J-A14021-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

KIMBERLY D. NEWDECK

                            Appellant                  No. 974 EDA 2016


           Appeal from the Judgment of Sentence February 25, 2016
               In the Court of Common Pleas of Chester County
             Criminal Division at No(s): CP-15-CR-0001874-2015


BEFORE: BENDER, P.J.E., BOWES, J. AND SHOGAN, J.

MEMORANDUM BY BOWES, J.:                         FILED SEPTEMBER 27, 2017

       Kimberly Newdeck appeals from the judgment of sentence of a flat

ninety-day period of confinement1 followed by three years of probation,

imposed following her convictions for two counts of driving a bicycle under

the influence (DUI).2       We vacate Appellant’s judgment of sentence, vacate

____________________________________________


1
   The trial court states that Appellant “was made eligible for Recovery
Court.” Trial Court Opinion, 11/10/16, at 4. The record does not indicate
what that entails. To the extent the sentence is for a period of total
confinement, it is illegal as those sentences must specify both a minimum
and a maximum sentence. 42 Pa.C.S. § 9756(b)(1); Commonwealth v.
Mitchell, 986 A.2d 1241, 1244 (Pa.Super. 2009) (flat sentence of ninety
days incarceration was illegal). However, because we vacate judgment of
sentence on other grounds, any illegality is irrelevant.
2
  A bicycle qualifies as a vehicle under the Vehicle Code, and the DUI laws
therefore apply.      See Commonwealth v. Brown, 620 A.2d 1213
(Footnote Continued Next Page)
J-A14021-17



the suppression order, and remand the case for proceedings consistent with

this memorandum.

      We adopt the facts as ably set forth by the trial court in its Pa.R.A.P.

1925(a) opinion.

      On November 6, 2014 . . . . Ms. Jennings testified that she was
      on Route 100 at the intersection of Commerce Boulevard. She
      had a green light and was proceeding into the intersection when
      she then heard and felt defendant [,who was riding a bicycle,]
      collide with her driver's side door. As soon as the defendant hit
      her car, she stopped her vehicle and checked to see if the
      defendant was okay. She heard her moan, and then immediately
      grabbed her phone and called 911. The police were already
      dispatched to the scene after a 911 call was placed by a Mr. Fred
      Slack at 9:54 p.m. Ms. Jennings' car sustained damage to the
      driver's side of the vehicle, including to the driver's side mirror.

      Officer Richard Barth of the West Whiteland Police Department
      was dispatched to the scene for an accident involving a bicyclist
      and a vehicle. Upon his arrival, Officer Barth found the defendant
      lying on the road next to her bicycle with serious injuries. She
      was unable to speak clearly and was in obvious pain and
      discomfort. While attempting to talk to defendant, he detected a
      strong odor of alcohol emanating from her breath and person.
      He also found an unopened bottle of vodka on the ground about
      a foot away from where she was lying, which he later
      ascertained was hers. While at the accident scene, Officer Barth
      formed the opinion that defendant was intoxicated to the point
      that she was incapable of safely operating a bicycle.

      ....

      Defendant was transported to Paoli Memorial Hospital's trauma
      unit where she was treated for serious injuries including a
                       _______________________
(Footnote Continued)

(Pa.Super. 1993) (“A bicycle is clearly not a motor vehicle . . . However, it is
the operators of vehicles, not the operators of motor vehicles, who are
regulated[.]”).



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     hemoneumothorax, collapsed lung, fractured ribs, broken
     scapula and a head injury, which required 8-9 staples in her
     scalp. While in the trauma room and receiving treatment, Officer
     Barth waited either in the room or right outside.

     While defendant was obtaining treatment for her injuries, Officer
     Barth advised her that he suspected that she was operating her
     bicycle while she was intoxicated, and he was therefore
     investigating her for Driving Under the Influence (hereinafter
     "DUI"). He then requested a sample of her blood for testing.
     Defendant, who was 45 years old at the time, responded that
     she wanted to speak with her father. The officer told her that
     she was above the age of 18 and had to make the decision
     herself, and she replied, "well, I guess." He then asked if she
     was consenting to the blood draw and he told her she could
     refuse, but that she would face penalties from the Department of
     Transportation including the loss of her license and a $1,000.00
     fine. She then asked to speak to her father again. Officer Barth
     explained that she needed to make the decision, not her father,
     and she replied, "okay, I guess." At that point, the nurse came in
     and drew the blood, which was then provided to the officer and
     tested through the regular means of testing. The results showed
     a blood alcohol content (hereinafter "BAC ") of .173%. . . .

