J-A23018-17


                              2017 PA Super 381

COMMONWEALTH OF PENNSYLVANIA,           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                  Appellant             :
                                        :
            v.                          :
                                        :
NELSON R. TORRES,                       :
                                        :
                  Appellee              :   No. 3737 EDA 2016


              Appeal from the Order Entered October 31, 2016
            In the Court of Common Pleas of Philadelphia County
             Criminal Division at No.: CP-51-CR-0005731-2016

BEFORE: PANELLA, J., DUBOW, J., and FITZGERALD, J.*

OPINION BY DUBOW, J.:                           FILED DECEMBER 08, 2017

      The Commonwealth appeals from the trial court’s October 31, 2016

Order entered by the Philadelphia County Court of Common Pleas granting

Appellee Nelson Torres’ Motion to Suppress the results of a warrantless

blood test obtained following his DUI arrest pursuant to Birchfield v. North

Dakota, ___ U.S. ___, 136 S.Ct. 2160, 195 L.Ed. 2d 560 (June 23, 2016).

After careful review, we affirm.

   In its Pa.R.A.P. 1925(a) Opinion, the trial court relied on the following

findings of fact from the Motion to Suppress:

      On March 23, 2015, Officer Robertson observed that [Appellee]
      made a left turn on North 5th Street but failed to signal a left
      turn. [Appellee’s] car had tinted windows. Officer Robertson
      pulled [Appellee] over.    When he got to the car, Officer
      Robertson could smell marijuana and observed [that Appellee’s]
      eyes were bloodshot and he had slurred speech.




____________________________________
* Former Justice specially assigned to the Superior Court.
J-A23018-17


       Officer Robertson never pulled a gun on [Appellee], nor did he
       ever threaten him that he would go to jail for pulling him over.
       He did not say anything to [Appellee] about getting his blood
       drawn for a chemical test, nor about any consequences for not
       consenting to such a chemical test.

       [Appellee] was taken to the basement of the police department
       headquarters and brought to AID Officer Shead . . . who was
       responsible for administering the chemical tests [that] are
       designed to confirm blood alcohol levels [] or the presence of
       chemical substances. Officer Shead has conducted over 500 of
       these tests in the past few years.        When Officer Shead
       conducted the DUI test, he had [Appellee] complete paperwork,
       which include[d] what is known as the O’Connell[1] warnings.
       The text of the O’Connell warnings [in the DL-26 Form] includes
       the following language[:]

          If you refuse to submit to a chemical test and you are
          convicted of, or plead to, or are an adjudicated delinquent
          with respect to violating Section 3802A [sic] of the
          Pennsylvania Vehicle Code, you will be subject to more
          severe penalties set forth in Section 3804C [sic] of the
          Pennsylvania Vehicle Code, which will include one of the
          following: for a first offender, a minimum of [72] hours in
          jail and a minimum fine of [$]1,000.         For a second
          offender, a minimum of 90 days in jail and a minimum fine
          of $1,500. For a third subsequent offender, a minimum of
          one [] year in jail and a minimum fine of $2,500.

       [Officer] Shead read the warning to [Appellee] and asked him to
       sign the form before administering the test. There was no
       evidence suggesting that he used any coercive tactics to
       persuade [Appellee] to sign the form. It was apparent to Officer
       Shead that [Appellee] understood the meaning of the form.

       Officer Shead testified [that] the police department has revised
       the language of the O’Connell warnings form in late June 2016.
       This change post-dated the Supreme Court’s decision in
       Birchfield v. North Dakota, which established a categorical
____________________________________________


1 Commonwealth, Dep’t of Transp., Bureau of Traffic Safety v.
O’Connell, 555 A.2d 873 (Pa. 1989).



                                           -2-
J-A23018-17


       rule that, absent exigent circumstances or voluntary consent,
       that it was unconstitutional to conduct a warrantless blood draw
       and that implied consent laws [that] imposed criminal penalties
       were unenforceable.

Trial Court Opinion, 1/27/17, at 4-5 (paragraph breaks altered).

       The Commonwealth charged Appellee with three counts of Driving

Under      the     Influence      (“DUI”)      (general   impairment,    controlled

substance/metabolite, and controlled substance-impaired ability).2 Appellee

filed a Motion to Suppress physical evidence and his statements to police,

which the suppression court denied.               Appellee did not challenge the

voluntariness of his consent on the ground that he was threatened with

criminal penalties.

       Appellee     was    convicted      of   two   counts   of   DUI   (controlled

substance/metabolite, and controlled substance-impaired ability) following a

bench trial in Municipal Court, and he was sentenced to 72 hours’ to six

months’ incarceration. On June 15, 2016, Appellee filed an appeal for a trial

de novo in the Court of Common Pleas.

