motorist (1) that his driving privileges will be suspended for one
        year if he refuses chemical testing; and (2) that his Miranda
        rights do not apply to chemical testing.          Commonwealth,
        Department of Transportation v. Ingram, 538 Pa. 236, 648
        A.2d 285 (1994).

Commonwealth, Dept. of Transp., Bureau of Driver Licensing v.
Boucher, 691 A.2d 450, 452 (Pa. 1997) (referencing Miranda v. Arizona,
384 U.S. 436 (1966)).

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      is more fully addressed in Com. v. Strickler, 563 Pa. 47, 757
      A.2d 884, 901 (Pa. 2000).

                                       ***

             The [c]ourt further notes that [Appellee] indicated that she
      did not feel that the drawing of blood was a product of her free
      will. The Commonwealth’s reliance on the O’Connell Warnings to
      establish consent is misplaced. Under the circumstances as
      presented on the evening of September 1, 2016, a reasonable
      person similarly situated would not have believed that they had
      the right to refuse a blood draw.

            Therefore, given the totality of the circumstances the
      [c]ourt finds that the seizure of blood was not voluntary or
      consensual and, therefore, not an exception to the warrant
      requirement.

Trial Court Order, 12/19/17, at 2-6.

      In evaluating whether Appellee voluntarily consented to the blood draw

in view of the totality of the circumstances, we conclude that the trial court

properly held that her consent was not voluntary. The following testimony

offered by Appellee on direct examination establishes that fact:

      Q. When you got to Washington Health System Greene, do you
      remember Trooper Pash reading you any warnings?

      A. Not really. The only thing I remember is country music on the
      radio. I do remember that. We talked about that. We had other
      conversations.

      Q. Do you recall him telling you that you were under arrest for
      driving under the influence of alcohol or a controlled substance, in
      violation of Section 3802 of the Vehicle Code; that he is requesting
      that you submit to a chemical test of blood; that if you refused to
      submit to the blood test, your operating privilege will be
      suspended for at least twelve months; if you previously refused a
      chemical test or was previously convicted of driving under the
      influence, you will be suspended for up to eighteen months; and
      that you have no right to speak to an attorney or anyone else

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     before deciding whether to submit to testing; if you request to
     speak to 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? Do you recall those warnings
     being read to you?

     A. No.

     Q. When you were taken into Washington Health System Greene,
     do you recall having blood drawn?

     A. Yes.

     Q. Were you asked whether or not you wanted to give a blood
     sample?

     A. I don’t recall. But, I did do it.

     Q. Did you feel like you had to give a blood sample?

     A. Yeah.

     Q. You felt like you had no other choice?

     A. I mean, that’s just what we were supposed to do.

N.T., 12/4/17, at 17-19.

     In addition, during cross-examination, Appellee elaborated as follows:

     Q. Why did you feel like you had to give a blood sample?

     A. I just -- when he said that’s what I needed to do, then
     that’s what I needed to do. I didn’t know that I could
     refuse. I didn’t know. I probably wouldn’t have anyhow.

     Q. You said that you didn’t know that you [could] refuse?

     A. Right.

     Q. But you didn’t refuse?

     A. I didn’t refuse.


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      Q. Did Trooper Pash tell you that you had to give a blood
      sample? Do you remember him saying that?

      A. Yes.

N.T., 12/4/17, at 19 (emphases added).

      Consistent with the trial court’s determination, our review of the record

supports the conclusion that the Commonwealth failed to establish by a

preponderance of the evidence that the result of the blood test is admissible.

Specifically, the Commonwealth failed to prove that Appellee’s consent to the

blood draw was voluntarily given. Thus, the record supports the trial court’s

findings of fact, and we discern no error in its application of the law.

Accordingly, we affirm the order of the trial court granting Appellee’s motion

to suppress.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/6/2019




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