J-A24031-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :      IN THE SUPERIOR COURT OF
                                         :            PENNSYLVANIA
                   Appellant             :
                                         :
           v.                            :
                                         :
KAITLYN N. WOLFEL                        :          No. 1357 WDA 2016

                     Appeal from the Order August 19, 2016
               in the Court of Common Pleas of Cameron County,
               Criminal Division, No(s): CP-12-CR-0000040-2015

BEFORE: MOULTON, SOLANO and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                   FILED DECEMBER 29, 2017

     The Commonwealth of Pennsylvania appeals from the Order granting

the Motion to Suppress a blood alcohol content (“BAC”) test filed by Kaitlyn

N. Wolfel (“Wolfel”). We reverse and remand for further proceedings.

     On December 21, 2014, Wolfel, while operating her vehicle, was

involved in an accident in Cameron County in which her vehicle struck two

pedestrians.    One of the pedestrians sustained serious injuries, and the

other was pronounced dead at the scene.       When police arrived, Trooper

Josiah Reiner (“Trooper Reiner”) asked Wolfel to perform a field sobriety

test, which she performed poorly. Wolfel thereafter submitted to a portable

breath test, after which she was placed under arrest on suspicion of driving

under the influence (“DUI”). The police transported Wolfel to the Cameron

County Health Center for a blood test. At the hospital, Trooper Reiner read
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Wolfel the O’Connell1 and implied consent warnings, as contained on the

Pennsylvania State Police DL-26 form, after which Wolfel consented to a BAC

test.     Wolfel was subsequently charged with the following offenses:

homicide by vehicle while DUI; aggravated assault by vehicle while DUI; DUI

of alcohol or controlled substance; DUI of alcohol or controlled substance

with a BAC of .178%; DUI of alcohol or controlled substance; and careless

driving.2

        Prior to trial, Wolfel filed a Motion to Suppress the results of the BAC

test based on Birchfield v. North Dakota, 136 S. Ct. 2160 (2016).3 On

August 19, 2016, following a suppression hearing, the suppression court

granted Wolfel’s Motion, and suppressed all evidence derived from the BAC

test.    The Commonwealth timely filed a Notice of Appeal pursuant to




1
  In Commonwealth v. O’Connell, 555 A.2d 873 (Pa. 1989), the
Pennsylvania Supreme Court held that when a motorist is required to submit
to chemical testing under the provisions of Pennsylvania’s Implied Consent
Law, 75 Pa.C.S.A. § 1547, the law enforcement officer making the request
has a duty to explain to the motorist that the rights provided by the United
States Supreme Court decision in Miranda v. Arizona, 384 U.S. 436
(1966), are inapplicable to a request for chemical testing under the Implied
Consent Law.

2   See 75 Pa.C.S.A. §§ 3735(a); 3735.1(a); 3802(a)(1), (c), (d)(3); 3714(a).

3 Wolfel had previously filed a Motion to suppress the BAC test on the basis
that the sample was drawn after the expiration of the two-hour testing
window provided by 75 Pa.C.S.A. § 3802(a)(2). However, that suppression
Motion was denied, and is not at issue in this appeal.


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Pa.R.A.P. 311(d),4 and a court-ordered Pa.R.A.P. 1925(b) Concise Statement

of matters complained of on appeal.

      On appeal, the Commonwealth raises the following issue for our

review: “Did the [trial] court err in suppressing the results of the testing of

[Wolfel’s] blood[,] after a fatal, suspected DUI motor vehicle accident[,] on

the basis of the United States Supreme Court’s decision in Birchfield v.

North Dakota?” Brief for the Commonwealth at 4 (capitalization omitted).

            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.      We may only consider evidence
      presented at the suppression hearing. 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 the context of the record as a whole. We may reverse only if
      the legal conclusions drawn from the facts are in error.

Commonwealth v. Haines, 168 A.3d 231, 234 (Pa. Super. 2017) (internal

citations and quotation marked omitted).      Where the suppression court’s

factual findings are supported by the record, we are bound by those

findings, and may reverse only if the suppression court’s legal conclusions

are erroneous.   See Commonwealth v. Palmer, 145 A.3d 170, 173 (Pa.

Super. 2016).




4
  Rule 311(d) permits interlocutory appeals where the Commonwealth
certifies with its notice of appeal that the trial court’s order terminates or
substantially handicaps the prosecution.



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      The Commonwealth contends that, because Birchfield was not

decided until June 23, 2016, the warnings in the DL-26 form were valid at

the time Trooper Reiner provided them to Wolfel on December 21, 2014.