       One week later, the U.S. Supreme Court decided Birchfield.3

Appellee filed a supplemental Motion to Suppress invoking Birchfield,

____________________________________________


2 75 Pa.C.S. § 3802(a)(1); 75 Pa.C.S. § 3802(d)(1), and 75 Pa.C.S. §
3802(d)(2), respectively.

3In Birchfield, the United States Supreme Court held that blood tests taken
pursuant to implied consent laws are an unconstitutional invasion of privacy.
Id. at 2186. The Supreme Court stated that “motorists cannot be deemed
(Footnote Continued Next Page)


                                           -3-
J-A23018-17


arguing that his consent was coerced.                 The Commonwealth argued that

Appellee    had   waived     his   claim,      that   his   Supplemental   Motion   was

procedurally improper since he had already litigated a Motion to Suppress in

Municipal Court, and argued that Birchfield did not apply or render his

consent involuntary.

      Following a hearing, the trial court granted Appellee’s Supplemental

Motion to Suppress because (1) Birchfield constituted an “intervening

change in the law” such that it could entertain a new motion under the

Pennsylvania and local rules of criminal procedure; and (2) since Appellee

was threatened with criminal penalties for his refusal to consent to the

warrantless blood test, the totality of circumstances showed that his consent

was involuntary pursuant to Birchfield.                 The Commonwealth filed an

interlocutory appeal pursuant to Pa.R.A.P. 311(d).4

      The Commonwealth presents two issues for our review:

      I. Did the lower court [err] where, on [Appellee’s] appeal for trial
      de novo, it suppressed evidence on the basis of a claim not
      raised in Municipal Court?
(Footnote Continued) _______________________

to have consented to submit to a blood test on pain of committing a criminal
offense[,]” and concluded that Birchfield could not be convicted of refusing a
warrantless blood draw following his DUI arrest. In contrast, the Court held
that the Fourth Amendment permits warrantless breath tests incident to
arrests for drunk driving. Id. at 2184.
4 Pa.R.A.P. 311(d) provides that “the Commonwealth may take an appeal as
of right from an order that does not end the entire case where the
Commonwealth certifies in the notice of appeal that the order will terminate
or substantially handicap the prosecution.”



                                            -4-
J-A23018-17



      II. Did the lower court err in holding that [Appellee’s] consent to
      a blood test was involuntary as a matter of law regardless of the
      totality of the circumstances?

Commonwealth’s Brief at 4.

                                   Waiver

      The Commonwealth first claims that Appellee has waived this claim

because he failed to argue his consent was invalid during his original Motion

to Suppress litigated in Municipal Court. Commonwealth’s Brief at 11. The

Commonwealth avers that the trial court erred in permitting Appellee to

litigate a suppression motion during his trial de novo because he did not

meet either of the exceptions to the general rule that a defendant generally

cannot relitigate issues or litigate issues that could have been raised at the

Municipal Court suppression hearing. Id.

      This issue raises a question of law about the proper interpretation of

the Pennsylvania Rules of Criminal Procedure and Philadelphia local court

rules. Our standard of review is de novo and our scope of review is plenary.

Commonwealth v. Hann, 81 A.3d 57, 65 (Pa. 2013).

      A defendant convicted in Philadelphia’s Municipal Court has two

mutually exclusive appellate options.    Commonwealth v. Johnson, 146

A.3d 1271, 1273 (Pa. Super. 2016).          “Pennsylvania Rule of Criminal

Procedure 1006(1)(a) provides that a defendant convicted in Philadelphia

Municipal Court has the right to request either a trial de novo or file a




                                     -5-
J-A23018-17


petition for a writ of certiorari with the Philadelphia Court of Common Pleas.”

Id.

      Here, Appellee requested a trial de novo. “A trial de novo gives the

defendant a new trial without reference to the Municipal Court record[.]” Id.

(emphasis omitted). “A trial de novo is generally limited to a relitigation of

guilt or innocence only, and a defendant is not entitled to relitigate pre-trial

motions[, including issues raised, or that could have been raised, at a

Municipal Court suppression hearing.]” Id.

      This bar on relitigation of pre-trial suppression motions at trials de

novo is codified in local Philadelphia Court Criminal Division Rule 630(G),

which provides: “Unless specially allowed in accordance with subsection (d)

of this Rule, the trial de novo shall not include relitigation of the application

to suppress.” Phila. Co. Crim. Div. Rule 630(G).

      Nevertheless, a defendant may raise a suppression issue at a trial de

novo in certain limited circumstances pursuant to Pa.R.Crim.P. 581(B)

where: (1) “the opportunity did not previously exist, or [(2)] the interests of

justice otherwise require[.]”     Pa.R.Crim.P. 581(B).       Philadelphia Court

Criminal Division Rule 630 similarly and specifically provides that a

defendant may raise a suppression issue at a trial de novo when “the

interests of justice otherwise require[.]” Phila. Co. Crim. Div. Rule 630(C).

