J-S79034-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LESLEY DIANE SHOEMAKER,                    :
                                               :
                       Appellant               :       No. 891 MDA 2018

              Appeal from the Judgment of Sentence May 29, 2018
                 in the Court of Common Pleas of Fulton County
              Criminal Division at No(s): CP-29-CR-0000043-2017

BEFORE: SHOGAN, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                                FILED MAY 16, 2019

        Lesley Diane Shoemaker (“Shoemaker”) appeals from the judgment of

sentence imposed following her convictions of driving under the influence of

alcohol (“DUI”) – general impairment, DUI – highest rate of alcohol, and

careless driving.1 We affirm in part, and vacate in part.

        The trial court set forth the relevant facts as follows:

        [Shoemaker] is a unionized employee of the Pennsylvania
        Turnpike [Commission (“the Commission”)]. On December 27,
        2016, Assistant Foreman Ricky Lauthers [(“Lauthers”)] was
        approached by another employee[,] who suggested that Lauthers
        “take a look at” [Shoemaker]. Lauthers approached [Shoemaker]
        just outside of the female locker room to discuss the day’s
        assignments. During the conversation, Lauthers observed that
        [Shoemaker] was staggering and slurring her speech. Upon
        Lauthers instructing [Shoemaker] on her work assignment, [i.e.,
        to wash trucks and patrol later in the day,] [Shoemaker] stated “I
        know I’m not the best, but I will do my best for you.” Not
        understanding [Shoemaker’s] statement and smelling alcohol on
____________________________________________


1   75 Pa.C.S.A. §§ 3802(a)(1), 3802(c), 3714(a).
J-S79034-18


       her breath, Lauthers further questioned [Shoemaker]. Lauthers
       directly asked [Shoemaker] if she was drinking[,] and
       [Shoemaker] denied she had anything to drink and she questioned
       Lauthers about whether “this was what we are going to do,
       really?” [Assuming that Shoemaker was going to wash trucks as
       assigned,] Lauthers proceeded into his office to talk with Dale Hall
       [(“Hall”)], Director of Maintenance, and inform him of Lauthers’[s]
       observations and suspicions. [] Hall subsequently called Patrick
       Caro [(“Caro”)], Manager of Labor Relations, and it was
       determined to bring [Shoemaker] into the office.

              When Lauthers went to retrieve [Shoemaker] from her
       assigned area, he was informed that [Shoemaker] was on the
       Turnpike in a [] Commission pickup truck. After several attempts
       to reach [Shoemaker] by cell[]phone, Lauthers was able to make
       contact [with Shoemaker] and told her to pull over and wait for
       them. Lauthers and Hall proceeded west on the Turnpike towards
       the Fort Littleton interchange, and upon arrival[,] spotted
       [Shoemaker] … speaking to another motorist. As Lauthers and
       Hall approached, [Shoemaker] … started driving away. Hall
       honked his horn and shouted at [Shoemaker] to get her to stop
       her vehicle, at which point she made a [U]-turn, driving in the
       wrong direction into the opposing traffic lane, and pulled in behind
       their vehicle.

              Lauthers and Hall told [Shoemaker] that they were taking
       her to the Fulton County Medical Center (FCMC) for a breath
       test.[2]  [Shoemaker] immediately requested vacation leave,
       which was denied[,] and then requested sick leave, which was also
       denied. Lauthers and Hall told [Shoemaker] that if she refused to
       accompany them to FCMC, the police would be notified. [E]n route
       to the FCMC, after being informed again that [Shoemaker] was
       going to be tested for alcohol, [Shoemaker] informed Lauthers
____________________________________________


2 Relevant to this appeal, as a unionized employee, Shoemaker was subject
to a Collective Bargaining Agreement (“the Agreement”), including the “Drug
Testing Language Proposal between the Pennsylvania Turnpike Commission
and Teamsters Local 77 & 250,” which was entered into evidence at the
suppression hearing. The Agreement provides for breath alcohol testing based
on probable suspicion, which is defined in the Agreement as “an employee’s
specific observable appearance, behavior, speech or body odor that clearly
indicates the need for probable suspicion alcohol testing.” Commonwealth’s
Suppression Exhibit 1 (Agreement), at 16.

                                           -2-
J-S79034-18


       and Hall that “if that’s what you’re doing[,] then I’m fucked.” At
       [] FCMC, [Shoemaker] was unable to provide a sufficient volume
       of breath for the breath sample during three (3) separate
       attempts. As a result, Hall contacted Caro, who instructed Hall to
       request a blood sample from [Shoemaker]. [Shoemaker] agreed
       to submit to a blood sample[,] and the results indicated a Blood
       Alcohol Content [(“BAC”)] of .234%. Subsequently, [Shoemaker]
       was instructed to leave the workplace and was removed from the
       work schedule pending further administrative processing.

