          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Robin A. Fye, Sr.,                             :
                            Appellant          :
                                               :
                     v.                        :   No. 519 C.D. 2018
                                               :   SUBMITTED: September 14, 2018
Commonwealth of Pennsylvania,                  :
Department of Transportation,                  :
Bureau of Driver Licensing                     :



BEFORE:      HONORABLE ANNE E. COVEY, Judge
             HONORABLE MICHAEL H. WOJCIK, Judge
             HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER                                        FILED: December 7, 2018

             Licensee, Robin A. Fye, Sr., appeals from an order of the Court of
Common Pleas of Centre County (trial court) denying Licensee’s statutory appeal
and reinstating the one-year suspension of his operating privilege for refusing to
submit to chemical testing imposed by the Department of Transportation, Bureau of
Driver Licensing (Department) pursuant to Section 1547(b)(1)(i) of the Vehicle
Code, as amended, 75 Pa. C.S. § 1547(b)(1)(i).1 On appeal, Licensee argues that the

    1
       Commonly referred to as the Implied Consent Law, Section 1547(b)(1)(i) provides, in
pertinent part, as follows:
                     (1) If any person placed under arrest for violation of section
             3802 [relating to driving under influence of alcohol or controlled
             substance (DUI)] is requested to submit to chemical testing and
             refuses to do so, the testing shall not be conducted but upon notice
trial court erred in determining that he was capable of making a knowing and
conscious decision to refuse to submit to chemical testing despite his hearing loss
and alleged inability to read. We disagree and, therefore, affirm.2
               The facts are as follows.3 After two state troopers observed Licensee
speeding and repeatedly crossing the fog line, they initiated a traffic stop. At that
time, they observed that Licensee had slurred speech, bloodshot and glassy eyes, and
some form of hearing impairment. Additionally, Licensee admitted that he had been
drinking. (Trial Court’s May 30, 2018, Opinion (Op.) at 1.) Subsequently, Licensee
verbally refused to submit to field sobriety testing, handed over his keys, gave the
troopers permission to move his car, and provided them with his address. The
troopers transported Licensee to his home a short distance away where they hoped
to have his wife speak to him. Instead, the couple “engaged in a verbal altercation
which resulted in [Licensee] insulting his wife and the two refusing to communicate
any further.” (Id.) Thereafter, the troopers transported Licensee to the hospital.
               At the hospital, the troopers did not provide Licensee with an interpreter
or a translating service. Instead, they read him the DL-26 form at which time he


               by the police officer, the department shall suspend the operating
               privilege of the person as follows:
                         (i) Except as set forth in subparagraph (ii), for a period of
               12 months.
75 Pa. C.S. § 1547(b)(1)(i).
     2
       The trial court also granted the Department’s motion to reconsider and vacate the initial order
sustaining Licensee’s statutory appeal. Licensee is not appealing from that part of the order.
     3
       Although the trial court did not render explicit credibility determinations, it implicitly
accepted the state troopers’ version of the events by virtue of its opinion. See Hasson v. Dep’t of
Transp., Bureau of Driver Licensing, 866 A.2d 1181, 1186 (Pa. Cmwlth. 2005) (trial court
implicitly found the police officer’s testimony credible by crediting his account of the events). In
addition, the trial court opined that Licensee probably was using his hearing loss as an excuse and
was not necessarily being truthful. (December 15, 2016, Hearing, Notes of Testimony (N.T.) at
59-60; Reproduced Record (R.R.) at 47a.)


