J-A06010-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MICHAEL S. HILL                            :
                                               :
                       Appellant               :   No. 1359 MDA 2018

          Appeal from the Judgment of Sentence Entered July 19, 2018
                 In the Court of Common Pleas of Mifflin County
             Criminal Division at No(s): CP-44-CR-0000709-2017


BEFORE:      OTT, J., NICHOLS, J., and PELLEGRINI, J.

MEMORANDUM BY OTT, J.:                                 FILED AUGUST 15, 2019

        Michael S. Hill appeals from the judgment of sentence imposed July 19,

2018, in the Mifflin County Court of Common Pleas. Prior to sentencing, the

court, sitting as fact-finder, convicted Hill of driving under the influence of

alcohol (“DUI”) (general impairment/incapable of driving safely; second

offense) and DUI (highest rate of alcohol).1 The court sentenced Hill to a term

of 90 days to five years’ incarceration. On appeal, Hill claims the court erred

in failing to grant his motion to suppress his blood test results based on lack

of consent. See Sanders’ Brief at 4. For the reasons below, we affirm the

judgment of sentence.


____________________________________________


   Retired Senior Judge assigned to the Superior Court.

1   See 75 Pa.C.S. §§ 3802(a)(1) and (c), respectively.
J-A06010-19


     The trial court set forth the factual history as follows:

            On September 9, 2017, at approximately 8:55 p.m., the
     Mifflin County Dispatch received a 911 call from Margaret Moore.
     Moore did not communicate with Mifflin County Dispatch during
     this call but the 911 Operator was able to record a conversation
     between Moore and another individual later identified as the
     Defendant, Michael Hill. From the substance of the conversation,
     Dispatch concluded that [Hill] was driving while under the
     influence of alcohol.

           After the call was terminated, Dispatch placed a return call
     to Moore who indicated that she and [Hill] had arrived at their
     residence located at 13 Chapel Drive Lewistown, PA 17044. Moore
     further indicated that she and [Hill] were currently engaged in a
     verbal argument and Dispatch could discern [Hill] in the
     background acting belligerently and yelling profanities. When
     asked by Dispatch if a police response was required, Moore
     responded that “Either way it doesn’t matter. He always tells
     them his side and they listen to him, so whatever, I don’t care”.
     In response, officers were dispatched to the residence.

             At approximately 9:12 p.m., Officer Dustin Maxwell and
     Patrolman [Steven] Busch arrived at 13 Chapel Drive and
     observed [Hill] standing in his garage.          Officer Maxwell
     approached [Hill] who appeared agitated at the presence of police
     at his home. Officer Maxwell observed that [Hill]’s eyes were
     blood shot, his speech slurred, that an odor of alcohol emanated
     from his person, and that he had apparently defecated himself.
     [Hill] indicated to Officer Maxwell that he had been home for
     approximately two hours. However, upon touching the hood of
     [Hill]’s car, Officer Maxwell observed the hood was warm to the
     touch. Moreover, per Patrolman Busch’s discussion with Moore,
     she and [Hill] had been home for less than ten minutes before the
     officers arrived. Moore further confirmed that [Hill] had driven
     her home from Dave’s Bottle Shop, severely intoxicated, after
     having been there since 7:30 a.m.

           The responding officers asked [Hill] if he would submit to
     Field Sobriety Tests. [Hill] indicated he would not submit to any
     tests. [Hill] was placed under arrest and transported to Geisinger-
     Lewistown Hospital where he was read the chemical testing
     warnings from the Penn-Dot DL-26B form. [Hill] then agreed to a


                                     -2-
J-A06010-19


        blood draw. Said blood draw later indicated [Hill]’s blood alcohol
        concentration to be .332%.

Trial Court Opinion, 4/23/2018, at unnumbered 1-2.

