J-S69039-17

                                2017 PA Super 416

 COMMONWEALTH OF                         :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                            :        PENNSYLVANIA
                                         :
                                         :
              v.                         :
                                         :
                                         :
 BRITTANY NORA SMITH                     :
                                         :   No. 877 WDA 2017
                    Appellant

            Appeal from the Judgment of Sentence May 19, 2017
               In the Court of Common Pleas of Mercer County
            Criminal Division at No(s): CP-43-CR-0001493-2016


BEFORE:    BOWES, J., RANSOM, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:                      FILED DECEMBER 28, 2017

      Appellant Brittany Nora Smith appeals from the judgment of sentence

entered by the Court of Common Pleas of Mercer County after the trial court

convicted Appellant of Driving Under the Influence of a Controlled Substance

(DUI) and related vehicle code violations. Appellant argues that the trial court

erred in refusing to suppress the evidence obtained from the seizure of her

vehicle and the warrantless testing of her blood. We affirm.

      The trial court aptly summarized the factual background of this case as

follows:

      [O]n August 6, 2016, at approximately 1:28 a.m., Trooper Sherry
      L. Hogue was traveling east on Route 62 in Mercer County. She
      was in a marked cruiser in full uniform. Trooper Hogue observed
      a white truck pull onto Route 62 traveling in a westwardly
      direction. When the truck pulled out onto Route 62 (which is a
      lined, two-way road), it traveled in the center of the roadway for
      a sufficient period of time forcing Trooper Hogue to apply her
      brakes as to avoid a collision.       The truck returned to the
      westbound lane and Trooper Hogue turned her vehicle around and

____________________________________
* Former Justice specially assigned to the Superior Court.
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       followed the truck. The truck turned right onto Springfield Church
       Road and then left into what appeared to be a business driveway.
       The trooper pulled behind the truck, activated her lights, and
       exited the vehicle.

       The Trooper approached the driver, whom the Trooper identified
       as [Appellant], and asked [Appellant] to exit her vehicle.
       [Appellant] screamed at the Trooper and the Trooper detected an
       odor of alcohol coming from [Appellant] and observed
       [Appellant’s] blood shot eyes. Trooper Hogue also observed a
       drink with a straw in the center console of [Appellant’s] vehicle.
       Upon request, [Appellant] handed the drink to the Trooper who
       smelled the drink and detected the smell of alcoholic beverages.
       [Appellant] was uncooperative with the Trooper’s instructions
       relative to field sobriety tests.

       [Appellant] was then placed under arrest and transported to the
       Grove City Medical Center. During the trip to the Grove City
       Medical Center, [Appellant] told the Trooper that the Trooper
       should arrest criminals and not “drunks.” The Trooper asked
       [Appellant] what if [Appellant] hit a car with a family in it and
       [Appellant] replied “we all have to die sometime.”

       Upon arrival at the Grove City Medical Center, Trooper Hogue read
       the new DL-26 form which did not contain any information
       regarding enhanced criminal penalties. [Appellant] signed the
       form because she did not want a license suspension. Blood was
       drawn and it was subsequently determined that [Appellant’s]
       blood alcohol content was .274.

Trial Court Opinion (T.C.O.), 7/17/17, at 3-4.

       Appellant was charged with DUI and several motor vehicle code

violations.1 On January 3, 2017, Appellant filed a suppression motion, alleging

she was subjected to an unlawful stop of her vehicle and illegal warrantless

____________________________________________


175 Pa.C.S.A. §§ 3802(a)(1) (DUI – General impairment, Incapable of Safely
Driving, second offense), 3802(c) (DUI – Highest Rate of Alcohol, BAC >
0.16%, second offense), 3301(a) (Driving on Right Side of Roadway), 3309(1)
(Driving on Roadways Laned for Traffic), 3809 (Restriction on Alcoholic
Beverages).

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blood testing. After an evidentiary hearing, the trial court denied Appellant’s

suppression motion. On May 19, 2017, the trial court held a stipulated bench

trial and convicted Appellant of the aforementioned offenses. The trial court

imposed a sentence of ninety days to one year of imprisonment to be followed

by four years’ probation for the DUI conviction under Section 3802(c). No

further penalty was imposed on the remaining charges.         Appellant filed a

timely appeal and complied with the trial court’s direction to file a concise

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

      Appellant raises the following issues for our review:

      1. The suppression court erred in refusing to declare the seizure
         of [Appellant] and her vehicle unlawful, as there was no
         probable cause for the traffic stop, as set more fully in
         [Appellant’s] Omnibus Pre-Trial Motion, which is attached
         hereto and made a part hereof.