     While Officer Barth did inform the defendant of the
     consequences for refusing to provide a blood sample, he did not
     read the Implied Consent Form (DL-26) to her or ask her to sign
     one since she consented to the blood draw. He testified that he
     only provides the form to a person if they refuse to give consent.

Trial Court Opinion, 11/10/16, at 1-3.

     Appellant was charged with a summary traffic offense, and two counts

of driving under the influence, one for general impairment and one for

driving with a blood alcohol concentration (“BAC”) greater than 0.16% within

two hours of driving. Appellant filed a motion to suppress the blood results,

asserting that the warrantless blood draw did not fall within any valid

exception to the warrant requirement.

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      The trial court denied the motion after an evidentiary hearing.

Appellant then submitted, on October 14, 2015, a supplemental motion to

suppress, averring that “[t]he original seizure of blood was unlawful,” and

that a subsequent warrant for hospital records was predicated upon the

results of the blood draw taken by Officer Barth.     Supplemental Motion to

Suppress, 10/14/15, at ¶ 6-7. An evidentiary hearing was not held, nor was

the motion ruled upon, presumably because the trial court had already

determined that the Commonwealth could introduce the evidence obtained

by Officer Barth.

      Following a bench trial, Appellant was convicted of all counts. The trial

court subsequently imposed the foregoing sentence. Appellant filed a timely

notice of appeal and complied with the trial court’s order to file a concise

statement.    The trial court authored an opinion in response and we now

examine the two issues posed by Appellant.

      1. Did the trial court err in denying defendant's Motion to
      Suppress and in concluding that she knowingly, intelligently and
      voluntarily consented to the seizure of a sample of her blood,
      after the officer refused to allow her to consult with another, and
      told the defendant that there would be an enhanced penalty if
      she refused to consent to blood testing?

      2. Did the trial court err in denying defendant's Motion For
      Judgment     of  Acquittal,  and    in   concluding   that  the
      Commonwealth's evidence was sufficient to prove, beyond a
      reasonable doubt, the charged violation of 75 Pa.C.S. § 3802(c)
      that defendant drove a vehicle within two hours before a sample
      of her blood was drawn?




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Appellant’s brief at 4. We agree that the order denying suppression must be

reversed; however, we address the second issue first. “Since a sufficiency

claim warrants automatic discharge rather than retrial, we address that issue

at the outset.” Commonwealth v. Coleman, 130 A.3d 38, 41 (Pa.Super.

2015) (reviewing sufficiency claim before addressing suppression claim).

      Following the Commonwealth’s presentation of evidence, Appellant

moved for judgment of acquittal at the § 3802(c) charge, which criminalizes

the following:

      (c) Highest rate of alcohol.--An individual may not drive,
      operate or be in actual physical control of the movement of a
      vehicle after imbibing a sufficient amount of alcohol such that
      the alcohol concentration in the individual's blood or breath is
      0.16% or higher within two hours after the individual has driven,
      operated or been in actual physical control of the movement of
      the vehicle.

75 Pa.C.S. § 3802(c).        That motion challenged the sufficiency of the

evidence.   See Pa.R.Crim.P. 606(A)(1) (motion for judgment of acquittal

challenges the sufficiency of the evidence).    Whether the evidence was

sufficient to support the conviction presents a question of law. Our standard

of review is de novo and our scope of review is plenary. Commonwealth v.

Walls, 144 A.3d 926, 931 (Pa.Super. 2016) (citation omitted).              In

conducting our inquiry, we

      examine whether the evidence admitted at trial, and all
      reasonable inferences drawn therefrom, viewed in the light most
      favorable to the Commonwealth as verdict winner, support the
      jury's finding of all the elements of the offense beyond a



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J-A14021-17



       reasonable doubt. The Commonwealth may sustain its burden by
       means of wholly circumstantial evidence.

Commonwealth v. Doughty, 126 A.3d 951, 958 (Pa. 2015).3

       The only element at issue is whether the Commonwealth established

that Appellant’s BAC was 0.16% or higher within two hours of operation.

