J-S20026-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    TAMEEKAH MATILDA BARRETT                   :   No. 1802 MDA 2017

                Appeal from the Order Entered October 23, 2017
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0001211-2017


BEFORE: GANTMAN, P.J., OTT, J., and KUNSELMAN, J.

MEMORANDUM BY OTT, J.:                                    FILED JUNE 11, 2018

       The Commonwealth appeals from the order entered October 23, 2017,

in the Court of Common Pleas of Berks County, that granted appellee’s,

Tameekah Matilda Barrett’s, motion to suppress blood test results obtained

after she gave consent to a blood draw during the course of a driving under

the influence (DUI) investigation.1 The Commonwealth contends (1) the trial

court erred in suppressing evidence pursuant to Birchfield v. North Dakota,

136 S.Ct. 2160 (2016)2, where the DL-26B form read to appellee had been
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1The Commonwealth has certified that the trial court’s ruling terminated or
substantially handicaps the prosecution of this case.

2 Birchfield “prohibit[s] states from imposing criminal penalties upon an
individual’s refusal to submit to a warrantless blood test.” Commonwealth
v. Smith, 177 A.3d 915, 921 (Pa. Super. 2017), citing Birchfield, 136 S.Ct.
at 2185.
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modified to remove warnings regarding the enhanced penalties for a blood

testing refusal, rendering the consent to the blood draw voluntary, and (2)

the trial court erred in suppressing evidence pursuant to Birchfield, supra,

where the totality of the circumstances indicates that the consent to the blood

draw was voluntary.         See Commonwealth Brief at 4.         Based upon the

following, we reverse and remand for further proceedings.

        On November 12, 2016, Officer John Hutchinson of the Reading Police

Department arrested appellee for suspected DUI.3            For purposes of the

suppression hearing, the parties stipulated that appellee was the driver and

that Officer Hutchinson arrested her based upon probable cause from the

vehicle stop. Appellee was transported to the Berks County DUI Processing

Center.     Officer Hutchinson read appellee Pennsylvania Department of

Transportation (PennDOT) Form DL-26B.4            The DL-26B form that Officer

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3   See 75 Pa.C.S. § 3802.

4   The DL-26B form provided, in relevant part:

        It is my duty as a police officer to inform you of 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.

        3. If you refuse to submit to the blood test, your operating
        privileges will be suspended for at least 12 months. If you
        previously refused a chemical test or were previously



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Hutchinson read to appellee to obtain consent for blood testing was updated

by following Birchfield, to remove previous DL-26 language regarding

enhanced criminal penalties for refusal to submit to a blood test. Appellee

signed the DL-26B and submitted to the blood draw. The testing revealed a

BAC of .333.

        On December 19, 2016, appellee was charged by criminal complaint

with two counts of DUI and illegally operating a motor vehicle not equipped

with ignition interlock.5 On August 1, 2017, appellee filed an omnibus pretrial

motion, seeking to suppress the blood test results. A hearing was held on

August 21, 2017.       Thereafter, on October 23, 2017, the trial court issued

findings of fact and conclusions of law and granted the suppression motion.

This appeal by the Commonwealth followed.

        Our standard of review of the trial court’s suppression ruling is well

settled:

           When the Commonwealth appeals a suppression order, we
           consider only the evidence from [Appellee’s] witnesses

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        convicted of driving under the influence, you will be suspended
        for up to 18 months.

        4. You have no right to speak to 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.

N.T., 8/21/2017, Commonwealth’s Exhibit 1.

5   75 Pa.C.S. §§ 3802(a)(1) and (c) and 3808(a)(1), respectively.

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         together with the portion of the Commonwealth’s evidence
         which is uncontroverted. Our standard of review is limited
         to determining whether the suppression court’s factual
         findings are supported by the record, but we exercise de
         novo review over the suppression court's conclusions of
         law.

      Further, “[a]ppellate courts are limited to reviewing only the
      evidence presented at the suppression hearing when examining a
      ruling on a pre-trial motion to suppress.” “It is within the
      suppression court's sole province as factfinder to pass on the
      credibility of witnesses and the weight to be given their
      testimony.”