                                                  2
took out his hearing aids and actively refused to acknowledge them when they were
attempting to speak with him. (Id. at 2 and 4.) Thereafter, when they gave him the
DL-26 form to read, he pushed it away without looking at it. Specifically, he “did
not attempt to read the form, nor communicate to the troopers he would have
difficulty reading [it].” (Id. at 2.) Consequently, the troopers recorded a refusal and
the Department issued the notice of suspension at issue. Licensee’s appeal to the
trial court followed.
               At the de novo hearing, the Department presented the testimony of the
two state troopers and Commonwealth Exhibit 1, which, inter alia, included the
notice of suspension and the DL-26 form.4 Licensee testified on his own behalf and
presented the testimony of his father, who briefly alluded to Licensee’s hearing loss
and reading and phone skills. Licensee also presented a copy of a card that he carried
with him indicating that he was deaf or hard of hearing.5 Notwithstanding the
Department’s objection that Licensee did not provide the card to the troopers, the
trial court admitted the exhibit.
               The trial court initially sustained Licensee’s statutory appeal,6 stating
the following at the completion of the hearing: “So I think [Licensee] may be using
his deafness as an excuse and is not necessarily being truthful but I also think there
is enough confusion and he may have had enough confusion that I am going to grant
the appeal.” December 15, 2016, Hearing, Notes of Testimony (N.T.) at 59-60;

    4
       (Id., Commonwealth Exhibit 1; R.R. at 8-16a.)
    5
       (Id., Defense Exhibit 1; R.R. at 78.1-78.2a.)
     6
       Following the trial court’s order sustaining Licensee’s statutory appeal, the Department filed
a notice of appeal and an application to remand the matter at Commonwealth Court Docket No.
185 C.D. 2017. It appearing that the trial court timely granted the Department’s motion for
reconsideration before the Department filed the notice of appeal, we entered a June 2017 order
striking that notice of appeal as inoperative.



                                                 3
Reproduced Record (R.R.) at 47a.)               Following the Department’s motion for
reconsideration and oral argument from both attorneys, however, the trial court
subsequently denied Licensee’s statutory appeal.
               In support of the denial, the trial court determined that Licensee’s
voluntary actions were tantamount to a refusal.7 (Op. at 3-4.) In addition, it
determined that Licensee was capable of knowingly and consciously refusing to
submit to chemical testing. In support, it reasoned as follows:

               The DL-26 form was read to [Licensee], and [he] was
               given the opportunity to read the form. [Licensee]
               removed his hearing aids and refused to acknowledge the
               troopers when they attempted to read him the DL-26.
               Although [Licensee] required the assistance of translators
               at the hearing, [he] testified he went to school, understands
               English and is able to send and receive text messages.
               Additionally, [Licensee] and his wife verbally
               communicated to each other at the time of his arrest in the
               presence of the troopers.

(Id. at 3.) The trial court also noted Licensee’s failure to present expert testimony
regarding his reading comprehension level. (Id. at 5.) Licensee’s timely appeal
followed.8


    7
       See Dep’t of Transp. v. Renwick, 669 A.2d 934, 939 (Pa. 1996) (a refusal to submit to
chemical testing occurred where a licensee closed her eyes, turned her head, ignored the officer’s
requests, and exhibited gamesmanship by stating during a fleeting moment that she would assent
to chemical testing).
     8
       Licensee is not contending that the Department failed to establish its prima facie case for
sustaining the suspension of a licensee’s operating privilege, which requires that it prove the
following:
               1) licensee was arrested for [DUI] . . . by a police officer who had
               reasonable grounds to believe that he was operating or in actual
               physical control of the movement of the vehicle while under the
               influence;



                                                4
              The law is well established. Once the Department meets its burden of
establishing a refusal, the burden shifts to the licensee to prove by substantial,
competent evidence that his refusal was not knowing or conscious or that he was
physically unable to take the test.9 Kollar v. Dep’t of Transp., Bureau of Driver
Licensing, 7 A.3d 336, 339 (Pa. Cmwlth. 2010).                 The question of whether a
licensee’s decision to refuse to submit to chemical testing was knowing and
conscious is a question of fact for the trial court. Id. at 340. If the licensee’s inability
to render a knowing and conscious refusal is caused, in whole or in part, by the
consumption of alcohol, he or she is precluded from meeting that burden as a matter
of law. Lanthier v. Dep’t of Transp., Bureau of Driver Licensing, 22 A.3d 346, 349
n.2 (Pa. Cmwlth. 2011). Additionally, a hearing impairment can prevent a licensee
from rendering a knowing and conscious refusal. Landsberger v. Dep’t of Transp.,
Bureau of Driver Licensing, 717 A.2d 1121, 1124 (Pa. Cmwlth. 1998); Dep’t of
Transp., Bureau of Driver Licensing v. Gaertner, 589 A.2d 272, 272 (Pa. Cmwlth.
1991). Nonetheless, a trial court may determine that a licensee was capable of
rendering a knowing and conscious refusal based on evidence that a licensee heard
and understood what was asked of him, followed instructions, and did not ask that
anything be repeated. Landsberger, 717 A.2d at 1124.




