J-S52029-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    BRYAN PAUL GARLITZ

                             Appellant                 No. 8 MDA 2017


             Appeal from the Judgment of Sentence August 2, 2016
                 In the Court of Common Pleas of Fulton County
              Criminal Division at No(s): CP-29-CR-0000202-2015


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

MEMORANDUM BY LAZARUS, J.:                        FILED OCTOBER 19, 2017

        Bryant Paul Garlitz appeals from the judgment of sentence, entered in

the Court of common Pleas of Fulton County, following his conviction for

Driving Under the Influence (DUI)1 and various summary traffic offenses.

After careful review, we reverse Garlitz’s judgment of sentence and remand

this case to the trial court to determine whether Garlitz’s consent to the blood

test was validly obtained in light of Birchfield v. North Dakota, 136 S.Ct.

2160 (2016), which was decided just six days before the trial court’s decision

in this case.

        On July 4, 2015, at approximately 10:10 p.m., State Police Trooper

Cody Hollibaugh was dispatched to Layton Road in Warfordsburg, Fulton

____________________________________________


175 Pa.C.S.A. §§ 3802(c), 3802(a)(1), 7726(a)(2) and (3), 3714, 3736 and
7721(a) respectively.
J-S52029-17



County.   At the time, Trooper Hollibaugh was operating a marked patrol

vehicle and was in full uniform. Trooper Hollibaugh arrived at the scene at

approximately 10:30 p.m.; both fire and emergency medical services (EMS)

personnel were already present.     When Trooper Hollibaugh arrived, Garlitz

was lying in a private driveway while receiving treatment from EMS personnel.

Another individual, Joseph Hendrickson was lying on the ground a short

distance from Garlitz down Layton Road; Hendrickson’s leg was injured and

he had blood on his face.        Trooper Hollibaugh proceeded to interview

Hendrickson, who displayed slurred speech, bloodshot glassy eyes, slurred

speech and confusion. Hollibaugh then interviewed Garlitz, who admitted he

and Hendrickson had been driving all-terrain vehicles (ATV) on or near Layton

Road when they both crashed. Hollibaugh observed Garlitz’s face was bloody,

his clothes torn, his eyes bloodshot and glassy and his speech slurred; Garlitz

also admitted that he had been drinking. Trooper Hollibaugh requested Garlitz

submit to a blood draw and read him a DL-26 form. Garlitz’s blood alcohol

content, as indicated by the blood draw, was .180 percent. No warrant was

obtained for Garlitz’s blood test, and Garlitz signed the DL-26 form prior to his

blood draw.

      Garlitz and Hendrickson were transported to a nearby hospital, after

which Trooper Hollibaugh began his investigation of the crash scene. Trooper

Hollibaugh observed a green Sportsman ATV resting in a drainage ditch

adjacent to the driveway and a red Honda Rubicon ATV next to and touching

the green Sportsman ATV.       Hollibaugh determined that Garlitz had been

                                      -2-
J-S52029-17



operating the green Sportsman ATV, the tire tracks of which lead back to

Layton Road. Hollibaugh further concluded that the green Sportsman ATV had

been driven off Layton Road into a field after which it impacted the driveway,

throwing Garlitz from the vehicle onto the driveway. Hollibaugh also observed

heavy front end damage to the green Sportsman ATV and blood covering the

driveway. Hollibaugh did not observe any ATV trails or tread marks in the

grass of a nearby field, and ultimately conclude that the ATVs were operated

on Layton Road before impacting the driveway.

      Following Trooper Hollibaugh’s investigation, Garlitz was charged with

DUI and various summary traffic offenses. On June 29, 2016, Garlitz filed an

omnibus pre-trial motion raising the issue of whether his consent to the blood

draw was voluntary. The trial court denied Garlitz’s motion on July 7, 2016.

After a jury trial held on July 8, 2016, Garlitz was found guilty of DUI as well

as summary traffic offenses. On August 2, 2016, Garlitz was sentenced to a

period of sixty months’ county intermediate punishment, with the first ninety

days to be served in the Franklin County Jail. Garlitz filed a post-sentence

motion challenging the weight of the evidence on August, 15, 2016, which the

trial court denied by court order dated November 29, 2016. Garlitz timely

appealed and on January 18, 2017, Garlitz filed a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal. On appeal, Garlitz raises the

following issues:

      1. Due to this Court’s holding in Commonwealth v. Evans, 153
      A.3d 323, 331 (Pa. Super. 2016), did the trial court err in not
      applying Birchfield?

