J-A27027-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellee                 :
                                               :
               v.                              :
                                               :
    ASHLEY RENE STEVENSON                      :
                                               :
                      Appellant                :   No. 685 WDA 2017


              Appeal from the Judgment of Sentence April 13, 2017
    In the Court of Common Pleas of Mercer County Criminal Division at No(s):
                            CP-43-CR-0001428-2016


BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY SHOGAN, J.:                             FILED FEBRUARY 9, 2018

        Ashley Rene Stevenson (“Appellant”) appeals from the judgment of

sentence following her conviction for Second Offense Driving Under the

Influence (“DUI”) (highest rate).1 We affirm.

        Before we address the merits of Appellant’s appeal, we first consider

the ramifications of her failure to file a statement or errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b). Although Appellant failed to file her

1925(b) Statement, she brought an unstamped copy of it to the post-appeal

conference on June 9, 2017.               Appellant, however, failed to file that

Statement as there is no docket entry memorializing the filing of the

Statement and there is no such Statement in the record. Despite Appellant’s
____________________________________________


1    75 Pa.C.S. § 3802(c).
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failure to file a Statement, it appears Appellant served a copy of the

Statement on the trial court, as that court authored an opinion addressing

the two issues raised therein.

      Failure   to   file   a   Rule   1925(b)   Statement   constitutes   per   se

ineffectiveness of counsel.      See Commonwealth v. Scott, 952 A.2d 1190,

1192 (Pa. Super. 2008). Pursuant to Pa.R.A.P. 1925(c)(3), “If an appellant

in a criminal case was ordered to file a Statement and failed to do so, such

that the appellate court is convinced that counsel has been per se

ineffective, the appellate court shall remand for the filing of a Statement

nunc pro tunc and for the preparation and filing of an opinion by the judge.”

On October 12, 2017, in the interest of judicial economy and not to forestall

further delay in the disposition of the appeal, this Court ordered Appellant to

file the outstanding Rule 1925(b) Statement within five days of the date of

the order. Order, 10/12/17. Appellant complied, and we will now address

the merits of the appeal.

      We summarize the history of this case as follows. Officer Matthew Ran

of the Grove City Police Department stopped Appellant on August 2, 2016 at

approximately 1:40 a.m.         Notes of Testimony (“N.T.”) (Omnibus hearing)

2/8/17, at 4. Officer Ran followed Appellant for more than one mile but less

than two miles prior to stopping her. Id. at 11. In that time, he witnessed

Appellant driving in the center of an unlined roadway. Id. at 5. He further

observed her make several jerking corrective motions on a lined road and


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observed Appellant cross over the center yellow line three times. Id. at 8–

9.

       Following field sobriety tests, Appellant was arrested, and Officer Ran

transported her to the Grove City Medical Center and read her the revised

version of the DL-26 Form (“revised DL-26 Form”)2.               N.T. (Omnibus

Hearing), 2/8/17, at 13.         The revised DL-26 Form includes the following

language:

       It is my duty as a police officer to inform you of the following:
       You are under arrest for driving under the influence of alcohol or
       a controlled substance in violation of Section 3802 of the Vehicle
       Code. I’m requesting that you submit to a chemical test of
       blood. If you refuse to submit to the blood test, your operating
       privilege will be suspended for at least 12 months. If you
       previously refused a chemical test or were previously convicted
       of driving under the influence you will be suspended for up to 18
       months. You have no right to speak to an attorney or anyone
       else before you decide whether to submit to testing. If you
       request to speak with an attorney or anyone else after being
       provided these warnings, or if you remain silent when asked to
       submit to a blood test, you will have refused the test.

N.T. (Omnibus Hearing), 2/8/17, at 13.           Officer Ran did not provide any

other information regarding the ramifications of taking or refusing the blood

test to Appellant. Id. at 21.        Appellant signed the revised DL-26 Form and


____________________________________________


2    The revised DL-26 Form, “Chemical Testing Warnings and Report of
Refusal to Submit to a Blood Test as Authorized Section 1457. . .” is known
as the Implied Consent Form and informs the arrestee of the penalties to
which they could be subjected if they refuse to consent to a blood draw
following arrest for DUI. See, e.g., Penndot v. Weaver, 912 A.2d 259,
261 (Pa. 2006)



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consented to the blood draw. Id. at 15. Her blood alcohol level was .246

percent. Appellant’s Brief at 12.

       Prior to trial, Appellant filed an omnibus pretrial motion in which she

sought to suppress all evidence from the traffic stop because Officer Ran

lacked probable cause to stop Appellant’s vehicle. Appellant also moved to

suppress the warrantless blood draw because she alleged it violated her

rights under Article 1, Section 8 of the Pennsylvania Constitution and the

Fourth Amendment of the United States Constitution.       She further argued

the warrantless blood draw was a violation of the United States Supreme

Court’s holding in Birchfield v. North Dakota, 136 S.Ct. 1535 (2016).3

Finding the traffic stop was proper and Appellant’s consent was valid, the

trial court denied Appellant’s motion.

