J-A04003-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

    THOMAS S. KEPNER

                             Appellant                 No. 949 MDA 2017


         Appeal from the Judgment of Sentence imposed May 16, 2017
             In the Court of Common Pleas of Cumberland County
               Criminal Division at No: CP-21-CR-0000573-2016


BEFORE: STABILE, NICHOLS, AND RANSOM,* JJ.

MEMORANDUM BY STABILE, J.:                             FILED APRIL 23, 2018

        Appellant, Thomas S. Kepner, appeals from the judgment of sentence

imposed on May 16, 2017 in the Court of Common Pleas of Cumberland

County. Relying on Birchfield v. North Dakota, 136 S.Ct. 2160 (2016),1

Appellant argues that the trial court erred in not suppressing the results of his

warrantless blood test. We disagree. Accordingly, we affirm.

        The underlying facts are not in dispute. As developed at the suppression

hearing, on October 25, 2015, Officer Robert Powers of the Upper Allen

Township Department responded to Appellant’s residence following a

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*   Retired Senior Judge assigned to the Superior Court.
1Birchfield held that the Fourth Amendment to the United States Constitution
does not permit warrantless blood tests incident to arrests for drunk driving
and that a state may not criminalize a motorist’s refusal to comply with a
demand to submit to blood testing. Birchfield, 136 S. Ct. at 2185-86.
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complaint of a reckless driver. The report contained a detailed description of

the vehicle and a registration number that matched Appellant’s vehicle.

Appellant admitted to operating his vehicle earlier that night.          In his

interaction with Appellant, the officer detected a strong odor of an alcoholic

beverage coming from his breath. Appellant agreed to submit to standard

field sobriety tests, which he failed. Accordingly, the officer placed Appellant

under arrest for suspicion of driving under the influence of alcohol.

      Next, the officer placed Appellant in the back seat of his patrol vehicle

and asked him if he would submit to a legal blood draw to determine his blood

alcohol content. Appellant agreed. Officer Powers did not provide the implied

consent warnings (DL-26 Form) or otherwise discuss with him any enhanced

penalties he might be exposed to for refusing to a blood draw. Officer Powers

indicated that he did not address the form with Appellant because Appellant

agreed to the blood draw.

      Appellant also testified at the suppression hearing.       He essentially

testified that he consented to the blood draw because he knew that if he

refused it, he would have received harsher penalties.

      The suppression court denied Appellant’s motion, noting that Appellant

“consented voluntarily to the blood draw, without a real or perceived threat of

increased sanctions for refusal[.]” Suppression Court Order, 2/3/17.

      On April 13, 2017, following a bench trial, Appellant was found guilty of

two counts of driving under the influence (general impairment, and high rate

of alcohol). On May 16, 2017, the trial court sentenced Appellant to term of

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incarceration of not less than 48 hours nor more than six months, with

automatic release upon service of his minimum sentence. This appeal

followed.

      On appeal, Appellant, relying on Birchfiled, argues that Officer Powers

was required to obtain a warrant to compel Appellant to submit to blood

testing. Moreover, Appellant argues that his consent to the blood draw was

not voluntary, but coerced based on his own knowledge of DUI law.

     We review a denial of a motion to suppress based on the following

standard:

     Our standard of review in addressing a challenge to a trial court’s
     denial of a suppression motion is limited to determining whether
     the factual findings are supported by the record and whether the
     legal conclusions drawn from those facts are correct. We are
     bound by the suppression court’s factual findings so long as they
     are supported by the record; our standard of review on questions
     of law is de novo. Where, as here, the defendant is appealing the
     ruling of the suppression court, we may consider only the evidence
     of the Commonwealth and so much of the evidence for the defense
     as remains uncontradicted. Our scope of review of suppression
     rulings includes only the suppression hearing record and excludes
     evidence elicited at trial.

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

omitted).

     “The Fourth Amendment to the [United States] Constitution and
     Article I, Section 8 of [the Pennsylvania] Constitution protect
     citizens   from    unreasonable     searches    and    seizures.”
     Commonwealth v. McAdoo, 46 A.3d 781, 784 (Pa. 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,
     563 Pa. 47, 757 A.2d 884, 888 (2000). “Exceptions to the warrant
     requirement include the consent exception, the plain view

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      exception, the inventory search exception, the exigent
      circumstances exception, the automobile exception . . ., the stop
      and frisk exception, and the search incident to arrest exception.”
      Commonwealth v. Dunnavant, 63 A.3d 1252, 1257 n.3 (Pa.
      Super. 2013).