              The next day, the Pennsylvania State Police were contacted
       to initiate an investigation. On January 24, 2017, Trooper [Tyler]
       Brough [(“Trooper Brough”)] obtained a search warrant for the
       blood sample results from FCMC[, based on information he
       received from Lauthers and Hall,] and on January 31, 2017, []
       Trooper [Brough] charged [Shoemaker] with two counts of [DUI]
       and careless driving.

Trial Court Opinion, 7/10/18, at 3-5 (footnote added; citations to the record

omitted).

       On June 8, 2017, Shoemaker filed an Omnibus Pre-Trial Motion,

including, inter alia, a Motion to suppress her blood test results. Citing the

United States Supreme Court’s decision in Birchfield v. North Dakota,3

Shoemaker asserted that the seizure of blood may not be compelled without

consent or a warrant, and that neither the Pennsylvania nor the United States

Constitutions created an exception for seizures by government employers.
____________________________________________


3 Birchfield v. North Dakota, 136 S. Ct. 2160 (2016). The Birchfield Court
held that, because the taking of a blood sample is a “search” within the
meaning of the Fourth Amendment to the United States Constitution, police
officers may not compel the taking of a blood sample without a search
warrant, absent an applicable exception. See id. at 2185. Relevant to the
instant appeal, the Birchfield Court held that implied consent laws that
impose criminal penalties for refusing to consent to a blood test are
unconstitutional, because “motorists cannot be deemed to have consented to
submit to a blood test on pain of committing a criminal offense.” Id. at 2185-
86.

                                           -3-
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Shoemaker argued that the Agreement only provides for breath or urine

testing. Additionally, Shoemaker claimed that she had not been informed that

the test results could be used for the purpose of procuring criminal charges.

The Commonwealth filed an Answer, pointing out that the holding in

Birchfield applies to blood draws by police following arrests for suspicion of

DUI, and that Shoemaker was subjected to a blood test by her employer. The

suppression court conducted a hearing, after which it directed the parties to

submit briefs on the issue.4 On November 7, 2017, the suppression court

issued an Opinion and Order denying Shoemaker’s Motion.

        On November 27, 2017, Shoemaker filed a Motion to Reconsider, along

with her untimely brief in support of her Omnibus Pre-Trial Motion. The trial

court denied Shoemaker’s Motion to Reconsider the same day.

        Following a bench trial, Shoemaker was found guilty of the above-

mentioned offenses.5 For her conviction of DUI – highest rate,6 the trial court

sentenced Shoemaker to a term of 6 months of intermediate punishment, the

first 72 hours of which was to be served in Bedford County Jail, in addition to

a $1,000 fine and other costs. For her conviction of careless driving, the trial

court imposed a $25 fine and other costs. Shoemaker filed a timely Notice of
____________________________________________


4   Shoemaker did not timely comply with the trial court’s directive.

5  The parties stipulated that the blood test indicated a BAC of 0.234%.
Commonwealth’s Trial Exhibit 1 (Stipulation of Facts), ¶ 2. However, by
stipulation, Shoemaker specifically reserved her right to challenge pre-trial
rulings through post-sentence motions and on direct appeal. Id., ¶ 5.

6   Shoemaker’s DUI convictions merged for sentencing purposes.

                                           -4-
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Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of errors

complained of on appeal.

      On appeal, Shoemaker raises the following issues for our review:

      1. Did the trial court err when it found that [Shoemaker’s] consent
      to give blood under the threat of disciplinary action by a
      government employer should not be suppressed when the
      government employee was not advised that the results of the
      blood test could be used against her in a criminal proceeding?

      2. In the absence of the blood results, was there insufficient
      evidence to support [Shoemaker’s] conviction for DUI – general
      impairment in violation of Section 3802(a)(1) of the Vehicle Code?

      3. Was there insufficient evidence to support [Shoemaker’s]
      conviction for careless driving in violation of Section 3714(a) of
      the Vehicle Code?

Brief for Appellant at 5 (some capitalization omitted).

      In her first claim, Shoemaker argues that the suppression court erred

by failing to suppress the results of her blood alcohol test, because her consent

was coerced by threat of non-compliance with the Agreement, and she had

not been advised that the results of the blood test could be used against her

in subsequent criminal proceedings.         See Brief for Appellant at 13-26.

Shoemaker offers two separate arguments in support of her claim.

      First, Shoemaker claims that the warrantless blood draw was an illegal

search by the Commission, which is a government entity. See id. at 13-25.

According to Shoemaker, the fact that the government was not acting in a law

enforcement capacity is irrelevant, because the Fourth Amendment’s

protections extend beyond the sphere of criminal investigations. Id. at 17.



                                      -5-
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Shoemaker cites to the United States Supreme Court’s decision in Garrity v.