Brief for the Commonwealth at 10. The Commonwealth points out that the

United States Supreme Court has recognized a “good faith exception” to the

general rule of exclusion of the fruits of illegal police conduct, established in

criminal cases as a remedy for searches and seizures deemed illegal under

the Fourth Amendment to the United States Constitution, and asserts that

this Court should recognize an exception to the exclusionary rule in this

case. Brief for the Commonwealth at 10-11 (citing to exceptions recognized

in U.S. v. Leon, 468 U.S. 897 (1984),5 and Illinois v. Krull, 480 U.S. 340

(1987)).6    The Commonwealth concedes that, in Commonwealth v.

Edmunds, 586 A.2d 887, 905-06 (Pa. 1991), our Supreme Court held that



5 In Leon, the Supreme Court held that, where a police officer conducts a
search in objective good faith reliance upon a search warrant duly issued by
a magistrate or judge, the Fourth Amendment does not require exclusion of
evidence found pursuant to the warrant, even if it is later determined that
there was no probable cause for the warrant to issue. Leon, 468 U.S. at
926. The Supreme Court considered that the deterrence goal of the federal
exclusionary rule based on the Fourth Amendment would not be served by
applying it in circumstances where officers have properly relied on a
subsequently invalidated search warrant. Id.
6 In Krull, police conducted a warrantless administrative search pursuant to
a state statute, which was later determined to be unconstitutional.
Nonetheless, the Supreme Court of the United States held that the good-
faith exception to the exclusionary rule applied because the officer acted in
an objectively reasonable manner in relying upon the subsequently
invalidated statute. Krull, 480 U.S. at 349-51.



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Article I, Section 8 of the Pennsylvania Constitution does not incorporate a

“good faith exception” to the exclusionary rule. Brief for the Commonwealth

at 12.    While the Commonwealth does not argue that Edmunds was

improperly decided, it argues instead that Edmunds should not apply to the

instant case. Id. at 13. The Commonwealth points out that “Birchfield was

decided solely on the basis of federal Fourth Amendment jurisprudence[,]

and Article I, Section 8 of the Pennsylvania Constitution played no part in

that decision.”   Brief for the Commonwealth at 14.             The Commonwealth

contends that, because Wolfel couched her suppression Motion solely as a

Birchfield issue, this case should be determined upon Fourth Amendment

jurisprudence, without consideration of the Pennsylvania Constitution.             Id.

at 14.   The Commonwealth asserts that application of Fourth Amendment

jurisprudence,    without   consideration   of   Article   I,   Section   8   of   the

Pennsylvania Constitution, “would allow for the possibility of a good faith

exception to the exclusionary rule as described in Krull and Leon, supra.”

Brief for the Commonwealth at 15.

      In order to understand the issues presented in this case, it is

necessary to review the change in the law which prompted Wolfel to file her

suppression Motion.    When Wolfel was arrested and gave consent to the

blood draw, the warnings regarding increased criminal penalties for refusing

a blood draw (included in the DL-26 form) were legally correct. However,

while Wolfel’s case was pending, the Supreme Court of the United States



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decided Birchfield, wherein the Court considered whether a blood draw was

subject to one of the limited exceptions to the Fourth Amendment’s warrant

requirement.

     In Birchfield, the United States Supreme Court held that, because the

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

Amendment to the United States Constitution, police officers may not

compel the taking of a blood sample without a search warrant, absent an

applicable exception.   See Birchfield, 136 S. Ct. at 2173, 2185.       After

concluding that “the search incident to arrest doctrine does not justify the

warrantless taking of a blood sample,” id. at 2185, the Birchfield Court

considered whether implied-consent laws, which require cooperation with

blood-alcohol testing as “a condition of the privilege of driving on state

roads,” could provide an exception to the warrant requirement consistent

with the federal constitution. Id. at 2169, 2185-86. The Birchfield Court

held that, although implied-consent laws that impose civil penalties and

evidentiary consequences for refusing to consent are constitutional, implied-

consent laws that “impose criminal penalties” for refusing to consent to a

blood test are unconstitutional because “motorists cannot be deemed to

have consented to submit to a blood test on pain of committing a criminal

offense.” Id. at 2185-86.

     Therefore, in the wake of Birchfield, the DL-26 form warnings read to

Wolfel were partially incorrect, insofar as they advised her that she faced



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additional charges and/or enhanced penalties if she refused the blood draw.

