J-A11020-19

                                2020 PA Super 188

                                           :   IN THE SUPERIOR COURT OF
 COMMONWEALTH OF PENNSYLVANIA              :        PENNSYLVANIA
                                           :
                                           :
                                           :
              v.                           :
                                           :
                                           :
 AKIM SHARIF JONES-WILLIAMS                :   No. 1428 MDA 2017

                    Appellant

            Appeal from the Judgment of Sentence April 5, 2017
  In the Court of Common Pleas of York County Criminal Division at No(s):
                         CP-67-CR-0002824-2015


BEFORE: BOWES, J., OLSON, J., and STABILE, J.

OPINION BY OLSON, J.:                               FILED AUGUST 11, 2020

      Appellant, Akim Sharif Jones-Williams, appeals from the judgment of

sentence entered on April 5, 2017, as made final by the denial of his

post-sentence motion on September 11, 2017, following his jury and bench

trial convictions for various crimes arising from a motor vehicle accident. After

careful review, we vacate Appellant’s judgment of sentence, reverse the order

denying suppression, and remand for a new trial.

      The facts and procedural history of this case are as follows. On July 5,

2014, Appellant was driving a red 2014 Mitsubishi Outlander accompanied by

his fiancé, Cori Sisti, and their daughter, S.J. At approximately 4:42 p.m.,

Appellant’s vehicle collided with a train at Slonnekers Landing, near the 1100

block of Cly Road, York Haven, Pennsylvania.

      Officer Michael Briar and two paramedics, Leslie Garner and Lisa

Gottschall, were first to arrive at the scene. Upon arrival, they found Appellant
J-A11020-19



outside of the vehicle, but Sisti and S.J. still inside. Garner and Gottschall

immediately began treating Appellant, while Officer Briar attempted to assist

Sisti and S.J.    Ultimately, emergency personnel declared Sisti dead at the

scene, but transported Appellant and S.J. to the hospital for medical

treatment.1 Subsequently, various individuals informed the officer in charge,

Lieutenant Steven Lutz, that they detected an odor of burnt marijuana

emanating from Appellant. Therefore, at approximately 6:00 p.m., Lieutenant

Lutz directed Sergeant Keith Farren to go to the hospital to interview Appellant

and obtain a blood sample.

        When Sergeant Farren arrived at York Hospital, he discovered Appellant

lying in a hospital bed, restrained, and fading in and out of consciousness. As

such, Sergeant Farren could not interview Appellant or request that he consent

to a blood draw.        Later, however, Sergeant Farren learned that hospital

personnel drew Appellant’s blood at 5:56 p.m., before his arrival.2        This

prompted Sergeant Farren to request that the hospital’s laboratory transfer

Appellant’s blood sample to National Medical Services (“NMS”) laboratory for

testing to determine the presence of alcohol or controlled substances.

Sergeant Farren filled out the requisite forms at 7:30 p.m. He did not obtain

a warrant prior to submitting the request to test Appellant’s blood sample.

____________________________________________


1   S.J. survived the injuries she sustained in the accident.

2 The record does not establish why hospital personnel collected a blood
sample from Appellant.    It is clear, however, that hospital personnel
performed the blood draw before receiving a request from Sergeant Farren.

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The hospital laboratory transferred Appellant’s blood sample on July 8, 2014

(three days after the collision) and NMS laboratory issued its toxicology report

analyzing Appellant’s blood sample on July 15, 2014. The results revealed

that Appellant’s blood contained Delta-9 THC, the active ingredient in

marijuana, at a concentration of 1.8 ng/ml and Delta-9 Carboxy THC, a

marijuana metabolite, at 15 ng/ml.

      Thereafter, on June 9, 2015, the Commonwealth filed a bill of

information against Appellant.      Specifically, the Commonwealth charged

Appellant with one count each of the following offenses: homicide by vehicle

while driving under the influence (“DUI”); homicide by vehicle; endangering

the welfare of a child (“EWOC”); recklessly endangering another person

(“REAP”);    DUI:   controlled   substance   –   schedule    I;   DUI:   controlled

substance - schedule I, II, or III; DUI: general impairment; careless driving;

careless driving – unintentional death; aggravated assault while DUI; and

aggravated assault by vehicle.        Bill of Information, 6/9/15, at *1-3

(un-paginated).

      On October 26, 2015, Appellant filed an omnibus pre-trial motion. In

his motion, Appellant moved to suppress the blood test results obtained by

police.     Appellant’s   Omnibus   Pre-Trial    Motion,    10/26/15,    at   *1-14

(un-paginated). Appellant argued that the police violated his constitutional

rights by requesting to test his blood sample without a warrant. Id. at *9-14

(un-paginated); see also Appellant’s Brief in Support of Omnibus Pre-Trial

Motion, 1/29/16, at 29-39. Appellant also asserted that, notwithstanding the

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statutory provisions set forth at 75 Pa.C.S.A. § 3755(a) (Reports by

Emergency Room Personnel), if the police “can obtain a warrant . . . without

affecting the efficacy of the investigation,” the Fourth Amendment of the

United States’ Constitution and Article I, Section 8 of Pennsylvania’s

Constitution require them to do so.            Appellant’s Omnibus Pre-Trial Motion,

10/26/15, at *11 (un-paginated).

        The trial court held a suppression hearing on December 21, 2015, and

subsequently denied Appellant’s motion to suppress on April 27, 2016. Trial

Court Order, 4/27/16, at 1. In doing so, the trial court held that Appellant’s

blood test results were admissible because exigent circumstances existed and,

as such, the warrantless search did not violate Appellant’s constitutional

rights. Trial Court Opinion, 4/27/16, at 7-11.

        Appellant’s jury trial commenced January 9, 2017. The Commonwealth

admitted at trial the report documenting the presence of Delta-9 THC and

Delta-9 Carboxy THC in Appellant’s bloodstream. N.T. Trial, 1/10/17, at 261.

On January 13, 2017, Appellant was found guilty of homicide by vehicle while

DUI,3     homicide      by     vehicle,4       EWOC,5    REAP,6   DUI:    controlled
____________________________________________


3   75 Pa.C.S.A. § 3735(a).

