J-A16007-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                    Appellant             :
                                          :
                                          :
              v.                          :
                                          :
                                          :
 SEAN MICHAEL EYRICH                      :   No. 1323 MDA 2019

                Appeal from the Order Entered July 19, 2019
               In the Court of Common Pleas of Berks County
            Criminal Division at No(s): CP-06-CR-0003586-2015


BEFORE: PANELLA, P.J., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, P.J.:                          FILED AUGUST 14, 2020

      The Commonwealth of Pennsylvania appeals from the order of the Court

of Common Pleas of Berks County granting Sean Eyrich’s motion to suppress

his blood test results on the basis that Eyrich’s consent to be tested was not

knowing and voluntary.

      We begin by noting that the Commonwealth does not take issue with

any of the suppression court’s factual findings. The sole issue on this appeal

concerns the legal consequences of a police officer’s failure to read Eyrich the

Pennsylvania Department of Transportation’s DL-26 “Chemical Test Warnings

and Report of Refusal to Submit to a Blood Test as Authorized by Section 1547

of the Vehicle Code” form (“DL-26 consent form”) before gaining Eyrich’s

consent to test his blood. We conclude that the Commonwealth failed to

properly preserve this issue, and therefore affirm.
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      On December 17, 2015, Eyrich pled guilty to one count each of homicide

by vehicle while driving under the influence (“DUI”) and aggravated assault

by vehicle while DUI as a result of an accident that occurred on June 7, 2015.

He was sentenced to a term of imprisonment of 54 months to 20 years and

did not file a direct appeal.

      On November 30, 2016, Eyrich filed a pro se petition pursuant to the

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, which the

PCRA court dismissed. On appeal, however, this Court reversed and remanded

for a new trial, concluding that Eyrich’s plea was not knowingly entered due

to counsel’s failure to inform him that he would be liable for restitution. See

Commonwealth v. Eyrich, No. 1061 MDA 2017 (Pa. Super., filed February

1, 2018) (unpublished memorandum).

      Prior to that trial, Eyrich filed a motion to suppress the results from a

blood test that he had consented to after the accident. Eyrich essentially

maintained in his motion that suppression was warranted under Birchfield v.

North Dakota, 136 S.Ct. 2160 (2016), which “held, among other things, that

consent to a warrantless blood draw is vitiated when such assent follows the

administration by police of a warning of enhanced criminal penalties upon

refusal of the testing.” Commonwealth v. Wolfel, -- A.3d --, 2020 WL

4134888 at *1 (Pa. 2020). In the motion, Eyrich argued that his consent to

the blood test was unlawful under Birchfield because the police had failed to

advise him that he would not face increased criminal penalties if he refused to


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consent to the test even though the Vehicle Code provided for such penalties

at the time of his arrest. However, he did note that the record was not clear

as to whether the DL-26 form had been read to Eyrich prior to obtaining his

blood. The Commonwealth did not file a response to Eyrich’s motion.

      The trial court held a suppression hearing on May 3, 2019.         At the

hearing, the Commonwealth submitted the testimony previously given by

Sergeant Brian Strand of the Bern Township Police Department at Eyrich’s

preliminary hearing. Sergeant Strand testified at the preliminary hearing that

he responded to a report of a fatal vehicle accident on Grange Road in Bern

Township. Upon his arrival at the scene, Sergeant Strand saw an SUV on an

embankment, with a motorcycle and one person trapped underneath the SUV.

Another person, who had no pulse, was lying in front of the SUV.

      Sergeant Strand spoke to Eyrich, the driver of the SUV, and noticed that

Eyrich appeared lethargic and had watery eyes. He also detected a faint odor

of alcohol on Eyrich’s breath. Sergeant Strand testified that he believed Eyrich

was under the influence of alcohol but that he did not conduct any field

sobriety tests because Eyrich had been placed in an ambulance for transport

to Reading Hospital for medical treatment. The EMT on that ambulance, whose

testimony from Eyrich’s preliminary hearing had also been submitted into

evidence by the Commonwealth at the suppression hearing, also stated that

she smelled alcohol on Eyrich’s breath and relayed that information to police.




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      Officer Edwin Noll of the Bern Township Police Department testified at

the suppression hearing. He explained that, although he was off duty on June

7, 2015, he received a call from Sergeant Strand asking him to go to Reading

Hospital to obtain a blood test from Eyrich. Officer Noll went to the hospital

and met with Eyrich in an emergency hospital room. He identified himself as

a police officer to Eyrich and asked Eyrich if he would consent to a blood draw.

Officer Noll testified that he did so without explaining to Eyrich why he was

asking for his blood and without reading Eyrich the warnings from the DL-26

consent form. Officer Noll admitted that he did not have a DL-26 consent form

with him. He also testified that he did not otherwise inform Eyrich of his right

to refuse the blood draw or the corresponding penalties for doing so.