New Jersey,7 and contends that Hall’s testimony at the suppression hearing

indicated that he had threatened potential criminal charges arising out of the

incident. Id. at 18-19 (citing N.T., 6/27/17, at 27 (wherein Hall testified that

after Shoemaker requested vacation and sick leave, he responded, “Lesley,

we are not debating this. You are going to be tested. If you don’t want to go

with us, we are going to call [the] State Police.”)). Shoemaker also points out

that the request for a police investigation was communicated to Trooper

Brough the day after the incident. Id. at 19-20.

       Shoemaker argues that she was protected by the Agreement, but that

the Commission disregarded the terms of the Agreement by failing to provide

Shoemaker with a union shop steward prior to requesting a breath or blood

sample.     Id. at 20-22.         Shoemaker also argues that the Commission

disregarded the Agreement’s stated procedures regarding an individual’s

inability to produce a sufficient breath sample, and instead demanded a blood

test. Id. at 22. Additionally, Shoemaker claims that because she was not


____________________________________________


7 Garrity v. New Jersey, 385 U.S. 493 (1967). In Garrity, the Supreme
Court considered state-conducted investigations of police officers for allegedly
fixing traffic tickets. Id. at 494. Prior to being questioned, each appellant
was informed that if he refused to answer, he would be subject to removal
from office. Id. The Garrity Court considered the question of whether “the
accused was deprived of his free choice to admit, to deny, or to refuse to
answer[,]” id. at 496 (citation omitted), and held that “the protection of the
individual of the Fourteenth Amendment against coerced statements prohibits
use in subsequent criminal proceedings of statements obtained under threat
of removal from office….” Id. at 500.

                                           -6-
J-S79034-18



individually a signatory to the Agreement, she could not consent to a method

of alcohol testing that was not provided for in the Agreement. Id. at 22-23.

      Further, Shoemaker claims that because she was informed that refusal

to submit to alcohol testing would result in termination of her employment,

her consent was not the result of a free and unconstrained choice. Id. at 24-

25.

      Second, Shoemaker contends that the search warrant obtained by

Trooper Brough to seize the blood test results from FCMC did not cleanse the

search of the illegality. Id. at 25-26. Shoemaker argues that, in order to be

admissible, her blood test results had to be obtained by an independent

source. Id. at 25.

      We adhere to the following standard of review:

      An appellate court’s standard of review in addressing a challenge
      to the denial of a suppression motion is limited to determining
      whether the suppression court’s factual findings are supported by
      the record and whether the legal conclusions drawn from those
      facts are correct. Because the Commonwealth prevailed before
      the suppression court, we may consider only the evidence of the
      Commonwealth 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 suppression court’s factual findings are
      supported by the record, the appellate court is bound by those
      findings and may reverse only if the court’s legal conclusions are
      erroneous.     Where the appeal of the determination of the
      suppression court turns on allegations of legal error, the
      suppression court’s legal conclusions are not binding on an
      appellate court, whose duty it is to determine if the suppression
      court properly applied the law to the facts. Thus, the conclusions
      of law of the courts below are subject to plenary review.




                                    -7-
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Commonwealth v. Jones, 121 A.3d 524, 526-27 (Pa. Super. 2015) (citation,

brackets and ellipses omitted).

     Here, the parties agree that Shoemaker was a unionized employee

subject   to   the   Agreement.    Brief   for   Appellant   at   6,   20-23,   24;

Commonwealth’s Brief at 4, 8. Regarding “probable suspicion” alcohol testing,

the Agreement provides, in relevant part, as follows:

     Article 35

     Section 4. Alcohol Testing

     The parties agree that in the event of further federal legislation or
     [Department of Transportation (“DOT”)] regulations providing for
     revised methodologies or requirements, those revision[s] shall, to
     the extent they impact this Agreement, unless mandated, be
     subject to mutual agreement by the parties.

                                     ***

     B. Alcohol Testing Procedure

     All alcohol testing under this section will be conducted in
     accordance with applicable DOT/[Federal Motor Carrier Safety
     Administration] regulations.    All equipment used for alcohol
     testing must be on the [National Highway Traffic Safety
     Administration] Conforming Products List and be used and
     maintained in compliance with DOT requirements.           Breath
     samples will be collected by a Breath Alcohol Technician (BAT)
     who has successfully completed the necessary training course that
     is the equivalent of the DOT model course and who is
     knowledgeable of the alcohol testing procedures set forth in 49
     C[.]F[.]R[.] Part 40 and any current DOT Guidance. …

          1. Screening Test

          The initial screening test uses an Evidential Breath Testing
          (EBT) device, unless other testing methodologies or devices



                                     -8-
J-S79034-18


         are mandated or agreed upon, to determine levels of
         alcohol. …

            Breath Alcohol Levels:

            Less than 0.02% BAC – Negative

            0.02% BAC and         above    –   Positive   (Requires
            Confirmation Test)

         2. Confirmatory Test

         All samples identified as positive in the initial screening test,
         indicating an alcohol concentration of 0.02% BAC or higher,
         shall be confirmed using an EBT device that is capable of
         providing a printed result in triplicate; is capable of assigning
         a unique number to each test; and is capable of printing out,
         on each copy of the printed test result, the manufacturer’s
         name for the device, the device’s serial number and the time
         of the test unless other testing methodologies are mandate[d]
         or mutually agreed upon.