4   75 Pa.C.S.A. § 3732(a).

5   18 Pa.C.S.A. § 4304(a)(1).

6   18 Pa.C.S.A. § 2705.




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substance - schedule 1,7 DUI: controlled substance – metabolite,8 aggravated

assault while DUI,9 aggravated assault by vehicle,10 and careless driving.11

On April 5, 2017, the trial court sentenced Appellant to four to eight years’

imprisonment followed by 12 months’ probation.

        “On April 17, 2017, Appellant filed a post-sentence motion alleging that

the trial court erred in denying suppression of Appellant’s blood test results

and that the trial court erred in finding that the weight of the evidence was

met in [five] of the [nine] counts. [Through oversight, the trial court] granted

the motion on May 10, 2017. On May 19, 2017, the trial court vacated its

[May 10, 2017] order [] and ordered the parties to schedule a hearing [on]

the post-sentence motion. [Thereafter, t]he trial court allowed Appellant to

file a supplemental post-sentence motion on June 21, 2017[, and] held a

hearing on the post-sentence motion on July 25, 2017. The trial court then

denied [Appellant’s] post-sentence motion [by] operation of [] law on

September 11, 2017.” Trial Court Opinion, 4/13/18, at 3.

        On September 14, 2017, Appellant filed a notice of appeal to this Court.

Appellant’s Notice of Appeal, 9/14/17, at 1-2. On October 5, 2017, the trial
____________________________________________


7   75 Pa.C.S.A. § 3802(d)(1)(i).

8   75 Pa.C.S.A. § 3802(d)(1)(iii).

9   75 Pa.C.S.A. § 3735.1(a).

10   75 Pa.C.S.A. § 3732.1(a).

11   75 Pa.C.S.A. § 3714(a).


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J-A11020-19



court entered an order directing Appellant to file a concise statement of

matters complained of on appeal pursuant to Pa.R.A.P. 1925(b)(1).           Trial

Court Order, 10/5/17, at 1. Appellant timely complied.

       The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on April

13, 2018. Trial Court Opinion, 4/13/18, at 1-32. In its Rule 1925(a) opinion,

the trial court stated that it incorrectly determined that exigent circumstances

existed to permit the warrantless search. Id. at 12. In view of its error, the

trial court asked this Court to “suppress Appellant’s blood test results” and

“affirm [Appellant’s convictions for EWOC and REAP] based upon the

circumstantial evidence.” Id. at 32.

       On appeal, Appellant raises the following issues for our review:12

        I.    [Did the trial court err in denying Appellant’s motion to suppress
              when the Commonwealth failed to comply with 75 Pa.C.S.A.
              § 3755(a) of the Motor Vehicle Code?]

       II.    [If the Commonwealth did comply with Section 3755(a)’s
              requirements, did the trial court still err in denying Appellant’s
              motion to suppress because statutory compliance is insufficient to
              overcome the warrant requirement of the Fourth Amendment of
              the United States Constitution or Article I, Section 8 of the
              Pennsylvania Constitution in light of the recent decisions in
              Birchfield v. North Dakota, 136 S.Ct. 2160 (2016), Missouri
              v. McNeely, 569 U.S. 141 (2013), Commonwealth v. Myers,
              164 A.3d 1162 (Pa. 2017), and Commonwealth v. March, 172
              A.3d 582 (Pa. 2017)?]

      III.    Did the trial court err in denying [Appellant’s] [m]otion for
              [s]uppression of [e]vidence [when] there were not exigent
              circumstances [and] the police officers could have reasonably
____________________________________________


12 We have altered the order of Appellant’s issues for clarity and ease of
discussion. See Appellant’s Brief at 1-2.

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J-A11020-19


            obtained a search warrant before [requesting the transfer of
            Appellant’s blood sample to NMS laboratory for testing] without
            significantly undermining the efficacy of the search?

      IV.   Did the trial court err in finding that, as a matter of law, the
            Commonwealth provided sufficient evidence to meet its burden of
            proof regarding [the following convictions: homicide by vehicle
            while DUI, aggravated assault by vehicle while DUI, EWOC, and
            REAP?]

       V.   Did the trial court abuse its discretion in denying [Appellant’s]
            [p]ost-[s]entence [m]otion where the jury’s verdict [was against
            the weight of the evidence for the following convictions: homicide
            by vehicle while DUI, aggravated assault by vehicle while DUI,
            EWOC and REAP?]


Appellant’s Brief at 1-2.

      In Appellant’s first three issues, he argues that the trial court erred in

denying his motion to suppress. Appellant’s Brief at 45-58. “Once 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). With respect to an appeal from the denial of a motion to suppress,

this Court has declared:

      An appellate court's 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. Since the prosecution prevailed in the suppression
      court, we may consider only the evidence of the prosecution and
      so much of the evidence for the defense as remains
      un[-]contradicted when read in the context of the record as a
      whole. Where the record supports the factual findings of the trial



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J-A11020-19


      court, we are bound by those facts and may reverse only if the
      legal conclusions drawn therefrom are in error.

      Commonwealth v. Stevenson, 894 A.2d 759, 769 (Pa. Super.
      2006) (citation omitted). Although we are bound by the factual
      and the credibility determinations of the trial court which have
      support in the record, we review any legal conclusions de novo.
      Commonwealth v. George, 878 A.2d 881, 883 (Pa. Super.
      2005), appeal denied, [] 891 A.2d 730 (Pa. 2005).

Commonwealth v. Wells, 916 A.2d 1192, 1194–1195 (Pa. Super. 2007)

(parallel citations omitted).

      First, Appellant argues that the trial court erred in denying his motion

to suppress because the Commonwealth did not comply with the requirements

of 75 Pa.C.S.A. § 3755(a) of the Motor Vehicle Code when Sergeant Farren

requested chemical testing of Appellant’s blood. Relying solely on this Court’s

decision in Commonwealth v. Shaffer, 714 A.2d 1035 (Pa. Super. 1999),

Appellant claims that a valid blood draw occurs pursuant to Section 3755(a)

only when hospital personnel make a probable cause determination that a

driver was DUI.     Here, Appellant argues that the Commonwealth did not

adhere to Section 3755(a)’s requirements because it did not show that, at the

time hospital personnel drew Appellant’s blood, they “made an independent

finding of probable case” or that they were “privy to any determinations of

probable cause made by any of the police officers.” Appellant’s Brief at 55.

