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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                              :        PENNSYLVANIA
                     Appellant                :
                                              :
                                              :
              v.                              :
                                              :
                                              :
 KORY PAUL DURFEY                             :   No. 689 WDA 2018

                    Appeal from the Order April 9, 2018
  In the Court of Common Pleas of Erie County Criminal Division at No(s):
                        CP-25-CR-0001844-2017


BEFORE: PANELLA, J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY SHOGAN, J.:                                FILED MAY 30, 2019

      The Commonwealth appeals from the order of the trial court granting

the motion filed by Appellee, Kory Paul Durfey, in which he sought to suppress

the results of his blood test.   We affirm.

      The trial court presented its findings of fact in this case as follows:

            The Commonwealth presented the testimony of one
      witness: City of Erie Police Officer Jason Weismiller.     The
      uncontroverted testimony of Officer Weismiller established the
      following:

            1. On March 11, 2017, Officer Weismiller was dispatched at
      11:10 a.m. to the 1220 block of East 38th Street, Erie,
      Pennsylvania, on the report of a two-vehicle motor vehicle
      accident involving injuries. When the officer arrived at the scene
      approximately three minutes later, he observed two damaged
      vehicles in a westbound lane of East 38th Street: one vehicle was
      a Toyota and the other was a mini-van style Oldsmobile. It was
      apparent the Oldsmobile crossed the center line and struck the
      Toyota. Emergency medical personnel were administering aid to
      both drivers. The officer determined the Oldsmobile was operated
      by [Appellee]. The officer did not speak with either driver at the
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       scene. Officer Weismiller prepared the police “Crash Receipt”
       admitted in evidence as Commonwealth Ex. “A.”

              2. Officer Weismiller testified he went through the glove
       box of [Appellee’s] vehicle to obtain insurance and registration
       information. At the scene, Sergeant “Bob” McDonald drew the
       officer’s attention to the driver’s seat of [Appellee’s] vehicle,
       whereupon Officer Weismiller observed a syringe and a container
       with a white powdery substance in the driver’s seat. Sergeant
       McDonald retrieved these items and handed them over to Officer
       Weismiller.

             3. Having learned the operators of the vehicles were being
       transported to Hamot Medical Center, Officer Weismiller left the
       scene at approximately noon or shortly thereafter and went to
       Hamot to speak with the drivers.          At the hospital, Officer
       Weismiller went to [Appellee’s] treatment bay, however,
       [Appellee] had already been removed for diagnostic testing. While
       in [Appellee’s] medical bay, the officer engaged in conversation
       with hospital staff. The hospital staff asked the officer questions
       about the accident. The officer provided information about
       [Appellee’s] involvement in the accident.              During this
       conversation, Officer Weismiller obtained two (2) vials of
       [Appellee’s] blood from a nurse after informing the staff he
       intended to pursue charges against [Appellee] due to the nature
       of the crash. The record is devoid as to when the blood that was
       given to the police was drawn.

             4. The Court finds Officer Weismiller did not speak with
       [Appellee] at the hospital. He did not talk with [Appellee] or read
       to him the O’Connell warnings[1] at the scene or at the hospital.
       He did not obtain [Appellee’s] consent to a blood draw. [Appellee]
       did not have the opportunity to consent or refuse a blood draw.
       The officer did not obtain a search warrant for [Appellee’s] blood.
       Officer Weismiller did not place [Appellee] under arrest at scene
       or at the hospital. The record is devoid of evidence [Appellee]
       was unconscious at any time.
____________________________________________


1  “O’Connell warnings are the standard advisement of the requirements of
Pennsylvania’s implied consent law and the consequences of refusal to submit
to a requested chemical test.” Commonwealth v. Myers, 164 A.3d 1162
n.3 (Pa. 2017) (citing Commonwealth, Department of Transportation,
Bureau of Traffic Safety v. O'Connell, 555 A.2d 873 (Pa. 1989)).

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             5. Officer Weismiller felt it was not necessary to obtain a
       search warrant for [Appellee’s] blood. When asked by defense
       counsel if there was a reason why Officer Weismiller did not obtain
       a search warrant, the officer testified: “No reason – didn’t feel it
       was immediately necessary at the time.”

             6. Officer Weismiller left [Appellee’s] medical bay with the
       vials of [Appellee’s] blood and went to the Erie Police station
       where the vials of blood were tagged in as evidence. The vials of
       blood were then sent to the state police lab for chemical analysis.
       The test results revealed the presence of ethyl alcohol and
       methamphetamines in [Appellee’s] blood. The charges were
       based on the results of the blood testing performed by the state
       police. The officer was not informed of the results of any testing
       of [Appellee’s] blood which may have been performed by the
       hospital.

Trial Court Opinion and Order, 4/9/18, at 3-5.

