J-S52013-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :        IN THE SUPERIOR COURT OF
                                          :              PENNSYLVANIA
             v.                           :
                                          :
RANDY D. WRIGHT,                          :
                                          :
                   Appellant              :            No. 149 MDA 2017

            Appeal from the Judgment of Sentence January 9, 2017
               in the Court of Common Pleas of Adams County,
              Criminal Division, No(s): CP-01-CR-0001302-2015

BEFORE: GANTMAN, P.J., LAZARUS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                         FILED AUGUST 31, 2017

        Randy D. Wright (“Wright”) appeals from the judgment of sentence

entered following his conviction of three counts of driving under the

influence (“DUI”),1 one count of accident involving damage to attended

vehicle or property; and the summary offenses of failure to stop and give

information or render aid, traffic control signals, driving without a license,

passing zones, and reckless driving.2 We affirm.

        As found by the suppression court, during his 7:00 a.m. to 5:00 p.m.

shift on November 25, 2015, Cumberland Township Police Sergeant Matthew

Trostle (“Sergeant Trostle”) responded to a report of a “hit and run” accident

involving multiple vehicles.   At the scene, Sergeant Trostle was informed



1
  Specifically, Wright was convicted of DUI-controlled substances, DUI-
controlled substance (metabolites), and DUI-controlled substance (impaired
ability). See 75 Pa.C.S.A. § 3802(d)(1)(i), (iii), (2).
2
    75 Pa.C.S.A. §§ 3743(a), 3744(a), 3112(a)(3)(i), 3307(b), 3736.
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that a black SUV, with damage matching the description of the vehicle

involved in the accident, had pulled into the parking lot of the Aspire Motel.

Sergeant Trostle proceeded to the motel, where he found Wright in the

motel lobby. Sergeant Trostle ordered Wright to put his hands up and get

down on the ground.          Wright complied, at which time Sergeant Trostle

placed Wright under arrest.

         Sergeant Trostle immediately informed Wright of his Miranda3 rights.

During a search incident to arrest, Sergeant Trostle found a large amount of

cash in Wright’s possession.       Other officers arrived at the scene, at which

time Wright told the officers that his vehicle hit the other vehicles because

they were chasing him. The officers asked Wright to submit to field sobriety

tests.     Wright responded that he could not physically perform the tests

because of injuries to his knees and feet.        However, Wright also told the

officers that he had a cup of urine in his vehicle, in case the officers needed

to test it. Wright additionally asked officers to take him to the hospital for a

blood test. “At no time was the Implied Consent Law discussed with or read

to [Wright].”      Suppression Court Opinion, 9/9/16, at 3.         Subsequently,

Wright’s blood tested positive for controlled substances.

         Prior to trial, Wright filed a Motion to Suppress the results of his blood

test. In his Motion, Wright asserted that he was coerced into submitting to

the blood test under the threat of enhanced penalties, in violation of the


3
    See Miranda v. Arizona, 384 U.S. 436 (1966).


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

U.S. ___, 136 S. Ct. 2160, 195 L. Ed. 2d 560 (2016).               See Motion to

Suppress, ¶ 4. Wright also challenged the withdrawal of his blood without a

search warrant.    Id., ¶ 5.      In his Memorandum of Law in support of his

Motion, Wright argued that “a lack of information is no better than

misinformation concerning an arrestee’s rights when submitting to a search,

and does not support a finding of knowing consent.” Memorandum of Law in

support of Motion to Suppress, at 18 (emphasis omitted).           Wright argued

that “failure to inform [the arrestee] of the right to refuse is a factor

weighing against voluntary consent.” Id. (emphasis omitted).

      On September 9, 2016, the suppression court denied Wright’s Motion.

Following a bench trial, the trial court found Wright guilty of the above-

described charges.        The trial court subsequently sentenced Wright to an

aggregate 60 months of intermediate punishment (with 12 months on

restrictive   sanctions     and   the    remainder   on   restorative   sanctions).

Thereafter, Wright filed the instant timely appeal, followed by a court-

ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of on

appeal.