Thus, Appellant argues that the Commonwealth failed to demonstrate

compliance with Section 3755(a). We disagree.

      Section 3755(a) of the Motor Vehicle Code reads as follows:

      § 3755. Reports by emergency room personnel

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J-A11020-19


      (a) General rule. --If, as a result of a motor vehicle accident, the
      person who drove, operated or was in actual physical control of
      the movement of any involved motor vehicle requires medical
      treatment in an emergency room of a hospital and if probable
      cause exists to believe a violation of section 3802 (relating to
      driving under influence of alcohol or controlled substance) was
      involved, the emergency room physician or his designee shall
      promptly take blood samples from those persons and transmit
      them within 24 hours for testing to the Department of Health or a
      clinical laboratory licensed and approved by the Department of
      Health and specifically designated for this purpose. This section
      shall be applicable to all injured occupants who were capable of
      motor vehicle operation if the operator or person in actual physical
      control of the movement of the motor vehicle cannot be
      determined. Test results shall be released upon request of the
      person tested, his attorney, his physician or governmental officials
      or agencies.

75 Pa.C.S.A. § 3755(a).     Thus, pursuant to the language of the statute,

governmental officials may obtain an individual’s blood test results if, after a

motor vehicle accident, the driver requires emergency medical treatment and

there is probable cause to believe that a DUI violation occurred.

      Setting aside, for a moment, the issue of whether statutory compliance,

by itself, continues to support an independent basis for obtaining blood test

results without a warrant and consistent with constitutional concerns, we

conclude that the Commonwealth, in this case, proved adherence with the

requirements of Section 3755(a). In Commonwealth v. Riedel, 651 A.2d

135, 139 (Pa. 1994), the appellant was involved in a single vehicle accident

and sustained injuries.   Id. at 137.    Subsequently, emergency personnel

arrived and began treating the appellant in an ambulance. Id. A Pennsylvania

State Trooper later arrived and observed that the appellant exhibited signs of



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J-A11020-19



intoxication.    Id.   As such, the trooper followed medical personnel to the

hospital to request a blood draw from the appellant for chemical analysis. Id.

The trooper, however, learned that medical personnel already drew the

appellant’s blood for medical purposes and, as such, did not request a blood

draw. Id. The trooper later wrote to the hospital requesting the results of

the appellant’s blood test. Id. “Based on this information, [the] appellant

was charged with [DUI], 75 Pa.C.S.[A.] §§ 3731(a)(1) and (a)(4), [and later]

convicted in a non-jury trial.” Id.    After this Court affirmed the appellant’s

judgment    of    sentence,   he   appealed    to   our   Supreme   Court.   See

Commonwealth v. Riedel, 620 A.2d 541 (Pa. Super. 1992) (unpublished

memorandum).

      On appeal, the appellant argued that “the police violated his Fourth

Amendment rights against unreasonable searches and seizures when, in the

absence of exigent circumstances, they obtained the results of his medical

purposes blood test without a warrant.” Riedel, supra at 137. In response,

the Commonwealth argued that the trooper properly obtained the appellant’s

blood test results because he complied with Section 3755(a).          Id. at 139.

Agreeing with the Commonwealth, our Supreme Court in Riedel explained

that the facts established that the appellant was in a motor vehicle accident,

was transported to the hospital for emergency medical treatment, and that

the officer had probable cause to believe he was DUI. Id. at 140. Accordingly,

the Court concluded that, even though the officer “chose to wait[] and obtain




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J-A11020-19



[the] appellant's test results by mailing a request to the director of the

hospital's laboratory,” he still complied with the terms of Section 3755(a). Id.

        This Court reached a similar conclusion in Commonwealth v. Keller,

823 A.2d 1004 (Pa. Super. 2003).       Like Riedel, Keller involved a motor

vehicle accident, emergency medical treatment, and the existence of probable

cause to believe that the appellant was DUI. As such, an officer went to the

hospital where the appellant was transported and “filled out a Toxicology

Request form.” Id. at 1007. The hospital then “mailed a report of the blood

test results to the State Police.” Id. Prior to trial, the appellant moved to

suppress his blood test results and the trial court granted suppression. Id. at

1008.

        On appeal, the Commonwealth argued that the trial court erred in

suppressing the appellant’s blood test results. Id. This Court agreed. In

reaching this conclusion, we noted that the “police officer specifically

requested that a BAC test be performed at [the hospital]” and the appellant

“never disputed that [the trooper] had probable cause to believe that [he] was

[operating a motor vehicle under the influence] of alcohol.” Id. at 1010. As

such, this Court concluded that hospital personnel “were required to withdraw

blood from [the appellant] and release the test results” pursuant to Section

3755(a).     Id.   Accordingly, per Riedel and Keller, the Commonwealth

demonstrates compliance with Section 3755(a) if, following a motor vehicle

accident, a driver seeks emergency medical treatment, an officer has probable

cause to believe that the driver operated his or her vehicle under the influence

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J-A11020-19



of alcohol or a controlled substance, and the officer subsequently requests the

driver’s blood test results from the hospital.

       The facts of the instant case are nearly identical to both Riedel and

Keller. Indeed, after Appellant’s vehicle collided with the train, emergency

personnel transported Appellant to the hospital for emergency medical

treatment, during which, the hospital extracted a sample of Appellant’s blood.

Following Appellant’s transport, the officers at the scene of the accident

developed probable cause to believe that Appellant was DUI after multiple

emergency personnel who responded to the accident reported to Lieutenant

Lutz that they detected an odor of marijuana about Appellant’s person.

Thereafter, at the request of Lieutenant Lutz, Sergeant Farren responded to

the hospital and requested Appellant’s blood test results.13 Based upon the

foregoing, we conclude that the Commonwealth complied with Section

3755(a).