        Hill was subsequently charged with two counts of DUI and one count of

careless driving.     On March 14, 2018, Hill filed several omnibus pre-trial

motions to suppress. The court held a hearing on the motions on April 12,

2018.     Five days later, the court issued an order and contemporaneous

opinion, denying Hill’s various motions.2 On May 24, 2018, a stipulated non-

jury trial was held, at the conclusion of which the court found Hill guilty of the

DUI crimes and not guilty of careless driving. On July 19, 2018, the court

sentenced Hill to a term of 90 days to five years’ incarceration, in addition to

a fine of $1,500.00. This appeal followed.3

        In his sole issue on appeal, Hill contends that his “purported consent to

the blood draw at issue was not rendered knowingly, intelligently, or

voluntary, and was the product of duress and coercion on the part of law

enforcement such that all blood alcohol evidence must be suppressed from

evidence at [t]rial.” Hill’s Brief at 14. Hill raises a plethora of allegations with



____________________________________________


2 The order and opinion were dated April 17, 2018, but were not timestamped
and docketed until April 23, 2018.

3  On August 14, 2018, the trial court ordered Hill to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Hill filed a
concise statement on August 28, 2018. The following day, the trial court
issued a statement pursuant to Pa.R.A.P. 1925(a), indicating that it was
relying on its April 23, 2018, opinion.

                                           -3-
J-A06010-19


respect to his voluntariness argument, which we will attempt to summarize.

First, Hill claims he “was in custody at the time he purportedly consented to

the blood draw at issue, which [is a] factor [that] weighs against

voluntariness.” Id. at 16. Second, he states there were numerous coercive

tactics employed by Officer Maxwell and Patrolman Busch, which “strongly

suggest that [Hill]’s eventual consent to the blood draw at issue was not

voluntary:”4 (1) two police officers drove up his 50-foot driveway and entered

his garage at night without his invitation or permission;5 (2) the officers asked

questions that were “clearly tailored to elicit incriminating evidence, including

if [Hill] had been drinking and driving that day,”6 and one officer put his hand

on Hill’s vehicle without any permission or consent; (3) after Hill indicated that

he would not submit to any tests, Patrolman Busch attempted to persuade Hill

to change his mind and threatened to take him to jail if he refused a blood

draw;7 and (4) Officer Maxwell read the DL-26B form to Hill while he was still

in handcuffs and did not allow Hill to review the form or sign the document. 8

Third, Hill asserts “the fact that [he] knew of his right to refuse the warrantless



____________________________________________


4   Hill’s Brief at 16.

5   See id.

6   Id. at 17.

7   See id. at 18-21.

8   See id. at 21-22.

                                           -4-
J-A06010-19


blood draw actually weighs against voluntariness under these specific

circumstances.” Id. at 22 (emphasis removed). Fourth, Hill argues because

the record “does not contain any evidence or testimony relative to [his]

education and intelligence,” this factor would be neutral. Id. at 23. Fifth, Hill

states that “[b]ased on the degree and extent of [Hill]’s level of intoxication,

common sense suggests that there can be no credible dispute that [Hill] (or

anyone) would believe that no incriminating evidence would be found in his

blood,” and therefore, this factor weighs against voluntariness. Id. at 23-24.

Lastly, Hill contends “the record supports a finding that [he] was agitated by

the police entering h[is] property without his permission, and that he had no

intention of voluntarily cooperating with law enforcement with respect to the

DUI investigation at issue,” and such a factor “weighs against the

voluntariness of the consent at issue.” Id. at 24.

      Our standard of review regarding suppression challenges is well-settled:

      Our 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, we are bound by these findings and may
      reverse only if the court’s legal conclusions are erroneous. 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 [trial court’s]
      conclusions of law [] are subject to our plenary review.


                                      -5-
J-A06010-19


      Moreover, appellate courts are limited to reviewing only the
      evidence presented at the suppression hearing when examining a
      ruling on a pre-trial motion to suppress.

Commonwealth v. Shreffler, 201 A.3d 757, 763 (Pa. Super. 2018) (internal

citation omitted).

