J-A06026-18

                                  2018 PA Super 132



    COMMONWEALTH OF PENNSYLVANIA :             IN THE SUPERIOR COURT OF
                                 :                  PENNSYLVANIA
                  Appellant      :
                                 :
                                 :
              v.                 :
                                 :
                                 :
    JOSHUA R. MOSER              :             No. 1225 WDA 2017

                 Appeal from the Order Entered August 1, 2017
    In the Court of Common Pleas of Westmoreland County Criminal Division
                      at No(s): CP-65-CR-0000223-2015


BEFORE:      BENDER, P.J.E., SHOGAN, J., and STRASSBURGER*, J.

OPINION BY SHOGAN, J.:                                  FILED MAY 18, 2018

       The Commonwealth appeals1 from the order granting the motion to

suppress filed by Appellee, Joshua R. Moser (“Moser”).            After careful

consideration, we reverse and remand.

       The trial court summarized the factual history of this case as follows:

             On May 26, 2013, Tim Allen Frye (hereinafter “Frye”) was
       at his residence at 58 Beeno Road, New Stanton, Pennsylvania.
       At approximately 1:00 a.m., Frye heard a sound that resembled a
       car hitting a bank. Approximately twenty (20) to thirty (30)
       minutes later, Frye saw an ambulance and police with their lights
       activated on Route 136. Frye estimated that the scene was
       approximately two-hundred (200) feet away from his residence.

             Nicholas D’Orazio, Jr. (hereinafter “Mr. D’Orazio”), owner of
       the 2000 Dodge Stratus automobile, testified that the vehicle was
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1 The Commonwealth has certified in its notice of appeal that the trial court’s
order suppressing physical evidence substantially handicaps the prosecution
of this case. Pa.R.A.P. 311(d); Commonwealth v. Moser, 999 A.2d 602,
604-605 (Pa. Super. 2010).
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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     normally operated by his son, Nicholas A. D’Orazio (hereinafter
     “D’Orazio”). Mr. D’Orazio testified that, on May 26, 2013, the
     vehicle was parked at his son’s residence. Mr. D’Orazio did not
     give [Moser] permission to use his vehicle.

            D’Orazio testified that, on May 25, 2013, he traveled to Lake
     Erie for the weekend and left his vehicle, the 2000 Dodge Stratus,
     at 2065 Main Street, Arona, Pennsylvania. [Moser] called D’Orazio
     in the middle of the night and then again in the morning. D’Orazio
     spoke to [Moser] during the morning phone call, and before that
     conversation, [Moser] left a voicemail that stated, “Nick, I stole
     your car, I completely totaled it, and I killed my friend.” D’Orazio
     stated that [Moser] was hysterical during the phone call. D’Orazio
     then called his father to inform him of what had happened.
     D’Orazio stated that, between May 25th and May 26th of 2013, he
     never gave [Moser] permission to use his vehicle.

            Jacob Vranish (hereinafter “Vranish”) and his then girlfriend
     Alyssa Grushecky (hereinafter “Grushecky”) were travelling on
     State Route 136 in the early morning hours of May 26, 2013.
     While traveling down into the valley, Vranish noticed debris on the
     road along with a vehicle. Vranish stated that the vehicle was on
     the bank and a little on the hillside. Vranish did not see anyone
     at the scene when a group of young women in a vehicle stopped
     and told him that they saw someone running away from the scene.
     Vranish then called 911. Between the time Vranish called 911 and
     the firefighter arrived, [Moser] arrived on the scene. [Moser]
     asked if anyone was in the car, and then he and Vranish proceeded
     to walk along the hillside, when Vranish noticed someone lying on
     the hillside. At this point, [Moser] knelt by the Victim, picked him
     up, yelled “Josh!” tried to give the victim CPR, and then realized
     the victim had passed away. [Moser] told Vranish he was not
     driving. Vranish heard [Moser] make a phone call and said, “Josh
     was dead.” [Moser] kept telling Vranish and Grushecky that he
     was sorry.