       Appellant’s position, which asserts that there was non-compliance with

Section 3755(a) because hospital personnel lacked probable cause, is

unavailing because he recognizes only one of the possible ways the

____________________________________________


13The procedure followed by law enforcement personnel complied with Section
3755(a) even though the hospital extracted Appellant’s blood sample prior to
Sergeant Farren’s request. See Commonwealth v. Seibert, 799 A.2d 54,
64 (Pa. Super. 2002) (explaining that an “officer is entitled to the release of
[chemical] test results” if “an officer determines there is probable cause to
believe a person operated a motor vehicle under the influence . . . and
requests that hospital personnel withdraw blood” regardless of the fact that
“medical staff previously drew the blood and a request by the police . . . came
after the blood was drawn.”)

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J-A11020-19



Commonwealth may adhere to Section 3755(a) in seeking blood test results

for an individual who requires emergency medical treatment following a motor

vehicle accident. Indeed, our Supreme Court previously recognized at least

two pathways for achieving compliance with Section 3755(a):

       Section 3755(a) is, to say the least, inartfully drafted. For some
       vague and curious reason, the legislature has required a probable
       cause determination without specifying who is to make such
       determination, or how such an abstract requirement is to be met.
       The request of a police officer, based on probable cause to believe
       a violation of Section 3731, would seem to satisfy the probable
       cause requirement and therefore mandate that hospital personnel
       conduct BAC testing. Likewise, a determination by hospital
       personnel familiar with Section 3755(a), that probable cause
       existed to believe that a person requiring treatment had violated
       Section 3731, would also seem to mandate that hospital personnel
       conduct BAC testing.

Commonwealth v. Shaw, 770 A.2d 295, 299 n.3 (Pa. 2001).14 Herein, the

officers had probable cause to believe that Appellant was DUI when they asked

the hospital to conduct chemical testing. As we have stated, this is sufficient

to show that the Commonwealth complied with the requirements of Section

3755(a).

       Next, Appellant argues that, even if the Commonwealth established

compliance with Section 3755(a), the trial court erred in denying his motion

to suppress because Section 3755(a) is unconstitutional. Upon review, we

____________________________________________


14 Based upon this language, it would appear that either law enforcement
officers or hospital personnel may make the probable cause determination.
Thus, the key inquiry is whether the individual who requested chemical testing
did, in fact, have probable cause to believe that the individual who operated
the vehicle was under the influence of alcohol or a controlled substance.

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conclude that, in light of the United States Supreme Court’s decision in

Birchfield, supra, and our Supreme Court’s decision in Myers, supra,

Section 3755(a) and its counterpart, Section 1547(a), no longer serve as

independent exceptions to the warrant requirement. As such, the search of

Appellant’s blood test results violated the Fourth Amendment of the United

States Constitution and Article I, Section 8 of the Pennsylvania Constitution.

      The Fourth Amendment and Article I, Section 8 prohibit unreasonable

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

Super. 2012).      “A search conducted without a warrant is deemed to be

unreasonable      and    therefore   constitutionally   impermissible,   unless   an

established exception applies.” Commonwealth v. Strickler, 757 A.2d 884,

888 (Pa. 2000).         Established exceptions include actual consent, implied

consent, search incident to lawful arrest, and exigent circumstances.

Commonwealth v. Livingstone, 174 A.3d 609, 625 (Pa. 2017) (citation

omitted).

      At issue in the present case is the implied consent scheme set forth in

Sections 1547 and 3755 of the Motor Vehicle Code. Previously, Pennsylvania

courts concluded that the aforementioned statutes obviated “the need to

obtain a warrant in DUI cases.” March, supra at 808; see Riedel, supra at

143; Keller, supra at 1009; Commonwealth v. Barton, 690 A.2d 293, 296

(Pa. Super. 1997).       Indeed, both this Court and our Supreme Court have

explained that,




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J-A11020-19


      “[t]ogether, [S]ections 1547 and 3755 comprise a statutory
      scheme which, under particular circumstances, not only imply the
      consent of a driver to undergo chemical or blood tests, but also
      require hospital personnel to withdraw blood from a person, and
      release the test results, at the request of a police officer who has
      probable cause to believe the person was operating a vehicle while
      under the influence.

Barton, supra at 296, citing Riedel, supra at 180.             Thus, our courts

previously held that compliance with the aforementioned statutory scheme

independently negated the need to obtain a warrant because a “driver's

implied consent under the statute satisfie[d] the consent exception to the

warrant requirement.”     March, supra at 808.       In recent years, however,

Pennsylvania’s so-called implied consent scheme has undergone judicial

scrutiny, especially in the wake of decisions by the United States Supreme

Court and the Pennsylvania Supreme Court that suggest that consent, as an

exception to the warrant requirement, can only be inferred consistent with

constitutional imperatives where it is voluntarily given under the totality of the

circumstances.

      We begin by looking at Section 1547 of the Motor Vehicle Code, which

our Supreme Court recently examined, and which states, in relevant part, as

follows:

      § 1547. Chemical testing to determine amount of alcohol or
      controlled substance

      (a) General rule. —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, blood or urine 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

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      believe the person to have been driving, operating or in actual
      physical control of the movement of a vehicle:

         (1) in violation of section 1543(b)(1.1) (relating to driving
         while operating privilege is suspended or revoked), 3802
         (relating to driving under influence of alcohol or controlled
         substance) or 3808(a)(2) (relating to illegally operating a
         motor vehicle not equipped with ignition interlock)[.]

75 Pa.C.S.A. § 1547(a)(1).

      Until our Supreme Court’s decision in Myers, supra “[t]he [i]mplied

[c]onsent [l]aw, 75 Pa.C.S.[A.] § 1547(a), assume[d] acquiescence to blood

testing ‘absent an affirmative showing of the subject's refusal to consent to

the test at the time that the testing is administered.’” Riedel, supra at 141,

citing Commonwealth v. Eisenhart, 611 A.2d 681, 683 (Pa. 1992). This

view seems to have emerged from the language of Section 1547(b), which

was said to “grant[] an explicit right to a driver who is under arrest for [DUI]

to refuse to consent to chemical testing.” Riedel, supra at 141. Section

1547(b) states, in pertinent part:

      (b) Suspension for refusal.—

      (1) 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[.]