      Moreover, we are guided by the following: Both the “Fourth Amendment

to the [United States] Constitution and Article I, Section 8 of [the

Pennsylvania] Constitution protect citizens from unreasonable searches and

seizures.” Commonwealth v. Evans, 153 A.3d 323, 327 (Pa. Super. 2016),

quoting Commonwealth v. McAdoo, 46 A.3d 781, 784 (Pa. Super. 2012),

appeal denied, 65 A.3d 413 (Pa. 2013). “The administration of a blood test,

performed by an agent of, or at the direction of the government, constitutes

a search under both the United States and Pennsylvania Constitutions.”

Evans, 153 A.3d at 327-328, quoting Commonwealth v. Kohl, 615 A.2d

308, 315 (Pa. 1992). “A search conducted without a warrant is deemed to be

unreasonable    and   therefore   constitutionally   impermissible,   unless   an

established exception applies.” Commonwealth v. Strickler, 757 A.2d 884,

888 (Pa. 2000). “One such exception is consent, voluntarily given.” Id. at

888-889 (citation omitted).

      [A panel of this Court] set forth fundamental law with regard to
      warrantless blood draws and consent as follows:

         In Birchfield [v. North Dakota,   U.S. , 136 S.Ct. 2160
         (2016)], the Supreme Court of the United States 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

                                      -6-
J-A06010-19


          Amendment).       Within one week of that decision, [the
          Pennsylvania Department of Transportation] revised the
          [standard consent form used by police, known as the] DL-
          26 form[,] to remove the warnings mandated by 75
          Pa.C.S.A. § 3804 that theretofore informed individuals
          suspected of DUI that they would face enhanced criminal
          penalties if they refused to submit to a blood test in order
          to comply with Birchfield. [The] revised form [is] known
          as Form DL-26B[.]

                                           ***

          This Court subsequently held that [] enhanced criminal
          penalties [imposed] for failure to consent to a blood draw
          constituted an illegal sentence because of Birchfield. See
          Commonwealth v. Giron, 2017 PA Super 23, 155 A.3d
          635, 639 (Pa. Super. 2017).

          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 onwards the DL-26B
          form conforms to the revised statutory law.

       Commonwealth v. Venable, 2018 PA Super 329, 200 A.3d 490,
       495 (Pa. Super. 2018) (original brackets omitted).

Commonwealth v. Krenzel, __ A.3 __, __, 2019 PA Super 159, *6-7 (Pa.

Super. May 20, 2019).9

       In analyzing whether consent is voluntary, we note:


____________________________________________


9  We note that in the present matter, the updated DL-26 form (“Form DL-
26B”) was used and as explained supra, Officer Maxwell did not inform Hill
that he would face enhanced penalties if he refused to submit. See Trial Court
Opinion, 4/23/2018, at unnumbered 8-9.          Accordingly, the dictates of
Birchfield were complied with and Hill does not raise a Birchfield claim in
his appeal.

                                           -7-
J-A06010-19


      In determining the validity of a given consent, the 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, or a will overborne—under
      the totality of the circumstances. 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
      between the officer and the person who gave the consent. Such
      evaluation includes an objective examination of the maturity,
      sophistication and mental or emotional state of the defendant.
      Gauging the scope of a defendant’s consent is an inherent and
      necessary part of the process of determining, on the totality of the
      circumstances presented, whether the consent is objectively valid,
      or instead the product of coercion, deceit, or misrepresentation.

      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. Venable, 200 A.3d 490, 497 (Pa. Super. 2018).

      Furthermore, 75 Pa.C.S. § 1547 is relevant to our analysis, which states,

in pertinent part:

      (a) General rule.--Any person who drives, operates or is in
      actual physical control of the movement of a vehicle in this
      Commonwealth shall be deemed to have given consent to one or
      more chemical tests of breath or blood for the purpose of
      determining the alcoholic content of blood or the presence of a
      controlled substance if a police officer has reasonable grounds to
      believe the person to have been driving, operating or in actual
      physical control of the movement of a vehicle in violation of
      section [...] (relating to driving under influence of alcohol or
      controlled substance)[.]

      (b) Civil penalties for refusal.