      Wright presents the following claim for our review:

      Did the [suppression] court err in finding knowing, specific, and
      voluntary consent where the record plainly demonstrates that
      [Wright] was in custody, was neither “lucid” nor “rational” at the
      time of the supposed consent, and was never advised of the
      nature of the arrest, the purpose of the blood test, or the right
      to refuse the blood test?


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Brief for Appellant at 4.

      In appeals from suppression orders,

      [a]n appellate court may consider only the Commonwealth’s
      evidence 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 record supports the factual findings of
      the trial court, the appellate court is bound by those facts and
      may reverse only if the legal conclusions drawn therefrom are in
      error. However, it is also well settled that an appellate court is
      not bound by the suppression court’s conclusions of law.

Commonwealth v. Caple, 121 A.3d 511, 516-17 (Pa. Super. 2015)

(citations omitted).

      With respect to factual findings, we are mindful that it is the sole
      province of the suppression court to weigh the credibility of the
      witnesses. Further, the suppression court judge is entitled to
      believe all, part or none of the evidence presented. However,
      where the factual determinations made by the suppression court
      are not supported by the evidence, we may reject those findings.
      Only factual findings which are supported by the record are
      binding upon this Court.

Id. (citation omitted).     “In addition, we are aware that questions of the

admission and exclusion of evidence are within the sound discretion of the

trial court and will not be reversed on appeal absent an abuse of discretion.”

Id.

      Wright first claims that the suppression court improperly found that he

had consented to the blood alcohol test, where the evidence showed that he

was under arrest, not “lucid” or “rational,” and where no information was

provided to him about blood testing. Brief for Appellant at 9. Wright argues

that, considering the totality of the circumstances, his custodial detention


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invalidated his consent. Id. at 11. According to Wright, his “consent” was

obtained while he was in custody, “involving at least three police officers

questioning him[.]” Id. at 12. Wright contends that the coercive nature of

his custodial detention militates against finding consent. Id.

      Wright further contends that the trial court improperly ignored his

“deranged mental state in its totality of the circumstances analysis.” Id. at

13.   Wright argues that, unlike cases in which the defendant had clear

understanding of blood testing, the record in this case is silent as to his

education, whether he was told of the reason for his arrest, and whether he

was informed about the purpose of blood testing. Id. at 14. Wright takes

issue with the officers’ decision “not to take the (very simple) precautions of

explaining the basis for the arrest, the purpose of the blood testing, the right

to refuse, and the consequences of the testing or refusal, nor did they

simply ask if he understood what was happening.” Id. at 15. Wright directs

our attention to evidence of his deranged state of mind.         Id. at 15-16.

Wright contends that the suppression court’s failure to consider his mental

state constituted “harmful error,” as such evidence is necessary to

considering the totality of the circumstances. Id. at 17.

      Wright also argues that the failure to inform a driver of the right to

refuse to consent to blood testing is a factor weighing against finding

voluntary consent. Id. According to Wright, “[w]hen appellate courts have

found voluntary consent by subjects not informed of their right to refuse,



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they have only done so when the subject was under arrest.”            Id. at 18.

Again, Wright directs our attention to the officers’ failure to explain to Wright

the reason for his arrest, the purpose of the blood test, his right to refuse

the blood test, and the potentiality that the blood test results could be used

against him. Id. at 20.

      The Fourth Amendment to the United States Constitution provides

      [t]he right of the people to be secure in their persons, houses,
      papers, and effects, against unreasonable searches and seizures,
      shall not be violated and no Warrants shall issue, but upon
      probable cause, supported by Oath or affirmation, and
      particularly describing the place to be searched, and the persons
      or things to be seized.

U.S. CONST. AMEND. IV.     “[T]he text of the Fourth Amendment does not

specify when a search warrant must be obtained.” Kentucky v. King, 563

U.S. 452, 459 (2011).

      “No matter the substance suspected of affecting a particular DUI

arrestee, Birchfield requires that a blood test be authorized either by a

warrant (or case-specific exigency) or by individual consent not based on the

pain of criminal consequences.”       Commonwealth v. Ennels, 2017 PA

Super 217 (filed July 11, 2017), *11.        Thus, the question before us is

whether   Wright’s   consent   was   voluntary,   under   the   totality   of   the




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circumstances.4

      As our Pennsylvania Supreme Court has explained,

      [i]n 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.