      2. The suppression court erred in refusing to suppress evidence
         of the warrantless blood search conducted by the Pennsylvania
         State Police, as set forth in [Appellant’s] Omnibus Pre-Trial
         Motion, which is attached hereto and made a part hereof.

1925(b) statement, 6/20/17, at 1 (reordered for ease of review).

      In reviewing a challenge to the lower court’s decision to deny a

suppression motion, our standard of review is as follows:

      Our standard of review in addressing a challenge to a trial court's
      denial of a suppression motion is limited to determining whether
      the factual findings are supported by the record and whether the
      legal conclusions drawn from those facts are correct.
      Commonwealth v. Woodard, 634 Pa. 162, 129 A.3d 480, 498
      (2015). We are bound by the suppression court's factual findings
      so long as they are supported by the record; our standard
      of review on questions of law is de novo. Commonwealth v.
      Galvin, 603 Pa. 625, 985 A.2d 783, 795 (2009). Where, as here,

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      the defendant is appealing the ruling of the suppression court, we
      may consider only the evidence of the Commonwealth and so
      much of the evidence for the defense as remains uncontradicted.
      Commonwealth v. Poplawski, 634 Pa. 517, 130 A.3d 697, 711
      (2015). Our scope of review of suppression rulings includes only
      the suppression hearing record and excludes evidence elicited at
      trial. In the Interest of L.J., 622 Pa. 126, 79 A.3d 1073, 1085
      (2013).

Commonwealth v. Singleton, 169 A.3d 79, 82 (Pa.Super. 2017) (quoting

Commonwealth v. Yandamuri, ––– Pa. –––, 159 A.3d 503, 516 (2017)).

      First, we review Appellant’s claim that she was subjected to an unlawful

traffic stop that was not justified by the requisite suspicion. Our Legislature

has specifically defined in statute the requisite cause for a traffic stop at 75

Pa.C.S.A. § 6308(b), which provides:

      (b) Authority of police officer.-- Whenever a police officer is
      engaged in a systematic program of checking vehicles or drivers
      or has reasonable suspicion that a violation of this title 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
      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.A. § 6308(b).

      Further, this Court has clarified:

      “Traffic stops based on a reasonable suspicion: either of criminal
      activity or a violation of the Motor Vehicle Code under the
      authority of Section 6308(b) must serve a stated investigatory
      purpose.” Commonwealth v. Feczko, 10 A.3d 1285, 1291
      (Pa.Super. 2010) (en banc) (citation omitted). For a stop based
      on the observed violation of the vehicle code or otherwise non-
      investigable offense, an officer must have probable cause to make
      a constitutional vehicle stop. Feczko, 10 A.3d at 1291 (“Mere
      reasonable suspicion will not justify a vehicle stop when the


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      driver's detention cannot serve an investigatory purpose relevant
      to the suspected violation”).

Commonwealth v. Bush, 166 A.3d 1278, 1282 (Pa.Super. 2017).

      This Court has specifically discussed this distinction in the context of a

suspected DUI violation:

      [W]hen considering whether reasonable suspicion or probable
      cause is required constitutionally to make a vehicle stop, the
      nature of the violation has to be considered. If it is not necessary
      to stop the vehicle to establish that a violation of the Vehicle Code
      has occurred, an officer must possess probable cause to stop the
      vehicle. Where a violation is suspected, but a stop is necessary to
      further investigate whether a violation has occurred, an officer
      need only possess reasonable suspicion to make the stop.
      Illustrative of these two standards are stops for speeding and DUI.
      If a vehicle is stopped for speeding, the officer must possess
      probable cause to stop the vehicle. This is so because when a
      vehicle is stopped, nothing more can be determined as to the
      speed of the vehicle when it was observed while traveling upon a
      highway. On the other hand, if an officer possesses
      sufficient knowledge based upon behavior suggestive of
      DUI, the officer may stop the vehicle upon reasonable
      suspicion of a Vehicle Code violation, since a stop would
      provide the officer the needed opportunity to investigate
      further if the driver was operating under the influence of
      alcohol or a controlled substance.

Commonwealth v. Salter, 121 A.3d 987, 993 (Pa.Super. 2015). (emphasis

added). Further, in order to further investigate a suspected DUI violation, an

officer must conduct an investigatory stop, which “almost invariably leads to

the most incriminating type of evidence, i.e., strong odor of alcohol, slurred

speech, and blood shot eyes.” Commonwealth v. Feczko, 10 A.3d 1285,

1289 (Pa.Super. 2010) (quoting Commonwealth v. Sands, 887 A.2d 261

(Pa.Super. 2005)). In Sands, this Court concluded that the police officer was

justified in stopping the appellant’s vehicle based on his reasonable suspicion

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that appellant was drunk driving as the officer witnessed the appellant’s

vehicle drift across the fog line three times in the early morning hours.

