J-A19029-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LEE KIRK,                                  :
                                               :
                       Appellant.              :   No. 3547 EDA 2018


      Appeal from the Judgment of Sentence Entered, November 26, 2013,
                in the Court of Common Pleas of Monroe County,
             Criminal Division at No(s): CP-45-CR-0002857-2016.


BEFORE:      PANELLA, P.J., KUNSELMAN, J., and STEVENS*, P.J.E.

MEMORANDUM BY KUNSELMAN, J.:                          FILED OCTOBER 21, 2019

        Lee Kirk appeals from the judgment of sentence imposed following his

conviction of driving under the influence, highest rate of alcohol, fourth

offense.1 We affirm.

        The trial court set forth the relevant facts as follows:

        Corporal Steven Mertz of the Pocono Mountain Regional Police
        Department was parked at the intersection of Routes 940 and 611
        at 3:30 a.m. on September 6, 2016[,] while he was on patrol in
        the Borough of Mt. Pocono. He was watching traffic approach the
        intersection on Route 940 eastbound. There was a traffic light
        there with a large “No turn on Red” sign facing eastbound traffic.
        A car driven by [Kirk] approached the red light, came to a stop
        and then turned right on red. Corporal Mertz activated his flashing
        lights, crossed the intersection and sought to pull [Kirk] over.
        [Kirk] pulled over after driving for a block with the patrol car
        behind him. [Kirk] emerged from the car and began to walk back
____________________________________________


1   75 Pa.C.S.A. § 3802(c).


____________________________________
* Former Justice specially assigned to the Superior Court.
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        to the patrol car. Corporal Mertz directed him to remain at the
        rear of [his] vehicle. He noticed that [Kirk] was bleeding from
        wounds to his head and arm. A female passenger was in his
        vehicle. [Kirk] told Corporal Mertz that he has suffered his injuries
        in an earlier ATV collision, and was on his way to drop his
        passenger off at the bus stop and was then going to return home.
        Corporal Mertz noticed that [Kirk] had a strong odor of alcohol
        about his person and was very unsteady on his feet.

        Officer Carmine Saprona arrived at the scene and conducted field
        sobriety tests, which [Kirk] failed. [The female passenger] was
        allowed to leave the scene to get her bus to work. Corporal Mertz
        drove [Kirk] to the DUI Processing Center at the Monroe County
        Correctional Facility, where he gave a sample of his blood.
        Corporal Mertz then drove [Kirk] to his home.

Trial Court Opinion, 1/23/19, at 1-2.

        Kirk filed a motion to suppress the blood test results, which the

suppression court denied.        The matter proceeded to a non-jury trial, after

which the court found Kirk guilty of the above-described DUI charge.            On

November 26, 2018, the trial court sentenced him to a prison term of one to

five years, in addition to a $2,500 fine, surcharge, fees and costs. This timely

appeal followed.2

        Kirk raises two issues for our review:

           1.    Did the trial court make an error of law when it found
                 [Kirk] had agreed to the blood test knowingly,
                 intelligently and voluntarily despite [his] testimony to
                 the contrary, the lack of [his] signature on the form,
                 the officer’s statement that the form was not given to
                 [Kirk], and the absence of any mention of the


____________________________________________


2   Both the trial court and Kirk complied with Pa.R.A.P. 1925.



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                 acceptance or reading of the form on all police
                 documents?

          2.     Did the suppression court make an error of law when
                 it held that the O'Connell[3] waiver form provided
                 sufficient information for anyone to understand the
                 rights being waived knowingly, intelligently and
                 voluntarily when the form does not indicate the
                 possible penalties that would be attached to a
                 decision?

Kirk’s Brief at 5 (footnote added).

       In both of Kirk’s issues, he contends that the trial court erred in denying

his motion to suppress. When we review the ruling of a suppression court:

       we must determine whether the factual findings are supported by
       the record. When it is a defendant who has appealed, we must
       consider only the evidence of the prosecution and so much of the
       evidence for the defense as, fairly read in the context of the record
       as a whole, remains uncontradicted. Assuming that there is
       support in the record, we are bound by the facts as are found and
       we may reverse the suppression court only if the legal conclusions
       drawn from those facts are in error.

Commonwealth v. Hicks, 208 A.3d 916, 925 (Pa. 2019). “[A]ppellate courts

are limited to reviewing only the evidence presented at the suppression

hearing when examining a ruling on a pretrial motion to suppress.”




____________________________________________


3 The phrase, “O’Connell warning,” is a shorthand expression for the duty
imposed upon a police officer to inform a motorist, who has been asked to
submit to chemical testing, that the Miranda rights are inapplicable to a
request for chemical testing under the Implied Consent Law.
Commonwealth, Dep’t. of Transportation v. O’Connell, 555 A.2d 873
(Pa. 1989). The O'Connell warning must specifically inform a motorist (1)
that his driving privileges will be suspended for one year if he refuses chemical
testing; and (2) that his Miranda rights do not apply to chemical testing.
DOT, Bureau of Driver Licensing v. Ingram, 648 A.2d 285 (Pa. 1994).

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Commonwealth v. Bush, 166 A.3d 1278, 1281-82 (Pa. Super. 2017)

(citation omitted).

