J-A18039-18
                             2018 PA Super 329

COMMONWEALTH OF PENNSYLVANIA,           :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                Appellee                :
                                        :
         v.                             :
                                        :
DAVID HAYS VENABLE, SR.,                :
                                        :
                Appellant               :    No. 3581 EDA 2017

          Appeal from the Judgment of Sentence October 6, 2017
           in the Court of Common Pleas of Northampton County
            Criminal Division at No(s): CP-48-CR-0001327-2017

BEFORE: STABILE, J., STEVENS, P.J.E.* and STRASSBURGER, J.**

OPINION BY STRASSBURGER, J.:                   FILED DECEMBER 04, 2018

     David Hays Venable, Sr. (Appellant) appeals from the October 6, 2017

judgment of sentence of 30 days to six months of incarceration following his

convictions for driving under the influence (DUI) and careless driving.

Specifically, Appellant challenges the denial of his pre-trial suppression

motion, which alleged that his warrantless blood draw was obtained in

violation of Birchfield v. North Dakota, __ U.S. __, 136 S.Ct. 2160

(2016),1 and the traffic stop was unlawful. We affirm.

     On November 16, 2016, at approximately 1:30 a.m., Sergeant Jeffrey

Johnston of the Hellertown police department was stopped at a red light on

Main Street behind Appellant. When the light turned green, Appellant made

1 Birchfield held that “motorists cannot be deemed to have consented to
submit to a blood test on pain of committing a criminal offense.” Id. at
2186.

___________________
* Former Justice specially assigned to the Superior Court.

** Retired Senior Judge assigned to the Superior Court.
J-A18039-18

a quick right turn onto High Street, “spinning his tires, causing the rear end

of the truck to kick out or fishtail[ into the other lane, and] … then

accelerated very quickly west on High Street.” N.T., 8/15/2017, at 7, 17.

At that point, Sergeant Johnston activated his lights and sirens to conduct a

traffic stop.    Appellant did not stop.    He continued to drive carelessly,

including failing to utilize a turn signal. He eventually stopped on Diamond

Street and attempted to reverse into a parking space, forcing Sergeant

Johnston to reverse his police vehicle to avoid being struck. Id. at 7-8.

         Appellant exited the driver’s seat and attempted to leave, but

Sergeant Johnston instructed Appellant to remain in his vehicle. Sergeant

Johnston approached Appellant in the driver’s seat, and informed him that

he was stopped because of “the reckless driving of spinning his tires and

fishtailing at the intersections of High and Main Street[.]”        Id. at 9.

Appellant’s speech was slurred, he was unable to grab his requested

paperwork with his fingers, and Sergeant Johnston detected the odor of

alcohol from inside the vehicle. Id. at 10.

         Based on this interaction, Sergeant Johnston had Appellant perform

multiple field sobriety tests, including the walk-and-turn test and one-leg

stand test, which Appellant failed.   Based upon his entire interaction with

Appellant to that point, Sergeant Johnston believed Appellant was under the

influence of alcohol to the point that he was incapable of driving safely. Id.

at 14.


                                      -2-
J-A18039-18

      Appellant was arrested and transported to the Bethlehem Township

DUI Center for further processing.     The blood draw procedure was video

recorded at the DUI Center, and that recording was presented to the

suppression court in connection with Appellant’s challenge to the warrantless

blood draw. The video was not made part of the certified record on appeal.

However, the parties agree2 that Appellant was read the revised DL-26B

form,3 he signed it, and he agreed to submit to a blood draw, which

indicated a blood alcohol content (BAC) of 0.15. Id. at 19-20, 24. See also

Appellant’s Brief at 9-10.

      Appellant was charged with DUI – general impairment (as a first

offense), DUI – high rate of alcohol (as a second offense), and careless

driving. Prior to trial, Appellant filed a motion to suppress, claiming that the



2Appellant’s Birchfield claim does not challenge the court’s factual findings,
but instead challenges the court’s legal conclusions about the effect of
Birchfield and Appellant’s prior knowledge of enhanced criminal penalties
pre-Birchfield on Appellant’s ability to voluntarily consent after being read a
DL-26B form. Thus, we are not hampered by the video’s absence.
3 Prior to Birchfield, officers were statutorily required to warn individuals
arrested for DUI that refusal to submit to a blood draw would result in
enhanced criminal penalties. 75 Pa.C.S. § 1547(b)(2)(ii). To comply with
this statutory requirement, officers would read Pennsylvania Department of
Transportation (PennDOT) Form DL-26, which warned individuals of the
enhanced criminal penalties if they refused to consent to a blood draw. One
week after Birchfield was issued, “PennDOT, at the request of the
Pennsylvania District Attorneys Association and a number of county district
attorneys, amended Form DL–26 to remove any reference to enhanced
criminal penalties for the refusal to submit to a blood test. The new form is
known as Form DL–26B.” Commonwealth v. Robertson, 186 A.3d 440,
443 n.1 (Pa. Super. 2018).