                                     ***

     H. Probable Suspicion Testing

     Employees subject to DOT probable suspicion alcohol
     testing under this Section shall be tested in accordance
     with current, applicable DOT regulations.

     For all purposes herein, the parties agree that the terms “probable
     suspicion” and “reasonable cause” shall be synonymous.

     Probable suspicion is defined as an employee’s specific observable
     appearance, behavior, speech or body odor that clearly indicates
     the need for probable suspicion alcohol testing.

     …

     In cases where an employee has specific, observable, abnormal
     indicators regarding appearance, behavior, speech or body odor,
     and at least one (1) supervisor, two (2) if applicable, have
     probable suspicion to believe that the employee is under the
     influence of alcohol, the Employer may require the employee, in

                                     -9-
J-S79034-18


     the presence of a union shop steward or other employee
     requested by the employee under observation, to submit to a
     breath alcohol test. Suspicion is not probable and thus not a basis
     for testing if it is based solely on third party observation and
     reports.

     The supervisor(s) must make a written statement of these
     observations within twenty-four (24) hours. A copy must be
     provided to the shop steward or other union official after the
     employee is discharged or suspended or taken out of
     service.

                                   ***

     J. Specimen Testing Procedures

     All procedures for alcohol testing will comply with [DOT]
     regulations.

     No unauthorized personnel will be allowed in any area of the
     testing site. Only one alcohol testing procedure will be conducted
     by a BAT at the same time.

     …

     The employee shall provide an adequate amount of breath for the
     [EBT] device. If the individual is unable to provide a sufficient
     amount of breath, the BAT shall direct the individual to again
     attempt to provide a complete sample.

     If an employee is unsuccessful in providing the requisite amount
     of breath, the Employer then must have the employee obtain,
     within five (5) days, an evaluation from a licensed physician
     selected by the Employer and the Local Union and who has the
     expertise in the medical issues concerning the employee’s inability
     to provide an adequate amount of breath. If the physician is
     unable to determine that a medical condition has, or with a high
     degree of probability could have, precluded the employee from
     providing an adequate amount of breath, the employee’s failure
     to provide an adequate amount of breath will be regarded
     as a refusal to take the test and subject the employee to
     discharge.




                                   - 10 -
J-S79034-18



Commonwealth’s Suppression Exhibit 1 (Agreement), at 1-2, 11-13, 15-17

(emphasis added).

       The portion of the Agreement concerning alcohol testing refers only to

testing for employment purposes, and identifies the adverse employment

actions that may result from a positive result or a refusal to submit to testing.

See generally Commonwealth’s Suppression Exhibit 1 (Agreement), at 15-

21.    The Agreement does not contemplate informing law enforcement

personnel of the results for the initiation of criminal proceedings. Therefore,

Shoemaker was not on notice that the results of any probable suspicion

alcohol testing, provided for in the Agreement, could serve as the basis for a

criminal investigation.

       In addition, the Agreement8 only provides for breath alcohol testing,9

and in fact, the use of blood alcohol testing was unnecessary for employment

purposes under these circumstances. The Agreement provides that “[i]f the

[employee] is unable to provide a sufficient amount of breath, the BAT shall

direct the [employee] to again attempt to provide a complete sample.” Id. at
____________________________________________


8We note that the “Drug Testing Language Proposal between the Pennsylvania
Turnpike Commission and Teamsters Local 77 & 250” is the only portion of
the Agreement contained in the certified record.

9 The Commonwealth argues that Shoemaker consented to the use of blood
testing, pointing to language in the Agreement that provides for breath testing
“unless other testing methodologies or devices are mandated or agreed upon.”
Commonwealth’s Brief at 8 (citing Commonwealth’s Suppression Exhibit 1
(Agreement), at 12, 13). However, the signatories to the Agreement are the
Teamsters Local Unions 77 and 250, and the Commission. Thus, it is not clear
that Shoemaker, as an individual, had the authority or ability to consent to an
alternate testing method.

                                          - 11 -
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17. If the employee is still unable to provide a sufficient amount of breath,

the Employer must direct the employee to obtain an evaluation from a licensed

physician within five days.    Id.    If the physician cannot determine that a

medical condition could have prevented the employee from providing a

sufficient amount of breath, “the employee’s failure to provide an adequate

amount of breath will be regarded as a refusal to take the test and subject the

employee to discharge.”       Id.    Thus, a refusal or inability to provide an

adequate amount of breath (assuming a physician has not identified a relevant

medical condition) results in the same disciplinary action as a positive test

result at or above the applicable state DUI limit. Id.; see also id. at 17-18

(providing that an employee’s first positive test result at or above the state

DUI limit subjects that employee to discharge).

