J-S35009-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                          Appellee

                     v.

GREGORY SWATSKY,

                          Appellant                    No. 1834 MDA 2017


         Appeal from the Judgment of Sentence November 13, 2017
             In the Court of Common Pleas of Schuylkill County
            Criminal Division at No(s): CP-54-CR-0002231-2015


BEFORE: BENDER, P.J.E., PANELLA, J., and MURRAY, J.

MEMORANDUM BY BENDER, P.J.E.:                         FILED AUGUST 27, 2018

      Appellant, Gregory Swatsky, appeals from the judgment of sentence of

72 hours’ to 6 months’ incarceration, imposed after he was convicted of driving

under the influence of a controlled substance (DUI) pursuant to 75 Pa.C.S.

§3802(d)(2). Appellant solely argues that the trial court erred by denying his

motion to suppress the results of a blood test because his consent to that test

was involuntary. We affirm.

      Briefly, Appellant was charged with DUI after he was stopped by a police

officer for driving erratically, admitted to the officer that he had taken certain

controlled substances, failed several field sobriety tests, and then consented

to a blood draw that ultimately confirmed the presence of drugs in his system.

Prior to trial, Appellant filed a motion to suppress the results of the blood test,

contending that his consent to that test was coerced and invalid under
J-S35009-18



Birchfield v. North Dakota, 136 S.Ct. 2160, 2186 (2016) (holding “that

motorists cannot be deemed to have consented to submit to a blood test on

pain of committing a criminal offense”). The trial court denied Appellant’s

motion to suppress and his case proceeded to a non-jury trial. At the close

thereof, the court convicted him of DUI. On November 13, 2017, Appellant

was sentenced to the term of imprisonment stated supra.

      Appellant filed a timely notice of appeal, and he complied with the trial

court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal.    On January 3, 2018, the trial court filed a Rule

1925(a) opinion. Therein, the court addressed the following, single issue that

Appellant presents for our review:    “Did the [t]rial [c]ourt err in denying

Appellant’s [m]otion to [s]uppress because[,] based on the totality of the

circumstances, Appellant did not consent to the blood draw[?]” Appellant’s

Brief at 1.

      We begin by noting that,

      [a]n appellate court’s standard of review in addressing a challenge
      to a trial court’s denial of a suppression motion is limited to
      determining whether the factual findings are supported by the
      record and whether the legal conclusions drawn from those facts
      are correct.      [Because] the prosecution prevailed in the
      suppression court, we may consider only the evidence of the
      prosecution and so much of the evidence for the defense as
      remains uncontradicted when read in the context of the record as
      a whole. Where the record supports the factual findings of the
      trial court, we are bound by those facts and may reverse only if
      the legal conclusions drawn therefrom are in error.




                                     -2-
J-S35009-18



Commonwealth v. Reese, 31 A.3d 708, 721 (Pa. Super. 2011) (citations

omitted).

      Additionally, a trial court’s error in denying a suppression motion will

not require reversal if the Commonwealth can establish beyond a reasonable

doubt that the error was harmless. See Commonwealth v. Baez, 720 A.2d

711, 720 (Pa. 1998). “An error is harmless if it could not have contributed to

the verdict.   In other words, an error cannot be harmless if there is a

reasonable possibility the error might have contributed to the conviction.”

Commonwealth v. Cooley, 118 A.3d 370, 380 (Pa. 2015).

      Here, we have reviewed the briefs of the parties, the certified record,

and the applicable case law.     We have also considered the well-reasoned

opinion authored by the Honorable Jacqueline L. Russell of the Court of

Common Pleas of Schuylkill County. Judge Russell concludes that, even if it

was improper to deny Appellant’s motion to suppress the results of his blood

test, the admission of that cumulative evidence of Appellant’s intoxication was

harmless error. The Commonwealth presents this same argument on appeal,

relying on Judge Russell’s rationale. See Commonwealth’s Brief at 5. We

agree with the Commonwealth and Judge Russell that any error in admitting

the results of Appellant’s blood test would be harmless; therefore, we need

not access whether his consent to that test was coerced. We adopt Judge

Russell’s opinion as our own, and affirm Appellant’s judgment of sentence for

the reasons set forth therein.

      Judgment of sentence affirmed.

                                     -3-
J-S35009-18




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/27/2018




                          -4-
                                                                        Circulated 08/09/2018 02:33 PM




     COURT OF COMMON PLEAS OF SCHUYLKILL COUNTY--CRIMINAL DIVISION


 COMMONWEALTH OF PENNSYLVANIA                        No. 2231-15


               vs.

