J-S20028-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    BRETT JASON WISE                           :   No. 1837 MDA 2017

                   Appeal from the Entered November 3, 2017
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0002934-2017


BEFORE: GANTMAN, P.J., OTT, J., and KUNSELMAN, J.

MEMORANDUM BY OTT, J.:                                    FILED JUNE 11, 2018

       The Commonwealth appeals from the order entered November 3, 2017,

in the Court of Common Pleas of Berks County, that granted appellee’s, Brett

Jason Wise’s, motion to suppress blood test results only. 1 The Commonwealth

contends (1) the trial court erred in suppressing evidence pursuant to

Birchfield v. North Dakota, 136 S.Ct. 2160 (2016)2, where the DL-26B form

read to appellee had been modified to remove the objectionable language

regarding the enhanced penalties for a blood testing refusal, rendering the

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1The Commonwealth has certified that the trial court’s ruling terminated or
substantially handicaps the prosecution of this case.

2 Birchfield “prohibit[s] states from imposing criminal penalties upon an
individual’s refusal to submit to a warrantless blood test.” Commonwealth
v. Smith, 177 A.3d 915, 921 (Pa. Super. 2017), citing Birchfield, 136 S.Ct.
at 2185.
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consent to the blood draw voluntary, and (2) the trial court erred in

suppressing evidence pursuant to Birchfield, supra, where the totality of the

circumstances indicates that the consent to the blood draw was voluntary.

See Commonwealth Brief at 4. Based upon the following, we reverse and

remand for further proceedings.

        On April 16, 2017, at approximately 2:39 a.m., Officer Brad Brenner of

the Robeson Township Police Department initiated a traffic stop after he

observed the passenger-side tires of appellee’s vehicle cross the white fog line

on three separate occasions over the course of a mile. Subsequently, Officer

Brenner arrested appellee for suspected driving under the influence (DUI).3

Appellee was transported to the Berks County DUI Processing Center. Officer

Brenner read appellee Pennsylvania Department of Transportation (PennDOT)

Form DL-26B.4       The DL-26B form that Officer Brenner read to appellee to

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3   See 75 Pa.C.S. § 3802.

4   The DL-26B form provided, in relevant part:

        It is my duty as a police officer to inform you of the following:

        1. You are under arrest for driving under the influence of
        alcohol or a controlled substance in violation of Section 3802
        of the Vehicle Code.

        2. I am requesting that you submit to a chemical test of blood.

        3. If you refuse to submit to the blood test, your operating
        privileges will be suspended for at least 12 months. If you
        previously refused a chemical test or were previously



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obtain consent for blood testing was updated following Birchfield, to remove

previous DL-26 language regarding enhanced criminal penalties for refusal to

submit to a blood test. Appellee signed the DL-26B form and submitted to

the blood draw. The testing revealed a BAC of .179.

        On May 3, 2017, appellee was charged with DUI5 and related offenses.

On August 3, 2017, appellee filed an omnibus pretrial motion, seeking inter

alia to suppress the blood test results. A hearing was held on September 6,

2017. Thereafter, on November 3, 2017, the trial court issued findings of fact

and conclusions of law and granted the suppression motion as to the blood

tests only. This appeal by the Commonwealth followed.

        Our standard of review of the trial court’s suppression ruling is well

settled:

           When the Commonwealth appeals a suppression order, we
           consider only the evidence from [Appellee’s] witnesses
           together with the portion of the Commonwealth’s evidence
           which is uncontroverted. Our standard of review is limited
           to determining whether the suppression court’s factual
           findings are supported by the record, but we exercise de
____________________________________________


        convicted of driving under the influence, you will be suspended
        for up to 18 months.

        4. You have no right to speak to an attorney or anyone else before
        deciding whether to submit to testing. If you request to speak with
        an attorney or anyone else after being provided these warnings or
        you remain silent when asked to submit to a blood test, you will
        have refused the test.

N.T., 9/6/2017, Commonwealth’s Exhibit 1.

5   75 Pa.C.S. §§ 3802(a)(1) and (c).

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         novo review over the suppression court's conclusions of
         law.

      Further, “[a]ppellate courts are limited to reviewing only the
      evidence presented at the suppression hearing when examining a
      ruling on a pre-trial motion to suppress.” “It is within the
      suppression court's sole province as factfinder to pass on the
      credibility of witnesses and the weight to be given their
      testimony.”

Commonwealth v. Thomas, 179 A.3d 77, 81 (Pa. Super. 2018) (citation

and internal citations omitted).

      The Commonwealth first contends “the trial court err[ed] in suppressing

evidence pursuant to Birchfield … where the DL-26B form was modified to

remove the objectionable language regarding the enhanced penalties for a

blood testing refusal, rendering the consent to the blood draw voluntary.”

Commonwealth Brief at 4.      Appellee counters, “the DL-26B [form] directly

contradict[ed] the mandates of the Motor Vehicle Code” then in effect.