                                     -3-
J-S52029-17



       2. Understanding that motorist cannot be deemed to have
       consented on pain of enhanced criminal penalties, was Garlitz’s
       consent voluntary?

       3. Was the verdict for DUI against the weight of the evidence?

Brief of Appellant, at 4-5.

       Garlitz’s first and second claims are related. Garlitz avers the trial court,

in failing to apply Birchfield, incorrectly concluded that Garlitz voluntarily

consented to a warrantless blood draw, and thus, erred in not suppressing

Garlitz’s blood alcohol test results.2

       The United States Supreme Court has established that the taking of a

blood sample is a search within the meaning of the Fourth Amendment of the

United States Constitution, and thus, absent an applicable exception, police

officers may not compel the taking of a blood sample of a defendant without

a search warrant.       See Birchfield, 136 S.Ct. at 2185.        Additionally, the

Birchfield Court concluded that implied-consent laws that impose criminal

penalties for refusing to consent to a blood test are unconstitutional, as

“motorist cannot be deemed to have consented to submit to a blood test on

pain of committing a criminal offense.” Id. At 2185-86.

       Section 1547 of the Pennsylvania Vehicle Code (i.e., the implied consent

law) provides that a person’s license may be suspended if he refuses a


____________________________________________


2 The trial court acknowledges its error in failing to suppress Garlitz’s blood
alcohol test results pursuant to Birchfield, and respectfully request that we
remand this matter for further proceedings. Trial Court Opinion, 11/29/16, at
1.

                                           -4-
J-S52029-17



requested blood test. 75 Pa.C.S.A. § 1547(b). Section 1547 further provides

that police shall inform an individual that:

      (i) the person’s operating privilege will be suspended upon refusal
      to submit to chemical testing; and

      (ii) if the person refuses to submit to chemical testing upon
      conviction for plea for violating section 3802(a)(1), the person will
      be subject to penalties provided in section 3804(c) (relating to
      penalties).

75 Pa.C.S.A. § 1547(a)(2).     Section 3804(a) of the Vehicle Code provides

increased criminal penalties if a person refuses a blood test and is later

convicted of violating section 3802(a)(1).       See 75 Pa.C.S.A. § 3804(c)

(providing sentencing ranges for “[a]n individual who violates section

3802(a)(1) and refused testing of blood or breath or an individual who violates

3802(c) or (d),” including that, for a first offense, the individual shall be

sentence to, among other things, “imprisonment of not less than 72

consecutive hours”). Accordingly, in Pennsylvania, although a driver cannot

be convicted of a separate offense for refusing to consent to a blood test, the

driver faces increased penalties if later convicted of certain DUI offenses. See

Evans, 153 A.3d at 331.

      Following Birchfield, police may validly obtain consent based on a

warning of a license-suspension penalty, because the Supreme Court made

clear that such penalty may be constitutionally imposed. Conversely, where

consent is obtained following a warning that refusal will subject a motorist to

“the pain of committing a criminal offense,” Birchfield, 136 S.Ct. at 2186, a



                                      -5-
J-S52029-17



penalty that in fact may not be imposed, that consent may be rendered

involuntary.   See Commonwealth v. Ennels, 167 A.3d 716 (Pa. Super.

2017) (evidence supported finding that defendant’s consent to warrantless

blood draw was not voluntary, where the implied consent form read and

signed by defendant informed him that he would face enhanced criminal

penalties if he refused to submit to the test; implied consent to a blood test

could not lawfully be based on the threat of enhanced penalties).

      With regard to determining the validity of a defendant’s consent, our

Supreme Court has stated as follows:

      [T]he 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. 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. Super. 2013) (internal

citations and quotation marks omitted).