While our standard of review is de novo, the trial court’s rationale for

denying the motion is well-stated:

       Defendant claims that the Commonwealth failed to establish the
       third element. The court disagrees. Ms. Jennings testified that
       as soon as the defendant hit her car, she stopped her vehicle
       and checked to see if the defendant was okay. She heard her
       moan, and then immediately grabbed her phone and called 911.
       The police were already dispatched to the scene, however, after
       a 911 call was placed by a Mr. Fred Slack at 9:54 p.m. It is
       clear, based on the totality of the circumstances, that the
       accident happened within moments of that call. This conclusion
       is based on the time of day, the location of the accident, and the
       number of people in the area. It is supported by the fact that
       Ms. Jennings called almost immediately after the accident but
       the police were already on their way because of the call from Mr.
       Slack. Defendant's blood was drawn at 11:50 p.m., which was
       within two hours of the accident and the test reflected a BAC of
       0.173%. Accordingly, the court finds that the Commonwealth
       established that defendant's BAC was 0.16% or higher within
       two hours of riding her bicycle as required by the statute.

Order Denying Motion for Judgment of Acquittal, 11/17/15, at 1, n.1.



____________________________________________


3
  Since Appellant moved for judgment of acquittal at the close of the
Commonwealth’s case-in-chief, we slightly modify the inquiry by asking
whether the evidence could support a finding of guilt beyond a reasonable
doubt. The distinction is immaterial for legal purposes.



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       We fully agree with this analysis, as the Commonwealth may establish

its burden of proof as to any element of a crime through wholly

circumstantial evidence.        In Commonwealth v. Johnson, 833 A.2d 260

(Pa.Super. 2003), we noted that “an eyewitness is not required to establish

that a defendant was driving, operating, or was in actual physical control of

a motor vehicle. The Commonwealth can establish [that] through wholly

circumstantial evidence[.]”         Id. at 263.      The evidence established that

Appellant, riding a bicycle, struck a vehicle driven by Brandy Jennings. Ms.

Jennings testified that she immediately stopped her vehicle and called 911.

N.T., 10/19/15, at 111. Police arrived within minutes of the accident. Id. at

96.   Corporal Gary Moore, the first police officer on scene, stated that he

was dispatched by 911 at 9:55 p.m.             Tara Capoferri testified that the blood

was drawn at 11:50 p.m.4 Id. at 74.

       Viewing this evidence in a light most favorable to the Commonwealth

establishes that Appellant was operating the bicycle at approximately 9:54

p.m. Hence, the blood draw at 11:50 p.m. was within two hours. In other

words, the blood draw was timely unless Appellant was last operating the

____________________________________________


4
  Appellant maintains that the time of the blood draw was 11:55 p.m., as
Officer Barth listed that time in his testimony. Appellant’s brief at 22-23.
However, the nurse who conducted the blood draw testified that the blood
was drawn at 11:50 p.m. It is for the fact-finder to resolve these types of
factual discrepancies, and for sufficiency purposes we must view the facts in
the light most favorable to the Commonwealth, not Appellant.



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J-A14021-17



bicycle prior to 9:50 p.m. We find that the Commonwealth’s circumstantial

evidence established that was not the case.        Therefore, the trial court

properly denied the motion.

     Furthermore, even if the circumstantial evidence alone did not suffice,

the Commonwealth clearly established, pursuant to 75 Pa.C.S. § 3802(g),

that the blood was drawn within two hours of operation for purposes of the

underlying DUI crime. That subsection states:

     (g) Exception to two-hour rule.--Notwithstanding the
     provisions of subsection (a), (b), (c), (e) or (f), where alcohol or
     controlled substance concentration in an individual's blood or
     breath is an element of the offense, evidence of such alcohol or
     controlled substance concentration more than two hours after
     the individual has driven, operated or been in actual physical
     control of the movement of the vehicle is sufficient to establish
     that element of the offense under the following circumstances:

           (1) where the Commonwealth shows good cause
           explaining why the chemical test sample could not be
           obtained within two hours; and

           (2) where the Commonwealth establishes that the
           individual did not imbibe any alcohol or utilize a
           controlled substance between the time the individual
           was arrested and the time the sample was obtained.