                                     -3-
J-A18039-18

traffic stop was unlawful, and any consent to the warrantless blood draw

“was accomplished only after a warning that a failure to consent would result

in enhanced criminal penalties if convicted, as set forth in Pennsylvania’s DL-

26 Implied Consent Form, … and was therefore not voluntary and knowing.”

Omnibus Pre-Trial Motion, 7/7/2017, at ¶ 9. A hearing was held where the

aforementioned facts were developed.           The trial court denied the motion,

finding that Sergeant Johnston had probable cause to conduct the traffic

stop and Appellant voluntarily consented to a blood draw after being read

the DL-26B form. Order, 9/27/2017, at 5-6.

      Following a stipulated nonjury trial, Appellant was convicted of DUI –

high rate of alcohol and careless driving, and was sentenced as indicated

above.   Appellant timely filed a notice of appeal.4      Appellant presents two

issues for this Court’s consideration.

      1. Whether the trial court erred in refusing to suppress the
         results of a blood draw where Appellant was read the DL-26B
         warnings which do not address enhanced criminal penalties
         and under the totality of the circumstance[s] Appellant did
         not know[ingly] and voluntary[ily] give his consent to the
         blood draw?

      2. Whether the trial court erred in finding the arresting officer
         had probable cause or re[a]sonable suspicion to perform a
         valid traffic stop?




4 Appellant complied with Pa.R.A.P. 1925(b). The trial court complied with
Pa.R.A.P. 1925(a) by filing a statement directing this Court to its September
27, 2017 order and statement of reasons denying Appellant’s motion to
suppress.

                                         -4-
J-A18039-18

Appellant’s Brief at 5 (unnecessary capitalization and suggested answers

omitted).

     We consider Appellant’s claims mindful of the following.

     Our standard of review in addressing a challenge to the denial of
     a suppression motion is limited to determining whether the
     suppression court’s factual findings are supported by the record
     and whether the legal conclusions drawn from those facts are
     correct.    Because the Commonwealth prevailed before the
     suppression court, we may consider only the evidence of the
     Commonwealth and so much of the evidence for the defense as
     remains uncontradicted when read in the context of the record
     as a whole. Where the suppression court’s factual findings are
     supported by the record, we are bound by these findings and
     may reverse only if the court’s legal conclusions are erroneous.
     Where ... the appeal of the determination of the suppression
     court turns on allegations of legal error, the suppression court’s
     legal conclusions are not binding on an appellate court, whose
     duty it is to determine if the suppression court properly applied
     the law to the facts. Thus, the conclusions of law of the court[]
     below are subject to our plenary review.

Commonwealth v. Perel, 107 A.3d 185, 188 (Pa. Super. 2014) (quoting

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010)).

      We begin with an overview of Birchfield, its effect on our DUI laws,

and forms DL-26 and DL-26B, as they relate to Appellant.

           In Birchfield, the Supreme Court of the United States
     held that criminal penalties imposed on individuals who refuse to
     submit to a warrantless blood test violate the Fourth Amendment
     (as incorporated into the Fourteenth Amendment). Within one
     week of that decision, PennDOT revised the DL–26 form to
     remove the warnings mandated by 75 Pa.C.S.[] § 3804 that
     theretofore informed individuals suspected of DUI that they
     would face enhanced criminal penalties if they refused to submit
     to a blood test [in order to comply with Birchfield]. It was this
     revised form, known as Form DL–26B (which did not include
     warnings regarding enhanced criminal penalties), that the
     [police] read to [Robertson].

                                   -5-
J-A18039-18



                                      ***

     This Court subsequently held that imposing enhanced criminal
     penalties for failure to consent to a blood draw constituted an
     illegal sentence because of Birchfield. [See] Commonwealth
     v. Giron, 155 A.3d 635, 639 (Pa. Super. 2017).