           Trooper Joshua B. Johnson (hereinafter “Officer Johnson”)
     and Trooper Paul Ton[o]ni (hereinafter “Officer Ton[o]ni”) were
     dispatched to a one motor vehicle crash on State Route 136 at
     approximately 1:00 a.m. Trooper Johnson indicated that the
     vehicle had struck a stump that was off the road. Trooper Johnson
     indicated that [Moser] appeared to be under the influence of
     alcohol since [Moser] was emitting an odor of alcoholic beverage,
     his eyes were bloodshot and glassy, and his speech was slurred.

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J-A06026-18


       [Moser] told Trooper Johnson that he had been at a friend’s house
       drinking, and that he went to a few places in Hermin[i]e. [Moser]
       remembered flashes of driving fast. [Moser] also remembered
       being in the driver’s seat after the crash, and that he had to force
       the driver’s door of the vehicle open. [Moser] stated that, after
       the crash, he walked down the roadway to call his friends. [Moser]
       admitted that, after he returned to the crash, he attempted to do
       CPR on the other occupant of the vehicle. [Moser] explained that
       he drives on Route 136 often and knows the speed limit to be
       between 35 and 45 miles an hour. [Moser] stated that the vehicle
       belonged to his roommate who was in Erie, and that he did not
       have a Pennsylvania Driver’s License.         [Moser] further told
       Trooper Johnson that he was unable to drive because he did not
       have a Pennsylvania driver’s license. Trooper Ton[o]ni testified
       that [Moser] was adamant that he wasn’t the driver of the vehicle.
       In Trooper Johnson’s report, it provided that [Moser] made a
       statement that he did not know if there was anybody else in the
       vehicle with him. [Moser] provided the name of “Josh” to Trooper
       Johnson regarding the fatality involved in the crash.

              Trooper Johnson instructed [Moser] to perform field sobriety
       tests, which [Moser] failed. Trooper Johnson formed the opinion
       that [Moser] was under the influence of alcohol to such an extent
       that he could not safely drive. Trooper Tononi also witnessed
       [Moser] perform the field sobriety tests, and concluded that
       [Moser] was impaired. [Moser] was then handcuffed, placed
       under arrest, and put into the back of a patrol vehicle. Trooper
       Tononi confirmed that [Moser] was taken into custody and then
       transported to Westmoreland County Hospital.          As Trooper
       Johnson and Trooper Ton[o]ni were taking [Moser] to the hospital,
       they informed him as to why they were going, and requested that
       [Moser] submit to a blood test to determine his BAC, and [Moser]
       agreed. [Moser] was taken to the Westmoreland Hospital in
       Greensburg, Pennsylvania. Trooper Johnson advised [Moser] of
       the implied consent form and the O’Connell Warnings,[2] and
       [Moser] indicated that he understood. Trooper Johnson read

____________________________________________


2 An O’Connell warning specifically informs a motorist that his or her driving
privileges will be suspended for one year if he or she refuses chemical testing.
Com., Dept. of Transp., Bureau of Traffic Safety v. O'Connell, 555 A.2d
873, 877-878 (Pa. 1989).



                                           -3-
J-A06026-18


       [Moser] the DL -26 form.[3] [Moser] did not sign the DL-26 form,
       but held out his arm instead. Trooper Johnson never asked for a
       search warrant for [Moser’s] blood sample. [Moser] agreed to
       submit to a blood sample, and [Moser’s] sample was collected at
       2:50 a.m. at the hospital. The victim was identified as Joshua
       Michael Jordan.

Trial Court Opinion, 9/26/17, at 1-3 (internal citations omitted; footnotes

omitted).

       Moser was charged with homicide by vehicle while under the influence

of alcohol or controlled substance (“DUI”), three counts of DUI, homicide by

vehicle, exceeding maximum speed limit by thirty miles per hour, driving at

an unsafe speed, unauthorized use of automobile, accident involving death or

personal injury while not properly licensed, and driving without a license.4 On

March 17, 2017, Moser filed a motion to suppress the results of the blood test.

