J-A08017-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellant                :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    ELMO PENA                                  :   No. 1452 EDA 2016

                      Appeal from the Order April 20, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): MC-51-CR-0013593-2015


BEFORE:      PANELLA, LAZARUS, JJ., and STEVENS, P.J.E.*

DISSENTING MEMORANDUM BY STEVENS, P.J.E.:                  FILED JULY 21, 2017

        The suppression court speculates that Appellee Elmo Pena’s hospital

discharge papers, the sole medical records in evidence, which indicate a

diagnosis of a “concussion,” requires a finding as a matter of law that

Appellee did not have the capacity to consent to the drawing and testing of

his blood.

        Therefore, the suppression court erred in finding that Appellee did not

voluntarily and knowingly give actual consent to the drawing and testing of

his blood. As I would reverse the lower court’s suppression of the blood test

results on this basis, I respectfully dissent.



____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-A08017-17


      With regard to whether a defendant’s consent for a chemical blood test

was voluntary, this Court has held as follows:

            In order for consent to be valid, it must be unequivocal,
      specific, and voluntary. The [defendant] must have intentionally
      relinquished or abandoned a known right or privilege. The
      burden is upon the Commonwealth to prove by clear and
      convincing evidence that valid consent was given by [the
      defendant]. The determination as to whether consent has been
      given voluntarily is a question of fact which must be determined
      in each case from the totality of the circumstances. This Court
      has held that the following factors should be considered in
      determining whether consent was given voluntarily: the setting
      in which the consent was obtained; what was said and done by
      the parties present; and the age, intelligence, and educational
      background of the person consenting.

Commonwealth v. Gorbea–Lespier, 66 A.3d 382, 387 (Pa.Super. 2013)

(quotation marks, quotations, and citations omitted).

      In concluding Appellee did not voluntarily and knowingly give actual

consent for the blood draw and test, the suppression court held as follows:

             Appellee’s health was drastically affected by the car
      accident. Due to his incapacity, he did not have the requisite
      knowledge of the right to refuse nor the understanding that the
      chemical test was to examine his blood for the presence of
      alcohol. The medical evidence accepted by the suppression
      court is dispositive. The court found that Appellee suffered a
      head trauma from the crash. The police officers and medical
      personnel testified that he had [a] laceration on his head and
      visibly constricted pupils. N.T., 8/13/15, at 29-30. Appellee was
      unable to sit up or review the consent forms, which Officer
      Shead had to hold in front of Appellee’s face. His disoriented
      state is further demonstrated by his inability to correctly sign the
      implied consent forms. He initialed one consent form on the
      date line and made a marking on the second form[.]
            Given these facts, it is apparent Appellee’s head trauma
      and related injuries impaired his ability to comprehend the risks
      involved with a chemical test. Appellee did not knowingly and
      voluntarily submit to a chemical test.

                                     -2-
J-A08017-17



Suppression Court Opinion, filed 10/25/16, at 6.

       Applying the appropriate standard of review, the suppression court’s

legal conclusion that Appellee did not validly consent to the blood draw was

incorrect.    See In re L.J., 622 Pa. 126, 79 A.3d 1073 (2013) (setting forth

scope of review); Commonwealth v. Miller, 56 A.3d 1276 (Pa.Super.

2012) (setting forth standard of review when Commonwealth appeals from

suppression order).

       For instance, the suppression court reasoned that Appellee’s health

was drastically affected by the car accident and the medical evidence was

dispositive on the issue of capacity to give consent.       However, the sole

“medical evidence” presented was Appellee’s discharge papers, which

indicated a discharge diagnoses of “concussion.” 1 At the suppression

hearing, no witness testified that Appellee was disoriented, unconscious, or

unable to answer questions appropriately due to a concussion or otherwise.

In fact, two police officers and a responding medic testified to the opposite. 2

____________________________________________


1
  Appellee also had a right ankle fracture, but the suppression court focused
on the concussion portion of the discharge papers in rendering its ruling.
See N.T., 8/13/15, at 48 (the court indicated that, once the court sees the
word concussion, its interest is piqued); Id. at 59 (the court indicated that
Appellee had a concussion and that was going to be an important part of its
ruling).
2
  During the suppression hearing, in rendering its ruling, the suppression
court noted that it found “all of the Commonwealth’s witnesses credible and
[the court] adopted their testimony as [to its] findings of facts.” Id. at 64.



                                           -3-
J-A08017-17


Thus, unlike the suppression court, I would not find that, as a matter of law,

a concussion results in a finding of “incapacitation” to give consent under the

facts of this case.3

       Further, to the extent the suppression court buttressed its conclusion

with the fact Appellee could not sit up to review the consent forms and the

officer had to hold the forms in front of Appellee’s face for them to be signed

at the hospital, the uncontroverted evidence revealed that Appellee’s

immobility was related to the fact he was lying in a bed and wearing a neck

brace, which had been applied “as a precaution,” and not because of some

mental incapacity.      Id. at 22.     Moreover, the suppression court points to

Appellee’s initialing of one of the consent forms on the date line, as opposed

to the signature line, and the fact his signature on the second form was

illegible as further evidence of Appellee’s “disorientation.”      However, as

noted, the uncontroverted evidence was that Appellee signed/initialed the

documents while he was lying on a bed and wearing a neck brace.

       Finally, I note the Majority points to the fact that Appellee did not

review the consent forms or verbally respond that he understood them as

further evidence of lack of consent. The Majority, however, has provided no
____________________________________________


3
   In rendering its ruling, the suppression court noted that Appellee’s
incapacity was further demonstrated by the fact he was “in the hospital for
three days due to a concussion.” Id. at 64. However, Appellee’s own
testimony was that his three-day stay was attributed to a waiting period for
the scheduling of a CAT scan (and not because he was suffering symptoms
from the concussion as eluded to by the suppression court). Id. at 47-49.



                                           -4-
J-A08017-17


authority for the legal precept that voluntary consent may be manifested

only   after   a   defendant   reads   the   consent   forms   and   gives   verbal

confirmation. In the case sub judice, Officer Shead read the forms to

Appellee, thus making him aware of the content of the forms, and Appellee

then immediately signed/initialed them.          Under these facts, Appellee’s

signing/initialing of the forms is further evidence that Appellee consented to

undergo the chemical blood test. See Gorbea–Lespier, supra (indicating

consent is a question of fact that must be determined from the totality of the

circumstances).

       Based on the evidence presented at the suppression hearing, as well

as our standard of review, the suppression court erred in finding Appellee

did not voluntarily and knowingly give actual consent to the drawing and

testing of his blood. Therefore, as I would reverse the suppression court’s

grant of Appellee’s motion to suppress on this basis, I respectfully dissent.




                                       -5-
