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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,          :     IN THE SUPERIOR COURT OF
                                       :           PENNSYLVANIA
                        Appellant      :
                                       :
                   v.                  :         No. 1196 MDA 2017
                                       :
ANTHONY M. BUNTON                      :


                 Appeal from the Order Entered June 30, 2017,
                in the Court of Common Pleas of Centre County
               Criminal Division at No. CP-14-CR-0000507-2017


BEFORE: LAZARUS, J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED MAY 25, 2018

     The Commonwealth appeals from the June 30, 2017 order entered by

the Court of Common Pleas of Centre County granting Anthony M. Bunton’s

(hereinafter, “appellee”) omnibus pre-trial motion to suppress. After careful

review, we reverse and remand for further proceedings consistent with this

memorandum.

     The suppression court provided the following factual history:

           [Appellee] was arrested on December 18, 2016 by
           Pennsylvania State Trooper Timothy Nicklas.
           Trooper Nicklas had probable cause to arrest
           [appellee] and request a blood draw. [Appellee]
           asked Trooper Nicklas if he was allowed to refuse the
           test and was told Trooper Nicklas would “read that
           once [they got to the hospital.”] Within the required
           two hour time period, [appellee] was taken to
           Mount Nittany Medical Center for the blood draw.
           [Appellee] signed the DL-26B form after it was read
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             to him. Trooper Nicklas did not threaten or coerce
             [appellee] to sign the DL-26B form.

             [Appellee] has two prior convictions for driving under
             the influence (“DUI”) in Texas and Tennessee. At
             the time of [appellee’s] arrest, [appellee] would
             testify to knowing a blood test refusal would qualify
             him for a DUI charge at the highest rate.
             [Appellee’s] knowledge was based on information
             from two friends who had been arrested for DUI in
             Pennsylvania and from [appellee’s] own previous
             DUI charges.     From [appellee’s] discussions with
             these friends, he believed he would “get the book
             thrown” at him if he refused a blood test.

Suppression court order and opinion, 6/30/17 at 1-2 (some brackets in

original).

      Appellee filed an omnibus pre-trial motion to suppress evidence on

May 23, 2017. The suppression court granted appellee’s motion on June 30,

2017, following a hearing held on June 1, 2017.        On July 28, 2017, the

Commonwealth filed notice of appeal to this court. Pursuant to Pennsylvania

Rule of Appellate Procedure 311(d), the Commonwealth certified that the

June 30, 2017 order would either terminate or substantially handicap the

prosecution. See Pa.R.A.P. 311(d) (permitting the Commonwealth to appeal

from an interlocutory order if it certifies that the order will terminate or

substantially handicap the prosecution). The suppression court ordered the

Commonwealth to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b), and the Commonwealth timely complied.

The suppression court filed an opinion pursuant to Pa.R.A.P. 1925(a) on




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August 22, 2017, in which it incorporated its June 30, 2017 opinion and

order.

      The Commonwealth raises the following issue for our review:

            Did the [suppression] court err in granting Appellee’s
            Motion to Suppress because, based on the totality of
            the circumstances, Appellee voluntarily consented to
            the blood draw because, inter alia, he was not told
            he would face harsher criminal penalties for refusing
            to submit to a blood test?

Commonwealth’s brief at 4.

      We   are   held   to   the   following   standard   when   reviewing    the

Commonwealth’s appeal of an order granting a suppression motion:

            When     the   Commonwealth       appeals   from     a
            suppression order, we follow a clearly defined
            standard of review and consider only the evidence
            from the defendant’s witnesses together with the
            evidence of the prosecution that, when read in the
            context of the entire record, remains uncontradicted.
            The suppression court’s findings of fact bind an
            appellate court if the record supports those findings.
            The suppression court’s conclusions of law, however,
            are not binding on an appellate court, whose duty is
            to determine if the suppression court properly
            applied the law to the facts.

Commonwealth v. Miller, 56 A.3d 1276, 1278-1279 (Pa.Super. 2012)

(citations omitted).

