J-A26038-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH                          OF :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                             :        PENNSYLVANIA
                                             :
                                             :
                v.                           :
                                             :
                                             :
    SCOT DOUGLAS MALINOWSKI                  :
                                             :   No. 401 MDA 2017
                       Appellant

           Appeal from the Judgment of Sentence February 27, 2017
      In the Court of Common Pleas of Adams County Criminal Division at
                        No(s): CP-01-CR-0000896-2016


BEFORE: BOWES, J., OLSON, J., and RANSOM, J.

MEMORANDUM BY RANSOM, J.:                           FILED JANUARY 17, 2018

        Appellant, Scot Douglas Malinowski, appeals from the judgment of

sentence of sixty (60) months of intermediate punishment, including ninety

(90) days in a restrictive setting and restorative monetary sanctions, imposed

February 27, 2017, following a bench trial resulting in his conviction for driving

under the influence (DUI) – controlled substance (Schedule I), DUI –

controlled substance (metabolite), and DUI – controlled substance, general

impairment.1 We affirm.

        The following facts were established at a pre-trial suppression hearing.

Officer Joshua Rosenburger observed a vehicle traveling on Mummasburg

Road. Notes of Testimony (N.T.), 10/20/2016, at 5. The Officer observed the

vehicle turn left into a development and accelerate at a high rate of speed.
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1   See 75 Pa.C.S. §§ 3802(d)(1)(i), 3802(d)(1)(iii), and 3802(d)(2).
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Id. at 5-6. The Officer continued to follow the vehicle until he observed the

vehicle stop. Id. at 6. Appellant, the operator of the vehicle, got out of the

vehicle, and he opened up the hood of the car. Id. at 6. Appellant also put

the four-ways on. Id.

      Believing that Appellant was having some sort of vehicle trouble, the

Officer stopped his patrol vehicle to ask if everything was okay. Id. Appellant

indicated that he had vehicle problems, such as low engine oil or something

along those lines. Id. As the Officer approached Appellant, he noticed that

Appellant appeared extremely nervous. Id. at 7. The Officer asked Appellant

about drug use. At first, Appellant responded that he had smoked marijuana

weeks prior; later, Appellant admitted to smoking two days prior. Id. at 7-8.

The Officer commenced field sobriety testing and observed clues of

impairment. Id. He testified that Appellant had “a thick substance on his

tongue, which is an indicator of marijuana use, as well as a marked running

of his conjunctiva, which [exists when] you pull the eyelid down [to reveal]

extremely pronounced reddening at the bottom of the eye.” Id. at 8. The

Officer performed other tests, but not all tests indicated signs of impairment.

Id. at 9. Thereafter, Appellant was placed under arrest for DUI.

      Appellant was advised by the Officer that he would be taken to

Gettysburg Hospital where the Officer would request Appellant to take a blood

test. Id. at 9-10. Appellant was handcuffed and placed into the back of the

Officer’s patrol vehicle. Id. at 10. Appellant indicated his willingness to take

the test because he believed that the test would reveal that he had no drugs

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in his system. Id. at 10. There was no further discussion between the Officer

and Appellant regarding the blood draw.      After the Officer filled out some

paperwork, Appellant extended his arm for the blood draw and two vials of

blood were removed by a lab technician at 3:30 p.m.         Id. at 10-11. The

Officer testified that he was trained that it was not necessary to read a DL-26

form containing implied consent warnings, where the arrestee gives no

indication of his intent to refuse to comply with the test. Id. at 11. The test

results were returned to the officer.    Id. at 12.   The results showed that

Appellant’s blood contained Delta 9 Carboxy THC and Delta 9 THC (tested

positive for marijuana). Trial Ct. Op. (TCO), 10/31/2016, at 3.

      At the suppression hearing, Appellant testified that he “didn’t

necessarily want the blood draw” because he already had a prior DUI. N.T. at

18. He testified that he was informed on the prior DUI that he could spend a

few days in jail if he failed to do the blood draw. Id. In the instant case, he

claimed that he complied with the officer “to get it done and over with as fast

as [he] could at that point in time out of frustration.” Id. at 19.

      The suppression court found Appellant’s testimony self-serving and not

credible and denied Appellant’s motion to suppress blood test results. Id. at

28.   Following a bench trial, where the blood test results were admitted,

Appellant was found guilty. On February 27, 2017, Appellant was sentenced

as described above.

      Appellant timely appealed and filed a court-ordered 1925(b) statement.

The court issued a responsive opinion.