      In this case, the trial court found that Appellant made a “wide and

dangerous turn” onto Route 62 and traveled a significant distance in the center

of a lined, two-way road, forcing Trooper Hogue, who was approaching from

the opposite direction, to apply her brakes to avoid a collision. T.C.O. at 5.

The trial court found that Trooper Hogue credibly testified that she stopped

Appellant’s vehicle as she believed that Appellant was intoxicated based on

her driving at that time of the early morning. Accordingly, we conclude that

the trial court did not err in finding that Trooper Hogue had reasonable

suspicion to stop Appellant’s vehicle for suspicion of DUI.

      Second, Appellant claims the trial court erred in denying her suppression

motion in which she argued that Trooper Hogue was required to obtain a

warrant to compel Appellant to submit to blood testing pursuant to the United

States Supreme Court’s decision in Birchfield v. North Dakota, ---U.S.---,

136 S.Ct. 1535 (2016).    Moreover, Appellant asserted that the “warrantless

seizure of her blood was without any legal exception and violated her rights

under Article I, Section 8 of the Pennsylvania Constitution and the 4 th

Amendment of the United States Constitution.”       Omnibus Pre-trial Motion,

12/29/16, at 2.

      The Fourth Amendment to the United States Constitution and Article I,

Section 8 of the Pennsylvania Constitution protect citizens from unreasonable

searches and seizures. Commonwealth v. McAdoo, 46 A.3d 781, 784 (Pa.

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Super. 2012). Blood tests constitute searches under the Fourth Amendment

as they implicate privacy concerns. Birchfield, 136 S.Ct. at 2173. See also

Commonwealth v. Ellis, 608 A.2d 1090, 1091 (Pa.Super. 1992) (providing

that “the administration of a blood test is a search within the meaning of the

Fourth Amendment if it is performed by an agent of the government”).

      “A search conducted without a warrant is deemed to be unreasonable

and therefore constitutionally impermissible, unless an established exception

applies.” Commonwealth v. Strickler, 563 Pa. 47, 56, 757 A.2d 884, 888

(2000) (citations omitted). Those exceptions include voluntary consent. Id.

“The central Fourth Amendment inquiries in consent cases entail assessment

of the constitutional validity of the citizen/police encounter giving rise to the

consent; and, ultimately, the voluntariness of consent.” Id.

      Although Appellant argued in the lower court that the results of her

blood test should be suppressed as none of the exceptions to the warrant

requirement applied, she does not contest the fact that she consented to

submit to the blood test.       Instead, Appellant baldly asserted that her

constitutional rights were violated by the warrantless search and cited to

Birchfield without providing any further explanation to the trial court. The

trial court found Appellant’s claim to be meritless as it found the holding in

Birchfield inapplicable to this case.

      In Birchfield, the High Court reviewed a consolidated case in which one

of the petitioners, Steve Michael Beylund, was arrested for DUI and informed

that the refusal to submit to blood testing constituted a crime itself under

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North Dakota law. Thereafter, petitioner Beylund argued that his consent had

been coerced by the officer’s warning. Relevant to the instant case, the United

States Supreme Court held that a state may not “insist upon an intrusive blood

test, but also … impose criminal penalties upon the refusal to submit to such

a test.” Birchfield, 136 S.Ct. at 2185. Moreover, the High Court emphasized

that “motorists cannot be deemed to have consented to a blood test upon pain

of committing a criminal offense.” Id. at 2186. As petitioner Beylund had

consented to a blood test only after police had erroneously informed him that

he could be criminally penalized if he refused to do so, the Birchfield Court

remanded for the trial court to “reevaluate Beyland’s consent given the partial

inaccuracy of the officer’s advisory.” Id.

       Nevertheless, the Birchfield Court emphasized that its holding did not

apply to the imposition of civil penalties and evidentiary consequences upon

motorists suspected of DUI who refused blood testing upon their arrest:

       It is well established that a search is reasonable when the subject
       consents, and that sometimes consent to a search need not be
       express but may be fairly inferred from context. Our prior
       opinions have referred approvingly to the general concept of
       implied-consent laws that impose civil penalties and
       evidentiary consequences on motorists who refuse to
       comply. Petitioners do not question the constitutionality of
       those laws, and nothing we say here should be read to cast
       doubt on them.