                                     -8-
J-A06010-19


        (1) If any person placed under arrest for a violation of
        section 3802 is requested to submit to chemical testing and
        refuses to do so, the testing shall not be conducted but upon
        notice by the police officer, the department shall suspend
        the operating privilege of the person[.]

                                   ***

        (2) It shall be the duty of the police officer to inform the
        person that:

           (i) the person’s operating privilege will be suspended
           upon refusal to submit to chemical testing and the
           person will be subject to a restoration fee of up to
           $2,000; and

           (ii) if the person refuses to submit to chemical breath
           testing, upon conviction or plea for violating section
           3802(a)(1), the person will be subject to the penalties
           provided in section 3804(c) (relating to penalties).

75 Pa.C.S. § 1547 (emphasis in original). Moreover,

     [o]ur Supreme Court examined Section 1547 in Commonwealth
     v. Myers, 640 Pa. 653, 164 A.3d 1162 (Pa. 2017), a case wherein
     the defendant who was arrested on suspected DUI charges was
     unconscious in the hospital when a police officer read him consent
     forms and then directed hospital personnel to conduct a blood
     draw. The Myers Court determined:

        [O]nce a police officer establishes reasonable grounds to
        suspect that a motorist has committed a DUI offense, that
        motorist “shall be deemed to have given consent to one or
        more chemical tests of breath or blood for the purpose of
        determining the alcoholic content of blood or the presence
        of a controlled substance.”      75 Pa.C.S.A. § 1547(a).
        Notwithstanding this provision, Subsection 1547(b)(1)
        confers upon all individuals under arrest for DUI an explicit
        statutory right to refuse chemical testing, the invocation of
        which triggers specified consequences. See 75 Pa.C.S.A. §
        1547(b)(1) (“If any person placed under arrest for DUI is
        requested to submit to chemical testing and refuses to do
        so, the testing shall not be conducted[.]”).


                                    -9-
J-A06010-19


        Under this statutory scheme, a motorist placed under arrest
        for DUI has a critical decision to make. The arrestee may
        submit to a chemical test and provide the police with
        evidence that may be used in a subsequent criminal
        prosecution, or the arrestee may invoke the statutory right
        to refuse testing, which: (i) results in a mandatory driver’s
        license suspension under 75 Pa.C.S.A. § 1547(b)(1); (ii)
        renders the fact of refusal admissible as evidence in a
        subsequent DUI prosecution pursuant to 75 Pa.C.S.A. §
        1547(e); and (iii) authorizes heightened criminal penalties
        under 75 Pa.C.S.A. § 3804(c) if the arrestee later is
        convicted of DUI. In very certain terms, [the Supreme]
        Court has held that, in requesting a chemical test, the police
        officer must inform the arrestee of the consequences of
        refusal and notify the arrestee that there is no right to
        consult with an attorney before making a decision. See
        [Com., Dept. of Transp., Bureau of Traffic Safety v.]
        O’Connell, 521 Pa. 242, 555 A.2d [873,] 877-878 (Pa.
        1989). “An arrestee is entitled to this information so that
        his choice to take a chemical test can be knowing and
        conscious.” Id. at 878. The choice belongs to the arrestee,
        not the police officer.

     Myers, 164 A.3d at 1170-1171 (some case citations, original
     brackets, and footnote omitted) (emphasis added). The Myers
     Court further noted that 75 Pa.C.S.A. § 1547 expressly “states
     that, ‘[i]t shall be the duty of the police officer’ to inform the
     arrestee of the consequences of refusal.” Id. at 1175 n.12, citing
     75 Pa.C.S.A. § 1547(b)(2). Our Supreme Court held that “[t]his
     unambiguous statutory command leaves no doubt regarding the
     obligations of the police officer requesting the arrestee’s
     submission to a chemical test.” Id. (citation omitted).

Krenzel, __ A.3 __, __, 2019 PA Super 159, *11-13.