 GREGORY SWATSKY,
              Defendant
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                         PURSUANT TO Pa.R.A.P. 1925
                                                                                                               ""'
 RUSSELL, J.

        Defendant/Appellant Gregory Swatsky filed an appeal from this court's

judgment of sentence of November 13, 2017. Defendant was found guilty following a

non-jury trial of driving under the influence of drugs (75 Pa.C.S. 3802(d)(2)) and driving

on sidewalks (75 Pa.C.S. 3703(a) ). Defendant was sentenced, inter alia, to serve 72

hours to 6 months in prison on the driving under the influence offense.

       Defendant's statement of complaints on appeal consists of one issue; namely, he

claims that the suppression court erred in failing to suppress the results of a blood test

in violation of Birchfield v. Norlh Dakota, _US_, 136 S.Ct. 2160 (2016). The

suppression determination was made by The Honorable Cyrus Palmer Dolbin of this

court who issued a 1925 opinion on December 28, 2017. This member of the court held

the trial and writes separately to address the impact of the evidence that was the

subject of the suppression ruling on the verdict of the court.



                                             1
        At trial, Officer William Moyer of the Shenandoah Police Department testified that

  he stopped a vehicle driven by Defendant on September 20, 2015 at about 2:40 a.m. in

 the Borough after he saw it make a right turn at an intersection, drive onto the sidewalk

 and then drive off thesidewalk and continue to travel about a block and a half in the

 wrong Jane of the roadway.

        Trooper Michael O'Neill of the Pennsylvania State Police had been a

 Shenandoah police officer at the time of the stop and had been assisting Officer Moyer.

 Trooper O'Neill had extensive experience with impaired drivers and testified about his

 observations of Defendant that early morning.

        When asked for his driver's license, Defendant handed the trooper his AARP

 card. The trooper observed indicators of drug use in Defendant, including a dry mouth,

 constricted pupils and eyelid tremors. Defendant was asked if he had taken any drugs

that day. Defendant stated that he had taken more Ativan than had been recommended

because he was stressed and that he had taken Suboxone. Both Ativan and Suboxone

are controlled substances. Defendant agreed to take field sobriety tests and failed all of

them - being the walk-and-turn, one-leg stand and finger-to-nose tests.

       Defendant was then asked if he would agree to take a blood test and he agreed

to do so. As a result, Trooper O'Neill took Defendant to the hospital where the

PennDOT DL-26 form was first read to Defendant. Defendant consented again to the

blood draw. Trooper O'Neill requested that the hospital test only for drugs as he did not

suspect that alcohol use had been involved. Trooper O'Neill opined that Defendant

had not been capable of driving safely.


                                           2
         The laboratory which tested Defendant's blood reported a positive result for

  Lorazepam which is a benzodiazepine and includes the brand name Ativan, which is an

 "impairing substance" that affects the ability to drive safely. According to Dr. Edward

 Barbieri of MNS Labs, an expert in forensic science, Defendant's having taken more

 Ativan than normally - as Defendant had stated to Trooper O'Neill - would result in an

 "acute effect" upon Defendant. In other words, the sedative effect upon Defendant

 would have impaired his driving.

        As observed by this member of the court at the end of trial after rendering its

 verdict, more than sufficient evidence of Defendant's guilt existed whether or not the

 results of the blood test had been admitted into evidence. Consequently, assuming for

 the sake of argument that the results of the test had never been admitted or are

deemed to have been improperly admitted, the other evidence was, nevertheless, more

than sufficient to prove Defendant's guilt beyond a reasonable doubt, thereby resulting

in any possible erroneous admission of the blood test results harmless to Defendant.

See, Commonwealth v. Petrol/, 738 A.2d 993 (Pa. 1999) (harmless error where

improperly admitted evidence did not prejudice Defendant, was cumulative of properly

admitted evidence, or, contradicted overwhelming evidence of guilt.)

       As noted, Defendant was observed driving erratically on the sidewalk and then in

the wrong lane of travel for well over a block in the Borough of Shenandoah. After

being stopped, he exhibited numerous physical signs of being under the influence of

drugs. He failed all field sobriety tests after having admitted that he took more Ativan

than recommended. Ativan, a controlled substance, impairs driving, particularly when


                                            3
taken above the recommended dosage. Consequently, it is believed that whether or not

the suppression ruling is upheld, Defendant's judgment of sentence should be affirmed.




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