See also Pa.R.Crim.P. 105(B); Commonwealth v. Johnson, 146 A.3d

1271, 1275 (Pa. Super. 2016) (explaining interaction of Pennsylvania rules


                                      -6-
J-A23018-17


and supplemental local Philadelphia rules), appeal denied, 158 A.3d 1242

(Pa. 2016); Commonwealth v. Williams, 125 A.3d 425, 428 (Pa. Super.

2015) (repeating the general rule that, “although the local courts have broad

authority to promulgate local rules of procedure, local rules shall not be

inconsistent with any general rule of the Supreme Court or any Act of

Assembly.”).

       The trial court concluded that the interests of justice required the court

to hear the Motion to Suppress.          Id. at 9-11.   The trial court opined that

Appellee previously did not have a genuine opportunity to challenge the

voluntariness of his consent pursuant to Birchfield because such an

argument, though available, would have been essentially frivolous, with little

to no hope of success based on case law at the time. Trial Court Opinion,

1/27/17, at 7-10.       The trial court reasoned that doing so would promote

judicial economy.       Id. at 13.     As a result, the trial court addressed the

merits of Appellee’s claim.

       After careful review, we discern no error of law or abuse of discretion

in the trial court’s sound reasoning regarding Appellee’s satisfaction of the

“the interests of justice” exception.5 See Trial Court Opinion, 1/27/17, at 7-

____________________________________________


5 The trial court noted a tension between Philadelphia’s local rule 630(G) and
the language of Pa.R.Crim.P. 581(B), and concluded that permitting the local
rule to prevent the normal operation of Pa.R.Crim.P. 581(B) would lead to an
absurd result. Trial Court Opinion, 1/27/17, at 11-13. Under the facts here,
we discern no conflict insofar as the interest of justice exception is present in
(Footnote Continued Next Page)


                                           -7-
J-A23018-17


13.    Accordingly, we conclude that the trial court properly considered

Appellee’s Birchfield suppression issues at the trial de novo.

                                      Birchfield

      The Commonwealth next contends that the trial court erred in granting

Appellee’s Motion to Suppress because Appellee voluntarily consented to the

blood test under the totality of circumstances. Commonwealth’s Brief at 20.

The Commonwealth argues that Birchfield did not create a per se rule that

DUI warnings are inherently coercive and that the trial court placed undue

emphasis on “the single line in the implied consent warnings about the

enhanced criminal penalties[.]” Commonwealth’s Brief at 19-20.

      “When reviewing the grant of a suppression motion, we must

determine whether the record supports the trial court’s factual findings and

whether the legal conclusions drawn from those facts are correct.”

Commonwealth v. Ennels, 167 A.3d 716, 718 (Pa. Super. 2017).            “We

may only consider evidence presented at the suppression hearing.” Id.

      “In addition, because the defendant prevailed on this issue before the

suppression court, we consider only the defendant’s evidence and so much

of the Commonwealth’s evidence as remains uncontradicted when read in
(Footnote Continued) _______________________

both rules. Though the trial court focused its analysis on that exception
under Pa.R.Crim.P. 581, the analysis under the local rule is the same
because the language is identical. “To the extent our legal reasoning differs
from the trial court’s, we note that as an appellate court, we may affirm on
any legal basis supported by the certified record.” Commonwealth v.
Williams, 125 A.3d 425, 433 n.8 (Pa. Super. 2015).



                                          -8-
J-A23018-17


the context of the record as a whole.” Id. at 718-19. “We may reverse only

if the legal conclusions drawn from the facts are in error.” Id. at 719.

      “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.”    Id. at 723.    “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.”         Id.   “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.” Id.

      This Court’s recent decision in Ennels, supra, is controlling.             In

Ennels, as in the instant case, the police officer read the DL-26 Form to

Ennels, who had been arrested on suspicion of DUI; Ennels signed the form

and the officer conducted the warrantless blood draw. On appeal from the

trial court’s grant of Ennels’ suppression motion, this Court applied

Birchfield and concluded that the trial court did not err in finding Ennels’

consent invalid “because Ennels consented to the blood draw after being




                                        -9-
J-A23018-17


informed that he faced enhanced criminal penalties for failure to do so[.]”

Ennels, supra at 724.

     As in Ennels, Appellee here consented to the blood draw only after

being informed that he faced enhanced criminal penalties for failure to do so.

The trial court did not err in finding that Appellee’s consent was invalid.

Accordingly, we affirm.

     Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/8/2017




                                    - 10 -