              2) licensee was requested to submit to chemical testing;
              3) licensee refused to submit to chemical testing; and
              4) licensee was specifically warned that refusal would result in the
              suspension of his operating privilege.
Kollar v. Dep’t of Transp., Bureau of Driver Licensing, 7 A.3d 336, 339 (Pa. Cmwlth. 2010).
     9
       On page twenty-two of his brief, Licensee asserts that “[t]he Commonwealth failed to
establish that [he] made a knowing and conscious decision to refuse to submit to chemical testing
following his arrest.” (Licensee’s Brief at 22.) As stated above, Licensee bears that burden.


                                               5
             In the present case, we conclude that the accepted evidence of record
supports the trial court’s determination that Licensee failed to prove that his hearing
impairment and alleged inability to read precluded him from rendering a knowing
and conscious refusal.      As the record reflects, Licensee engaged in verbal
communication with the troopers at the traffic stop and responded appropriately to
their verbal directives. For example, he answered “no” in response to a request to
take a field sobriety test and verbally provided his address. (December 15, 2016,
Hearing, N.T. at 25-26; R.R. at 59a.) The relevant testimony provides:

             [Department’s counsel] Q. Did you notice anything
             unusual about him or did he tell you anything about his
             hearing capacity?
             [Trooper Pollick] A. He said that he was deaf but there are
             certain - - he could understand some things.
             Q. What leads you to conclude that?
             A. We were both speaking to him. I asked him for his
             keys. He provided me with his keys. He told me it was
             all right [sic] for me to I think move his vehicle from the
             spot it was parked. He asked me to move it off the
             roadway so it wasn’t towed. He advised us where he lived.
             Q. He spoke those to you?
             A. Yes.

(Id. at 18-19; R.R. at 55-56a.)
             In addition, Licensee verbally communicated with his wife at their
home before going to the hospital. The pertinent testimony provides:

             [Licensee’s counsel] Q. And at that point with his wife
             signing to communicate with him did it occur to you or to
             Trooper Buchheit - - did it occur that perhaps you should
             try to get him an interpreter, or signer, or someone who


                                          6
             could communicate with him in what is actually his own
             language?
             [Trooper Pollick] A. No. Because he had been speaking
             with us. He also spoke with his wife. His wife also spoke
             back to him.
             Q. How was his language when he spoke?
                  ....

             A. It was slurred. It could have had everything to do with
             the alcohol. I have never spoken with him before.

(Id. at 22-23; R.R. at 57-58a.)
             Moreover, the trial court’s attempt to clarify what occurred at the house
is instructive. The pertinent colloquy provides:

             [Trial Court] Q. And when you got to the house did his
             wife speak to him?
             [Trooper Pollick] A. She spoke to him and then she started
             doing I believe the signing but then he had called her, like
             I said, I believe a bitch and she left and we left.
             Q. Do you remember what they - - what their conversation
             was? The speaking conversation?
             A. I was asking her if she could translate and sign that he
             is going to the hospital, we are going to ask him to submit
             to a test and everything, we are going to need somebody
             to find him a ride. Along of [sic] those lines, Your Honor.
             Q. But what did she say to him? Not sign to him but say
             to him? You said she spoke to him?
             A. What happened, are you okay. I think along those lines.
             Q. And he responded?
             A. Yes.
             Q. Verbally?


                                          7
                A. Yes.

(Id. at 26-27; R.R. at 59-60a.)
                Further, the following testimony pertaining to what occurred at the
hospital supports the trial court’s determination Licensee voluntarily eschewed the
opportunity to understand his rights. That testimony provides:

                [Department’s counsel] Q. What happened when you read
                the [DL-26] form to him?
                [Trooper Pollick] A. As we were starting to read the form
                to him he took out his hearing aids. He slammed them on
                the table. We continued. He then turned his shoulders
                towards us. He would not make any type of - - he would
                not make any type of eye contact with us. We attempted
                five or six times.