75 Pa.C.S.A. §1547(b)(1).     Pennsylvania courts interpreting this provision

traditionally limited the right to refuse blood testing to those individuals who

were both conscious and under arrest for a violation of Section 3802.

      Our Supreme Court addressed this issue in Eisenhart, supra.            In

Eisenhart, after a “vehicle crashed into the cement wall of a residence,” a

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police officer arrived and observed that the appellant, Eisenhart, displayed

signs of intoxication, including pupil dilation, difficulty maintaining balance,

and a general dazed demeanor.       Id. at 681- 682. Eisenhart also failed two

field sobriety tests. Id. at 682. As such, the officer placed him under arrest.

Id. While the officer transported Eisenhart to the hospital for a blood test, he

“alternatively agreed and refused to submit to a blood test.”      Id. “At the

hospital, [Eisenhart] refused to consent to a blood alcohol test.”          Id.

Nonetheless, hospital personnel conducted a blood test, which revealed an

alcohol level over the legal limit. Id.

      The Commonwealth ultimately charged Eisenhart with various crimes,

including DUI. Id. Thereafter, Eisenhart attempted to suppress the blood

test results. He argued “that once the operator of a vehicle refuses to submit

to a blood test . . . 75 Pa.C.S.[A.] § 1547[] prohibits the testing of blood for

alcohol level and the subsequent evidentiary use of such test results.” Id. at

682. Eventually, our Supreme Court granted allocatur to consider “whether

the appellant has the right to refuse to submit to blood alcohol testing under

the Motor Vehicle Code.” Id.

      Ultimately, the Court concluded that “[t]he statute grants an explicit

right to a driver who is under arrest for [DUI] to refuse to consent to chemical

testing.” Id. at 683 (emphasis added); see also 75 Pa.C.S. § 1547. Notably,

the Court limited its holding to “conscious driver[s].” Id. at 684. Indeed, it

declined to opine on an unconscious driver’s statutory right to refuse consent

and stated that the “conscious driver has the right under 1547(b) to revoke

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that consent and once that is done, ‘the testing shall not be conducted.’” Id.

(citation omitted).

      The Supreme Court later reaffirmed Eisenhart’s holding in Riedel, the

facts of which we explained above. The Riedel Court not only addressed the

Commonwealth’s compliance with Section 3755(a), but also discussed

whether the appellant in Riedel “was denied the right to refuse blood alcohol

testing under 75 Pa.C.S.A. §1547, the [i]mplied [c]onsent [l]aw.”      Riedel,

supra at 138. Indeed, Riedel claimed that he possessed “an absolute right to

refuse testing” and “any other interpretation would result in an impermissible

distinction between drivers under arrest and those, like [Riedel], who are not

requested to consent because they are unconscious or are receiving

emergency medical treatment.” Id. at 141.

      The Supreme Court disagreed. Instead, the Court held that because

Riedel was “not under arrest at the time the blood test was administered[, he

could not] claim the explicitly statutory protection of [S]ection 1547(b).” Id.

Moreover, the Court explained that it would “not reformulate the law to grant

an unconscious driver or [a] driver whose blood was removed for medical

purposes the right to refuse to consent to blood testing” because the “decision

to distinguish between classes of drivers in the implied consent scheme is

within the province of the legislature.” Id. Thus, pursuant to Eisenhart and

Riedel, the implied consent statute found at Section 1547 operated as an

independent exception to the warrant requirement. At this time, however,

the right to refuse consent to a blood draw or chemical testing did not extend

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to unconscious drivers who may have been under suspicion for DUI but who

had not yet been arrested.

      Recently, however, our Supreme Court altered the reading of the

implied consent statute in Myers, supra. In Myers, the Philadelphia Police

responded to a call stating that an individual was “screaming” in a vehicle.

Id. at 1165. An officer arrived at the scene and observed a vehicle matching

the call description with an individual, Myers, in the driver seat.   Id. The

officer pulled up behind the vehicle and activated his siren and emergency

lights. Id. Myers subsequently exited the vehicle and “stagger[ed]” toward

the officer. Id. Myers tried to speak “but his speech was so slurred that [the

officer] could not understand [him].” Id. The officer detected alcohol about

Myers’ person and observed a bottle of brandy in the vehicle’s front seat, as

the driver’s door was open.    Id.   Because the officer believed that Myers

needed medical attention due to his state of inebriation, the officer placed

Myers under arrest and called for a wagon to transport him to the hospital.

Id.

      Thereafter, another Philadelphia police officer arrived at the hospital

where Myers was taken. Id. “A few minutes before [the officer] arrived,

however, the hospital staff administered four milligrams of Haldol” to Myers,

rendering him unconscious. Id. As such, Myers was unresponsive when the

officer attempted to communicate with him. Id. Nonetheless, the officer read




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the O’Connell15 warnings to Myers, who did not respond, and then directed a

nurse to draw Myers’s blood. Id. The officer did not have a warrant. Id.

The Commonwealth later charged Myers with DUI.              Myers then moved to

suppress his blood test results, which the trial court subsequently granted.

The Commonwealth appealed.

       After agreeing to review the case, our Supreme Court first addressed

whether an unconscious arrestee possesses the statutory right to refuse blood

testing pursuant to Section 1547(b) of the Motor Vehicle Code. Ultimately,

the Court explained that “the statute [contains] unambiguous language [that]

indicates that the right of refusal applies without regard to the motorist’s state
____________________________________________


15 The O'Connell warnings were first pronounced 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 v. Arizona, 384 U.S. 436 (1966)] rights.

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




                                          - 20 -
J-A11020-19



of consciousness.” Id. at 1172. Thus, the Court held that Section 1547(b)’s

right of refusal applies to all arrestees, conscious or unconscious. Id.