       On April 13, 2017, following a bench trial, the trial court found

Appellant guilty of DUI, highest rate of alcohol.   The trial court sentenced

Appellant to ninety days to two years of incarceration and a mandatory fine

of $1,500.00.

       On appeal, Appellant presents two questions for our review:

____________________________________________


3   In her omnibus pretrial motion, Appellant dedicated a single line to
discussing Birchfield: “The Grove City Police failed to obtain a Search
Warrant for the blood test in violation of the United States Supreme Court
decision in Birchfield v. North Dakota, 136 S.Ct. 1535 (2016).”
Appellant’s Omnibus Pretrial Motion, 12/27/16, at 2 (unnumbered).
Appellant did not provide any analysis of the manner in which Birchfield
was relevant or controlling in her case.



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      1. Did the court employ the wrong standard and err in finding
         the stop and seizure of [Appellant’s] vehicle properly [sic]?

      2. Does the newly revised DL-26 Form correct the statutory
         sentencing scheme to confirm [sic] with Birchfield?

Appellant’s Brief at 7.

      In support of her first issue, Appellant argues that the trial court erred

when it found her traffic stop was lawful and denied her motion to suppress

the evidence arising therefrom.     Appellant’s Brief at 13. Our standard of

review of the denial of a motion to suppress is well established:

      [Our] standard of review 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, [the appellate court is] bound by
      [those] 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 courts below are subject to
      plenary review.

Commonwealth v. Randolph, 151 A.3d 170, 175 (Pa. Super. 2016)

(quoting Commonwealth v. Jones, 988 A.2d 649, 954 (Pa. 2010)).

      In support of her appeal, Appellant alleges that the trial court erred in

applying the reasonable suspicion standard to the stop and argues that the

trial court should have required the police officer to articulate probable cause


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for the traffic stop. Appellant’s Brief at 13–14. (citing Commonwealth v.

Feczko, 10 A.3d 1285 (Pa. Super. 2010)).       Specifically, Appellant argues

that was she stopped for a violation of 75 Pa.C.S. § 3301, Driving on Right

Side of Roadway, a traffic offense which required a showing of probable

cause, not reasonable suspicion.   Appellant is correct in that a showing of

probable cause would be required if she were stopped for a violation of 75

Pa.C.S. § 3301.   See Commonwealth v. Enick, 70 A.3d 843, 846 (Pa.

Super. 2013) (“Where a vehicle stop has no investigatory purpose, the

police officer must have probable cause to support it”). The record in this

case, however, makes clear that Officer Ran stopped Appellant because,

after observing her erratic driving, he suspected she was driving under the

influence.

      Indeed, at the hearing, Officer Ran testified “[W]ith the amount of

things that I observed with the vehicle in motion, I thought I had a pretty

reasonable suspicion that this might be a case of driving under the

influence.” N.T. (Omnibus hearing), 2/8/17, at 10–11. Under Pennsylvania

law, “Stops based on reasonable suspicion are allowed for a stated

investigatory purpose: ‘to secure such other information as the officer may

reasonably believe to be necessary to enforce the provisions of this title.’”

Commonwealth v. Chase, 960 A.2d 108, 116 (Pa. 2008) (quoting 75

Pa.C.S. § 6308(b)).   See Feczko, 10 A.3d at 1289–1290 (discussing the

difference between an investigative stop for suspected DUI, which requires


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 reasonable suspicion, versus other violations of the motor vehicle code,

 which require probable cause).           Officer Ran specifically testified that he

 stopped Appellant because he suspected she was driving under the influence

 after he witnessed her driving in the center of the roadway, drifting near the

 curb or the center yellow line, and jerking back to the center of the lane

 numerous times. N.T. (Omnibus hearing), 2/8/17, 4–11.

        As the trial court correctly stated in its opinion, “The investigable

offense allowing for the standard of reasonable suspicion was the offense of

driving under the influence.” Trial Court Opinion, 7/7/17, at 1. Reasonable

suspicion was the proper standard, and the trial court did not err in applying

it. 4

        In support of her second issue, Appellant asserts that the trial court

should have suppressed the results of her blood test because the revised DL-

26 Form is “[d]eceitful and [m]isrepresentative of the [l]aw.”           Appellant’s

Brief at 16. Specifically, Appellant argues the revised DL-26 Form runs afoul

of both Pennsylvania law and Birchfield, 136 S.Ct. 2160. Appellant’s Brief

at 15. We disagree.


 ____________________________________________


 4   Appellant’s reliance on Commonwealth v. Enick, 70 A.3d 843 (Pa.
 Super. 2013), which she alleges stands for the proposition that a single
 minor traffic violation may be insufficient to establish probable cause for a
 traffic stop, is inapposite. Appellant herein stopped because the arresting
 officer witnessed her driving erratically and suspected she was driving while
 intoxicated, not because she committed a specific traffic violation.



