J-A15030-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    PHILIP GEORGE LETENDRE                     :
                                               :
                       Appellant               :   No. 85 MDA 2018

           Appeal from the Judgment of Sentence December 14, 2017
      In the Court of Common Pleas of Adams County Criminal Division at
                        No(s): CP-01-CR-0000033-2017

BEFORE: PANELLA, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MURRAY, J.:                                 FILED JULY 02, 2018

        Philip George Letendre (Appellant) appeals from the judgment of

sentence imposed following his convictions of driving under the influence of

alcohol (DUI) – general impairment, DUI – highest rate of alcohol,1 and a

related summary offense. We affirm.

        The trial court summarized the relevant facts of this case as follows:

        1.    Trooper Matthew Geiman has been a police officer with the
        Pennsylvania State Police for approximately two years. He has
        received specialized training in DUI cases, including signs of
        alcohol and drug intoxication.

        2.   On September 24, 2016, Trooper Geiman was working the
        3-11 p.m. shift, in full uniform and a marked police vehicle.

        3.    Trooper Geiman was dispatched to Route 97 and Heritage
        Drive, Mount Joy Township, Adams County, Pennsylvania, for a
        two vehicle accident.

____________________________________________


1   75 Pa.C.S.A. § 3802(a)(1), (c).
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     4.    Trooper Geiman approached and made contact with
     [Appellant], one of the drivers involved in the accident. Trooper
     Geiman observed [that Appellant] had bloodshot, glassy eyes, and
     his pupils were dilated. He also noticed [Appellant] was lethargic
     and careful how he walked.

     5.   [Appellant] performed the requested field sobriety tests
     (SFST’s), but refused the portable breath test (PBT).

     6.    Trooper Geiman placed [Appellant] under arrest and
     transported him to Gettysburg Hospital for a blood draw.

     7.   While en route to the hospital, Trooper Geiman explained to
     [Appellant] why they were going to the hospital and requested he
     submit to a blood draw.

     8.    Trooper Geiman removed [Appellant]’s handcuffs prior to
     walking into the hospital.

     9.    While at the hospital, Trooper Geiman read [Appellant] the
     revised DL-26[B] form[,] which does not reference enhanced
     criminal penalties for a refusal to submit to a blood draw.1

     10. [Appellant] reviewed the revised DL-26[B] form provided to
     him. [Appellant] ultimately signed the revised DL-26[B] form and
     consented to the blood draw.

     11. Trooper Geiman did not threaten or force [Appellant] to
     consent to the blood draw. At no point did Trooper Geiman
     reference enhanced criminal penalties if [Appellant] refused to
     consent to the blood draw.
     ___________________________________________________

     1 Trooper Geiman testified that the DL-26[B] form he read to
     [Appellant] was revised by PennDOT in the summer of 2016. The
     revised DL-26[B] form references a driver’s license suspension
     upon refusal to “submit to a chemical test of the blood” but does
     not reference criminal penalties. See Pennsylvania Department
     of Transportation, Chemical Testing Warnings and Report of
     Refusal to Submit to a Blood Test as Authorized by Section 1547
     of the Vehicle Code in Violation Section 3802 (relating to driving
     under the influence of Alcohol or Controlled Substance) (DL-26B)
     (6-16).


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        12. [Appellant] has been a licensed Maryland attorney for seven
        years. He does not practice in the area of criminal law.

        13. [Appellant] did not ask Trooper Geiman any questions about
        possible enhanced criminal penalties if he refused the blood test.

        14. Trooper Geiman testified [Appellant] was lethargic, took
        several seconds to think and provided slow, delayed responses
        that night.

        15. [Appellant]’s BAC was .336.

Suppression Court Opinion, 4/25/17, at 1-3.

