J-A31026-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
 SEAN JOSEPH KURTZ                      :
                                        :
                                        :   No. 1285 EDA 2017

                  Appeal from the Decision March 22, 2017
               In the Court of Common Pleas of Bucks County
            Criminal Division at No(s): CP-09-CR-0005500-2016


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

JUDGMENT ORDER BY OLSON, J.:                   FILED FEBRUARY 27, 2018

     The Commonwealth of Pennsylvania appeals from the March 22, 2017

order granting Sean Joseph Kurtz’s (“Appellee’s”) motion in limine.      We

reverse.

     The factual background and procedural history of this case are as

follows. Early in the morning on May 1, 2016, Appellee was involved in a

motor vehicle accident.   Appellee fled the scene.   The driver of the other

vehicle recognized Appellee and informed police of his identity. Appellee was

stopped a short time later. Police requested that he undergo a blood test to

determine if he were under the influence of alcohol and/or drugs but he

refused to consent to such testing.




*Former Justice specially assigned to the Superior Court
J-A31026-17

        On September 14, 2016, the Commonwealth charged Appellee via

criminal information with driving under the influence - general impairment1

and fleeting the scene of an accident.2 Thereafter, Appellee filed a motion in

limine seeking to prohibit the Commonwealth from introducing evidence that

he refused a blood test. On March 22, 2017, the trial court granted Appellee’s

motion in limine. This timely interlocutory appeal as of right followed.3 See

Pa.R.A.P. 311(d) (Commonwealth may appeal as of right from an order that

does not end the entire case where the Commonwealth certifies that the order

will terminate or substantially handicap the prosecution.).

        The Commonwealth presents two issues for our review:

     1. Did the trial court err and/or abuse its discretion in granting
        Appellee’s [m]otion in [l]imine to preclude evidence of Appellee’s
        refusal of blood testing and circumstances surrounding same,
        where the trial court based its ruling on an erroneous
        interpretation of Birchfield v. North Dakota, [136 S.Ct. 2160
        (2016)] . . . ?

     2. Did the trial court err and/or abuse its discretion in granting
        Appellee’s [m]otion in [l]imine to preclude evidence of Appellee’s
        refusal of blood testing . . . when it determined that the probative
        value of the refusal evidence was outweighed by its prejudicial
        impact . . . ?

Commonwealth’s Brief at 4.

1   75 Pa.C.S.A. § 3802(a)(1).

2   75 Pa.C.S.A. § 3744(a).

3 On May 2, 2017, the trial court ordered the Commonwealth to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). On May 12, 2017, the Commonwealth filed its concise
statement. On June 15, 2017, the trial court issued its Rule 1925(a) opinion.
Both of the Commonwealth’s issues were included in its concise statement.


                                       -2-
J-A31026-17



      Both of the Commonwealth’s issues challenge the trial court’s order

granting Appellee’s motion in limine to exclude evidence relating to his refusal

to submit to a blood test. “We review a trial court’s decision to grant a motion

in limine for an abuse of discretion.” Commonwealth v. Ribot, 169 A.3d 64,

67 (Pa. Super. 2017) (citation omitted).

      While this appeal was pending, a three-judge panel of this Court decided

Commonwealth v. Bell, 167 A.3d 744 (Pa. Super. 2017). In Bell, this Court

held that evidence of a motorist’s refusal to submit to a blood test is admissible

post-Birchfield.    Id. at 749-750.      Appellee’s counsel conceded at oral

argument that the outcome of this appeal is controlled by Bell. We agree.4

Under Bell, admission of evidence that Appellee refused to submit to a blood

test does not violate his constitutional rights and the probative value of the

refusal evidence outweighs its prejudicial effect. Accordingly, we reverse the

trial court’s order granting Appellee’s motion in limine and remand for further

proceedings consistent with this judgment order.

      Order reversed. Case remanded. Jurisdiction relinquished.




4Although some members of this panel disagree with Bell, as a three-judge
panel we are bound by that decision. See Commonwealth v. Johnson, 125
A.3d 822, 826 n.2 (Pa. Super. 2015) (citation omitted).


                                      -3-
J-A31026-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/27/18




                          -4-