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      On appeal, Appellant raises only one issue for review:

      Whether the lower court erred when it did not suppress the results
      of a blood draw in a DUI investigation where verbal warnings of
      criminal penalties for refusal of a blood draw were not made, but
      Malinowski had presumptive knowledge of the law indicating that
      a refusal of the request for a blood draw could trigger enhanced
      criminal penalties.

Appellant's Br. at 5.

      Appellant contends that the trial court erred in denying his motion to

suppress.   According to Appellant, his consent to a blood draw must be

deemed involuntary. Appellant's Br. at 10 (citing, inter alia, Birchfield v.

North Dakota, 136 S.Ct. 2160 (2016)).

      Our standard of review is as follows:

          Once a motion to suppress evidence has been filed, it is the
      Commonwealth's burden to prove, by a preponderance of the
      evidence, that the challenged evidence was not obtained in
      violation of the defendant's rights. With respect to an appeal from
      the denial of a motion to suppress, our Supreme Court has
      declared: Our standard of review in addressing a challenge to a
      trial court's denial of a suppression motion is whether the factual
      findings are supported by the record and whether the legal
      conclusions drawn from those facts are correct. When reviewing
      [such a ruling by the] suppression court, we must consider only
      the evidence of the prosecution and so much of the evidence of
      the defense as remains uncontradicted when read in the context
      of the record. ... Where the record supports the findings of the
      suppression court, we are bound by those facts and may reverse
      only if the legal conclusions drawn therefrom are in error.
      Moreover, appellate courts are limited to reviewing only the
      evidence presented at the suppression hearing when examining a
      ruling on a pre-trial motion to suppress.

Commonwealth v. Evans, 153 A.3d 323, 327 (Pa. Super. 2016) (internal

citations and quotation marks omitted).
          “The Fourth Amendment to the [United States] Constitution

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       and Article I, Section 8 of [the Pennsylvania] Constitution protect
       citizens       from        unreasonable        searches        and
       seizures.” Commonwealth v. McAdoo, 46 A.3d 781, 784 (Pa.
       Super. 2012). “A search conducted without a warrant is deemed
       to be unreasonable and therefore constitutionally impermissible,
       unless an established exception applies.” Commonwealth v.
       Strickler, 757 A.2d 884, 888 (Pa. 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, 615 A.2d 308, 315 (Pa.
       1992); Schmerber[, 384 U.S. at 770]. 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.

Evans, 153 A.3d at 327-28.          “One such exception is consent, voluntarily

given.” Strickler, 757 A.2d at 888-889 (citing Schneckloth v. Bustmonte,

412 U.S. 218, 219 (1973)).           Under the Fourth Amendment, where an

encounter between law enforcement is lawful, voluntariness of consent to a

search becomes the exclusive focus. See id.

       In Birchfield, the Supreme Court of the United States held “motorists

cannot be deemed to have consented to submit to a blood test on pain of

committing a criminal offense.” Birchfield, 136 S.Ct. at 2185-86. At the

time   of   Appellant’s   arrest,   Pennsylvania’s   implied   consent   scheme

“undoubtedly impose[d] criminal penalties on the refusal to submit to a blood


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test.” Evans, 153 A.3d at 331 (quoting Birchfield, 136 S.Ct. at 2185-86).

      Appellant contends that his consent was involuntary because it was

made “with presumptive knowledge of the danger of enhanced criminal

penalties for refusal.” Appellant's Br. at 10. According to Appellant, he was

potentially subject to criminal penalties for refusal – “the same coercive

measure fatal to searches in Birchfield and Evans.” Appellant's Br. at 15

(also referring to “an umbrella threat of increased criminal penalties for

refusing a blood draw”).     In support of this argument, Appellant directs our

attention to the ancient maxim that everyone is presumed to know the law

and ignorance of the law excuses no one. See id. In conclusion, Appellant

boldly suggests that “all consent to warrantless blood draws in the time of

post-Birchfield [sic] … [should] be per se invalid.” Id. at 16. Appellant’s

argument is without merit.

      At the time of Appellant’s arrest, the law was that the police must inform

an arrestee of the consequences of refusal.       Pa. Dep’t of Transport. v.

O’Connell,    555   A.2d     873,   877   (Pa.   1989)   (citing   Everhart   v.

Commonwealth, 420 A.2d 13 (1980) (“a precisely enunciated warning that

a driver’s license will be revoked is now an additional prerequisite to

suspension or revocation of driving privileges for refusal to consent,” id. at

15)). Absent a proper warning, there could be no consequences for refusal.