      Preliminarily, we review the legal and administrative developments

regarding Pennsylvania’s DUI laws over the past few years. In June of 2016,

the Supreme Court of the United States in Birchfield v. North Dakota, 136

S. Ct. 2160 (2016), held that criminal penalties imposed on individuals who

refuse to submit to a warrantless blood test violate the Fourth Amendment,

as incorporated into the Fourteenth Amendment. Birchfield, 136 S. Ct. at

2185-86.    This Court subsequently held that the imposition of enhanced

criminal penalties for failure to consent to a blood test constituted an illegal

sentence under Birchfield. See Commonwealth v. Giron, 155 A.3d 635,

639 (Pa. Super. 2017). Within one week of the Birchfield decision, PennDOT

revised the DL-26 form to remove the warnings mandated by 75 Pa.C.S.A.

§ 3804(c) that informed individuals suspected of DUI that they would face

enhanced criminal penalties if they refused to submit to a blood test. This

revised DL-26 form, which does not include warnings regarding enhanced

criminal penalties, complies with Birchfield.

      On July 20, 2017, Governor Thomas W. Wolf signed into law Act 30 of

2017, which amended 75 Pa.C.S.A. § 3804 to comport with Birchfield.

Specifically, Act 30 provides for enhanced criminal penalties for individuals

who refuse to submit to blood tests only when police have obtained a search

warrant for the suspect’s blood. See 75 Pa.C.S.A. § 3804(c). Hence, from

July 20, 2017, and thereafter, the DL-26 form conforms to statutory law.

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      In his first issue, Kirk contends that the Commonwealth failed to meet

its burden of showing that he submitted to the blood test knowingly,

intelligently and voluntarily. Kirk points to his testimony at the suppression

hearing that he was not read the DL-26 form. He claims that the affidavit of

probable cause and the incident report do not indicate that the DL-26 form

was read or shown to him. He also argues that the absence of his signature

on the DL-26 form supports his position that the form was not shown or read

to him. While Kirk concedes that Corporal Mertz testified at the suppression

hearing that he read the DL-26 form to Kirk; he nevertheless argues that his

consent was invalidated because Corporal Mertz did not show the form to Kirk.

      The suppression court determined that Kirk’s first issue lacks merit. It

explained its reasoning as follows:

      In the present case, Corporal Mertz credibly testified he read the
      DL-26 form verbatim to [Kirk] at the DUI processing Center.
      Thereafter, [Kirk] consented to a blood test. [Kirk] did not sign
      the form; however, Corporal Mertz also testified that he has DUI
      defendants sign the form only if there is a refusal. Corporal Mertz
      further affirmed, under questioning by the Court, he did not
      mention anything about criminal penalties to [Kirk] either before
      or after reading [Kirk] the DL-26 form. Therefore, despite [Kirk’s]
      contention to the contrary, we find [Kirk] was provided the
      warnings indicated on the DL-26 form and was properly advised
      of his rights prior to the blood test.

Suppression Court Opinion, 12/22/17, at 5 (unnumbered).

      The suppression court’s findings are supported by the record.

Accordingly, we are bound by those facts. See Hicks, supra. Moreover, as

the suppression court correctly observed, “once a police officer provides the



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implied consent warnings to a motorist, the officer has done all that is legally

required to ensure the motorist is fully advised of the consequences of failure

to submit to chemical testing.” Suppression Court Opinion, 12/22/17, at 4

(citing Department of Transportation, Bureau of Driver Licensing v.

Scott, 684 A.2d 539, 546 (Pa. 1996)). As we discern no error in the legal

conclusions drawn from the suppression court’s findings of fact, Kirk’s first

issue warrants no relief.

      In his second issue, Kirk contends that, even if the DL-26 form was read

to him, the warnings included in the form were insufficient. Specifically, he

claims the form does not indicate the possible criminal penalties for refusal of

a blood draw. He asserts that, because the DL-26 form only discloses the civil

consequences of refusing to consent to a blood draw, his consent was not

knowing, intelligent, or voluntary.

      The suppression court determined that Kirk’s second issue lacks merit.

It explained its reasoning as follows:

      [Kirk] next contends that the current DL-26 form violates
      Pennsylvania statutory requirements because it does not contain
      the enhanced criminal penalties language required by 75 Pa.
      C.S.A. Section 1547(b)(2)(ii). This argument is made of whole
      cloth. The obvious reason the new form does not include the
      enhanced criminal penalties language is because of the holding in
      Birchfield and appellate cases in Pennsylvania which have held
      that “in the absence of a warrant or exigent circumstances
      justifying a search, a defendant who refuses to provide a blood
      sample when requested by police is not subject to the enhanced
      penalties provided in 75 Pa.C.S.A. §§ 3803-3804.” Giron, 155
      A.3d at 640.

Suppression Court Opinion, 12/22/17, at 4.

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      Notably, Kirk does not contend that his consent was involuntary for any

reason other than that he was not advised of the criminal penalties of

subsection 3804(c) which were deemed unconstitutional by Birchfield. Based

on our review of the record, we agree with the suppression court’s

determination that the language contained in the DL-26 form was a correct

statement of the law in accordance with Birchfield when Corporal Metz read

the form to Kirk. Accordingly, Kirk’s second issue merits no relief.

      Having concluded that the suppression court did not err in denying Kirk’s

motion to suppress the results of his BAC test, we affirm his judgment of

sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/21/19




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