            On July 20, 2017, Governor Thomas W. Wolf signed into
     law Act 30 of 2017[,] which amended 75 Pa.C.S.[] § 3804 to
     comport with Birchfield. Specifically, Act 30 provides for
     enhanced criminal penalties for individuals who refuse to submit
     to blood tests only when police have obtained a search warrant
     for the suspect’s blood. See 75 Pa.C.S.[] § 3804(c). Hence, from
     July 20, 2017 onwards the DL–26B form conforms to [the
     revised] statutory law. For approximately the previous 13
     months, including at the time[] of [Robertson’s] arrest[], the
     DL–26B form warnings were consistent with the law as
     interpreted by the Supreme Court of the United States and this
     Court, but inconsistent with the (unconstitutional) provisions of
     Title 75.

Robertson, 186 A.3d at 444-45 (some citations omitted).

     Like Robertson, Appellant was read the DL-26B warnings prior to Act

30’s amendment of section 3804. On appeal, Appellant contends that this

inconsistency between the DL-26B form and the provisions of our DUI

statute   that   were   rendered   unconstitutional   by   Birchfield,   but   not

statutorily amended until Act 30, required suppression of his blood draw.

Appellant’s Brief at 19-20. In other words, Appellant argues that because

subsection 3804(c) subjected him to enhanced criminal penalties, and

subsection 1547(b)(2)(ii) required the police to warn Appellant of such

penalties, the blood draw violated Birchfield.




                                      -6-
J-A18039-18

     We recently rejected Appellant’s flawed argument and held that

PennDOT had the authority to amend the DL-26 form to comport with

Birchfield prior to the enactment of Act 30. Robertson, 186 A.3d at 446.

In doing so, we adopted the following well-reasoned analysis of the

Commonwealth Court.

     It is true, as [Garlick] argues, that the language contained in
     [subs]ection 1547(b)(2)(ii) was mandatory at the time [the
     t]rooper requested that [Garlick] submit to a blood test.
     However, while [subs]ection 1547(b)(2)(ii) then commanded
     that a warning about enhanced criminal penalties be given, the
     purpose behind that provision is to make a licensee aware of the
     consequences of a refusal to take the test so that he can make a
     knowing and conscious choice.

     Following Birchfield, and as the Superior Court concluded
     thereafter, a licensee cannot be criminally punished for refusing
     a police officer’s request to test his blood pursuant to the
     Implied Consent Law. Although, at the time [the t]rooper
     requested that [Garlick] submit to a blood test, [subs]ection
     1547(b)(2)(ii) still required a warning that a licensee would be
     subject to enhanced criminal penalties under [subs]ection
     3804(c) for refusing a test of his blood, [Garlick] could not, as a
     matter of constitutional law, be subject to such penalties. Stated
     simply, enhanced criminal penalties were not a consequence of
     [Garlick]’s refusing the requested blood test. [Garlick]’s
     argument is, in effect, that because the General Assembly did
     not immediately amend [subs]ection 1547(b)(2)(ii), [Penn]DOT
     and the police had to continue to apply [subs]ection
     1547(b)(2)(ii). However, the effect of Birchfield and the
     Superior Court cases that followed was to render the criminal
     penalties warned of in [subs]ection 1547(b)(2)(ii) as applied to
     blood testing unenforceable and to effectively sever that section
     from the rest of the [Motor] Vehicle Code. See 1 Pa. C.S.[]
     § 1925.

Id. at 445-46, quoting Garlick v. Commonwealth, Dep't of Transp.,

Bureau of Driver Licensing, 176 A.3d 1030, 1036 (Pa. Cmwlth. 2018) (en


                                    -7-
J-A18039-18

banc). For the same reasons stated in Robertson and Garlick, Appellant is

not entitled to relief on this basis.

      As to Appellant’s alternative argument that his awareness of pre-

Birchfield enhanced criminal penalties for refusing a blood draw rendered

the instant blood draw involuntary, this Court has also rejected this claim.

             [I]t is not necessary that the police completely review
      changes in the law, from the time of a motorist’s
      previous arrest or DUI-related schooling until the motorist’s next
      traffic stop. Johnson’s ignorance of the most recent Supreme
      Court decisional law did not impose upon [the police officer] an
      affirmative duty to provide her with an update on criminal
      procedure prior to requesting a blood-draw. Neither our state
      nor the federal constitution compels our police officers to serve
      as road-side law professors.