Id.   Accordingly, even if we were to accept the premise of Appellant’s




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argument regarding “presumptive knowledge,” Appellant’s argument fails.2

       Further, Appellant’s reliance on Birchfield is inapposite. “Birchfield

makes plain that the police may not threaten enhanced punishment for

refusing a blood test in order to obtain consent, 136 S.Ct. at 2186; whether

that enhanced punishment is (or can be) ultimately imposed is irrelevant to

the question whether the consent was valid.” Commonwealth v. Ennels,

167 A.3d 716, 724 (Pa. Super. 2017), reargument denied (Sept. 19, 2017).

Unlike in Evans and Ennels, Appellant concedes that he was not threatened

with enhanced criminal penalties prior to consenting to the blood test.

Compare Appellant's Br. at 10, with Evans, 153 A.3d at 325-326. Under

Ennels, supra, the mere existence of legislation that imposed criminal

penalties for refusal, absent an actual threat, does not amount to coercion or

invalidate the consent given.

       In evaluating voluntariness of consent, Pennsylvania courts evaluate the

following factors objectively, based upon the totality of all the circumstances:

       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
____________________________________________


2Indeed, if Appellant was subjected to criminal penalties for refusal, he would
have a viable claim based on the officer’s failure to comply with O’Connell.
The Pennsylvania Supreme Court has held that the implied consent statute
does not supplant the right of arrestees to make a knowing and conscious
choice with regard to whether to consent to a chemical test.               See
Commonwealth v. Myers, 164 A.3d 1162, 1181 (Pa. 2017) (holding that an
unconscious arrestee was incapable of voluntarily consenting to a blood test
because his unconscious state deprived him of ability to make a knowing and
conscious choice under the totality of the circumstances).

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       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.

Commonwealth v. Cleckley, 738 A.2d 427, 433 (Pa. 1999) (“Cleckley

factors”) (citation omitted); see also Smith, 77 A.3d at 573.              Under

Pennsylvania law, an arrestee need not be informed of the right to refuse a

chemical test in order for the consent to be voluntary under Article I, Section

8 of the Pennsylvania Constitution. Cleckley, 738 A.2d at 428.

       In this case, the suppression court recognized that certain facts militated

against a finding of voluntariness. For example, Appellant was under arrest

and in custody at the time of blood draw, which created an “inherently coercive

atmosphere[.]” TCO at 7. Appellant also was not advised of his right to refuse

to consent. Id. However, the court correctly concluded that these facts were

not determinative of whether consent was voluntarily given.             Id.; see

Cleckley, 738 A.2d at 432.

       In finding the consent was voluntary, the court deemed the following

facts dispositive: (1) “[Appellant] knew he was consenting to the taking of his

blood by law enforcement”; (2) Appellant did not act under duress; (3) Officer

Rosenberger did not use coercive tactics; and (4) Appellant also indicated to

the officer his belief that no drugs would be found in his system. See TCO at

7-8.   Based on Appellant’s belief that no incriminating evidence would be

found, his cooperation with Officer Rosenberger, his lack of objection to the

need for a blood test, lack of mental turmoil in agreeing to take the test, and

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willful extension of his right arm, the suppression court concluded that

Appellant provided knowing and voluntary consent to the blood draw under

the totality of the circumstances. Id. at 8-9.3

       Moreover, the trial court succinctly summarized why this argument lacks

merit:

       There is no evidence, even if [Appellant] was knowledgeable about
       the implied consent refusal penalties, that the mere existence of
       such a law was so coercive that [Appellant’s] free will was
       overborne. [Appellant] neither expressed nor displayed any
       sights of such intellectual turmoil to the police officer.

Trial Court Opinion (TCO), 10/31/2016, at 9.

       Viewing    the    record    objectively   considering   the   totality   of   the

circumstances, the Commonwealth’s evidence was sufficient to establish that

his consent was “the product of an essentially free and unconstrained choice.”

Strickler, 757 A.2d at 901. As the court’s conclusions are supported by the

record, we discern no error. Smith, 77 A.3d at 573.

       Judgment of sentence affirmed. Jurisdiction relinquished.




____________________________________________


3 Notably, Appellant waived any challenge to the court’s assessment of the
Cleckley factors by failure to preserve the issue and failure to develop a
meaningful argument in his brief. See Pa.R.A.P. 302; Pa.R.A.P. 2119.

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J-A26038-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 01/17/2018




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