      The Commonwealth’s argument against suppression was less than clear.

The Commonwealth appeared to argue that Birchfield had not been violated

because Officer Noll never affirmatively told Eyrich that he would face

enhanced criminal penalties if he refused the blood test. In support of its

contention, the Commonwealth pointed to the fact that Officer Noll had not

read Eyrich the warnings from the DL-26 consent form, which prior to

Birchfield threatened additional criminal penalties if a driver refused to

consent to a blood test. Since Eyrich was never explicitly threatened with

enhanced penalties for refusing his consent, the Commonwealth seemed to

maintain, the only question was whether Eyrich’s consent had been voluntary

under the totality of the circumstances. The Commonwealth did not argue that


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Eyrich was not under arrest at the time he gave his consent to the blood test.

See, e.g., N.T. 5/3/2019, at 30-31 (Prosecutor stating “it’s purely an issue of

is his consent voluntarily given.”)

      Following the suppression hearing, the trial court granted Eyrich’s

motion to suppress. The court concluded that suppression was compelled by

this Court’s recent decision in Commonwealth v. Krenzel, 209 A.3d 1024

(Pa. Super. 2019), allocatur denied, 222 A.3d 370 (Pa. December 17, 2019),

which held that a driver’s consent to draw blood is not valid as a matter of law

if the police fail to read the driver the DL-26 consent form or otherwise inform

him of his right to refuse consent and the corresponding penalties for such

refusal. In its findings of fact and conclusions of law, the trial court specifically

stated that “because the facts in the instant case are identical to those in

Krenzel, we are constrained to reach the same conclusion [as that reached

by Krenzel].” Findings of Fact and Conclusions of Law in Disposition of

Defendant’s Omnibus PreTrial Motion, 7/18/2019, at 7.

      The Commonwealth filed an immediate appeal pursuant to Pa.R.A.P.

311(d). The trial court directed the Commonwealth to file a concise statement

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

statement, the Commonwealth raised the following issue:

      The trial court respectfully erred in suppressing evidence flowing
      from a lawful blood draw, where the consent to the blood draw
      was knowing, voluntary and intelligent, even though the police
      officer did not use PennDOT form DL-26. The Commonwealth is
      aware of the recent decision in Commonwealth v. Krenzel, 209
      A.3d 1024 (Pa. Super. 2019), alloc. pending[,] 432 MAL 2019.

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      This appeal is filed to preserve this issue while the Krenzel
      petition for allocatur is pending.

Commonwealth’s Concise Statement of Errors Complained of on Appeal,

8/22/19.

      In response, the trial court issued its Pa.R.A.P. 1925(a) opinion

reiterating its determination that Krenzel compelled the suppression of

Eyrich’s blood test results and attaching its findings of fact and conclusions of

law in support of that determination. The Commonwealth’s appeal is now

before this Court.

      This Court’s standard of review regarding the Commonwealth’s appeal

from the ruling of a suppression court is well-established and has been

summarized as follows:

      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. Korn, 139 A.3 249, 252-53 (Pa. Super. 2016) (citation

omitted).

      Here, the trial court relied exclusively on Krenzel as its basis for

granting Eyrich’s suppression motion. In Krenzel, the appellant argued that

her consent to a blood draw had not been voluntary because the police had

not read the warnings from a DL-26 form or otherwise informed her of her

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right to refuse the blood draw. This Court agreed. In doing so, the Court first

considered 75 Pa. C.S.A. §1547 (“Section 1547”) of the Vehicle Code,

commonly referred to as Pennsylvania’s Implied Consent Law, which provides

in relevant part:

     (a) General rule.-- Any person who drives, operates or is in
     actual physical control of the movement of a vehicle in this
     Commonwealth shall be deemed to have given consent to one or
     more chemical tests of breath or blood for the purpose of
     determining the alcoholic content of blood or the presence of a
     controlled substance if a police officer has reasonable grounds to
     believe the person to have been driving, operating or in actual
     physical control of the movement of a vehicle in violation of section
     [...] 3802 (relating to driving under influence of alcohol or
     controlled substance) [.]

     (b) Civil Penalties for refusal.--

      (1) If any person placed under arrest for a violation of section
      3802 is requested to submit to chemical testing and refuses to
      do so, the testing shall not be conducted but upon notice by the
      police officer, the department shall suspend the operating
      privilege of the person[.]

                                    ***

      (2) It shall be the duty of the police officer to inform the person
      that:

         (i) the person’s operating privilege will be suspended upon
         refusal to submit to chemical testing and the person will be
         subject to a restoration fee of up to $2000[.]