        On March 1, 2017, Appellant filed a pre-trial motion to suppress the

evidence recovered from his blood draw, relying on the United States Supreme

Court’s decision in Birchfield v. North Dakota, 136 S. Ct. 2160 (2016),

which held that “motorists cannot be deemed to have consented to submit to

a blood test on pain of committing a criminal offense.” Id. at 2186. Appellant

argued that he was improperly coerced into consenting to the blood draw

because he had independent knowledge of the criminal penalties associated

with the refusal to submit to a blood draw under Section 3804(c) of the Vehicle

Code, which was still in effect at the time of his arrest. See 75 Pa.C.S.A. §

3804.     On March 27, 2017, the trial court held a hearing on Appellant’s

suppression motion, which the court denied on April 25, 2017.

        On October 24, 2017, the trial court held a stipulated bench trial, after

which it found Appellant guilty of the aforementioned offenses. On December

14, 2017, the trial court sentenced Appellant to 24 months of intermediate

punishment with 90 days in a restrictive setting. This timely appeal followed.


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      On appeal, Appellant presents the following issue for review:

      Whether Appellant’s blood test results should have been
      suppressed as being coerced under the dictates of Birchfield
      when, even though Appellant was read an amended DL-26[B]
      form, the enhancement provisions of 75 Pa.C.S.[A.] § 3804 were
      still valid law, and Appellant had independent knowledge of the
      enhancement provisions of § 3804, and Appellant consented to a
      blood draw because of this independent knowledge.

Appellant’s Brief at 5.

      The standard of review is as follows:

      Our standard of review in addressing a challenge to a trial court’s
      denial of a suppression motion is limited to determining whether
      the factual findings are supported by the record and whether the
      legal conclusions drawn from those facts are correct.
      Commonwealth v. Woodard, [] 129 A.3d 480, 498 ([Pa.]
      2015). We are bound by the suppression court’s factual findings
      so long as they are supported by the record; our standard of
      review on questions of law is de novo. Commonwealth v.
      Galvin, [] 985 A.2d 783, 795 ([Pa.] 2009). 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.
      Commonwealth v. Poplawski, [] 130 A.3d 697, 711 ([Pa.]
      2015). Our scope of review of suppression rulings includes only
      the suppression hearing record and excludes evidence elicited at
      trial. In the Interest of L.J., [] 79 A.3d 1073, 1085 ([Pa.]
      2013).

Commonwealth v. Smith, 177 A.3d 915, 918 (Pa. Super. 2017) (quoting

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

      “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). The “administration of a blood test ... performed


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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, 615 A.2d 308, 315 (Pa. 1992).                 “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).            “One such

exception is consent, voluntarily given.” Id. at 888-889.

        Our Supreme Court explained:

        While there is no hard and fast list of factors evincing
        voluntariness, some considerations include: 1) the defendant’s
        custodial status; 2) the use of duress or coercive tactics by law
        enforcement personnel; 3) the defendant’s knowledge of his right
        to refuse to consent; 4) the defendant’s education and
        intelligence; 5) the defendant’s belief that no incriminating
        evidence will be found; and 6) the extent and level of the
        defendant's cooperation with the law enforcement personnel.

Commonwealth v. Gillespie, 821 A.2d 1221, 1225 (Pa. 2003) (Eakin, J.,

opinion announcing the judgment of the court) (citing Commonwealth v.

Cleckley, 738 A.2d 427, 433 n.7 (1999)).

        In Birchfield, the United States Supreme Court addressed the

constitutionality of warrantless blood draws. Although the Court concluded

that warrantless blood draws are not permissible as searches incident to

arrest, the Court determined that they are nonetheless permissible under the

consent exception to the warrant requirement.       Birchfield, 136 S. Ct. at

2185-2186.       The Court explained that its “prior opinions have referred

approvingly to the general concept of implied-consent laws that impose civil

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penalties and evidentiary consequences on motorists who refuse to comply

with BAC tests[.]” Id. at 2185.

      The Court further stated, however, that it is “another matter ... for a

State not only to insist upon an intrusive blood test, but also to impose

criminal penalties on the refusal to submit to such a test.” Id. It reasoned

that “[t]here must be a limit to the consequences to which motorists may be

deemed to have consented by virtue of a decision to drive on public roads.”