Birchfield, 136 S.Ct. at 2185 (emphasis added) (citations omitted).2
____________________________________________


2We observe that the Pennsylvania Commonwealth Court held that Birchfield
does not affect the imposition of civil license suspension for refusal to submit



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       Thereafter, this Court decided Commonwealth v. Evans, 153 A.3d 323

(Pa.Super. 2016), in which the appellant had similarly argued that his consent

to blood testing after his arrest for DUI was coerced as he only consented after

the police warned him that his refusal to submit to blood testing would result

in harsher penalties upon conviction. Although the Evans court recognized

that Pennsylvania’s implied consent law did not make refusal to submit to a

blood test a crime, the panel emphasized that the law “undoubtedly impose[s]

criminal penalties on the refusal to submit to a test.” Evans, 153 A.3d at 331

(quoting Birchfield, 136 S.Ct. at 2185–86). This Court pointed out to the

DUI penalty provisions set forth in 75 Pa.C.S.A. § 3804:

       Section 3804(c) provides that an “individual who violates section
       3802(a)(1)[, DUI, general impairment] and refused testing of
       blood” is punished more severely than an individual who commits
       the stand-alone DUI, general impairment offense under Section
       3802(a)(1)—and to the same extent as an individual who violates
       Section 3802(c), relating to DUI, highest rate of alcohol. 75
       Pa.C.S.A. § 3804(c). As such, Birchfield controls the case at bar.

Id.

       Since the appellant in Evans had argued that he agreed to submit to

blood testing only after being informed that harsher penalties would apply if

he refused, this Court held that the officer’s advisory to Evans was “partially

inaccurate” as Birchfield prohibits states from imposing criminal penalties for

the refusal to submit to blood testing. Evans, 153 A.3d at 331. As a result,

this Court vacated the appellant’s sentence and the suppression order and
____________________________________________


to a blood test. Boseman v. Commonwealth, Dep't of Transportation,
Bureau of Driver Licensing, 157 A.3d 10, 21 (Pa.Cmwlth. 2017).

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remanded with instructions for the trial court to reevaluate the voluntariness

of appellant’s consent in light of this inaccurate warning and the totality of the

circumstances.

      The instant case is factually distinguishable from Birchfield and Evans.

To reiterate, the decision in Birchfield, which was controlling law at the time

of Appellant’s arrest, prohibited states from imposing criminal penalties upon

an individual’s refusal to submit to a warrantless blood test. Birchfield, 136

S.Ct. at 2185. The trial court in this case found Birchfield was inapplicable

since Appellant was never advised that she would be subject to enhanced

criminal sanctions upon refusal of blood testing. Our review of the record

confirms this finding; both parties agree that Trooper Hogue only informed

Appellant that her driver’s license would be suspended if she refused blood

testing.   Appellant signed a DL-26 form acknowledging that she was advised

of this particular consequence. This form does not contain any reference to

enhanced criminal penalties.    See Commonwealth’s Exhibit 1, DL-26 form.

Thereafter, Appellant agreed to submit to blood testing, which revealed a

blood alcohol level of 0.274.    We cannot conclude that the trial court erred

in denying Appellant’s suppression motion that vaguely cited to Birchfield.

      On appeal, Appellant does not take issue with Trooper Hogue’s warning

before she consented to the warrantless blood test and concedes that neither

Trooper Hogue nor the written form informed her that she would be subject

to enhanced criminal penalties upon refusal of blood testing.             Rather,

Appellant raises the additional claim that her consent cannot be deemed

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voluntary as, at the time of her arrest, the Pennsylvania DUI penalty provision

allowing for enhanced penalties upon refusal of blood testing had not yet been

amended by the Legislature to conform to the holding in Birchfield. Appellant

argues that the “continued existence of the statutory penalty enhancement”

vitiated the consensual search. Appellant’s Brief, at 18. Appellant suggests

that she should have been deemed “presumptively aware” of the enhanced

criminal penalty provision as she had been previously convicted of DUI.

Appellant’s Brief at 18.

      As Appellant did not present this argument to the lower court, but

attempts to raise it for the first time on appeal, this argument is waived. See

Pa.R.A.P. 302 (“Issues not raised in the lower court are waived and cannot be

raised for the first time on appeal”). As a result, we need not review this claim

further.

      For the foregoing reasons, we affirm Appellant’s judgment of sentence.

      Judge Ransom joins the opinion.

      Judge Bowes concurs in the result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/28/2017




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