Commonwealth v. Thomas, 179 A.3d 77, 81 (Pa. Super. 2018) (citation

and internal citations omitted).

      The Commonwealth first contends “the trial court err[ed] in suppressing

evidence pursuant to Birchfield … where the DL-26B form was modified to

remove the objectionable language regarding the enhanced penalties for a

blood testing refusal, rendering the consent to the blood draw voluntary.”

Commonwealth Brief at 4. Appellee counters that “[t]he updated DL-26B did

not change the enhanced punishments that [were] still provided for in 75

Pa.C.S.A. §§ 3803-3804 [on the date in question].” Appellee’s Brief at 12.

      The identical claim presented by the Commonwealth in this appeal was

recently addressed in Commonwealth v. Robertson, ___ A.3d ___ [2018

Pa. Super. LEXIS 426] (Pa. Super. May 3, 2018), where a panel of this Court

found merit in the Commonwealth’s argument.            Accordingly, because

Robertson is controlling in this case, we simply reiterate its holding that

PennDOT had the authority to amend the DL-26 form prior to the legislation



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that amended Section 3804, and that the defendant was presumed to know

both statutory and case law.6        Id. at *14.

       In the second issue, the Commonwealth contends the trial court erred

in suppressing evidence pursuant to Birchfield, supra, where the totality of

the circumstances indicates that the consent to the blood draw was voluntary.

In reviewing this claim, Robertson is instructive:

       Under [Commonwealth v.] Evans[,153 A.3d 323 (Pa. Super.
       2016)], a trial court must consider the totality of the
       circumstances when determining if a defendant’s consent to a
       blood draw was voluntary. Evans, 153 A.3d at 328 (citation
       omitted). As our Supreme Court explained:

           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. Gillespie, 573 Pa. 100, 821 A.2d 1221, 1225
       (Pa. 2003) (Eakin, J., opinion announcing the judgment of the
       court) (cleaned up), citing Commonwealth v. Cleckley, 558 Pa.
       517, 738 A.2d 427, 433 n.7 (Pa. 1999).

Robertson, supra at *14-*15.




____________________________________________


6 A three-judge panel of this Court is not empowered to overrule another
three-judge panel of the Superior Court. Commonwealth v. Beck, 78 A.3d
656, 659 (Pa. Super. 2013). See also Commonwealth v. Hull, 705 A.2d
911, 912 (Pa. Super. 1998).


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      The trial court made the following findings of fact that are relevant to

the factors to be considered in determining voluntariness of consent.        On

November 12, 2016, Officer Hutchinson arrested appellee for suspected DUI

and transported her to the Berks County DUI Processing Center. Officer

Hutchinson read the DL-26B form in a conversational tone. Officer Hutchinson

testified he, the phlebotomist, a clerk and appellee were the only people

present in the room when he read the DL-26B form to appellee. Appellee was

not in handcuffs, and did not ask about increased penalties.             Officer

Hutchinson did not recall if appellee asked about Birchfield.            Officer

Hutchinson was dressed in full uniform and did not have a warrant. Officer

Hutchinson did not advise appellee she would not face increased criminal

penalties if she refused the blood test. Appellee signed the DL-26B form and

submitted to the blood draw.        See Trial Court’s Findings of Fact and

Conclusions of Law, 10/23/2017, ¶¶1-11.

      Based on our review, this Court concludes that the facts of the instant

case, set forth above, clearly weigh in favor of finding voluntariness. The only

factor that weighs against a finding of voluntariness is the fact that appellee

was in custody.   Officer Hutchinson did not use duress or coercive tactics.

Officer Hutchinson properly advised appellee she could refuse the blood test

and be subject to certain civil penalties. No evidence was presented regarding

the education and experience of appellee and whether appellee was aware

incriminating evidence would be found in her blood.       Appellee signed the


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DL-26B form, agreed to submit to the test, and underwent the blood draw.

As such, this Court concludes no reasonable factfinder could determine

appellee’s consent was involuntary.     Therefore, we find merit in the

Commonwealth’s second argument.

     Accordingly, we reverse the trial court’s suppression order and remand

for further proceedings consistent with this memorandum.

     Order reversed. Case remanded. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/11/2018




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