75 Pa. C.S.A. §1547 (emphasis in original).

      The Krenzel Court then looked to Commonwealth v. Myers, 164 A.3d

1162 (Pa. 2017), which examined Section 1547 in the context of a warrantless

blood draw taken from an unconscious individual. The Myers Court noted that


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Section 1547(b)(1) provides individuals with an explicit statutory right to

refuse chemical testing and Section 1547(b)(2) expressly requires a police

officer to inform an individual of the consequences of such a refusal. See id.

at 1170-1171, 1171 n.12. Accordingly, the Myers Court held that an

individual is entitled to this information, i.e., that he has a right to refuse a

blood test and the consequences for such a refusal, “so that his choice to take

a [chemical] test can be knowing and conscious.” Id. at 1171. Because the

unconscious individual had been deprived of the opportunity to choose

whether to exercise his right to refuse the blood test, the Myers Court held

that he had not voluntarily consented to the blood draw. See id. at 1181.

      In applying Myers and Section 1547, the Krenzel Court held:

      There is no dispute that the police asked [the] [a]ppellant to go
      to the hospital for a chemical blood test and she complied without
      receiving a recitation of her rights under DL-26B or Section 1547
      or confirming her consent by signature. Because [the police
      officer] was statutorily obligated to inform [the] [a]ppellant of her
      right to refuse chemical testing and the consequences arising
      therefrom and failed to effectuate those precautions, [the]
      [a]ppellant did not make a knowing and conscious choice of
      whether to submit to the blood draw.

Krenzel, 209 A.3d at 1032.

      In light of this clear holding, the trial court below concluded that

Krenzel controlled the instant case. The court found that like the appellant in

Krenzel, Eyrich had not been read the DL-26 consent form or otherwise

informed of his right to refuse the blood draw or the penalties following such

a refusal before giving his consent to the blood draw.


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       In an attempt to avoid this conclusion, however, the Commonwealth

argues for the first time in its appeal to this Court that Krenzel is not

applicable to the instant case. The Commonwealth now argues that Krenzel

is distinguishable from this case because the appellant in Krenzel was

arrested for DUI whereas Eyrich, according to the Commonwealth, had not

been placed under arrest when he was asked at the hospital for his consent

to have his blood drawn. The Commonwealth contends that the requirements

of Section 1547 are only triggered after a person has been arrested for DUI,

and because Eyrich had not been arrested at the time he gave his consent,

neither Section 1547 nor Krenzel apply to Eyrich’s case.

       This is not what the Commonwealth argued in its 1925(b) statement.

There, the Commonwealth did not dispute the trial court’s unequivocal ruling

that the instant case was “identical” to, and therefore controlled by, Krenzel.

Instead, the Commonwealth indicated its acknowledgment that Krenzel

controlled the instant matter, but that it wanted to preserve the issue

regarding the voluntariness of Eyrich’s consent because a petition for

allowance of appeal in Krenzel had been filed but not yet ruled on by our

Supreme Court.1 As such, the trial court in the instant case was never


____________________________________________


1After the Commonwealth filed its 1925(b) statement on August 22, 2019,
and as the full cite to Krenzel discloses, see supra at 3, our Supreme Court
denied allocatur in Krenzel on December 17, 2019.



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presented with, and therefore did not specifically address, any argument by

the Commonwealth that Eyrich was not in custody at the time Officer Noll

asked him for his consent and that Krenzel was inapplicable for that reason.

      Because the Commonwealth raises this argument for the first time in its

appeal, and did not raise such an argument in its 1925(b) statement, it is

waived. See Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (holding

that any issues not raised in a 1925(b) statement are waived). “Rule 1925 is

intended to aid trial judges in identifying and focusing upon those issues which

parties plan to raise on appeal” so that there can be a “meaningful and

effective   appellate   review”   of those     issues.   Id. at   308.   See also

Commonwealth v. Reeves, 907 A.2d 1, 2 (Pa. Super. 2006) (cautioning

that a Rule 1925(b) statement must be specific enough for the trial court to

identify and address the issue the appellant seeks to raise on appeal, and if it

is not, the issue will be deemed waived).

      We recognize that Rule 1925(b) states that “each error identified in the

statement will be deemed to include every subsidiary issue that was raised in

the trial court.” Pa.R.A.P. 1925(b)(4)(v). As noted above, the Commonwealth

never argued to the trial court, either at the suppression hearing or in its

1925(b) statement, that Eyrich had not been arrested and was therefore not

subject to the requirements of Section 1547 or Krenzel. As a result, the trial

court did not address, much less focus on, the Commonwealth’s newfound

argument on appeal that Eyrich was not under arrest at the time he gave his


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consent because the Commonwealth did not present the issue to the trial

court. The Commonwealth’s argument fails for this reason.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/14/2020




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