Moser argued that the warrantless blood draw was a violation of the United

States Supreme Court’s holding in Birchfield v. North Dakota, ___ U.S. ___,

136 S.Ct. 1535 (2016).5 On August 1, 2017, the trial court entered an order

granting    Moser’s    motion     to   suppress   the   blood   test   results.   The

Commonwealth filed an appeal on August 21, 2017. The trial court entered

____________________________________________


3 The DL–26 Form informs an arrestee for driving under the influence (“DUI”)
of the Implied Consent Law and alerts him to the consequences of refusing to
submit to chemical testing. Nardone v. Com., Dept. of Transp., Bureau
of Driver Licensing, 130 A.3d 738, 741 (Pa. 2015).

4 75 Pa.C.S. § 3735(a); 75 Pa.C.S. § 3802; 75 Pa.C.S. § 3732(a); 75 Pa.C.S.
§ 3362(a)(3-30); 75 Pa.C.S. § 3361; 18 Pa.C.S. § 3928(a); 75 Pa.C.S.
§ 3742.1(a); and 75 Pa.C.S § 1501(a), respectively.

5 Moser also cited Commonwealth v. Giron, 155 A.3d 635 (Pa. Super.
2017), and Commonwealth v. Evans, 153 A.3d 323 (Pa. Super. 2016).

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J-A06026-18



an order on September 22, 2017, continuing the case pending the decision by

this Court.    The trial court issued an opinion in compliance with Pa.R.A.P.

1925.

        The Commonwealth presents the following issues for our review:

        1. The Suppression Court erred in suppressing the blood test
           results.   The Commonwealth contends that [Moser] had
           voluntarily consented to the blood draw before the Trooper
           read the implied consent warnings from the DL-26 form to him.
           Thus, his consent was not tainted by the warnings.
           Commonwealth v. Haines, 168 A.3d 231, 236 (Pa. Super.
           2017).

        2. Because the warrantless blood draw was conducted pursuant
           to well-established statutory and case law, and the request was
           supported by probable cause, the Commonwealth contends
           that suppression of the results is not warranted. A narrow good
           faith exception to the exclusionary rule should apply to pre-
           Birchfield cases where the law enforcement officers followed
           long-established procedures.

Commonwealth’s Brief at 8.

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

granting Moser’s motion to suppress the results of his blood test.

Commonwealth’s Brief at 8.         The Commonwealth maintains that Moser

voluntarily consented to the blood draw before the trooper read to Moser the

implied consent warnings from form DL-26, which threatened additional

criminal penalties if Moser refused the blood test.        Id. at 8, 13.     The

Commonwealth posits that because the officer read form DL-26 to Moser after

Moser consented to the blood draw, Moser was not “coerced” by language in

the form regarding heightened penalties. Id. at 13.


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J-A06026-18


     When the Commonwealth appeals from a suppression order:

     we follow a clearly defined standard of review and 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. The suppression court’s
     findings of fact bind an appellate court if the record supports those
     findings. The suppression court’s conclusions of law, however, are
     not binding on an appellate court, whose duty is to determine if
     the suppression court properly applied the law to the facts.

Commonwealth v. Miller, 56 A.3d 1276, 1278–1279 (Pa. Super. 2012)

(citations omitted).   We may consider only evidence presented at the

suppression hearing. In re L.J., 79 A.3d 1073, 1085–1087 (Pa. 2013).

     This Court has summarized the holding in Birchfield and its application

to Pennsylvania’s implied consent statutes as follows:

           In Birchfield, the United States Supreme Court recognized
     that “[t]here must be a limit to the consequences to which
     motorists may be deemed to have consented by virtue of a
     decision to drive on public roads.” Birchfield, 136 S.Ct. at 2185.
     Of particular significance, Birchfield held that “motorists cannot
     be deemed to have consented to submit to a blood test on pain of
     committing a criminal offense.” Id. at 2185–2186. Accordingly,
     this Court has recognized that Pennsylvania’s implied consent
     scheme was unconstitutional insofar as it threatened to impose
     enhanced criminal penalties for the refusal to submit to a blood
     test. Commonwealth v. Ennels, 167 A.3d 716, 724 (Pa. Super.
     2017), reargument denied (Sept. 19, 2017) (noting that “implied
     consent to a blood test cannot lawfully be based on the threat of
     such enhanced penalties”); Commonwealth v. Evans, 153 A.3d
     323, 330–31 (Pa. Super. 2016).