     Here, the trial court found the following, in pertinent part:

           In this Court’s opinion, Officers Maxwell and Busch had
     probable cause to warrant the belief that the offense of driving
     under the influence had been committed by [Hill]. Officers
     Maxwell and Busch arrived at [Hill]’s residence within minutes of
     receiving a radio call from Mifflin County Dispatch indicating [Hill]
     had been driving while under the influence of alcohol. Shortly
     after arriving at [Hill]’s residence, Officer Maxwell observed that

                                    - 10 -
J-A06010-19


     the hood of [Hill]’s car was warm to the touch and that the vehicle
     had recently been driven. Moore subsequently confirmed to
     Patrolman Busch that she and [Hill] had arrived at their residence
     less than ten minutes before the appearance of the officers.
     Finally, Officer Maxwell’s testimony indicated that [Hill] was
     exhibiting clear signs of alcohol intoxication. Therefore, given the
     totality of the circumstances, the officers had probable cause to
     believe [Hill] had been driving under the influence.

             Moreover, it is this Court’s opinion that exigency existed to
     justify the warrantless entry of Officers Maxwell and Busch into
     [Hill]’s garage. First, [p]robable cause existed to warrant the
     belief that [Hill] had in fact committed the offense of driving under
     the influence. Second, given the potential danger driving under
     the influence poses to other motorists and pedestrians this Court
     considers the gravity of such an offense to be high. Third, it was
     clear to the responding officers that [Hill] was inside the premises
     as he was standing in his garage with the door open. Fourth, the
     officers peaceably made entry by first consulting with Moore
     outside the residence and then entering the garage. Finally, given
     that the evidence necessary to establish a defendant’s guilt in a
     DUI related offense is a blood alcohol content test, there is a high
     likelihood that the evidence of [Hill]’s offense would have been
     destroyed in the time that it would have taken for Officers Maxwell
     and Busch to obtain a warrant.

            In addition to the probable cause to warrant the belief that
     [Hill] had driven while under the influence, probable cause also
     existed to believe a potential domestic dispute was occurring.
     During the 911 calls to Mifflin County Dispatch, statements were
     made by Moore to indicate [Hill] was acting belligerently towards
     her. Further, on the Mifflin County Dispatch recording, [Hill] could
     be heard in the background of the call behaving aggressively and
     shouting profanities at Moore. When asked by Mifflin County
     Dispatch if a police response was necessary, Moore did not
     specifically refuse the offer, indicating only that it didn’t matter.
     Given the serious threat domestic violence incidents pose, and the
     potential risk of harm to Moore’s safety and well-being, it is this
     Court’s opinion that Officers Maxwell and Busch had probable
     cause to believe a potential domestic dispute was occurring and
     that exigent circumstances existed to ensure the safety of
     Margaret Moore.
                                          …


                                    - 11 -
J-A06010-19


            [Hill] argues that due to his elevated blood alcohol
     concentration, he was unable to give knowing, intelligent, and
     voluntary consent to the blood draw at Geisinger-Lewistown
     Hospital. However, pursuant to the Pennsylvania Crimes Code, a
     [d]efendant’s voluntary intoxication or voluntary drugged
     condition is not a defense to a criminal charge. 18 Pa.C.S. § 308.
     Moreover, Pennsylvania Courts have held that “a driver arrested
     for driving under the influence of intoxicating liquor may not avoid
     the consequences of his refusal to submit to a breathalyzer test
     by claiming that he was incapable of making a knowing and
     conscious refusal by reason of his intoxication.” Commonwealth
     v. Walthour, 7 Phila. 467, 1982 Phila. Cty. Rptr. LEXIS 82 (Pa.
     C.P., 1982). The Court in Walthour opined that to hold otherwise
     would lead to the absurd result wherein the greater the degree of
     intoxication of a driver, the lesser his degree of accountability. Id.
     at 474.

           This Court finds this rationale used in Walthour compelling
     and applicable to the facts of the current case. Here, Officer
     Maxwell read the warnings contained in the DL-26B form to [Hill]
     fully and in an appropriate manner and [Hill] subsequently
     consented to the blood draw. To allow [Hill] to claim that his
     intoxication precluded his consent being made knowingly,
     voluntarily, and intelligently would go against the legislative
     purpose of 75 Pa.C.S. § 1547.