       Next, the Court addressed whether “75 Pa.C.S.[A.] § 1547(a) [which]

provid[es] that a DUI suspect ‘shall be deemed to have given consent’ to a

chemical test [constitutes] an independent exception to the warrant

requirement of the Fourth Amendment to the United States Constitution and

Article I, Section 8 of the Pennsylvania Constitution.” Id. at 1180 (citation

omitted). Although unable to garner majority approval,16 the Court concluded

that “the language of 75 Pa.C.S.[A.] § 1547(a) . . . does not constitute an

independent exception to the warrant requirement.” Id.

       In reaching this conclusion, the Court recognized that consent, as an

exception to the warrant requirement, must be voluntary. Id. at 1176-1177.

Per the Court, this is true even if consent is implied. Id. Indeed, the Myers

Court concluded that, “despite the existence of an implied consent provision,

an individual must give actual, voluntary consent at the time that testing is

requested.” Id. at 1178. In reaching this conclusion, the Myers Court relied

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

States, 136 S.Ct. 2160 (2016).          It stated:

       Of particular salience for today's case, the Birchfield Court
       addressed the circumstance in which a DUI suspect is unconscious
       when a chemical test is sought. The [United States Supreme]
       Court explained:

____________________________________________


16Only Justices Donohue and Dougherty joined this portion of Justice Wecht’s
opinion. See Myers, 164 A.3d 1180, n. 15.

                                          - 21 -
J-A11020-19


         It is true that a blood test, unlike a breath test, may be
         administered to a person who is unconscious (perhaps as a
         result of a crash) or who is unable to do what is needed to
         take a breath test due to profound intoxication or injuries.
         But we have no reason to believe that such situations are
         common in drunk-driving arrests, and when they arise, the
         police may apply for a warrant if need be.

      Id. at 2184–85. Lest anyone doubt what the Supreme Court
      meant when it stated that police officers in such circumstances
      “may apply for a warrant if need be,” the Court emphasized that
      “[n]othing prevents the police from seeking a warrant for a blood
      test when there is sufficient time to do so in the particular
      circumstances or from relying on the exigent circumstances
      exception to the warrant requirement when there is not.” Id. at
      2184. Noting that all fifty states have enacted implied consent
      laws, id. at 2169, the Court nowhere gave approval to any
      suggestion that a warrantless blood draw may be conducted upon
      an unconscious motorist simply because such a motorist has
      provided deemed consent by operation of a statutory implied
      consent provision. Rather, the Supreme Court indicated that a
      warrant would be required in such situations unless a warrantless
      search is necessitated by the presence of a true exigency.

Id. at 1178–1179. Based upon the foregoing, the Myers Court concluded

that, “[l]ike any other searches based upon the subject’s consent, a chemical

test conducted under the implied consent statute is exempt from the warrant

requirement only if consent is given voluntarily under the totality of the

circumstances.”   Id. at 1180.    As such, the Court held that because the

appellant in Myers was unconscious, he did not have the opportunity to “make

a ‘knowing and conscious choice’ regarding whether to undergo chemical

testing or to exercise his right of refusal.”   Id. at 1181 (citation omitted).

Thus, the totality of the circumstances demonstrated that he did not

voluntarily consent to the blood draw. Id.



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      In Myers, a majority of our Supreme Court held that an individual

arrested for DUI, whether conscious or unconscious, possessed a statutory

right to refuse chemical testing. A mere plurality of the Myers court held,

however, that Section 1547(a), by itself, does not establish an independent

exception to the warrant requirement. Following Myers, the issue of whether

compliance with Section 1547(a) or Section 3755(a), standing alone, serves

as an independent exception to the warrant requirement remains unsettled,

especially for individuals who are unconscious and not under arrest at the time

of a blood draw.

      Despite this uncertainty, the subsequent history of a recently-published

decision by a panel of this Court offers insight as to how our Supreme Court

would address these issues in future cases. The facts in Commonwealth v.

March, 154 A3d 803 (Pa. Super. 2017) are nearly identical to the facts of the

instant case. On July 14, 2015, a single vehicle accident occurred. Id. at

805. When police arrived at the scene, emergency medical personnel were

treating March, the driver, who was unresponsive and subsequently

transferred to the hospital for treatment. Id. After investigating the scene of

the accident, the officer learned information that provided probable cause to

believe that March was under the influence of a controlled substance at the

time of the accident. Id. The officer then traveled to Reading Hospital to

request a sample of March’s blood.     Id.   A request was made, without a

warrant, and a blood draw was subsequently taken which later revealed the

“presence of several Schedule I controlled substances in March’s blood.” Id.

                                    - 23 -
J-A11020-19



at 806. Notably, at the time of the blood draw, March was unconscious but

not under arrest. Id. at 805. Thereafter, the Commonwealth charged March

with various crimes, including DUI (controlled substance). Id. at 806. March

filed an omnibus pre-trial motion seeking to suppress the blood evidence

based upon an allegedly illegal blood draw.        Id.   The trial court granted

March’s motion. Id. The Commonwealth then appealed to this Court.

       On appeal, this Court concluded that the “interplay” between Section

1547(a) and Section 3755(a) “allowed for [March’s] warrantless blood draw

and release of the results.” Id. at 813. In reaching this conclusion, this Court

in March made the distinction that, unlike the appellant in Myers,17 March

was not under arrest at the time of the blood draw. Id. As such, this Court

concluded that he did not possess the statutory right to refuse consent

pursuant to Section 1547(b). Id. In making this distinction, the March Court

relied on the Pennsylvania Supreme Court’s previous decisions in Riedel and

Eisenhart. Id. Furthermore, the Court, relying on Riedel, concluded that

because March “was unconscious and unresponsive,” he did not have the right

to refuse to consent to blood testing. Id. Accordingly, we concluded that the

“warrantless blood draw was permissible” because March “was involved in a

motor vehicle accident, was unconscious at the scene and required immediate

medical treatment, was not under arrest, and remained unconscious when the
____________________________________________


17 This Court issued its decision in March prior to our Supreme Court’s decision
in Myers, supra. Thus, the panel relied upon this Court’s previous decision
in Commonwealth v. Myers, 118 A.3d 1122 (Pa. Super. 2015), appeal
granted, 131 A.3d 480 (2016).