      Further, the Agreement specifically dictates that “[e]mployees subject

to DOT probable suspicion alcohol testing … shall be tested in accordance with

current, applicable DOT regulations.” Id. at 15; see id. at 16 (indicating that

alcohol testing procedures must comply with DOT regulations).              This

language—in addition to the numerous references to DOT regulations

throughout the Agreement—indicates an intention between the parties to

incorporate the provisions of 49 C.F.R., Part 40 (Procedures for Transportation

Workplace Drug and Alcohol Testing Programs). The DOT regulations provide

that “other types of alcohol tests (e.g., blood and urine) are not authorized

for testing …. Only saliva or breath for screening tests and breath for

confirmation tests using approved devices are permitted.” 49 C.F.R.

                                       - 12 -
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§ 40.277 (emphasis added).             The Agreement is silent regarding the

confidentiality of alcohol test results, with the exception of a brief directive

that “[t]he Employer shall maintain records in a secure manner so that

disclosure    of   information   to   unauthorized   persons   does   not   occur.”

Commonwealth’s Suppression Exhibit 1 (Agreement), at 20. However, under

DOT regulations, employers are generally prohibited from releasing an

employee’s test results to third parties without the employee’s specific written

consent.     49 C.F.R. § 40.321.       The regulations also provide as follows,

concerning the release of information in legal proceedings:

      § 40.323 May program participants release drug or alcohol
      test information in connection with legal proceedings?

      (a) As an employer, you may release information pertaining to an
      employee’s drug or alcohol test without the employee’s consent in
      certain legal proceedings.

                                        ***

           (2) These proceedings also include a criminal or civil action
           resulting from an employee’s performance of safety-
           sensitive duties, in which a court of competent
           jurisdiction determines that the drug and alcohol test
           information sought is relevant to the case and issues
           an order directing the employer to produce the
           information. … The employer is authorized to respond to
           the court’s order to produce the records.

      (b) In such a proceeding, you may release the information to
      the decisionmaker in the proceeding …. You may release the
      information only with a binding stipulation that the decisionmaker
      to whom it is released will make it available only to the parties to
      the proceeding.

Id. § 40.323 (emphasis added).


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J-S79034-18



       Here, Shoemaker failed to supply an adequate amount of breath to

complete a breath alcohol test. Under the Agreement, the Commission should

have directed Shoemaker to obtain an evaluation by a licensed physician

within five days, at which time, assuming no medical conditions were

identified, her inability to perform the test would be considered a refusal and

result in her discharge.     See Commonwealth’s Suppression Exhibit 1

(Agreement), at 17; see also 49 C.F.R. § 40.265 (setting forth a similar

procedure under the DOT regulations).        Instead, Commission employees

asked Shoemaker to consent to a blood alcohol test, a method that is not

authorized by the Agreement, and which is specifically prohibited by DOT

regulations. Therefore, the Commission’s decision to proceed with a blood

alcohol test was improper under the Agreement.

      Additionally, the Commission contacted the police the following day to

initiate a criminal investigation into the incident.     After receiving this

information, Trooper Brough spoke with Caro, who told him that Shoemaker

had been drunk at work, and had been driving a Commission vehicle while

intoxicated. See N.T. (Trial, Amended), 5/9/18, at 28; see also Affidavit of

Probable Cause, 1/31/17, at 1. Caro also provided contact information for

Lauthers and Hall. See N.T. (Trial, Amended), 5/9/18, at 28. Trooper Brough

spoke with both Lauthers and Hall on the phone within the following days, and




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J-S79034-18



eventually received written statements from both of them.10 See id. at 29.

It is not clear from the record exactly what information Lauthers and Hall

provided to Trooper Brough, in either their phone conversations or written

statements, concerning the results of the blood test.       However, based on

Trooper Brough’s decision to apply for a search warrant, it is apparent that

even if neither Lauthers nor Hall provided Trooper Brough with the precise

BAC measured, one or both of them at least alluded to the fact that the result

was positive. We conclude that any reference to, or comment on, the results

of Shoemaker’s blood alcohol test (which was improperly obtained under the

Agreement), without her consent, violated Shoemaker’s right to confidentiality

under applicable DOT regulations. See 49 C.F.R. § 40.321.

       Moreover, keeping Garrity in mind, the evidence supports Shoemaker’s

assertion that she did not voluntarily consent to the blood test. “[A] trial court

must consider the totality of the circumstances when determining if a

defendant’s consent to a blood draw was voluntary.”         Commonwealth v.

Miller, 186 A.3d 448, 451 (Pa. Super. 2018).

