J-A08017-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

ELMO PENA

                            Appellee                  No. 1452 EDA 2016


                      Appeal from the Order April 20, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): MC-51-CR-0013593-2015


BEFORE: PANELLA, J., LAZARUS, J., and STEVENS, P.J.E.*

MEMORANDUM BY LAZARUS, J.:                              FILED JULY 21, 2017

        The Commonwealth of Pennsylvania appeals from the order, entered in

the Court of Common Pleas of Philadelphia County, granting Elmo Pena’s

motion to suppress.1        We affirm.

        On May 2, 2015, Police Officer Lorenz Hardy responded to a radio

dispatch regarding an automobile accident. Officer Hardy found Pena in his

car, which was on the lawn of a residential property.          Pena was bleeding

from his head, his speech was slurred and he smelled of alcohol. He was

transported to the hospital and treated for a concussion.

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
  The Commonwealth has certified in its notice of appeal that the
suppression order will “terminate or substantially handicap the prosecution.”
See Pa.R.A.P. 311(d).
J-A08017-17



        Approximately one hour later, Officer Daniel Shead went to the

hospital and arrested Pena, charging him with driving under the influence,

75 Pa.C.S.A. § 3802(a)(1).2 After Officer Shead obtained Pena’s marking on

the O’Connell3 warnings form and his initials on the date line of the Report

for Chemical Testing consent form, a nurse drew blood from Pena’s left arm.
____________________________________________


2
    Section 3802(a)(1) provides:

        (a)General impairment.—

        (1) An individual may not drive, operate or be in actual physical
        control of the movement of a vehicle after imbibing a sufficient
        amount of alcohol such that the individual is rendered incapable
        of safely driving, operating or being in actual physical control of
        the movement of the vehicle.

3
  The O'Connell warnings were first announced in Commonwealth,
Department of Transportation, Bureau of Traffic Safety v. O'Connell,
555 A.2d 873 (Pa. 1989). In a later opinion, our Supreme Court explained
both the O'Connell warnings and the reasoning behind the warnings:

        in order to guarantee that a motorist makes a knowing and
        conscious decision on whether to submit to testing or refuse and
        accept the consequence of losing his driving privileges, the police
        must advise the motorist that in making this decision, he does
        not have the right to speak with counsel, or anyone else, before
        submitting to chemical testing, and further, if the motorist
        exercises his right to remain silent as a basis for refusing to
        submit to testing, it will be considered a refusal and he will suffer
        the loss of his driving privileges[. T]he duty of the officer to
        provide the O'Connell warnings as described herein is triggered
        by the officer's request that the motorist submit to chemical
        sobriety testing, whether or not the motorist has first been
        advised of his Miranda rights.

Commonwealth, Dep't of Transp., Bureau of Driver Licensing v.
Scott, 546 Pa. 241, 684 A.2d 539, 545 (1996).



                                           -2-
J-A08017-17



      Pena filed a motion to suppress the blood test results.    Following a

hearing, the suppression court granted Pena’s motion. The Commonwealth

appeal, and presents one issue for our review:

      Did the suppression court err by granting [Pena’s] motion to
      suppress where he knowingly consented to a blood draw?

Appellant’s Brief, at 4.

      When a motion to suppress evidence has been filed, it is the

Commonwealth’s burden to prove, by a preponderance of the evidence, that

the challenged evidence was not obtained in violation of the defendant’s

rights. Commonwealth v. Wallace, 42 A.3d 1040, 1047–1048 (Pa. 2012).

see also Pa.R.Crim.P. 581(H).

      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. Miller, 56 A.3d 1276, 1278–79 (Pa. Super. 2012)

(citations omitted). “Our standard of review is restricted to establishing

whether the record supports the suppression court’s factual findings;

however, we maintain de novo review over the suppression court’s legal

conclusions.” Commonwealth v. Brown, 996 A.2d 473, 476 (Pa. 2010)

(citation omitted).


                                    -3-
J-A08017-17



      At the suppression hearing, Officer Shead testified that he read Pena

the O’Connell warnings, however, Pena neither reviewed them nor verbally

responded that he understood them.     N.T. Suppression Hearing, 8/13/15, at

41-42. Officer Shead acknowledged that “[Pena] just signed.”        Id. at 42.

“He moved slightly. He wasn’t up and about. Like I said, he was laying on a

gurney. . . . I physically had to hold the forms in front of him so he could

sign them.”   Id.   Pena remained in the hospital for two days, and his

discharge papers indicated he had suffered a concussion.       Id. at 46.   The

suppression court found that Pena’s head trauma and related injuries

impaired his ability to understand, and, therefore, consent.