            Given the foregoing, Johnson’s personal failure to realize
      that the Supreme Court’s issuance of Birchfield struck
      down § 3804(c)’s enhanced criminal penalties is irrelevant. She
      apparently believed that our Commonwealth’s enhanced
      penalties remained in full force and effect until a Pennsylvania
      appellate court declared them unconstitutional or the General
      Assembly amended them to comport with Birchfield. Her
      misconception…is predicated upon a fundamentally flawed view
      of our federalism.

Commonwealth v. Johnson, 188 A.3d 486, 491 (Pa. Super. 2018) (finding

that Johnson’s ignorance of constitutional law did not render her consent

involuntary). See also Commonwealth v. Miller, 186 A.3d 448, 452 (Pa.

Super. 2018) (“Repeat DUI offenders, owing to past legal transgressions, are

not   entitled   to   a   benefit       that   would   be   unavailable   to   first-

time DUI offenders. …       The absurdity of [such an] argument is self-

evident.”).


                                          -8-
J-A18039-18

     Thus, on the day that Birchfield became law, Appellant should have

known that the enhanced criminal penalties codified in subsection 3804(c)

were without legal effect, and that the police were not obligated to notify

Appellant of this unconstitutional subsection because it was no longer

applicable. See Johnson, 188 A.3d at 491; Robertson, 186 A.3d at 447.

Accordingly, we reject Appellant’s argument, and find that Appellant’s blood

draw did not violate Birchfield.

     Having determined that Birchfield does not require suppression of

Appellant’s blood draw, we now consider whether Appellant’s consent was

voluntary. In that regard, our Supreme Court has held as follows.

           In determining the validity of a given consent, the
     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. Such evaluation includes an objective
     examination of the maturity, sophistication and mental or
     emotional state of the defendant. 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. Evans, 153 A.3d 323, 328 (Pa. Super. 2016), quoting

Commonwealth v. Smith, 77 A.3d 562, 573 (Pa. 2013) (internal citations,

quotations, and corrections omitted).

     While there is no hard and fast list of factors evincing
     voluntariness, some considerations include: 1) the defendant’s

                                    -9-
J-A18039-18


         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.

Robertson, 186 A.3d at 447 (citations omitted).

         The undisputed facts5 reveal that Appellant’s consent was objectively

valid.    As in Johnson, supra, the police “had no obligation to enlighten

[Appellant] as to the full details of federal constitutional law; [the police]

only needed to tell [Appellant] the current, legal consequences of refusing to

consent to the blood-draw. [They] did [so through the DL-26B form]. Thus,

[Appellant’s] consent was voluntary.” Id. at 491 (citation omitted).

         We now address Appellant’s claim that the trial court erred in denying

his motion to suppress because Sergeant Johnston lacked the probable

cause necessary to stop Appellant’s vehicle. We begin with an overview of

the law governing the level of proof necessary to justify a traffic stop.

              Whenever a police officer … has reasonable suspicion
              that a violation of [the Motor Vehicle Code] is
              occurring or has occurred, he may stop a vehicle,
              upon request or signal, for the purpose of checking
              the vehicle’s registration, proof of financial
              responsibility, vehicle identification number or engine

5 It is Appellant’s responsibility to complete the certified record on appeal.
Commonwealth v. Bongiorno, 905 A.2d 998, 1000 (Pa. Super. 2006) (en
banc). While we do not have the benefit of the video recording of the blood
draw, as noted supra, Appellant and the Commonwealth agreed to the
underlying facts. Appellant’s argument instead centers upon the legal effect
of Birchfield, the DL-26B warnings, and Appellant’s subjective knowledge of
the law.

                                      - 10 -
J-A18039-18


          number or the driver’s license, or to secure such
          other information as the officer may reasonably
          believe to be necessary to enforce the provisions of
          this title.

     75 Pa.C.S.[ ] § 6308(b).

            Thus, § 6308(b) requires only reasonable suspicion in
     support of a stop for the purpose of gathering information
     necessary to enforce the Vehicle Code violation. However, in
     [Commonwealth v. Feczko, 10 A.3d 1285, 1291 (Pa. Super.
     2010) (en banc),] this Court held that a police officer must have
     probable cause to support a vehicle stop where the officer’s
     investigation subsequent to the stop serves no “investigatory
     purpose relevant to the suspected [Vehicle Code] violation.”
     In Feczko, the police officer observed the defendant’s vehicle
     cross over the double yellow median line and the fog line.
     During the ensuing vehicle stop, the officer noticed the scent of
     alcohol on the defendant’s breath. Importantly, the officer did
     not testify that the stop was based on suspicion of DUI. The
     defendant was convicted of DUI and a motor vehicle code
     violation, and argued on appeal that the vehicle stop was illegal.