                                          - 24 -
J-A11020-19



blood tests were administered.” Id. Ultimately, however, the Supreme Court

vacated and remanded our decision in March.           See Commonwealth v.

March, 172 A.3d 582 (Pa. 2017). In doing so, the Supreme Court expressly

instructed this Court to reconsider our disposition in March in light of the

decision in Myers, supra and the United States Supreme Court's decision in

Birchfield, supra. See id.

      Based upon the foregoing, we conclude that Section 1547(a) and its

counterpart, Section 3755(a), no longer independently support implied

consent on the part of a driver suspected of or arrested for a DUI violation

and, in turn, dispense with the need to obtain a warrant.          “Simply put,

statutorily implied consent cannot take the place of voluntary consent.”

Myers, supra at 1178. Thus, in order for the Commonwealth to request a

driver’s blood test results, it must obtain a warrant or it must proceed within

a valid exception to the warrant requirement.      If government officials rely

upon a driver’s consent to request his blood test results, the Commonwealth

must demonstrate that the driver’s consent is voluntary, which means the

driver had a meaningful opportunity to “make a ‘knowing and conscious

choice’ of whether to undergo chemical testing or exercise his right of refusal.”

Id. at 1181 (citation omitted).

      In this case, the Commonwealth cannot simply rely upon its compliance

with Section 3755(a) to justify the warrantless request to test Appellant’s

blood sample. As stated above, by the time Sergeant Farren arrived at York

Hospital, Appellant was fading in and out of consciousness. N.T. Suppression

                                     - 25 -
J-A11020-19



Hearing, 12/21/15, at 59. Appellant, therefore, did not have the “opportunity

to choose whether to exercise [the right of refusal] or to provide actual

consent to the blood draw.” Myers, supra at 1181. “Because [Appellant]

was deprived of this choice, the totality of the circumstances unquestionably

demonstrate[] that he did not voluntarily consent to the blood draw.” Id.

Thus, the Commonwealth’s warrantless request to test Appellant’s blood

sample violated Appellant’s constitutional rights and the trial court erred in

denying his motion to suppress.

      Lastly, we must address whether exigent circumstances existed in this

case to permit the warrantless request to test Appellant’s blood sample.

Herein, Appellant argues that the Commonwealth failed to prove that exigent

circumstances existed to permit the warrantless search. Appellant’s Brief at

57-58. We are constrained to agree.

      Exigent   circumstances     comprise   one   of   the   “well-recognized

exception[s]” to the Fourth Amendment’s and Article I, Section 8’s warrant

requirements. McNeely, supra at 148. Exigent circumstances “[exist] when

the exigencies of the situation make the needs of law enforcement so

compelling that a warrantless search is objectively reasonable.”       Id. at

148-149.   In Schmerber v. California, 384 U.S. 757 (1966), the United

States Supreme Court considered the constitutionality of a warrantless blood

draw under circumstances analogous to those present here. The Schmerber

Court concluded that an exigency may arise if an officer “reasonably []

believe[s he is] confronted with an emergency, in which the delay necessary

                                    - 26 -
J-A11020-19



to obtain a warrant, under the circumstances, threaten[s] the destruction of

evidence.”   Id. at 770.   The existence of an exigency that overcomes the

warrant requirement is determined on a case-by-case basis after an

examination of the totality of the circumstances.     McNeely, supra at 145

(determination of whether an exigency supports a warrantless blood draw in

drunk-driving investigation is done “case by case[,] based on the totality of

the circumstances”).

      The United States Supreme Court recently revisited the issue of exigent

circumstances in the context of intoxicated driving investigations. In Mitchell

v. Wisconsin, 139 S.Ct. 2525 (2019), the Court explained that, in general,

exigent circumstances may exist to permit the police to pursue a warrantless

blood draw if the driver’s BAC is dissipating and the driver is unconscious.

Mitchell 139 S.Ct. at 2537.      In McNeely, however, the Supreme Court

cautioned that the natural metabolization of BAC, alone, does not present “a

per se exigency that justifies an exception to the [warrant requirement].”

McNeely, supra at 145.           Instead, McNeely clarified that the “the

metabolization of alcohol [or a controlled substance] in the bloodstream and

the ensuing loss of evidence are among the factors” to consider when

determining whether exigent circumstances justify a warrantless blood draw.

Id. at 165. McNeely also highlighted additional factors, such as the “need

for the police to attend to a related car accident,” “the procedures in place for

obtaining a warrant, the availability of a magistrate judge,” and “the practical

problems of obtaining a warrant within a timeframe that still preserves the

                                     - 27 -
J-A11020-19



opportunity to obtain reliable evidence.”     Id. at 164.   Notably, this Court

previously utilized the aforementioned factors to determine whether an

exigency existed in a drunk-driving investigation. See Commonwealth v.

Trahey, 183 A.3d 444, 450-452 (Pa. Super. 2018) (applying the factors listed

in McNeely to determine whether, under the totality of the circumstances, an

exigency permitted a warrantless blood draw).

      Based upon the totality of circumstances present in this case, we

conclude that the Commonwealth failed to prove that an exigency permitted

the police to request, without a warrant, the chemical testing of Appellant’s

blood sample. At the suppression hearing, the Commonwealth established

that the police were “dealing with a chaotic situation” and that they had

probable cause to believe that Appellant was driving under the influence of

marijuana. N.T. Suppression Hearing, 12/21/15, at 77. Specifically, Officer

Briar explained that the scene involved a collision between a train and a

vehicle where one person (Sisti) was declared dead, and two others (Appellant

and S.J.) required emergency treatment. Id. at 7-39. In addition, Officer

Kevin Romine testified that he interviewed the train’s conductor, Virgil

Weaver, on the day of the accident and Weaver informed him that he

“detected an odor of marijuana around the vehicle” after attempting to render

aid. Id. at 46. In addition, Officer Romine testified that he interviewed Leslie

Garner, the paramedic who assisted Appellant, and she confirmed that “she

detected an odor of marijuana about [Appellant’s] person.” Id. at 47.