75 Pa.C.S. § 3802(g).

     The Commonwealth, recognizing that the two-hour window was close,

established each of these two requirements, a fact that Appellant does not

dispute. Instead, Appellant maintains that the Commonwealth cannot rely

on that subsection, since “Section 3802(g) creates an ‘aggravated’ offense

that is different and separate from the offenses set forth in . . . Section

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J-A14021-17



3802(c).”    Appellant’s brief at 24.   Appellant avers that the (g)(1), (2)

provisions constitute “additional elements” that, when proven, result in

increased penalties in violation of United States v. Alleyne, 133 S.Ct. 2151

(2013) (holding that any fact that, by law, increases the penalty for a crime

is an element that must be submitted to the jury and found beyond a

reasonable doubt). Appellant’s brief at 24-25.

      We disagree.     First, Appellant’s legal argument is misdirected; her

argument that § 3802(g) violates Alleyne has nothing to do with the

sufficiency of the evidence to satisfy the two-hour timing element but rather

an assertion that § 3802(g) is unconstitutional for reasons divorced from the

sufficiency context.

      More   importantly,   § 3802(g)    does    not   increase   the   otherwise

applicable penalty for the pertinent DUI crimes, nor does it involve proof of

any additional facts. A violation of the underlying DUI offense, in this case §

3802(c), remains the pertinent crime that the Commonwealth must establish

beyond a reasonable doubt. Section 3802(g) simply provides an exception

to the normal two-hour requirement where the two delineated conditions are

met. Contrary to Appellant’s argument, the two conditions do not constitute

additional elements, but instead reflect a legislative recognition that the

Commonwealth cannot meet the two-hour time requirement in all DUI cases.

In this sense, § 3802(g) is no different than the constructive possession

doctrine, which serves to satisfy the element of possession.                 See

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Commonwealth v. Mudrick, 507 A.2d 1212, 1213 (Pa. 1986) (“Clearly the

Commonwealth could not show actual possession of the contraband. Its case

was based on constructive possession. Constructive possession is a legal

fiction, a pragmatic construct to deal with the realities of criminal law

enforcement.”). Likewise, § 3802(g) is a legal fiction, explicitly codified by

the legislature, to deal with the practical realities of enforcing DUI laws. It

applies only when the Commonwealth has good cause for not testing a

defendant’s blood alcohol level within two hours. There is no doubt that the

scenario herein, where the suspected DUI defendant received medical

attention for injuries sustained in a crash, qualified as good cause.

Therefore, even if we accepted that the blood draw occurred a few minutes

outside the two-hour window, the Commonwealth satisfied the statutory

exception.

      Having concluded that sufficient evidence supported the verdict, we

now address the suppression issue. During the pendency of this appeal, the

United States Supreme Court issued North Dakota v. Birchfield, 136 S.Ct.

2160 (2016), which concluded that a warrantless blood draw was not

justified as a search incident to arrest. Next, with respect to whether the

consent exception for searches applied based on implied consent, i.e. the

theory that operating a motor vehicle constitutes consent by conduct, the

Court concluded that the warrantless taking of a blood sample could not be

justified based on such laws.

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      Our prior opinions have referred approvingly to the general
      concept of implied-consent laws that impose civil penalties and
      evidentiary consequences on motorists who refuse to comply.
      Petitioners do not question the constitutionality of those laws,
      and nothing we say here should be read to cast doubt on them.
      It is another matter, however, for a State not only to insist upon
      an intrusive blood test, but also to impose criminal penalties on
      the refusal to submit to such a test. There must be a limit to the
      consequences to which motorists may be deemed to have
      consented by virtue of a decision to drive on public roads.

Id. at 2185 (citations omitted).

      In Commonwealth v. Evans, 153 A.3d 323 (Pa.Super. 2016), we

applied Birchfield, vacated the judgment of sentence, and remanded for an

evidentiary    hearing   regarding   whether,   in   light    of   Birchfield,   the

defendant’s consent could be deemed voluntary.               Therein, David Evans

agreed to provide blood after being read the implied consent warnings. See

75 Pa.C.S. § 1547(a).      Like Appellant herein, Evans maintained that his

consent was coerced by the threat of criminal penalties and was therefore

involuntary.   Applying Birchfield, we determined that further proceedings

were required:

      [E]ven though Pennsylvania's implied consent law does not
      make the refusal to submit to a blood test a crime in and of
      itself, the law undoubtedly “impose[s] criminal penalties on the
      refusal to submit to such a test.” Birchfield, 136 S.Ct. at 2185–
      2186. To be sure, Section 3804(c) provides that an “individual
      who violates section 3802(a)(1)[, DUI, general impairment] and
      refused testing of blood” is punished more severely than an
      individual who commits the stand-alone DUI, general impairment
      offense under Section 3802(a)(1)—and to the same extent as an
      individual who violates Section 3802(c), relating to DUI, highest
      rate of alcohol. 75 Pa.C.S.A. § 3804(c). As such, Birchfield
      controls the case at bar.