Commonwealth v. Kurtz, 172 A.3d 1153, 1157 (Pa. Super. 2017).

     Despite Moser’s assertion to the contrary, Birchfield is not controlling

in the case at hand. As explained above, Birchfield applies to situations in

which a defendant’s consent is obtained based upon the threat of additional

                                     -6-
J-A06026-18


criminal penalties if the blood test is refused. Here, although form DL-26 was

read to Moser and improperly warned of criminal penalties if the blood test

was refused,6 Moser’s consent was not obtained after he was read the DL-26

form. Instead, he consented to the blood draw prior to the reading of the

form, in the police cruiser on the way to the hospital.

       This Court’s decision in Commonwealth v. Haines, 168 A.3d 231 (Pa.

Super. 2017), is instructive. In Haines, we addressed a situation in which it

was unclear as to whether the defendant had consented to the blood test

before or after having been read the DL-26 form that improperly threatened

criminal penalties for refusal to submit to the blood test in violation of

Birchfield and its progeny. We explained that:

       [I]f Haines validly consented before being informed that he faced
       enhanced criminal penalties for failure to do so, then his consent
       would not be tainted by the warning and the blood test results
       would be admissible. If, however, he did not consent until after
       [the officer] informed him that he would face enhanced criminal
       penalties if he refused to consent, then the trial court did not
       necessarily err in granting his motion to suppress the test results.

Haines, 168 A.3d at 236 (emphasis in original). Thus, pursuant to Haines,

if consent was provided prior to the reading of the DL-26 form, then the

consent would not have been tainted by the threat of additional criminal

penalties and, therefore, would not be in violation of Birchfield.



____________________________________________


6  The Commonwealth does not dispute that form DL-26 read to Moser
improperly referenced additional criminal penalties for refusal of the blood
test.

                                           -7-
J-A06026-18


       Here, Moser gave his consent to the blood test while he was in the patrol

car on the way to the hospital. N.T., 6/27/17, at 18-21. Officers read form

DL-26 to Moser at the hospital, after he had already consented to the blood

draw. Id. at 20-21. Accordingly, Moser’s consent was not tainted by the

threat of additional criminal penalties as outlined in form DL-26, and therefore,

was not obtained in violation of Birchfield and Evans. Consequently, the

trial court erred in suppressing Moser’s blood test results on this basis.

       Furthermore, we need not consider the voluntariness of Moser’s consent

given to officers prior to arriving at the hospital. Moser makes no assertion

before this Court that his consent was not voluntary.        Moreover, Moser’s

motion to suppress seeks suppression of his blood test results on the basis of

the holding in Birchfield;7 Moser did not challenge the voluntariness of his

consent given to officers prior to his arrival at the hospital in that motion.

Motion to Suppress Evidence Nunc Pro Tunc, 3/17/17 at 1. “[A]ppellate review

of [a ruling on] suppression is limited to examination of the precise basis under

which suppression initially was sought; no new theories of relief may be

considered on appeal.”        Commonwealth v. Little, 903 A.2d 1269, 1272-

1273 (Pa. Super. 2006); see also Commonwealth v. Thur, 906 A.2d 552,

566 (Pa. Super. 2006) (“When a defendant raises a suppression claim to the

trial court and supports that claim with a particular argument or arguments,


____________________________________________


7  For reasons stated previously, we note that Moser is incorrect in his
assertion that Birchfield is controlling in this case.

                                           -8-
J-A06026-18


the defendant cannot then raise for the first time on appeal different

arguments supporting suppression.”).

       Accordingly, the trial court erred in granting Moser’s motion to suppress

the blood test results on the bases of Birchfield and Evans. Thus, we are

constrained to reverse the trial court’s order granting Moser’s motion to

suppress the blood test results.8

       Order     reversed.        Case     remanded   for   further   proceedings.

Jurisdiction relinquished.

       P.J.E. Bender joins the Opinion.

       Judge Strassburger files a Dissenting Opinion.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/18/2018




____________________________________________


8 Based on our determination of the Commonwealth’s first issue, we need not
address its second.

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