       Appellee was charged with driving under the influence of a schedule I,

II, or III controlled substance in his blood, aggravated assault by vehicle while

driving under the influence, and accidents involving death or personal injury

while not properly licensed.2         On September 29, 2017, Appellee filed an

omnibus pretrial motion seeking suppression of the results of the chemical

testing of his blood.       A hearing on the suppression motion was held on

November 1, 2017. The parties subsequently filed written briefs. On April 9,

2018, the suppression court granted Appellee’s suppression motion and filed

findings of fact and conclusions of law. The Commonwealth filed this timely




____________________________________________


2   75 Pa.C.S. §§ 3802(d)(1), 3735.1(a), and 3742.1(a), respectively.



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appeal and a contemporaneous Pa.R.A.P. 1925(b) statement.3             Thereafter,

the suppression court complied with Pa.R.A.P. 1925(a).

       The Commonwealth presents the following issue for our consideration:

              Whether the lower court erred as a matter of law or abused
       its discretion by finding that the Appellee’s constitutional rights
       were violated through the testing of his blood for alcohol or
       controlled substances?

Commonwealth’s Brief at 3.

       The Commonwealth argues that the suppression court erred in granting

the motion to suppress. Commonwealth’s Brief at 7-8. The Commonwealth

contends that Officer Weismiller was not required to obtain a search warrant

to accept the vials of blood from the hospital personnel, which were drawn for

independent medical purposes, because there was no government action



____________________________________________


3 Under Pa.R.A.P. 311(d), in criminal cases the Commonwealth has a right to
appeal interlocutory orders if the Commonwealth certifies that the orders will
terminate or substantially handicap the prosecution. Commonwealth v.
Flamer, 53 A.3d 82, 86 n.2 (Pa. Super. 2012). Specifically, Rule 311(d)
provides as follows:

       In a criminal case, under the circumstances provided by law, the
       Commonwealth may take an appeal as of right from an order that
       does not end the entire case where the Commonwealth certifies
       in the notice of appeal that the order will terminate or substantially
       handicap the prosecution.

Pa.R.A.P. 311(d). Here, the record reflects that the Commonwealth has
certified that, pursuant to Pa.R.A.P. 311(d), the order prohibiting the
introduction of evidence terminates or substantially handicaps the prosecution
of the case. Notice of Appeal, 5/9/18. Therefore, pursuant to Pa.R.A.P.
311(d), this Court has jurisdiction to hear this appeal from the interlocutory
order, even though the order did not terminate the prosecution.

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amounting to a seizure. Id. at 7. The Commonwealth further asserts that

the blood samples were properly tested pursuant to the implied consent

statute. Id. at 7-8.

      Before addressing the merits of the Commonwealth’s issue, we must

determine whether the issue is properly before us. The trial court has asserted

that the issue raised in the Commonwealth’s Pa.R.A.P. 1925(b) statement is

waived as too vague for the trial court to address. We agree.

      A concise statement of errors complained of on appeal must be specific

enough for the trial court to identify and address the issues the appellant

wishes to raise on appeal. Commonwealth v. Reeves, 907 A.2d 1, 2 (Pa.

Super. 2006) (quoting Lineberger v. Wyeth, 894 A.2d 141, 148 (Pa. Super.

2006)). Pennsylvania Rule of Appellate Procedure 1925 provides that a Rule

1925(b) statement “shall concisely identify each ruling or error that the

appellant intends to challenge with sufficient detail to identify all pertinent

issues for the judge.” Pa.R.A.P. 1925(b)(4)(ii). “Issues not included in the

Statement and/or not raised in accordance with the provisions of this

paragraph (b)(4) are waived.”            Pa.R.A.P. 1925(b)(4)(vii).   See also

Commonwealth v. Lopata, 754 A.2d 685, 689 (Pa. Super. 2000) (stating

that “[a] claim which has not been raised before the trial court cannot be

raised for the first time on appeal”).

      This Court has considered the question of what constitutes a sufficient

Pa.R.A.P. 1925(b) statement on numerous occasions and has established that


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“[an] appellant’s concise statement must properly specify the error to be

addressed on appeal.” Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa.

Super. 2011). “[T]he Rule 1925(b) statement must be specific enough for the

trial court to identify and address the issue an appellant wishes to raise on

appeal.” Id. (brackets, internal quotation marks, and citation omitted).

     The compulsory requirement of adhering to Pa.R.A.P. 1925 is captured

in the following excerpt from Kanter v. Epstein, 866 A.2d 394 (Pa. Super.

2004):

     In Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (Pa.
     1999), the Pennsylvania Supreme Court specifically held that
     “from this date forward, in order to preserve their claims for
     appellate review, [a]ppellants must comply whenever the trial
     court orders them to file a Statement of Matters Complained of on
     Appeal pursuant to [Pennsylvania Rule of Appellate Procedure]
     1925.” Lord, 719 A.2d at 309. “Any issues not raised in a
     1925(b) statement will be deemed waived.” Id. This Court
     explained in Riley v. Foley, 783 A.2d 807, 813 (Pa. Super. 2001),
     that Rule 1925 is a crucial component of the appellate process
     because it allows the trial court to identify and focus on those
     issues the parties plan to raise on appeal. This Court has further
     explained that “a Concise Statement which is too vague to allow
     the court to identify the issues raised on appeal is the functional
     equivalent to no Concise Statement at all.” Commonwealth v.
     Dowling, 778 A.2d 683, 686-[6]87 (Pa. Super. 2001). “Even if
     the trial court correctly guesses the issues Appellants raise[] on
     appeal and writes an opinion pursuant to that supposition the
     issues [are] still waived.” Commonwealth v. Heggins, 809 A.2d
     908, 911 (Pa. Super. 2002).