      Based on our review of the parties’ briefs, the record, and the relevant

law, we agree with the suppression court’s determination that the

Commonwealth did not establish by a preponderance of the evidence that

Pena gave either implied or actual consent to the blood draw. See Wallace,

supra; see also Commonwealth v. Eisenhart, 611 A.2d 681, 684 (Pa.

1992) (conscious driver has explicit right under section 1547(b) to refuse

blood draw). We, therefore, affirm the order granting suppression based on

Judge Michael E. Erdos’ opinion. The parties are directed to attach a copy of

that opinion in the event of further proceedings.

      Order affirmed.

      Judge Panella joins the Memorandum.

      President Judge Emeritus Stevens files a Dissenting Memorandum.




                                     -4-
J-A08017-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/21/2017




                          -5-
0015_Opinion
                                                                                                      Circulated 05/23/2017 04:07 PM




                         THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
                                               FIRST JUDICIAL DISTRICT
                                              CRJMINAL TRIAL DIVISION



               COMMONWEALTH OF PENNSYLVANIA                                           MC-51-CR-0013593-2015


                                           MC-M-CR-0013593-2015 Comm. v. Pena. Elmo
                                                                                                                  FILED
                                     v.
                                                            Opinion
                                                                                                                   OCT 2 5 2016


                       ELMO PENA
                                               II II I I   I   1111111111111111
                                                       7516834821                     1452 EDA 2016
                                                                                                           -· Crimin?~AppeaJs Unit
                                                                                                           .·,rstJud1c1alDistrictof PA

                                                                 OPINION

               ERDOS,J.

                      On May 2, 2015, Elmo Pena (hereinafter "Appellee") was arrested and charged with

               Driving Under the Influence ("DUI") pursuant to 75 Pa.C.S. § 3802(a)(l). On August 13, 2015,

               the Honorable Gerard Kosinski of the Municipal Court granted Appellee's motion to suppress.

               On February 18, 2016, Appellant filed a Writ of Certiorari to Common Pleas Court. On April

               20, 2016, this Court issued an Order denying Appellant's Writ of Certiorari, thereby affirming

               Appellee's motion to suppress. This Commonwealth appeal followed.

               FACTS

                      On May 2, 2015 at around 7:50 a.m., Officer Lorenz Hardy responded to a radio call for

               an automobile accident at 1102 Napfle Ave. in the City and County of Philadelphia. Notes of

               Testimony (N.T.) 8/13/15 at 7. The fire department and medic unit were on site when Officer

               Hardy arrived. N.T. 8/13/15 at 8. Officer Hardy observed Appellee sitting in the driver's seat of

               a car. N.T. 8/13/15 at 8-9. He saw tire tracks leading from Napfle Ave. across the lawn of a

               residentialproperty, and up to the car Appellee was in. The car was positioned sideways in the

               driveway of the property. N.T. 8/13/15 at 11. Once the officer approached the vehicle he
,.,.,~,.,-•·•..-.•-·.,   -•-r· ·---•r-•-·------~·-·    -   ··--· •- ··~ .. "·--.,.•···-----·-·   __   -!    --·-·-·-·-····------~ .. -   .. -·-··--····· .. · .




                             observed Appe11ee bleeding from his head. N. T. 8/13/15 at 16. He then asked Appellee for his

                             driver's license and registration. N.T. 8/13/15          at 9. Appellee's speech was slurred, his pupils

                             were constricted, and his breath smelled strongly of alcohol. N. T. 8/13/15 at 11. Medical

                             personnel evaluated Appellee for injuries and assisted him with exiting the car. N.T. 8/13/15 at

                             18. Appellee was placed in a neck brace and taken away on a gurney. N.T. 8/13/15                at 18.

                             Medical personnel then took Appellee to Aria Torresdale Hospital to be treated for a possible

                             concussion. N.T. 8/13/15 at 30.

                                       AID Officer Shead first came into contact with Appellee at Aria Torresdale Hospital

                             around 9:23 a.m. N.T. 8/13/15 at 34. The officer found him laying on a hospital bed in a neck

                             brace. N.T. 8/13/15 at 38. Officer Shead and informed Appellee he had been arrested for DUI

                             and asked him to submit to a chemical test. N.T. 8/13/15 at 35. Officer Shead then read Appellee

                             the O'Connell Warnings and the 75-439 Report for Chemical Testing consent form. N.T. 8/13/15

                             at 35-36.