            Further, [Hill]’s testimony indicated a lucid and coherent
     recollection of the remainder of his interactions with Officers
     Maxwell and Busch on the night in question. [Hill] was able to
     recall the entirety of his interactions with the officers in his garage
     including his questions to the officers, his refusal of field sobriety
     tests, and the alleged coercive statements made by the officers.
     Thus, [Hill] would have this Court believe that his intoxication
     substantially affected him only during the short window of time
     during which Officer Maxwell read him the chemical testing
     warnings from the DL-26B form at Geisinger-Lewistown Hospital.
     Given [Hill]’s cogent testimony as to the remainder of the night,
     this Court finds such a contention difficult to accept.

                                          …

           This Court must conclude that [Hill] was aware of his right
     to refuse the chemical test as he was read the warnings on the
     DL-26B form prior to consenting to the blood draw. Thus [Hill]

                                     - 12 -
J-A06010-19


     had been explicitly informed of his right to refuse. Moreover, [Hill]
     refused to submit to field sobriety tests earlier in the evening
     which indicates to this Court an awareness of his right to refuse
     the officers’ tests.     Finally, the only evidence presented to
     substantiate [Hill]’s claim that his consent was involuntary was his
     testimony that coercive statements were made by the arresting
     officers in his garage. Therefore, this Court can only weigh the
     credibility of [Hill]’s testimony against the testimony of Officer
     Maxwell. Given [Hill]’s own statements as to his degree of
     intoxication, this Court finds his testimony to be less credible than
     the uncontroverted testimony of Officer Maxwell who denied
     making any coercive statements to [Hill] and denied having
     knowledge of any coercive statements made by Patrolman Busch
     to [Hill]. Therefore, this Court cannot accept that [Hill]’s decision
     to consent to the blood draw at Geisinger-Lewistown Hospital was
     accomplished through duress or coercion.

                                       …

     [T]his Court is not persuaded by [Hill]’s argument relating to the
     involuntariness of his consent based on Officer Maxwell’s reading
     of the Penn-Dot DL-26B form and his lack of signature on said
     form. On June 23, 2016, the United States Supreme Court
     decided Birchfield v. North Dakota, 136 S. Ct. 2160 (2016),
     which held that “a state may not impose criminal penalties on the
     refusal    to   submit     to    [a  warrantless     blood]   test...”
     Commonwealth v. Evans, 153 A.3d 323, 331 (Pa. Super. 2016).
     Prior to the Birchfield ruling, the PennDOT Form DL-26 advised
     motorists that if they failed to consent to a blood draw, they would
     be subject to enhanced penalties under 75 Pa.C.S.A. §3804(c).
     The Evans Court found that the old form DL-26 warning was
     partially inaccurate, as it threatened enhanced penalties that
     were, in light of Birchfield, no longer appropriate. Therefore, in
     response to the Birchfield decision, Pennsylvania immediately
     amended the PennDOT Form DL-26B to state, inter alia, 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.


                                    - 13 -
J-A06010-19


        3. If you refuse to submit to the blood test, your operating
        privilege will be suspended for at least 12 months. If you
        previously refused a chemical test or were previously
        convicted of driving under the influence, you will be
        suspended for up to 18 months.

        4. You have no right to speak with 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.

           The amended form eliminated any reference to the
     enhanced criminal penalties imposed by Section 3804(c).
     Instead, the amended DL-26B form warns motorists that a refusal
     to submit to a blood test will result in a driver’s license suspension.

