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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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




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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.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/27/2018




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