Kanter, 866 A.2d at 400.

     Our law further makes clear that satisfaction of Pa.R.A.P. 1925 is not

simply a matter of filing any statement.    Rather, the statement must be

concise and sufficiently specific and coherent as to allow the trial court to

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understand the specific allegation of error and offer a rebuttal.              These

requirements are evident in the following language from Dowling:

      When a court has to guess what issues an appellant is appealing,
      that is not enough for meaningful review. When an appellant fails
      adequately to identify in a concise manner the issues sought to be
      pursued on appeal, the trial court is impeded in its preparation of
      a legal analysis which is pertinent to those issues.

      . . . While Lord and its progeny have generally involved situations
      where an appellant completely fails to mention an issue in his
      Concise Statement, for the reasons set forth above we conclude
      that Lord should also apply to Concise Statements which are so
      vague as to prevent the court from identifying the issue to be
      raised on appeal. In the instant case, [a]ppellant’s Concise
      Statement was not specific enough for the trial court to identify
      and address the issue [a]ppellant wished to raise on appeal. As
      such, the court did not address it. Because [a]ppellant’s vague
      Concise Statement has hampered appellate review, it is waived.

Dowling, 778 A.2d at 686-687 (citations and quotation marks omitted).

      Moreover, as we stated in Reeves:

      [t]here is a common sense obligation to give the trial court notice
      as to what the trial court should address in its Rule 1925(a)
      opinion. While there is a middle ground that [an appellant] must
      travel to avoid having a Rule 1925(b) statement so vague that the
      trial judge cannot ascertain what issues should be discussed in the
      Rule 1925(a) opinion or so verbose and lengthy that it frustrates
      the ability of the trial judge to hone in on the issues actually being
      presented to the appellate court, see Kanter v. Epstein, 866
      A.2d 394 (Pa. Super. 2004), that is not an onerous burden to place
      on [an appellant]. It only requires using a little common sense.

Reeves, 907 A.2d at 2-3.

      In essence, the purpose of requiring a concise statement of matters

complained of on appeal under Pa.R.A.P. 1925(b) is to allow the trial court to

easily discern the issues an appellant intends to pursue on appeal and to allow


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the court to file an intelligent response to those issues in an opinion pursuant

to Pa.R.A.P. 1925(a). The Commonwealth’s Pa.R.A.P. 1925(b) statement fails

in this regard.

      The   trial   court   offered   the   following   comments   regarding    the

Commonwealth’s Pa.R.A.P. 1925(b) statement, which compels our conclusion:

      [T]he appellate issue is waived as too vague for the [c]ourt to
      address. The claim, as stated, does not comport with the
      requirements of Pa.R.A.P. 1925(b). [The Commonwealth] must
      concisely identify each ruling or error with sufficient detail to
      identify all pertinent issues for the trial court to address. Pa.R.A.P.
      1925(b)(4)(ii).

                                       * * *

            In this case, [the Commonwealth] fails to identify any ruling
      of law which allegedly was made in error, and fails to indicate how,
      when, or where the [c]ourt committed any abuse of discretion.
      Numerous legal and factual issues were addressed in the [c]ourt’s
      Findings of Fact and Conclusions of Law, yet [the Commonwealth]
      points to no legal or factual finding in support of the bald and
      sweeping appellate claim. This [c]ourt is simply unable to address
      the issue as presented in the concise statement. Hence, the
      appellate claim is waived as too vague for the court to address.

Trial Court Opinion, 7/17/18, at 2. We are constrained to agree with the trial

court’s determination.

      Our review of the certified record reflects that the Commonwealth’s

Pa.R.A.P. 1925(b) statement is nonspecific to the point that it fails to present

thoughtfully any legal issues. Specifically, the Commonwealth has offered the

following: “1. The Court erred as a matter of law and/or abused its discretion

by granting [Appellee’s] Omnibus Pre-Trial Motion.”            Pa.R.A.P. 1925(b)

Statement, 5/9/18, at 1. Due to the vague language in the Commonwealth’s

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Pa.R.A.P. 1925(b) statement, the trial court was compelled to guess at the

legal issues that the Commonwealth sought to preserve and raise on appeal,

which the trial court declined to do.

      The ultimate result of the Commonwealth’s nebulous presentation is

that any issue the Commonwealth wished to raise in this appeal is lost in the

midst of its ambiguous Pa.R.A.P. 1925(b) statement. However, even if the

trial court correctly guessed the issues the Commonwealth wanted to raise,

and wrote its opinion pursuant to that supposition, the issues are waived.

Kanter, 866 A.2d at 400.        Given the foregoing, we conclude that the

Commonwealth’s challenge to the trial court’s order granting Appellee’s

motion to suppress is waived. Therefore, we affirm the order.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/30/2019




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