                                     - 28 -
J-A11020-19



       While these circumstances undoubtedly confirm the existence of a tragic

and   unfolding     emergency,      other      factors   compellingly   undermine   the

conclusion that exigent circumstances permit us to jettison the warrant

requirement. Sergeant Farren testified that when he arrived at York Hospital,

he learned that hospital personnel already obtained a blood sample from

Appellant. Id. at 59. The blood draw occurred at 5:56 p.m., approximately

one hour and 20 minutes after the accident. As of 5:56 p.m., then, Appellant’s

blood sample, including all of the intoxicants contained therein, was

preserved. Thus, the extraction of Appellant’s blood shortly before 6:00 p.m.

on the date of the accident literally stopped the clock on any concern that the

further passage of time could result in dissipation of evidence since the

withdrawal of Appellant’s blood by hospital personnel ceased all metabolic

activity that might influence a toxicological assessment of the sample. As a

result, any argument that an exigency existed at the time Sergeant Farren

submitted his request to test Appellant’s blood sample was no longer viable.18
____________________________________________


18 Sergeant Farren’s request to test Appellant’s blood sample constitutes the
relevant search for purposes of our constitutional analysis. That is, we look
to the circumstances that existed at the time of his request to determine
whether an exigency was present. The blood draw by hospital personnel did
not trigger protections under either the Fourth Amendment or Article I,
Section 8 because there is no evidence that hospital personnel acted at the
direction of the police or as an agent of the police. Seibert, supra at 63
(explaining that, “because the hospital did not withdraw [the appellant’s]
blood at the direction of [the police] the search did not implicate [the
appellant’s] Fourth Amendment rights.” Instead, “the hospital withdraw [the
appellant’s] blood on its own initiative for its own purposes.”). As such, in the
absence of state action (or a demonstration thereof), the earliest possible



                                          - 29 -
J-A11020-19



Sergeant Farren and Lieutenant Lutz’s testimony at the suppression hearing

bolsters this conclusion as both officers admitted that the police could have

obtained a warrant before asking that chemical tests be performed on

Appellant’s blood. See N.T. Suppression Hearing, 12/21/15, at 65-66 and 83.

Therefore, in view of the foregoing circumstances, we conclude that no

exigency permitted the warrantless search in this case and, as such, the trial

court erred in denying Appellant’s motion to suppress.

       We note that, initially, the trial court denied suppression based upon a

finding of exigent circumstances. Upon review, it is apparent that the trial

court originally inferred that an exigency existed because the requirements of

75 Pa.C.S.A. § 3755(a) were met. Indeed, the court explained its reasoning

as follows:

       Here, there was an accident scene involving the parties to the
       accident, emergency [personnel], and the investigators. As
       recounted above, [Lieutenant] Lutz dispatched [Sergeant] Farren
       to the hospital to obtain blood from [Appellant] after gathering
       enough information at the scene to form probable cause [that
       Appellant was DUI]. [T]he officers [also] had to process an
       accident scene and [Appellant was] transported to a hospital. The
       exigency [Lieutenant] Lutz felt is evident in his testimony when
       he stated, “I instructed [Sergeant] Farren, who was reporting on
       duty, that as soon as he came on duty to jump in his car and
       respond to [] York Hospital and request a legal, a BAC for
       [Appellant].” [] N.T., [Preliminary Hearing,] 4/29/15, at 47
       [emphasis in original]. Though [Lieutenant] Lutz’s subjective
       feeling of exigency carries no weight, [the court] agree[s] that the
       circumstances warranted it.


____________________________________________


governmental search occurred when Sergeant Farren requested that
Appellant’s blood sample be submitted for chemical testing.

                                          - 30 -
J-A11020-19


      Metabolization of alcohol is not, in and of itself, enough to find
      exigency; however, [the court] believe[d] that investigators’ fears
      vis-à-vis metabolization are enough to find exigency when the
      officers were delayed by needs more pressing tha[n] obtaining
      [Appellant’s] BAC—namely, attending to victims and processing
      the scene of death.

                                     ***

      [Thus, Appellant’s] request to suppress the results from the blood
      draw in this case for lack of a warrant is denied.

Trial Court Opinion, 4/27/16, at 10-11.

      In its 1925(a) opinion, however, the court explained:

      The trial court based its denial of suppression of the blood test
      results upon its finding of exigent circumstance[s]. Upon further
      review, the trial court believes it erred [in denying suppression.]
      While the Newberry Township Police Department was preoccupied
      with the hectic nature of a train wreck, [Sergeant] Farren arrived
      at York Hospital to request a blood test. When he arrived, York
      Hospital had already conducted a [blood draw]. All [Sergeant]
      Farren did was [] follow the procedure under [75 Pa.C.S.A.
      § 3755(a)] and instruct the hospital staff to transfer the blood
      samples to NMS [laboratory] in Willow Grove.

      When the trial court denied [] suppression, it incorrectly viewed
      the totality of the circumstances and gave too much weight to the
      preoccupied police force. The trial court now believes that there
      w[ere] not urgent and compelling reasons [that prevented
      Sergeant Farren from leaving the hospital to procure] a warrant
      before returning to have the blood samples transferred to NMS
      [laboratory]. Because of this, exigent circumstances did not
      exist[.]

Trial Court Opinion, 4/13/18, at 12-13.

      As detailed above, we agree with the trial court’s statement in its

1925(a) opinion that no exigency existed to justify the warrantless search.

Thus, the trial court should have suppressed Appellant’s blood test results. As



                                    - 31 -
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such, we must vacate Appellant’s judgment of sentence, reverse the trial

court’s   order    denying     suppression,    and   remand   for   a   new   trial.19

Commonwealth v. Krenzel, 209 A.3d 1024, 1032 (Pa. Super. 2019) (where

trial court erred in denying suppression, order denying suppression should be

reversed, appellant’s judgment of sentence should be vacated, and case

should be remanded for a new trial); Commonwealth v. Boyd Chisholm,

198 A.3d 407, 418 (Pa. Super. 2018) (same).

       Judgment of sentence vacated. Order denying suppression reversed.

Case remanded for new trial. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/11/2020




____________________________________________


19 Due to our disposition, we need not address Appellant’s remaining appellate
issues.

                                          - 32 -