                                       Appellee did not review the consent forms or respond to Officer Shead. N.T. 8/13/15 at

                             42. Officer Shead physically held the consent forms in front of Appellee for him to sign. N.T.

                             8/13/15 at 42. Appellee made a marking on the O'Connell Warnings and signed his initials on

                             the date line of the 75-439 form. N.T. 8/13/15 at 27.

                                       At 9:39 a.m., Officer Shead asked a nurse to draw blood from Appellee's left arm. N.T.

                             8/13/15 at 40. Neither Officer Hardy nor Officer Shead secured a warrant for the blood. N.T.

                             8/13/15 at 39. Two days later Appellee was discharged from Aria Torresdale Hospital. N.T.

                             8/13/15 at 46-47. Appellee's discharge paperwork stated he suffered a "concussion." N.T.

                             8/13/15     at 46.




                                                                                         2
                                   ____   ....;....                              ._.




DISCUSSION

                                                      I.          Issue Raised

       The Commonwealth raises the following issue on appeal: Did the lower court, sitting as

an appellate court, err in affirming the suppression ruling of the Municipal Court on the ground

that a warrant was required to obtain blood for a chemical test notwithstanding the implied

consent statute, where the police had probable cause to believe the defendant was driving under

the influence of alcohol or a controlled substance and he did not withdraw consent?

                                   II.                      Standardof Review

       At the outset, we examine the pertinent standard of review. While the appeJlate court

defers to the suppression court's findings of fact, the suppression court's conclusions of law 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. Hudson, 92 A.3d 1235, 1241 (Pa. Super. 2014).

                                                           III.    Analysis

       The taking of blood constitutes a search subject to the provisions of the Fourth

Amendment of the U.S. Constitution and Article I, Section 8 of the Pennsylvania Constitution.

Schmerber v. California, 384 U.S. 757 (1966); Commonwealth v. Davenport, 308 A.2d 85, 87

(Pa. 1973). The Pennsylvania Supreme Court has held that exceptions to the warrant

requirement exist to negate the necessity of obtaining a warrant before conducting a search.

Commonwealth v. Riedel, 651 A.2d 135, 139 (Pa. 1994). Exceptions to the warrant requirement

include actual consent, implied consent, and exigent circumstances. Id.

       Consent must be voluntary and knowing for it to operate as a valid waiver of the right to

remain free from warrantless searches. Commonwealth v. Walsh, 460 A.2d 767, 771-72 (Pa.

Super. 1983). Whether consent to a search was voluntary is a question of fact to be determined



                                                                    3
.. ----··-··-·---------···   -·-··---~-~-------·······--------------                 --···---------·    ------······--   ---




           from the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973).

            Circumstances including the subjectively vulnerable state of the person whom consents should

            be examined to determine if the consent was coerced. Id. at 229. In addition, consent can be

            invalidated if the consenting person did not understand what it was he was consenting to. Walsh,

           460 A.2d at 772.

                    The Commonwealth argues that a warrant was not required to draw blood from Appellee

            due to the implied consent statute. Pennsylvania's implied consent statute provides that:

                          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: (a)(2) which was involved in an accident in
                          which the operator or passenger of any vehicle involved or a pedestrian
                          required treatment at a medical facility or was killed.

            75 Pa.C.S.A. § 1547(a)(2). "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 .... " 75 Pa.C.S.A. § 1547(b)(l). In addition, if the refusing individual is subsequently

            convicted he faces increased criminal penalties. 75 Pa.C.S.A. § 3804(1).1




                    1   The Supreme Court of the United States recently struck down a similar implied consent

            provision from North Dakota, finding that leveraging criminal penalties to induce a driver to

            consent to a blood draw is unconstitutionally coercive and vitiates consent. Birchfield v. North

            Dakota, 136 S.Ct. 2160 (2016). Although, because of his physical condition, Appellee in the

                                                               4
··--- ·-···---·-·-------------·-·~·---~-~---                           ·--     ·-----~         ...., .....   _   ·---   ---·---




                    The Pennsylvania Superior Court recently addressed this issue and Section 1547 in

             Commonwealth v. Myers. 118 A.3d 1122 (Pa. Super. 2015). In Myers, the defendant was

            rendered unconscious after taking antipsychotic medication a few minutes before the AID

             Officer arrived. Id. at 1124. The officer attempted to make contact with the defendant by

            speaking his name and tapping him on the shoulder, but there was no response. Id. at 1130. The

             officer proceeded to give the defendant the informed consent warnings but still received no

            response. Id. The blood draw was conducted anyway. Id.