       [T]he Commonwealth bears the burden of establishing that a
       consent is the product of an essentially free and unconstrained
       choice—not the result of duress or coercion, express or implied….
       The standard for measuring the scope of a person’s consent is
       based on an objective evaluation of what a reasonable person
       would have understood by the exchange….


____________________________________________


10The written statements, which evidently served as the basis for obtaining
the search warrant, see N.T. (Trial, Amended), 5/9/18, at 29, are not
contained in the certified record.

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J-S79034-18



Commonwealth v. Kurtz, 172 A.3d 1153, 1160 (Pa. Super. 2017) (citation

omitted).

      Here, Shoemaker’s actions prior to and during the ride to FCMC

indicated her unwillingness to submit to alcohol testing.     See N.T. (Trial,

Amended), 5/9/8, at 23-24 (wherein Hall testified that after informing

Shoemaker that he had reason to believe she had been drinking, Shoemaker

requested both vacation time and sick leave), 24 (wherein Hall testified that

Shoemaker began talking during the ride to FCMC, and after he told

Shoemaker that she would be tested for alcohol, she replied, “I’m going to be

fucked.”). When Lauthers and Hall spoke with Shoemaker on the Turnpike,

Hall stated, “You will either go with [Lauthers] and I to the hospital to be

tested[,] or I’m going to call the state police. They will pick you up and take

you to the test. So it’s however you want to do it.” N.T. (Trial, Amended),

5/9/18, at 24. Lauthers and Hall then drove Shoemaker to FCMC for testing.

See id. at 10.   The laboratory technician informed Lauthers that she had

attempted to complete the breath alcohol test three times, but that

Shoemaker had failed to provide an adequate amount of breath for analysis.

See id. at 11. At that point, Hall conferred with Caro, who instructed Lauthers

and Hall to ask Shoemaker if she would submit to a blood test. See id. at 25,

34.   According to Lauthers, Shoemaker agreed.        See id. at 11-12, 18.

Additionally, at the suppression hearing, Lauthers testified that he threatened

Shoemaker that if she declined to take the blood test, it would be considered

a refusal to submit. See N.T. (Suppression), 6/27/17, at 18.

                                    - 16 -
J-S79034-18



      Shoemaker did not have a choice to refuse alcohol testing, where her

supervisors informed her that she could either come with them, or they would

call the police. Additionally, after failing to adequately perform the breath

test, Lauthers apprised Shoemaker that if she did not submit to a blood test,

her actions would be considered a refusal under the Agreement.            As a

unionized employee subject to the Agreement, Shoemaker was reasonably on

notice that a refusal would result in her discharge from employment. Thus,

Shoemaker’s only “choice” was whether to submit to a blood alcohol test, or

to refuse the test and subject herself to discharge.    Because a reasonable

person would not feel free to deny consent under the threat of losing his or

her job, or the involvement of law enforcement, we conclude that Shoemaker’s

consent to submit to a blood alcohol test was obtained through coercion, and

not voluntarily given.   See Kurtz, supra; see also Commonwealth v.

Kelly, 369 A.2d 438, 443 (Pa. Super. 1976) (stating that “statements made

under threat of being discharged are the products of coercion and are

therefore inadmissible at trial.”); Garrity, 385 U.S. at 497-98 (concluding that

a choice between self-incrimination and losing one’s livelihood “is likely to

exert such pressure upon an individual as to disable him from making a free

and rational choice[,]” and concluding that statements made when presented

with such a choice are “infected by [] coercion … and cannot be sustained as

voluntary….”). Accordingly, the suppression court erred by failing to suppress




                                     - 17 -
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the results of Shoemaker’s blood alcohol test.11 Without the results of the

blood test to substantiate Shoemaker’s BAC, there is insufficient evidence to

sustain Shoemaker’s conviction for DUI – highest rate of alcohol.       See 75

Pa.C.S.A. § 3802(c).         Accordingly, we vacate Shoemaker’s judgment of

sentence for DUI – highest rate of alcohol.12

       Shoemaker’s remaining claims challenge the sufficiency of the evidence

presented at trial. When reviewing such challenges, we must ascertain

       whether, viewing all the evidence admitted at trial in the light
       most favorable to the verdict winner, there is sufficient evidence
       to enable the fact-finder to find every element of the crime beyond
       a reasonable doubt. In applying the above test, we may not weigh
       the evidence and substitute our prior judgment for the fact-finder.
       In addition, we note that the facts and circumstances established
       by the Commonwealth need not preclude every possibility of
       innocence. Any doubts regarding a defendant’s guilt may be
       resolved by the fact-finder unless the evidence is so weak and
       inconclusive that as a matter of law no probability of fact may be
       drawn from the combined circumstances. The Commonwealth
       may sustain its burden of proving every element of the crime
       beyond a reasonable doubt by means of wholly circumstantial
       evidence. Moreover, in applying the above test, the entire record
       must be evaluated and all evidence actually received must be
____________________________________________