                                       …

            This Court finds the consequence of [Hill]’s refusal, which
     entailed only the potential suspension of his operating privilege,
     was expressly stated in the DL-26B form, and that [Hill] was
     therefore capable of making a knowing and conscious decision.
     After being read the warning by Officer Maxwell, [Hill] consented
     to the blood draw. Moreover, at no time did Officer Maxwell
     indicate to [Hill] that he would face enhanced criminal penalties
     as outlined in 75 Pa.C.S.A. §3804(c) if the blood draw was
     refused. The lack of [Hill]’s signature on the DL-26B form alone
     does not persuade this Court that his consent was involuntarily
     given. Therefore, there is no evidence to suggest that [Hill]’s
     consent was the product of duress, coercion, or an overborn will.
     Based on the totality of the circumstances, this Court finds [Hill]’s
     consent to the requested blood draw was made knowingly,
     intelligently, and voluntarily.

Trial Court Opinion, 4/23/2018, at 3-10. We agree with the Court’s analysis.

     First, to the extent Hill argues the police conducted the blood draw while

he was in custody, we “consider custodial status, but it is not dispositive.”

Krenzel, __ A.3 __, __, 2019 PA Super 159, *9. Moreover, it bears reiterating

that the Pennsylvania Supreme Court has previously stated: “In very certain

                                     - 14 -
J-A06010-19


terms, this Court has held that, in requesting a chemical test, the police officer

must inform the arrestee of the consequences of refusal and notify the

arrestee that there is no right to consult with an attorney before making a

decision.”     Myers, 164 A.3d at 1171.             See also Commonwealth,

Department of Transportation, Bureau of Traffic Safety v. O'Connell,

555 A.2d 873 (Pa. 1989) (officer’s warnings are the duty to inform drivers

that they lack the right to speak with an attorney prior to deciding whether to

consent to chemical blood draw).

       Second, with respect to Hill’s assertion that the police officers employed

coercive tactics which caused Hill’s consent to be involuntary, we note, as

provided above, the trial court found the police officers possessed probable

cause to believe Hill had been driving under the influence based on the totality

of the circumstances, including Moore’s statements to police and that Hill was

exhibiting signs of intoxication, as well as evidence of both exigent

circumstances necessitating a warrantless entry into the garage and a

domestic dispute involving Hill and Moore.10            See Trial Court Opinion,

4/23/2018, at unnumbered 3-4.              Accordingly, the officers were lawfully

permitted to be on his property despite the fact that he did not invite them or

permit them to be there. See Commonwealth v. Dommel, 885 A.2d 998

(Pa. Super. 2005) (combined circumstances created an exigency which


____________________________________________


10  It merits mention that on appeal, Hill does not raise a suppression
argument, challenging the court’s finding of probable cause.

                                          - 15 -
J-A06010-19


justified the warrantless entry into a residence to arrest a defendant suspected

of committing a DUI offense), appeal denied, 920 A.2d 831 (Pa. 2007);

Commonwealth v. Fickes, 969 A.2d 1251 (Pa. Super. 2009) (warrantless

entry into garage was permitted where police officer, who was in fresh pursuit,

possessed probable cause to believe defendant had been driving under the

influence, and blood alcohol content (“BAC”) evidence would likely be lost by

time a warrant was procured).

       Furthermore, with regard to Hill’s assertion that the officer threatened

to take him to jail if he refused the blood test, the trial court found Hill’s

testimony to be “less credible than the uncontroverted testimony of Officer

Maxwell who denied making any coercive statements to [Hill] and denied

having knowledge of any coercive statements made by Patrolman Busch” to

Hill. Trial Court Opinion, 4/23/2018, at unnumbered 7. We are bound by

these credibility determinations, which are supported by the record.       See

Shreffler, 201 A.3d at 763.11

       Additionally, to the extent Hill argues Officer Maxwell read the DL-26B

form to him while he was still in handcuffs and did not allow Hill to review the

form or sign the document, we note the following.        The record does not



____________________________________________


11 Moreover, to the extent Hill alleges Patrolman Maxwell asked Hill questions
that were tailored to elicit incriminating evidence, including whether he had
been drinking, and put his hands on Hill’s car without permission to do so, we
find these arguments to be meritless as Hill has failed to persuade us
otherwise with these bald assertions.