      Here, it is undisputed that the no warrant was obtained for Garlitz’s

blood. Further, it was stipulated that Trooper Hollibaugh read the DL-26 form

to Garlitz, which provides, in relevant part, as follows:

      If you refuse to submit to the chemical test, your operating
      privilege will be suspended for up to 18 months. In addition, if
      you refuse to submit to the chemical test, and you are convicted

                                      -6-
J-S52029-17


      of violating Section 3802(a)(1) (relating to impaired driving) the
      Vehicle Code, then, because of your refusal, you will be subject to
      more severe penalties set forth in Section 3804(c) (relating to
      penalties) of the Vehicle Code. These are the same penalties
      that would be imposed if you were convicted of driving with
      the highest rate of alcohol, which include a minimum of 72
      consecutive hours in jail and a minimum fine of $1000.00, up
      to a maximum of five years in jail and a maximum fine of $10,000.

Commonwealth Exhibit 1, 7/7/2016 (emphasis in the original). Garlitz signed

the DL-26 form in acknowledgement prior to his blood draw. Therefore, we

are constrained to conclude that Garlitz’s consent was based, in part, on the

information provided in the DL-26 form. Specifically, Garlitz’s consent was

premised on the threat of enhanced criminal penalty upon conviction for DUI

if he were to refuse to submit to the blood draw as requested.

      Next, Garlitz asks us to reassess the credibility of Trooper Hollibaugh by

examining what he characterizes as inconsistencies between his crash report

and testimony at trial. Specifically, Garlitz avers Trooper Hollibaugh’s crash

report “failed to accurately depict the direction of the street in which the

accident occurred and in the direction Garlitz attempted to negotiate prior to

the accident.” Brief of Appellant, at 5. Garlitz’s claim is meritless.

      When considering challenges to the weight of the evidence, we apply

the following standard of review:

      The weight of the evidence is exclusively for the finder of fact, who
      is free to believe all, none or some of the evidence and to
      determine the credibility of witnesses.

      Appellate review of a weight claim is a review of the exercise of
      discretion, not the underlying question of whether the verdict is
      against the weight of the evidence. Because the trial judge has
      had the opportunity to hear and see the evidence presented, an

                                      -7-
J-S52029-17


      appellate court will give the gravest consideration to the findings
      and reasons advanced by the trial judge when reviewing a trial
      court’s determination that the verdict is against the weight of the
      evidence. One of the least assailable reasons for granting or
      denying a new trial is the lower court’s conviction that the verdict
      was or was not against the weight of the evidence and that a new
      trial should be granted in the interest of justice.

Commonwealth v. Talbert, 129 A.3d 536, 545-46 (Pa. Super. 2015), appeal

denied, 138 A.3d 4 (Pa. 2016) (quotation marks and citations omitted). “In

order for a defendant to prevail on a challenge to the weight of the evidence,

the evidence must be so tenuous, vague and uncertain that the verdict shocks

the conscience of the court.”     Id. At 546. (quotation marks and citations

omitted). It is well-settled that we cannot substitute our judgement for that

of the trier of fact. Id. At 545. “A true weight of the evidence challenge

concedes that sufficient evidence exists to sustain the verdict but questions

which evidence is to be believed.” Commonwealth v. Charlton, 902 A.2d

554, 561 (Pa. Super. 2006) (citation omitted). Furthermore, the weight of

the evidence is exclusively for the finder of fact who is free to believe all, part

or none of the evidence and to determine the credibility of the witness.

Commonwealth v. Shaffer, 40 A.3d 1250, 1253 (Pa. Super. 2012).

      Here, Garlitz asks us to grant him a new trial on the grounds that

Trooper Hollibaugh initially stated that Layton Road ran from east to west

rather than north to south and that Garlitz turned left off of Layton Road rather

than right.   However, at trial, Trooper Hollibaugh stated that the physical

evidence he observed indicated that the ATV operated by Garlitz was operated

on a public road before turning into a field and impacting a driveway. N.T.


                                       -8-
J-S52029-17



Trial, 7/8/16 at 34-35.      The jury chose to believe Trooper Hollibaugh’s

testimony, even in light of his inconsistencies regarding both cardinal and

relative directions. Moreover, such inconsistencies are not so tenuous, vague

and uncertain as to shock our sense of justice. Talbert, supra.

      Judgment of sentence reversed. Cased remanded with instructions.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/19/2017




                                     -9-