11  We additionally note that Shoemaker’s blood test was not conducted
following a motor vehicle accident involving injury, or for independent medical
purposes. See 75 Pa.C.S.A. § 3755 (authorizing a warrantless chemical test
if a motorist requires emergency room treatment following a motor vehicle
accident, and the police officer has probable cause to believe the accident
involved a violation of section 3802); Commonwealth v. Miller, 996 A.2d
508, 513 (Pa. Super. 2010) (stating that “where a blood draw is conducted
for medical purposes, and the results of the blood test are obtained after
proper execution of a search warrant, the results of the blood draw are
admissible in the prosecution of a DUI defendant.”).

12Because it appears that Shoemaker has completely served her sentence,
we need not remand for resentencing.

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       considered. Finally, the finder of fact, while passing upon the
       credibility of witnesses and the weight of the evidence produced,
       is free to believe all, part or none of the evidence.

Commonwealth v. Furness, 153 A.3d 397, 401 (Pa. Super. 2016) (citation

and brackets omitted).

       In her second claim, Shoemaker asserts that, in the absence of blood

test results, there was insufficient evidence to support her conviction of DUI

– general impairment. Brief for Appellant at 26. Shoemaker does not dispute

that she drove a Commission vehicle on the Pennsylvania Turnpike, but claims

that there was “no evidence that she drove erratically or in an unsafe manner.”

Id. Shoemaker also points out that no field sobriety tests were conducted by

law enforcement. Id. at 27.13

       Section 3802(a)(1) of the Motor Vehicle Codes provides that “[a]n

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 individual is rendered incapable of safely driving, operating or being in

actual physical control of the movement of the vehicle.”         75 Pa.C.S.A.

§ 3802(a)(1). Section 3802(a)(1) is an “at the time of driving” offense, and

the Commonwealth must prove that “the accused was driving, operating, or

in actual physical control of the movement of a vehicle during the time when



____________________________________________


13We note that Shoemaker failed to include citation and discussion of relevant
case law in support of her claim. See Pa.R.A.P. 2119(f) (providing that the
argument shall include “such discussion and citation of authorities as are
deemed pertinent.”). Nevertheless, we decline to deem this issue waived.

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J-S79034-18



he or she was rendered incapable of safely doing so due to the consumption

of alcohol.” Commonwealth v. Segida, 985 A.2d 871, 879 (Pa. 2009).

           The types of evidence that the Commonwealth may proffer
     in a subsection 3802(a)(1) prosecution include[,] but are not
     limited to, the following: the offender’s actions and behavior,
     including manner of driving and ability to pass field sobriety tests;
     demeanor, including toward the investigating officer; physical
     appearance, particularly bloodshot eyes and other physical signs
     of intoxication; odor of alcohol[;] and slurred speech. Blood
     alcohol level may be added to this list, although it is not
     necessary and the two hour time limit for measuring blood
     alcohol level does not apply. … The weight to be assigned these
     various types of evidence presents a question for the fact-finder,
     who may rely on his or her experience, common sense, and/or
     expert testimony.

Id. (emphasis added).     “[N]on-expert testimony is admissible to prove

intoxication where such testimony is based upon the witness’[s] observation

of the defendant’s acts and speech[,] and where the witness can opine as to

whether the defendant was drunk.”      Commonwealth v. Salter, 121 A.3d

987, 996 (Pa. Super. 2015) (citation omitted). Additionally, “[e]vidence of

erratic driving is not a necessary precursor to a finding of guilt under the

relevant statute.” Commonwealth v. Mobley, 14 A.3d 887, 890 (Pa. Super.

2011).

     The trial court addressed this claim as follows:

     Here, notwithstanding [Shoemaker’s BAC], … the Commonwealth
     provided evidence as to deficiencies in [Shoemaker’s] ability to
     drive. Specifically, the Commonwealth provided evidence as to
     [Shoemaker’s] “actions and behavior, … demeanor, … physical
     appearance, … odor of alcohol, and slurred speech.” Segida, 985
     A.2d at 879.



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             At the bench trial, Lauthers testified that he was instructed
      by another employee to “take a look at” [Shoemaker]. Lauthers
      approached [Shoemaker] to discuss the daily tasks[,] and during
      this encounter[,] observed her staggering[,] and heard
      [Shoemaker] slurring her speech. [Shoemaker] also made a
      perplexing statement wherein she uttered “I know I’m not the
      best, but I will do my best for you[,]” and after being questioned
      regarding whether she consumed any alcohol, [Shoemaker]
      stated “this was what we are going to do, really?” Lauthers further
      testified that he smelled alcohol on [Shoemaker’s] breath. In
      addition, both Lauthers and Hall testified that they observed
      [Shoemaker] ma[k]e a [U]-turn by driving in the opposite lane
      [of] traffic on the Turnpike[,] despite repeated instructions for
      [Shoemaker] to stop [] driving. Moreover, [Shoemaker] indirectly
      admitted that she was under the influence of alcohol; when
      informed that she was heading to FCMC for an alcohol screening,
      [Shoemaker] responded “I’m fucked.”              Given the related
      observations,     the    facts   and     circumstances,    including
      [Shoemaker’s] statements, the Commonwealth has demonstrated
      that [Shoemaker] was under the influence of alcohol to such a
      degree as to render [her] incapable of safe driving….