      In the instant appeal, the relevant facts are not in dispute.          (See

stipulation docketed 6/1/17.) In its order and opinion, the suppression court

reached the following legal conclusion:

            [A defendant] is expected and assumed to know the
            laws of this Commonwealth, including the criminal


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            penalties if he refused to consent to a blood draw.
            See in re Kearney, 7 A.2d 159, 161 (Pa.Super.
            1939) (Ignorance of the law excuses no one,
            according to the ancient maxim, everyone being
            presumed to know the law.) [Appellee] was not
            made aware of his rights to refuse against a
            warrantless search, because he was not informed
            that the enhanced criminal penalties of 75 Pa.C.S.
            § 3804(c) would not be enforced. A citizen, like
            [appellee], with knowledge of the criminal penalties
            within the law would naturally expect them to be
            enforced to the fullest extent possible. Silence by
            the arresting officer is not synonymous with
            communication of [appellee’s] rights, specifically that
            he would not face enhanced criminal penalties for
            refusal to consent to a search, without a warrant
            when the law says otherwise.              Thus, the
            [suppression court] finds that [appellee] did not
            intentionally relinquish a known right or privilege
            when consenting to a blood draw as he was not
            informed that the enhanced criminal penalties of
            75 Pa.C.S. § 3804(c) were constitutional.

Suppression court order and opinion, 6/30/17 at 5-6.

      While the instant appeal was pending before this court, we decided

Commonwealth v. Miller,            A.3d      , 2018 WL 2057002 (Pa.Super.

2018). In Miller, we were presented with a virtually identical scenario. The

defendant was arrested for suspicion of DUI after a motor vehicle accident.

Id. at *1. Immediately after his arrest, the police transported the defendant

to the hospital, where he was read the DL-26B form. Id. The DL-26B form

“informed [the defendant] that he would face possible civil penalties for

failing to submit to a blood test; however, the form did not include a warning

regarding enhanced criminal penalties for refusing a blood test.” Id. The

defendant’s argument in Miller, similar to appellee’s argument here, was


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that “because of a prior DUI arrest in which he received warnings pursuant

to the prior DL-26 form, [the defendant] subjectively believed that the new

form threatened enhanced criminal punishment if he refused to consent to a

blood draw. Id. at *2.

     The    Miller        court,   citing    a    contemporaneous    decision   in

Commonwealth         v.    Robertson,             A.3d    ,   2018   WL   2057000

(Pa.Super. 2018), rejected the suppression court’s rationale for granting the

defendant’s suppression motion because “defendants are presumed to know

case law in addition to statutory law,” and the police do not have an

affirmative duty to “inform defendants that they do not face enhanced

criminal penalties if they refuse a blood test.” Miller, 2018 WL 2057002 at

*2, citing Robertson, 2018 WL 2057000 at *4-5. Accordingly, because the

police do not have an affirmative duty to inform defendants that they do not

face enhanced criminal penalties if they refuse a blood test and because

defendants are presumed to know case law, we find that the suppression

court erred as a matter of law when it granted appellee’s suppression

motion.

     Just as the defendant in Miller, appellee advances alternative bases

for affirmance.1 The Miller court held as follows:




1 Both the defendant in Miller and appellee in the instant appeal are
represented by the same counsel, Brian Manchester, Esq. The briefs in the
two cases are virtually identical, as the same issues were raised in both
cases.


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

          First,  [the    defendant]     relies   heavily   on
          Commonwealth v. Myers, 164 A.3d 1162 (Pa.
          2017) in support of his contention that his consent
          was not voluntary.      This argument, however, is
          based on a misunderstanding of the facts in Myers.
          In Myers, the defendant was unconscious. Hence,
          our Supreme Court held that the defendant was
          pharmacologically incapable of consenting to a blood
          draw. Id. at 1181.        Myers does not implicate
          consent by individuals who are conscious, like [the
          defendant] in this case.           Accordingly, [the
          defendant’s] heavy reliance on Myers is misplaced.

          Second, [the defendant] avers that he subjectively
          believed he would face increased criminal penalties if
          he refused a blood draw. [The defendant] avers that
          the last time he was arrested for DUI, prior to the


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           Supreme Court of the United States’ decision in
           Birchfield v. North Dakota, 136 S.Ct. 2160
           (2016), he was read the DL-26 form.           As we
           explained in Robertson, the DL-26 form included a
           warning that failure to submit to a blood draw would
           subject a defendant to enhanced criminal penalties.
           See Robertson, 1493 MDA 2017 (slip op. at 2 n.1).
           [The defendant], therefore, argues that the trial
           court properly considered his subjective belief that
           enhanced criminal consequences attached to the
           refusal to consent to a blood draw.