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      Commonwealth v. Smith, __ A.3d __, 2017 PA Super 416 (Pa.

Super. 2017) is directly on point.       Therein, this Court discussed the

admissibility of a blood test result when consent was obtained using the

revised DL-26 Form, post Birchfield. As in the present case, the appellant

was stopped for suspicion of DUI, arrested, and taken to a hospital for a

blood alcohol test.   Id. at *3.   The appellant was read the revised DL-26

Form and consented to the blood test, the results of which showed that her

blood alcohol level was over the legal limit.   Id.   The appellant sought to

have the results of the blood draw suppressed, alleging that the warrantless

seizure of her blood ran afoul of Birchfield and the Pennsylvania and United

States Constitutions. Id.

      On appeal, the appellant in Smith raised virtually identical claims to

those raised by Appellant in this case, and this Court provided the following

analysis in addressing those claims:

      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 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


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     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).

     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.

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           § 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 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 [the 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 [the
     appellant] that her driver’s license would be suspended if she
     refused blood testing. [The 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 DL–26 form.            Thereafter, [the
     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 [the appellant’s] suppression motion that
     vaguely cited to Birchfield.

Commonwealth v. Smith, 2017 PA Super 416, at *4–*6 (footnote

omitted). The reasoning in Smith is sound and compels a similar result in

this case. Indeed, in the instant case the Appellant was read the revised DL-

26 Form and was informed that she was subject to the civil penalty of


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license suspension if she refused to consent. She was not informed that she

would be subject to additional jail time or any other sort of criminal

enhancement. Thus, we find that the trial court did not err when it denied

Appellant’s motion to suppress.

      Finally, Appellant argues throughout her brief that because the

Pennsylvania legislature had not amended the statutory provisions that allow

for enhanced criminal penalties for failure to refuse a blood test, Appellant

remained subject to enhanced criminal penalties if she refused the blood test.

Appellant’s Brief at 21.   Appellant contends that “her consent to the blood

test was based upon misrepresentation and deceit in the [revised] DL-26

[F]orm tantamount to implied coercion, in that she submitted to the

warrantless blood test only on pain of enhanced criminal penalties.” Id. at

20. Because Appellant had a previous DUI, she claims she was aware of the

enhanced criminal penalties and asserts that “all motorists are presumed to

know the law.” Id. at 19–20.

      Appellant’s argument lacks merit.       As the trial court correctly found,

the revised DL-26 Form is a correct statement of the law following the

decision of the Supreme Court of the United States in Birchfield. Trial Court

Opinion, 7/7/17, at 1–2.     The revised DL-26 Form does not warn of any

enhanced criminal penalties for refusal to consent to a blood test because

Birchfield declared such enhancement unconstitutional.        See Smith, 2017

PA Super. 416, at *6. (“To reiterate, the decision in Birchfield, which was


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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.”).

       Indeed, it is well established that when a statute is deemed

unconstitutional, it is ineffective for any purpose and “it is as if it were never

enacted.” Glen-Gery Corp. v. Zoning Hearing Bd. Of Dover Tp., 907 A.2d

1033, 1043 (Pa. 2006).       See also Commonwealth v. Giron, 155 A.3d 635,

637 (Pa. Super. 2017) (“In this case, we hold that, pursuant to Birchfield v.

North Dakota, a defendant who refuses to provide a blood sample when

requested by police is not subject to the enhanced penalties provided in 75

Pa.C.S. § 3803-3804”) (citation omitted); Commonwealth v. Evans, 153

A.3d 323, 331 (Pa. Super. 2016) (finding that police officer’s warning that

the appellant could be subject to criminal penalties for refusing to consent to

a blood draw was an incorrect statement of the law after the United States

Supreme Court handed down Birchfield); Fornwalt v. Follmer, 616 A.2d

1040, 1042 (Pa. Super. 1992) (finding that where the Supreme Court of

Pennsylvania held a portion of a statute unconstitutional, that portion is a

nullity.).   Thus, the language contained in the revised DL-26 Form was a

correct statement of the law when Officer Ran read it to Appellant.




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       The revised DL-26 Form correctly reflects the law in accordance with

Birchfield.5 In the instant case, Officer Ran properly informed Appellant of

the civil penalties to which she would be subject, namely the suspension of

her license, if she refused the blood draw and Appellant consented. The trial

court did not err in denying Appellant’s motion to suppress the results of her

blood alcohol test.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/9/2018




____________________________________________


5 We further note that if Officer Ran had improperly warned Appellant of
enhanced criminal penalties after Birchfield was handed down, that would
have constituted an incorrect statement of the law, which could have
rendered her consent invalid. See Commonwealth v. Evans, 153 A.3d 323
(Pa. Super. 2016).



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