J-S23028-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    WILLIAM BLOM                               :
                                               :
                       Appellant               :   No. 2756 EDA 2017

                  Appeal from the PCRA Order August 1, 2017
       In the Court of Common Pleas of Bucks County Criminal Division at
                        No(s): CP-09-CR-0004792-2015


BEFORE:      SHOGAN, J., NICHOLS, J., and STEVENS, P.J.E.*

MEMORANDUM BY NICHOLS, J.:                                FILED JUNE 12, 2018

        Appellant William Blom appeals from the order dismissing his first timely

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§

9541-9546.      Appellant asserts that the PCRA court erred in dismissing his

petition without a hearing where he raised a claim that trial counsel was

ineffective for failing to file a motion to suppress the chemical test results of

a blood draw conducted based upon a stop for driving under the influence

(DUI). We affirm.

        The trial court summarized the relevant facts of this matter as follows:

        [On May 2, 2015,] Officer [Dominic] Micciolo witnessed Appellant
        drive past a stop sign and observed outdated inspection stickers
        on Appellant’s vehicle. The Officer told Appellant to pull over as
        he was turning the police cruiser around. Appellant exited his
        vehicle. Appellant refused to get back in the vehicle. As the
        Officer was cuffing Appellant, he smelled alcohol[,] and prior to a
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*   Former Justice specially assigned to the Superior Court.
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        body search[,] Appellant informed the Officer of a hypodermic
        needle in his pocket. Appellant told the Officer he was drinking
        and using heroin earlier that evening. [Appellant was transported
        to police headquarters where blood samples were obtained.1] The
        toxicology report revealed a [blood alcohol content (BAC)] of .128
        and [that Appellant] tested positive for opiates and morphine. The
        hypodermic needle tested positive for heroin.

PCRA Ct. Op., 11/21/17, at 1 (citations omitted).

        Appellant was charged by a criminal complaint filed on June 4, 2015.

On September 29, 2015, Appellant filed an omnibus pre-trial motion seeking,

inter alia, suppression of the test results based on an unlawful arrest and the

arresting officer’s failure to advise him of his right to refuse chemical testing.

        On October 7, 2015, before the trial court ruled on Appellant’s

suppression motion, Appellant pled guilty to DUI-combination alcohol/drugs2

and possession of drug paraphernalia3 based upon the foregoing facts. The

trial court sentenced Appellant to six to twenty-four months of incarceration,

followed by three years of probation. Appellant did not file any post-sentence

motions or a direct appeal.

        On September 23, 2016, Appellant filed a pro se PCRA petition. Court-

appointed counsel filed an amended PCRA petition on June 15, 2017. The

PCRA court dismissed the amended PCRA petition without a hearing on August

2, 2017. Appellant filed a timely notice of appeal and concise statement of

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1The record does not indicate whether Appellant was given the DL-26
warnings.

2   75 Pa.C.S. § 3802(d)(3).

3   35 P.S. § 780-113(a)(32).

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errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).          The PCRA

court complied with Pa.R.A.P. 1925(a).

      Appellant raises the following question for our review: “Did the [PCRA]

court err in denying [A]ppellant’s post-conviction relief act petition without a

hearing where trial counsel was ineffective for failing to file a motion to

suppress the chemical test results, as Appellant did not knowingly, voluntarily,

and intelligently consent to the blood draw?”         Appellant’s Brief at 4 (full

capitalization omitted).

      Appellant argues that “counsel had an obligation to file a motion

challenging the validity of the Appellant’s consent based upon a long line of

Fourth Amendment cases in the [c]ourts of Pennsylvania and the United

States. Trial counsel’s failure to address the issue was ineffective assistance

of counsel.” Id. at 13.

      The applicable standards of review regarding the dismissal of a PCRA

petition and ineffectiveness claims are as follows:

      We must examine whether the record supports the PCRA court’s
      determination, and whether the PCRA court’s determination is free
      of legal error. The PCRA court’s findings will not be disturbed
      unless there is no support for the findings in the certified record.

                                      ***

      It is well-established that counsel is presumed to have provided
      effective representation unless the PCRA petitioner pleads and
      proves all of the following: (1) the underlying legal claim is of
      arguable merit; (2) counsel’s action or inaction lacked any
      objectively reasonable basis designed to effectuate his client’s
      interest; and (3) prejudice, to the effect that there was a
      reasonable probability of a different outcome if not for counsel’s
      error.

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Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010) (citations

and formatting omitted). Additionally,

       [t]he right to an evidentiary hearing on a post-conviction petition
       is not absolute. It is within the PCRA court’s discretion to decline
       to hold a hearing if the petitioner’s claim is patently frivolous and
       has no support either in the record or other evidence. It is the
       responsibility of the reviewing court on appeal to examine each
       issue raised in the PCRA petition in light of the record certified
       before it in order to determine if the PCRA court erred in its
       determination that there were no genuine issues of material fact
       in controversy and in denying relief without conducting an
       evidentiary hearing.

Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012) (citations and

formatting omitted).

       As an initial matter, we note that Appellant asserts that trial counsel

should have filed a motion to suppress the results of his blood test. However,

the record reveals that trial counsel did file such a motion, but that Appellant

pled guilty before the trial court considered the motion. See Omnibus Pre-

Trial Mot., 9/29/15.

       In any event, it is apparent that Appellant is arguing that he was entitled

to have the results of the blood test suppressed under Birchfield v. North

Dakota, 136 S. Ct. 2160 (2016).4 See Appellant’s Brief at 13. However, in

Commonwealth v. Wilcox, 174 A.3d 670 (Pa. Super. 2017), this Court

____________________________________________


4 In Birchfield, the United States Supreme Court held that the Fourth
Amendment does not permit warrantless blood tests incident to arrests for
drunk driving. Birchfield, 136 S. Ct. at 2185. By way of background, the
United States Supreme Court granted writs of certiorari on December 11,
2015, in the cases examined in Birchfield, and the Court issued its decision
on June 23, 2016.

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noted that “[n]either the United States Supreme Court nor our Supreme Court

has held that Birchfield is to be applied retroactively to cases like the one

herein where the judgment of sentence had become final prior to its

disposition.” Id. at 672. Here, Appellant’s conviction became final well before

Birchfield was decided and approximately one month before the United

States Supreme Court granted writs of certiorari to consider the issue raised

by the former implied consent statutes. Accordingly, Appellant is not entitled

to relief.

       Because Appellant has not established a genuine issue of fact requiring

a further evidentiary hearing, we discern no merit to his further claim that he

was entitled to an evidentiary hearing. See Commonwealth v. Smith, 121

A.3d 1049, 1052 (Pa. Super. 2015) (“the PCRA court can decline to hold a

hearing if there is no genuine issue concerning any material fact and the

petitioner is not entitled to post-conviction collateral relief, and no purpose

would be served by any further proceedings.” (citation omitted)).

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/12/18




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