           [The defendant’s] argument fails in light of our
           Supreme Court’s decision in Commonwealth v.
           Strickler, 757 A.2d 884 (Pa. 2000). In Strickler,
           our Supreme Court explained that, while a
           defendant’s subjective belief regarding his or her
           ability to refuse to consent to a search may be
           considered as part of the totality of the
           circumstances, it is the police officer’s express
           warnings which are most important when evaluating
           subjective belief. See id. at 901. In other words,
           incorrect subjective beliefs that are contradicted by a
           police officer’s actual statements to a defendant
           diminishes the weight a trial court may place on the
           defendant’s errant subjective belief.

Miller, 2018 WL 2057002 at *2.

     Here, the parties stipulated that the police read appellee form DL 26B,

which includes the following warning: “If you refuse to submit to the blood

test, your operating privilege will be suspended for at least 12 months. If

you previously refused a chemical test or were previously convicted of

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

(Stipulation docketed on 6/1/17.)      Pursuant to our holding in Miller,

appellee’s reliance   on his first-hand DUI experiences in Texas and

Tennessee, and the experiences of his friends in Pennsylvania “cannot weigh


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heavily against finding voluntary consent. Instead, an incorrect subjective

belief based on failure to listen to explicit warnings from police officers is

entitled to little, if any, weight when evaluating the totality of the

circumstances surrounding a consent to search.” Miller, 2018 WL 2057002

at *3.

         The Miller court further states:

               We also find instructive a decision in a related field.
               As noted above, drivers face potential civil
               consequences for refusing to consent to a blood draw
               when police suspect they are driving under the
               influence. One of those civil penalties is driver’s
               license suspension. If a driver knowingly refuses to
               submit to a blood draw, his or her driver’s license is
               suspended for a specified period of time. In this
               context, our Supreme Court held that a driver’s
               subjective belief about the accuracy of implied
               consent warnings is an insufficient basis to claim that
               refusal to submit to a blood test was involuntary.
               Nardone v. Commonwealth, Dep’t of Transp.,
               Bureau of Driver Licensing, 130 A.3d 738, 751
               (Pa. 2015) (citation omitted). In light of Birchfield,
               the Commonwealth Court has held that Nardone is
               still good law. Park v. Commonwealth, Dep’t of
               Transp., Bureau of Driver Licensing, 178 A.3d
               274, 281 (Pa.Cmwlth. 2018) (citation omitted). It
               would be inconsistent to allow for an incorrect
               subjective belief regarding the criminal consequences
               of not consenting to a blood draw to be weighed
               heavily against a finding of voluntariness while an
               incorrect     subjective    belief    regarding     the
               consequences of refusing a blood draw is not
               dispositive in the civil context. Instead, Nardone
               implies that an incorrect subjective belief regarding
               the consequences of not consenting to a blood draw
               is a minor factor when considering the totality of the
               circumstances.




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             Repeat DUI offenders, owing to past legal
             transgressions, are not entitled to a benefit that
             would be unavailable to first-time DUI offenders.
             Essentially, [the defendant] argues that repeat DUI
             offenders should be held to a lower standard than
             first-time DUI offenders.     The absurdity of the
             argument is self-evident. Individuals that repeatedly
             endanger the lives of innocent civilians should be
             held to a higher standard than those that make a
             first-time mistake.    Our General Assembly has
             recognized this fact by providing harsher penalties
             for repeat DUI offenders. See 75 Pa.C.S.A. § 3804.
             We refuse to provide an incentive for repeat DUI
             offenders by making it easier for them to suppress
             blood draw evidence. Accordingly, we hold that [the
             defendant’s] argument related to his subjective
             belief of possible increased criminal penalties is
             without merit.

Miller, 2018 WL 2057002 at *3.

     In light of our holding in Miller, when considering the totality of the

circumstances, we find that appellee’s consent to a blood draw was

voluntary.   Accordingly, we reverse the suppression court’s order granting

appellee’s omnibus pretrial motion to suppress and remand for further

proceedings consistent with this memorandum.

     Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 05/25/18




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