                    The defendant in Myers contended that he was deprived of his statutory right to refuse a

             blood draw and police could not then use his inability to verbally refuse as the basis to

             involuntarily take his blood. Id. at 1129. The court in Myers agreed, finding that although

            Pennsylvania's implied consent law penalizes the refusal to consent to a blood draw, it does not

            permit the involuntary seizure of a blood sample. Id. Under Myers, then, the blood draw here

             cannot be justified under Section 154 7.

                    Nor did Appellee provide actual consent. In Commonwealth v. Smith, the Pennsylvania

             Supreme Court found a DUI suspect's consent knowing and voluntary because he had full use of

            his faculties when he gave consent to submit to chemical testing. 77 A.3d 562 (Pa. 2013). The

            suspect hit a car and seriously injured its occupants one morning after drinking the night before.

            Police arrived on scene and asked the driver if he would agree to submit to a chemical test. Id. at

            223. The driver agreed and upon receiving the results, the police arrested and charged him with

             DUL Id. On appeal, the driver argued that the police did not obtain informed and actual consent.



             instant matter could not understand what the officers told him concerning consent, it is arguable

            that the entire implied consent statute in Pennsylvania is invalid under Birchfield.



                                                              5
... ...1-~.- .. · .....~ ...- --~ ·-- ·--··-------'-----.   .   -----·--··---·   ,.   ... _ .._,,   _




       •         Id. The court based its holding on the education level of the driver, his physical health, his

                 knowledge of the right to refuse, and his understanding that the test was to rule out the possibility

                 of alcohol or drngs. Id. The court found, given the totality of the circumstances, that the driver's

                 consent was knowing and voluntary.

                           The case at bar differs from Myers with respect to the defendants' levels of

                 consciousness. Appellee was awake and responsive during his interaction with Officer Shead,

                 unlike the defendant in Myers. However, Appellee suffered visible head trauma from the car

                 crash. During his meeting with Officer Shead, the record demonstrates Appellee, like Myers,

                 was unable to understand the standard informed consent warnings or give a knowing and

                 voluntary consent. N.T. 9/30/15 at 27. Therefore, Appellee did not legally consent to the taking

                 of his blood.

                           The circumstances the court relied on in Smith are not present in this case. Appellee's

                 health was drastically affected by the car accident. Due to bis incapacity, he did not have the

                 requisite knowledge of the right to refuse nor the understanding that the chemical test was to

                 examine his blood for the presence of alcohol. The medical evidence accepted by the

                 suppression court is dispositive. That court found that Appellee suffered head trauma from the

                 crash. The police officers and medical personnel testified that he had lacerations on his head and

                 visibly constricted pupils. N.T. 8/13/15 at 29-30. Appellee was unable to sit up or review the

                 consent forms, which Officer Shead had to hold in front of Appellee's face. His disoriented state

                 is further demonstrated by his inability to correctly sign the implied consent forms. He initialed

                 one consent form on the date line and made a marking on the second form. He did not respond

                 to Officer Shead when read his rights. N.T. 9/30/15 at 27-28.




                                                                                 6
lo·_,   ,, ..   ~----.......,      .. ~·.   - .   ·~·      - .. :.J·       ---· - ···-·   •••. :---~-···~   - •.   4·--···---·--   '-   .. -·-·~   .,   ·-·--   ·~·--------   .   .   -------·-·
                                                                                                                                                                                             --·--




                                     Given these facts, it is apparent Appellee's head trauma and related injuries impaired his

                         ability to comprehend the risks involved with a chemical test. Appellee did not knowingly and

                         voluntarily submit to a chemical test. Furthermore, there is no indication that the officers could

                         not have obtained a warrant before drawing Appellee's blood. There was ample time for them to

                         secure a valid warrant during traditional business hours. In addition, the United States Supreme

                         Court has held the natural dissipation of alcohol in the bloodstream does not present an exigent

                         circumstance in a drunk-driving investigation to render a warrantless search valid. See Missouri

                         v. McNeely, 133 S.Ct. 1552, 1568 (2013). Therefore, there is no exception to render the

                         warrantless seizure of Appellee's blood permissible.?

                         CONCLUSION

                                     In light of the applicable statutes, testimony, and case law, this Court did not err in

                         affirming the Municipal Court suppression ruling. Accordingly, this Court's decision should be

                         affirmed.




                                                                                                                                                                     BY THE COURT:




                                                                                                                                                            MICHAEL E. ERDOS, J.



                         DATE: October
                                                        '".._" s       , 2016




                          2   Again, even had Appellee given consent, it would have been vitiated under Birchfield.

                                                                                                                     7