           This Court noted the distinction between “the investigative
     potential of a vehicle stop based on a reasonable suspicion of
     DUI as compared to other suspected violations of the Motor
     Vehicle    Code.” Id. at   1289     (citing Commonwealth       v.
     Sands, 887 A.2d 261, 270 (Pa. Super. 2005)). Whereas a
     vehicle stop for suspected DUI may lead to further incriminating
     evidence such as an odor of alcohol or slurred speech, a stop for
     suspected speeding is unlikely to lead to further evidence
     relevant to that offense. Therefore:

                [A] vehicle stop based solely on offenses not
          ‘investigatable’ cannot be justified by a mere
          reasonable suspicion, because the purposes of
          a Terry 1 stop do not exist—maintaining the status
          quo while investigating is inapplicable where there is
          nothing further to investigate. An officer must have
          probable     cause    to   make     a    constitutional
          vehicle stop for such offenses.
          ______
          1   Terry v. Ohio, 392 U.S. 1 [] (1968).


                                   - 11 -
J-A18039-18

Commonwealth v. Landis, 89 A.3d 694, 702–03 (Pa. Super. 2014) (some

citations omitted).

      Here, Sergeant Johnston did not testify that he stopped Appellant in

order to conduct additional investigations into a potential DUI. Rather, he

stopped Appellant for a Motor Vehicle Code violation: careless driving.

Accordingly, a showing of probable cause was necessary to justify the

sergeant’s stop of Appellant for a violation of 75 Pa.C.S. § 3714(a) (“Any

person who drives a vehicle in careless disregard for the safety of persons or

property is guilty of careless driving, a summary offense.”).

      In denying Appellant’s motion to suppress, the trial court found that

Sergeant Johnston had probable cause to believe that Appellant was in

violation of subsection 3714(a) of the Motor Vehicle Code based on: (1)

“mak[ing] a quick right turn that caused the rear wheels of his vehicle to

kick-out into the opposing lane of traffic[,]” (2) making a turn without

signaling, and (3) “upon attempting to park the vehicle, [Appellant’s]

revers[ing] in such a manner that Sergeant Johnston was also required to

reverse his vehicle to avoid a collision.” Order, 9/27/2017, at 6.

      While pages 28 and 29 are missing from the argument section of

Appellant’s brief, it appears that part of his argument challenges the trial

court’s “consideration of actions that happened after the ‘fishtail[.]’”

Appellant’s Brief at 27. To the extent that the trial court considered events




                                    - 12 -
J-A18039-18

that occurred after the traffic stop was initiated in determining whether

probable cause existed for the traffic stop, the trial court erred.

      Nevertheless, the trial court’s findings before the stop were enough to

establish probable cause for the stop. Here, Appellant was subjected to a

seizure when Sergeant Johnston activated his lights and sirens to conduct

the traffic stop, notwithstanding Appellant’s failure to comply immediately.

See Commonwealth v. Livingstone, 174 A.3d 609, 621 (Pa. 2017)

(plurality) (noting that “we simply cannot pretend that a reasonable person,

innocent    of     any    crime,     would         not   interpret        the activation of

emergency lights on a police vehicle as a signal that he or she is not free to

leave”). Therefore, Sergeant Johnston must have possessed probable cause

to believe that a traffic violation had occurred prior to activating his lights

and sirens. Upon review, we find that Sergeant Johnston’s observations of

Appellant “spinning his tires, causing the rear end of the truck to kick out or

fishtail[ into the other lane, and] … then accelerat[ing] very quickly west on

High Street[,]” were sufficient to give the sergeant probable cause to stop

Appellant   for    careless   driving.     N.T.,    8/15/2017,       at   7,   17.    See

Commonwealth v. Wilson, 111 A.3d 747, 755 (Pa. Super. 2015) (finding

that the officer possessed probable cause to believe that Wilson had violated

the Motor Vehicle Code provisions of, inter alia, careless driving, when the

officer observed Wilson, inter alia, swerve over the yellow lines and fog line

multiple times).


                                         - 13 -
J-A18039-18

     Accordingly, the trial court properly denied Appellant’s motion to

suppress, and we affirm Appellant’s judgment of sentence.6

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/4/18




6We may affirm on any basis. See Commonwealth v. Clouser, 998 A.2d
656, 661 n.3 (Pa. Super. 2010).

                                  - 14 -