(Id. at 20; R.R. at 56a.)
                Additionally, the following testimony on cross-examination is
illustrative:

                [Licensee’s counsel] Q. Are you aware that Mount Nittany
                Medical Center has hearing impaired equipment on site
                that can assist people who are hearing impaired . . . ?
                [Trooper Pollick] A. Not that I am aware of. He
                understood everything that we were saying. He had
                acknowledged that he understood stuff.
                Q. Did he acknowledge that?
                A. Yes.
                Q. That he understood everything?

                A. When I was speaking to him he said that he understood
                me.
                Q. Well that’s what he said but based upon what he said
                you assumed he understood?


                                           8
               A. I assumed that he was telling the truth that he
               understood.

(Id. at 23-24; R.R. at 58a.)
               As the trial court determined, Licensee could engage in verbal
communication and respond appropriately when he chose to do so. In addition, he
failed to advise the troopers at the hospital that he would have difficulty reading the
form.10 In that regard, the trial court disregarded the testimony of Licensee’s father
that his son had issues with reading. Instead, it afforded weight to Licensee’s
testimony that he had attended school, understood English, and was able to send and
receive text messages. (Op. at 3.) The weight of the evidence is exclusively within
the purview of the factfinder, who is free to believe all, part, or none of the evidence
and to determine the credibility of witnesses. Reinhart v. Dep’t of Transp., Bureau
of Driver Licensing, 954 A.2d 761, 765 (Pa. Cmwlth. 2008).                             Credibility
determinations are within the province of the trial court and are improper questions
for appellate review. Id. at 765-66
               Moreover, the trial court emphasized that Licensee failed to present
expert testimony regarding his reading comprehension level. See Gaertner, 589
A.2d at 274 (a hearing impaired licensee proved that he was incapable of making a
knowing and conscious refusal by presenting expert testimony to the effect that he
could not understand what was said to him or fully understand the form he read due


    10
      Under certain circumstances, a police officer’s act of giving a licensee the implied consent
warnings to read is sufficient to communicate them. See Weaver v. Dep’t of Transp., Bureau of
Driver Licensing, 873 A.2d 1, 2 (Pa. Cmwlth. 2005), aff’d, 912 A.2d 259 (Pa. 2006) (verbiage on
DL-26 form sufficient to inform a licensee of the implied consent law and to base a decision as to
whether to submit to chemical testing); Harris v. Dep’t of Transp., Bureau of Driver Licensing,
969 A.2d 30, 32 (Pa. Cmwlth. 2009 (en banc) (where a licensee interrupted the officer’s oral recital
of warnings and asked to read them himself, the written copy was sufficient to constitute an
informed refusal).


                                                 9
to his limited reading capacity). In any event, it is well established that a police
officer has neither a duty to ensure that a licensee understands warnings nor a duty
to provide or permit an interpreter. Martinovic v. Dep’t of Transp., Bureau of Driver
Licensing, 881 A.2d 30, 35 (Pa. Cmwlth. 2005). An officer’s sole duty is to inform
licensees of the implied consent warnings; once he or she has done so, the obligation
is satisfied. Id. [citing Dep’t of Transp., Bureau of Driver Licensing v. Scott, 684
A.2d 539 (Pa. 1996)].
             Accordingly, we affirm.



                                       _____________________________________
                                       BONNIE BRIGANCE LEADBETTER,
                                       Senior Judge



Judge Cohn Jubelirer did not participate in the decision in this case.




                                         10
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Robin A. Fye, Sr.,                       :
                          Appellant      :
                                         :
                     v.                  :   No. 519 C.D. 2018
                                         :
Commonwealth of Pennsylvania,            :
Department of Transportation,            :
Bureau of Driver Licensing               :

                                      ORDER


            AND NOW, this 7th day of December, 2018, the order of the Court of
Common Pleas of Centre County is hereby AFFIRMED.



                                       _____________________________________
                                       BONNIE BRIGANCE LEADBETTER,
                                       Senior Judge