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      In this case, Appellant consented to the warrantless blood draw
      . . . . [only] after being informed, by the police, that refusal to
      submit to the test could result in enhanced criminal penalties.
      Since Birchfield held that a state may not “impose criminal
      penalties on the refusal to submit to [a warrantless blood] test,”
      the police officer's advisory to Appellant was partially inaccurate.
      Therefore, we must vacate Appellant's judgment of sentence,
      vacate the suppression court's order, and remand the case to
      the trial court to “reevaluate [Appellant's] consent ... [, based
      on] the totality of all the circumstances ... [and] given the partial
      inaccuracy of the officer's advisory.” Birchfield, 136 S.Ct. at
      2186.

Evans, supra at 331 (all alterations except first in original).

      The Commonwealth concedes that the suppression order must be

vacated, as Appellant preserved the issue at all stages and is therefore

entitled to application of the Birchfield holding. The Commonwealth does

not ask for a remand to address the voluntariness of the consent or suggest

that the order may be affirmed on some other ground, such as exigent

circumstances. Instead, the Commonwealth states that the issue of whether

it may introduce the evidence obtained as a result of the search warrant,

which was the subject of the supplemental suppression motion, is for

litigation upon retrial. We agree that Evans applies, and therefore reverse

judgment of sentence and remand for a new trial at which the suppressed

evidence must be excluded.




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       Judgment      of   sentence     vacated.    Suppression   order   vacated.

Jurisdiction relinquished.5

____________________________________________


5
   We note that, following oral argument in this case, our Supreme Court
decided Commonwealth v. Myers, --- A.3d ---, 2017 WL 3045867 (Pa.
July 19, 2017). A majority of our High Court agreed that an unconscious
driver retained the statutory right to refuse a blood draw, since that right
applies to all DUI arrestees. See 75 Pa.C.S. § 1547(a) (motorist is deemed
to have consented to chemical testing of breath or blood if police officer has
reasonable basis to suspect motorist is impaired by influence of alcohol or a
controlled substance); § 1547(b) (consequences for refusal).

Justice Wecht, joined by Justices Donohue and Dougherty, expressed the
view that the warrantless blood draw was not otherwise saved under the
implied consent theory. Justice Wecht opined that the driver must be given
the chance to refuse, not only as a statutory right, but as a constitutional
command. “This conclusion not only is commanded by the statute; it is a
constitutional necessity.” Id. at *11 (footnote omitted). Justice Todd filed a
concurring opinion, stating that the statutory violation was enough to
resolve the case, and declined to address the constitutional dimensions.

Chief Justice Saylor, joined by Justice Baer, authored a concurring opinion
disagreeing with the foregoing discussion respecting whether implied
consent serves as consent. “[I]t seems to me that the voluntary act of
operating a vehicle suffices to establish the initial consent to chemical
testing.”   Id. at *15 (Saylor, C.J., concurring).      Justice Mundy also
expressed that view in dissent. “The text reveals the General Assembly's
intent to generally deem all drivers on Pennsylvania's roads as having
consented to blood or breath tests . . . . one who has been deemed to have
given consent and does not affirmatively revoke consent has still given it.”
Id. at *17-18 (Mundy, J., dissenting).

As is evident from Myers, the issue of implied consent remains unsettled
post-Birchfield. See e.g. State v. Brar, --- N.W.2d ---, 2017 WL 2876142
at *4 (Wi. 2017) (“The use of the word ‘implied’ in the idiom ‘implied
consent’ is merely descriptive of the way in which an individual gives
consent. It is no less sufficient consent than consent given by other
means.”). This case deals with a patient who was apparently conscious at
all times, and may or may not have had blood drawn for independent
(Footnote Continued Next Page)


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J-A14021-17



      Judge Shogan joins the memorandum.

      P.J.E. Bender concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/27/2017




                       _______________________
(Footnote Continued)

medical reasons in addition to investigative reasons. Our disposition is
limited to an agreement that Birchfield rendered involuntary Appellant’s
consent to the requested blood draw.



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