Appellee’s Brief at 11, citing 75 Pa.C.S. §§ 1547(b)(2) and 3804(c).

      The identical claim presented by the Commonwealth in this appeal was

recently addressed in Commonwealth v. Robertson, ___ A.3d ___ [2018

Pa. Super. LEXIS 426] (Pa. Super. May 3, 2018), where a panel of this court

found merit in the Commonwealth’s argument.            Accordingly, because

Robertson is controlling in this case, we simply reiterate its holding that

PennDOT had the authority to amend the DL-26 form prior to the legislation




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that amended Section 3804, and that the defendant was presumed to know

both statutory and case law.6        Id. at *14.

       In the second issue, the Commonwealth contends the trial court erred

in suppressing evidence pursuant to Birchfield, supra, where the totality of

the circumstances indicates that the consent to the blood draw was voluntary.

In reviewing this claim, Robertson is instructive:

       Under [Commonwealth v.] Evans[,153 A.3d 323 (Pa. Super.
       2016)], a trial court must consider the totality of the
       circumstances when determining if a defendant’s consent to a
       blood draw was voluntary. Evans, 153 A.3d at 328 (citation
       omitted). As our Supreme Court explained:

           While there is no hard and fast list of factors evincing
           voluntariness, some considerations include: 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 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. Gillespie, 573 Pa. 100, 821 A.2d 1221, 1225
       (Pa. 2003) (Eakin, J., opinion announcing the judgment of the
       court) (cleaned up), citing Commonwealth v. Cleckley, 558
       Pa. 517, 738 A.2d 427, 433 n.7 (Pa. 1999).

Robertson, supra at *14-*15.




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6 A three-judge panel of this Court is not empowered to overrule another
three-judge panel of the Superior Court. Commonwealth v. Beck, 78 A.3d
656, 659 (Pa. Super. 2013). See also Commonwealth v. Hull, 705 A.2d
911, 912 (Pa. Super. 1998).


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      The trial court and appellee take the position appellee’s consent was

involuntary because Form DL-26B did not correctly state the law because the

constitutional defects in Section 3804 had not been cured at the time of

appellee’s arrest. However, this reasoning fails because, as the Robertson

panel held, an individual is presumed to know statutory law and case law,

i.e., Birchfield. The trial court does not point to any other fact to justify its

finding of lack of voluntary consent.

      For his part, appellee relies on Commonwealth v. Myers, 164 A.3d

1162 (Pa. 2017) to argue his consent was involuntary.      In addition, appellee

claims that, because he had a prior DUI arrest, that meant he knew he could

not refuse the blood test without increased criminal penalties.      These two

arguments, however, were rejected in Commonwealth v. Miller, ___ A.3d

___ [2018 Pa. Super. LEXIS 427] (Pa. Super. May 3, 2018), which was issued

contemporaneously with Robertson. The Miller panel distinguished Myers,

which involved a defendant who was unconscious and incapable of consent to

a blood draw. Miller, at *4-*5. The Miller panel further held, “Appellee’s

failure to recognize that [the police officer’s] warnings differed from those he

received in the past, and his reliance on the previous police interaction, cannot

weigh heavily against finding voluntary consent.” Miller, at *6.

      Here, the trial court made the following findings of fact that are relevant

to the factors to be considered in determining voluntariness of consent. On

April 16, 2017, at approximately 2:39 a.m., Officer Brenner arrested appellee

for suspected DUI and transported him to the Berks County DUI Processing

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Center. Officer Brenner read the DL-26B form to appellee. Officer Brenner

was dressed in full uniform and displaying a badge of authority.         Officer

Brenner did not point either his gun or his Taser at appellee. Officer Brenner

did not scream at appellee while reading the DL-26B form. Officer Brenner

did not tell appellee that something bad would happen to him if he did not

sign the form.   Appellee submitted to the blood draw.       See Trial Court’s

Findings of Fact and Conclusions of Law, 11/3/2017, ¶¶5-12.

      Based on our review, this Court concludes that the facts of the instant

case, set forth above, clearly weigh in favor of a finding of voluntariness. The

only factor that weighs against a finding of voluntariness in this case is the

fact that appellee was in custody. There is no evidence of duress or coercive

tactics. Officer Brenner properly advised appellee he could refuse the blood

test and be subject to certain civil penalties. Furthermore, any subjective

belief of appellee that he could not refuse a blood test without criminal

penalties does not weigh heavily against voluntariness.      No evidence was

presented regarding whether appellee was aware that incriminating evidence

would be found in his blood. Lastly, appellee signed the DL-26B form and

police were able to get a blood sample. As such, this Court concludes no

reasonable factfinder could determine appellee’s consent was involuntary.

Therefore, we find merit in the Commonwealth’s second argument.

      Accordingly, we reverse the trial court’s suppression order and remand

for further proceedings consistent with this memorandum.




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     Order reversed. Case remanded. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/11/2018




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