Commonwealth v. Smith, 77 A.3d 562, 573 (Pa. 2013) (internal citations

and quotation marks omitted).

      In its Opinion, the suppression court addressed Wright’s claim, in

relevant part, as follows:

            [Wright] appears to assert that a [d]efendant cannot
      provide knowing consent unless he is given the warnings
      contained in the DL 26 [F]orm.[5] However, based upon a plain

4
 Here, the police officers did not advise Wright of any increased or additional
penalties for refusal to submit to a blood test, prior to Wright consenting to
the test. Where a driver gives his consent to a blood test prior to being
given the warning of increased criminal penalties for refusing his consent,
Birchfield is not implicated, as his consent was not tainted by the warning.
Commonwealth v. Haines, 2017 Pa. Super. LEXIS 585, *10, 2017 PA
Super 252 (Pa. Super. 2017) (citing Birchfield, 136 S. Ct. at 2185-86).

5
  The DL 26 Form provides that if a person refuses to consent to a blood
test, his or her license could be suspended for a least one year and the
defendant could face more severe penalties because of the refusal.



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      reading of the statute, it does not appear [that] a police officer
      must read the DL 26 [F]orm to a person arrested for a DUI
      offense prior to asking the person to submit to a blood draw.[FN]
      75 Pa.C.S.A. § 1547(b)(1) states [that] “[i]f 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….” (emphasis added). If the person consents
      in response to an officer’s request for a blood draw, there is no
      need to provide an explanation of the consequences of a refusal.


         [The trial court] has found no case law suggesting a contrary
      [FN]

      reading of the statute. A license suspension and the enhanced
      criminal penalties are only triggered when an individual refuses
      to submit to the blood test; therefore, a person must be given
      the warning before either of those penalties can be imposed.
      See Commonwealth v. Xander, 14 A.3d 174, 179 (Pa. Super.
      2011); Weems v. Commw., Dep’t of Transp., Bureau of
      Driver Licensing, 990 A.2d 1208, 1211-12 (Commw. Ct.
      2010).


            The implied consent law “does not require that a motorist’s
      consent to a chemical test be informed, but does require that a
      motorist’s refusal be informed.” Commonwealth v. McCoy,
      895 A.2d 18, 27 (Pa. Super. 2006) [(internal citation omitted)].
      Therefore, in the current case, because [Wright] asked to give a
      blood sample and consented to the blood draw, the fact [that]
      he was never provided with the DL[F]26 Form will not invalidate
      his consent.

            Considering the above factors under the totality of the
      circumstances, [the suppression] court finds that [Wright] did
      provide knowing and voluntary consent to the blood draw.

Suppression Court Opinion, 9/9/16, at 7-8 (footnote 6 added).       We agree

with the sound reasoning of the suppression court, as set forth above, and

affirm on this basis with regard to Wright’s claim. See id.

      To the extent that Wright claims that his mental condition negated the

voluntariness of his consent, we observe that he did not raise this claim


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before the suppression court.    In his Motion to Suppress, Wright claimed

that “his consent was not without coercion. [Wright] was coerced into giving

his blood under threat of enhanced criminal penalties.” Motion to Suppress,

¶ 4. Wright cited Birchfield in support. Id. At the suppression hearing, his

counsel argued that the coercive nature of Wright’s arrest negated the

voluntariness of his consent.   N.T., 8/25/16, at 17.    Counsel additionally

argued that the officers had failed to make it clear to Wright the purpose of

the blood test, and how it could be used against him. Id. at 18. Counsel

cited no case law supporting a claim that the police must explain the

ramifications of providing a blood sample, after a driver offers his consent.

Our research likewise finds no case law supporting his claim.

     Again, reviewing the totality of the circumstances, including the fact

that Wright was provided his Miranda warnings prior to offering his consent,

the record supports the suppression court’s findings and legal conclusions.

Accordingly, we affirm Wright’s judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/31/2017




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