                                          - 16 -
J-A06010-19


indicate whether Hill was handcuffed at the time his blood was drawn though

he did testify that after the officers arrested him, they placed his hands behind

his back and handcuffed him prior to transporting him to the lab. See N.T.,

4/12/2018, at 43. Nevertheless, without more information, we find it unlikely

that one’s blood could be drawn with his or her arms behind his or her back.

Moreover, based on the totality of the circumstances, we agree with the trial

court the “lack of [Hill]’s signature on the DL-26B form alone does not

persuade this Court that his consent was involuntarily given.”       Trial Court

Opinion, 4/23/2018, at unnumbered 10.           Officer Maxwell testified that

generally, he follows the same procedure every time when asking for an

individual’s consent to a blood draw test, and that after he reads the DL-26B

form to the individual and they consent, he does not “normally” get them to

sign. N.T., 4/12/2018, at 33. He also stated that if the individual refuses to

complete the test, he does have the person sign the form. Id. at 32. On the

the DL-26B form, Officer Maxwell signed the line indicating that he had done

the following: “I certify that I have READ the above warnings to the operator

regarding the suspension of his/her operating privilege and gave the operator

an opportunity to submit to blood test.” Commonwealth’s Trial Exhibit #2,

4/12/2018, DL-26B Form at Side 1. Accordingly, we conclude that the officers

did not utilize such tactics that were coercive and caused Hill’s consent to be

involuntary.




                                     - 17 -
J-A06010-19


      Third, with regard to Hill’s complaint that he was aware of his right to

refuse the warrantless blood draw and this factor goes against an indication

of voluntariness, he points to the court’s statement that Hill “would not submit

to any tests.” Trial Court Opinion, 4/23/2018, at unnumbered 2. In reviewing

the statement of facts in toto, it is evident Hill misconstrues the court’s

recitation of the incident. The court was referring to the field sobriety tests

and stating that Hill would not submit to any field sobriety tests. See id.

Accordingly, Hill’s argument has no merit and furthermore, such an argument

regarding prior knowledge of the right to refuse does not demonstrate that his

consent was involuntary.

      Fourth, Hill points out the record does not contain any evidence

pertaining to his education and intelligence. While we agree the record lacks

any information regarding this factor, a review reveals there was no evidence

suggesting Hill suffered any mental limitation or had a language barrier, which

would impair his comprehension of the language provided in the DL-26B form

rendering him incapable of providing voluntary consent to the blood draw.

      Fifth, Hill alleges that based on his level of intoxication, he would believe

that no incriminating evidence would be found in his blood and therefore, his

consent was not voluntary.      We agree with the trial court that voluntary

intoxication is not “a defense to a criminal charge[.]” 18 Pa.C.S. § 308. Any

subjective belief that no incriminating evidence would be found in one’s blood

due to voluntary intoxication does not weigh heavily against voluntariness.


                                      - 18 -
J-A06010-19


Furthermore, the trial court found Hill presented a “lucid and coherent

recollection” of the events in question, which weighs against his claim that he

was too drunk to consent. Trial Court Opinion, 4/23/2018, at unnumbered 8.

      Lastly, Hill complains that his own agitation at the time of the incident

demonstrates he had no intention of voluntarily cooperating with the officers.

Other than a very bald assertion, Hill presents no case law to support his

contention. As such, we need not address this claim further.

      Based on our review of the record in the present case, we conclude that

the totality of the circumstances, clearly weigh in favor of finding that Hill

provided knowing and voluntary consent to the blood draw. The only factor

that weighs against a finding of voluntariness is that Hill was in custody, but

there is no credible evidence that his consent to the blood draw was the

product of duress, threats, or coercion on the part of the police officers. Hill

agreed to submit to the test and underwent the blood draw. Therefore, we

conclude no reasonable fact-finder could determine Hill’s consent was

involuntary. Accordingly, we affirm the judgment of sentence.

      Judgment of sentence affirmed.

      Judge Pellegrini joins this memorandum.

      Judge Nichols concurs in the result.




                                     - 19 -
J-A06010-19




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/15/2019




                          - 20 -