Trial Court Opinion, 7/10/18, at 10-11 (some citations omitted).             We

additionally note that Lauthers observed Shoemaker staggering and slurring

her speech shortly before she drove a Commission vehicle on the Turnpike.

See generally N.T. (Suppression), 6/27/17, at 6-8 (wherein Lauthers

testified that he spoke with Shoemaker at approximately 3:15 p.m.; he then

went to the office to talk to Hall; Hall called the human resources department

and told him to “go get [Shoemaker]”; and when he returned to the wash bay,

Shoemaker was gone). Upon review, we conclude that the evidence, viewed

in the light most favorable to the Commonwealth as the verdict-winner, was

sufficient to support Shoemaker’s conviction under 75 Pa.C.S.A. § 3802(a)(1).

Therefore, Shoemaker is not entitled to relief on this claim.




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J-S79034-18



       In her third claim, Shoemaker argues that there was insufficient

evidence to support her conviction of careless driving. Brief for Appellant at

27. Shoemaker claims that although she made a U-turn on the Turnpike, her

actions did not interfere with any other traffic. Id. Shoemaker asserts that

“[i]n the absence of the blood results, there is no evidence [that] Shoemaker

acted in willful or wanton conduct.” Id.14

       Section 3714 of the Motor Vehicle Code provides that “[a]ny person who

drives a vehicle in careless disregard for the safety of persons or property is

guilty of careless driving, a summary offense.” 75 Pa.C.S.A. § 3714. “The

mens rea requirement applicable to [Section] 3714, careless disregard,

implies less than willful or wanton conduct but more than ordinary negligence

or the mere absence of care under the circumstances.” Commonwealth v.

Ford, 141 A.3d 547, 556 (Pa. Super. 2016) (citation omitted).

       Here, Lauthers and Hall saw Shoemaker make a U-turn, but did not

otherwise witness Shoemaker driving the Commission’s vehicle.         At trial,

Lauthers testified that when they approached Shoemaker, the vehicle was

parked on the side of the road, and Shoemaker was talking to a customer.

See N.T. (Trial, Amended), 5/9/18, at 8-9; see also id. at 22 (wherein Hall

testified that Shoemaker was still in the vehicle while she was speaking to the

customer).     Lauthers testified that as he and Hall pulled up behind her,

Shoemaker pulled away in the Commission vehicle. See id. a 9. Hall yelled
____________________________________________


14Shoemaker’s argument regarding her final claim is largely underdeveloped.
See Pa.R.A.P. 2119(a).

                                          - 22 -
J-S79034-18



at Shoemaker to stop the vehicle, and Shoemaker “just made a [U]-turn []

inside the interchange.” Id. at 23; see also N.T. (Suppression), 6/27/17, at

21 (wherein Hall testified that Shoemaker “basically did a 360 and parked the

truck back in the parking area[.]”).          Lauthers also testified that when

Shoemaker “looped around,” “[t]here wasn’t anything coming.” N.T. (Trial,

Amended), 5/9/18, at 9.

      Lauthers and Hall did not observe Shoemaker driving on the Turnpike.

The only driving Lauthers and Hall personally witnessed was Shoemaker

pulling out of the parking area, making a U-turn, and returning to the parking

area behind their vehicle. Upon review, we conclude that this sole observation

by Lauthers and Hall, without more, is insufficient to sustain Shoemaker’s

conviction of careless driving. See generally Commonwealth v. Podrasky,

678 A.2d 450, 452-53 (Pa. Super. 1977) (concluding that there was

insufficient evidence to support the appellant’s conviction, for making a U-turn

on a highway, under a prior version of the reckless driving statute (defining

reckless driving as driving any vehicle upon a highway “carelessly disregarding

the rights or safety to others, or in a manner so as to endanger any person or

property”) because “[n]o accident occurred, and no evidence was adduced

that appellant’s turn nearly caused an accident or that it even interfered with

the normal flow of oncoming traffic.”).       We therefore vacate Shoemaker’s

judgment of sentence for careless driving.

      Judgment of sentence affirmed in part, and vacated in part.

      Judge Shogan joins the memorandum.

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J-S79034-18



     Judge Olson concurs in the result.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/16/2019




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