      The “administration of a blood test . . . performed by an agent of,
      or at the direction of the government” constitutes a search under
      both the United States and Pennsylvania Constitutions.
      Commonwealth v. Kohl, 532 Pa. 152, 615 A.2d 308, 315
      (1992); Schmerber v. California, 384 U.S. 757, 770, 86 S.Ct.
      1826, 16 L.Ed.2d 908 (1966). Since the blood test in the case at
      bar was performed without a warrant, the search is presumptively
      unreasonable “and therefore constitutionally impermissible,
      unless an established exception applies.” Strickler, 757 A.2d at
      888.

Commonwealth v. Evans, 153 A.3d 323, 327-28 (Pa. Super. 2016).

      “One such exception is consent, voluntarily given.” Strickler, 757 A.2d

888 (citation omitted). Under the Fourth Amendment, where an encounter

between law enforcement is lawful, voluntariness of consent to a search

becomes the exclusive focus. Id.

      As noted above, Appellant contends that his consent was not voluntary

because it was made with the knowledge of increased penalties for refusal.

The same coercion measure was fatal to Birchfield, according to Appellant.

In support, Appellant directs our attention to the ancient maxim that everyone

is presumed to know the law and ignorance of the law excuses no one.

Appellant’s argument is meritless.

      First, at the time of Appellant’s arrest, the law was that the police must

inform an arrestee of the consequences of refusal. Pa. Dep’t of Transport.

v. O’Connell, 555 A.2d 873, 877 (Pa. 1989). Absent a proper warning, there

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could be no consequences for refusal. Id. Thus, even if we were to accept

Appellant’s “presumptive knowledge” argument, his claim would fail.

      Second, Appellant’s reliance on Birchfield is inapposite. “Birchfield

makes plain that the police may not threaten enhanced punishment for

refusing a blood test in order to obtain consent, [Birchfield,] 136 S.Ct. at

2186; whether that enhanced punishment is (or can be) ultimately imposed

is irrelevant to the question whether the consent was valid.” Commonwealth

v. Ennels, 167 A.3d 716, 724 (Pa. Super. 2017) (emphasis in original). Thus,

the mere existence of legislation that imposed criminal penalties for refusal,

absent an actual threat, does not amount to coercion or invalidate the consent

given.

      Ultimately, therefore, the instant appeal hinges on whether Appellant

validly consented to the blood draw.       As explained below, we conclude

Appellant validly consented to the blood draw.

      Our Supreme Court has applied the following standard to determine

whether an individual has validly consented to a chemical test:

      In determining the validity of a given consent, the Commonwealth
      bears the burden of establishing that a consent is the product of
      an essentially free and unconstrained choice—not the result of
      duress or coercion, express or implied, or a will overborne—under
      the totality of the circumstances. The standard for measuring the
      scope of a person’s consent is based on an objective evaluation of
      what a reasonable person would have understood by the exchange
      between the officer and the person who gave the consent. Such
      evaluation includes an objective examination of the maturity,
      sophistication and mental or emotional state of the defendant.
      Gauging the scope of a defendant’s consent is an inherent and
      necessary part of the process of determining, on the totality of the

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       circumstances presented, whether the consent is objectively valid,
       or instead the product of coercion, deceit, or misrepresentation.

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

quotation marks omitted).

       Of all the circumstances surrounding his consent to the blood test,

Appellant’s challenge is limited to the effects of his professed knowledge of

DUI laws. In his view, because he knew enhanced penalties would apply if he

were to refuse a blood draw, he did not really have a choice other than

agreeing to the test. His consent, in other words, was coerced. We disagree.

       First, the trial court did not find Appellant’s alleged knowledge of DUI

laws or consequences resulting from refusal to be credible.2 N.T. Suppression

Hearing, 2/2/17 at 10-11; Trial Court Opinion, 9/5/17, at 3-5.

       Second, a review of the exchange between the officer and Appellant

shows no evidence, whether by words or conduct, suggesting coercion by the

officer. Similarly, there is no indication of any other circumstance surrounding

the interaction that would suggest Appellant’s free will was overborne. To the

extent Appellant’s knowledge of the law about refusal might have played a




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2 Appellant first testified that he knew about the enhanced penalties for refusal
because his lawyer told him about them in 2002 or 2003. When confronted
with the fact the enhanced penalties were introduced in 2004, he then shifted
to another source of his knowledge of DUI laws: his experience as bartender.
Later, however, he opted for another explanation:            “[I]t is common
knowledge” that refusal to submit to a test is met with harsher penalties. See
N.T. Suppression Hearing, 2/2/17, at 8.

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role in consenting to the test, again, there is nothing in the record that would

suggest that such knowledge overborne his will.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/23/18




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