Notwithstanding the issuance of Birchfield, the Commonwealth maintains

that the results of Wolfel’s blood test withstand suppression since the good-

faith exception to the exclusionary rule applies in this case.

      Under the good-faith exception, “when the police act with an

objectively reasonable good-faith belief that their conduct is lawful, or when

their conduct involves only simple, isolated negligence, the deterrence

rationale loses much of its force, and exclusion [is not appropriate].” Davis

v. United States, 564 U.S. 229, 238 (2011) (internal quotation marks and

citations omitted).     The good-faith exception distinguishes the Fourth

Amendment of the United States Constitution from its Pennsylvania

counterpart since “it is settled that under Article I, Section 8 of the

Pennsylvania [C]onstitution, a good[-]faith exception to the exclusionary

rule does not exist.”   Commonwealth v. Frederick, 124 A.3d 748, 756

(Pa. Super. 2015); see also Edmunds, 586 A.2d at 888; Commonwealth

v. Arnold, 932 A.2d 143, 148 (Pa. Super. 2007).7

      Here, as the Commonwealth points out, Wolfel sought suppression




7  Although a concurring opinion authored by a member of this Court
suggests that the good-faith exception may apply to exclusionary claims
raised under Article I, Section 8 of the Pennsylvania Constitution, in
circumstances such as the ones present in this case, see Commonwealth
v. Burgos, 64 A.3d 641, 657 (Pa. Super. 2013) (Shogan, J., concurring),
the majority in Burgos explicitly rejected this statement, and noted that
“the good[-]faith exception does not exist [under] Pennsylvania [law].” Id.
at 657 n.22 (citation omitted).


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solely on the basis of Birchfield, and did not seek suppression pursuant to

Article I, Section 8 of the Pennsylvania Constitution.      See Motion to

Suppress, 7/25/16, at 1-2 (unnumbered). Moreover, Wolfel’s counsel never

mentioned the Pennsylvania Constitution at the suppression hearing.     See

N.T., 8/12/16, at 1-29. When a defendant moves to suppress evidence only

under the federal constitution, he or she waives any argument that the

evidence should be suppressed under the Pennsylvania Constitution.      See

Commonwealth v. Rosa, 734 A.2d 412, 420 (Pa. Super. 1999).            Thus,

because Wolfel failed to raise any argument before the suppression court

that suppression was required under the Pennsylvania Constitution, she has

waived the argument on appeal. See id.

     Having determined that Wolfel waived her argument that suppression

was required under Article I, Section 8 of the Pennsylvania Constitution, we

turn to whether the blood draw evidence was admissible under the good-

faith exception incorporated under the Fourth Amendment’s exclusionary

rule. In Commonwealth v. Updike, 2017 PA Super 325, 2017 Pa. Super.

LEXIS 797 (Pa. Super. 2017), a panel of this Court examined the decisions

of courts in other jurisdictions which have found that blood draw evidence

collected in circumstances similar to the case sub judice was admissible

under the good-faith exception to the exclusionary rule.    Id. at *10-11.

Based on its review of those decisions, the Updike Court determined that

“blood draw evidence obtained pursuant to subsequently-invalidated warning



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statements, such as those contained in the DL-26 form, is admissible under

the good-faith exception.”    Id. at *11. Because the defendant in Updike

only sought suppression pursuant to the Fourth Amendment, and not Article

I, Section 8 of the Pennsylvania Constitution, the Court concluded that the

good-faith exception applied. Id. at *12.

      Here, as in Updike, at the time of Wolfel’s arrest, police were required

to read Wolfel the warnings contained in the DL-26 form, which this Court

and our Supreme Court had consistently upheld as constitutional. See id. at

*10-11.   Police officers in Pennsylvania had no reason to believe that the

Supreme Court of the United States would render the statute at issue

unconstitutional in Birchfield.     Id. at *11.    As such, the blood draw

evidence was admissible under the good-faith exception to the Fourth

Amendment, the only ground raised for suppression by Wolfel. Accordingly,

we   conclude   that   the   suppression   court erred by granting    Wolfel’s

suppression Motion.     We therefore reverse the suppression court’s Order,

and remand for further proceedings consistent with this Memorandum.8

      Order reversed.    Case remanded for further proceedings.      Superior

Court jurisdiction relinquished.




8
 Notably, had Wolfel’s counsel raised Article I, Section 8 of the Pennsylvania
Constitution as a basis for suppression of the BAC test, we would have
affirmed the suppression court’s Order.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 12/29/2017




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