Id.   Thus, the Court concluded that “motorists cannot be deemed to have

consented to submit to a blood test on pain of committing a criminal offense.”

Id. at 2186.

      Shortly following Birchfield, PennDOT revised the DL–26 form to

remove the warnings that individuals suspected of DUI would face enhanced

criminal penalties if they refused to submit to a blood test. Commonwealth

v. Robertson, ___ A.3d ___, 2018 WL 2057000 at *2 (Pa. Super. May 3,

2018).   Subsequently, this Court invalidated Section 3804(c), holding that

Pennsylvania's implied-consent law unconstitutionally “impose[s] criminal

penalties on the refusal to submit to” a blood test.       Commonwealth v.

Evans, 153 A.3d 323, 331 (Pa. Super. 2016).        Thus, where a defendant

consented to a blood draw after receiving Pennsylvania's pre-Birchfield

implied consent warnings, the blood draw was unconstitutional because

consent was elicited following warnings relating to the now-invalidated

increased, mandatory penalty for failing to consent. Id.


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      In this case, although Appellant received the revised post-Birchfield

DL-26B warnings, which do not reference the enhanced criminal penalties for

refusing consent in Section 3804(c), he argues that his consent to the blood

draw was coerced because, as a licensed attorney, he had independent

knowledge that Section 3804(c) imposed enhanced criminal penalties for

refusing to consent to a blood draw. In support of this argument, Appellant

relies on the legal maxim that everyone is presumed to know the law and, in

this case, he indeed was aware of the law. Appellant contends that we must

take into consideration his knowledge of the enhanced penalties associated

with the refusal to consent to a blood draw at the time of his arrest.

      Appellant’s argument is without merit.     As this Court has explained,

“Birchfield makes plain that the police may not threaten enhanced

punishment for refusing a blood test in order to obtain consent, 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,

pursuant to Ennels, the mere existence of a statutory provision that imposed

enhanced criminal penalties for refusal, absent an actual threat, does not

amount to coercion or invalidate consent. Id. Here, Appellant concedes that

he was not threatened with enhanced criminal penalties prior to consenting to

the blood test. See Appellant’s Brief at 12. Accordingly, we are not persuaded




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by Appellant’s argument that his independent knowledge of the enhanced

criminal penalties rendered his consent coerced.

     Instead, we agree with the trial court’s determination that Appellant’s

consent to the blood draw was knowing and voluntary:

        Despite the fact [Appellant] was in custody at the time he
     consented, there are a number of factors leaning towards a finding
     of knowing and voluntary consent.          While [Appellant] was
     technically under arrest, [he] was not handcuffed when he walked
     into the hospital with Trooper Geiman nor was he handcuffed
     when he submitted to the blood test. Additionally, in response to
     [Appellant]’s request, Trooper Geiman allowed [Appellant] to use
     the bathroom before [he] consented to the blood test. No
     evidence was presented to show [Appellant] was argumentative,
     belligerent, or uncooperative after his arrest.       [Appellant]’s
     consent to the blood draw was not the product of duress, threats,
     or coercion on the part of law enforcement. Trooper Geiman did
     not use excessive police force nor did he promise [Appellant]
     anything in exchange for submitting to the blood draw. No
     testimony was presented that Trooper Geiman’s demeanor or
     expression was harsh or confrontational, or that he
     misrepresented the facts in an effort to get [Appellant] to consent
     to the blood draw. Trooper Geiman read [Appellant] the revised
     DL-26[B] form and allowed [him] to read the revised DL-26[B]
     form before he requested [his] consent to the blood draw. The
     revised DL-26[B] warning clearly indicate[d] the blood draw was
     merely a request, to which [Appellant] was free to refuse.

        Upon consideration of the totality of all the factors present in
     this case, this Court is of the opinion that the Commonwealth has
     met its burden of establishing that [Appellant]’s consent was the
     product of an essentially free and unconstrained choice,
     objectively valid and not the product of police coercion, deceit or
     misrepresentation.

Suppression Court Opinion, 4/25/17, at 9-11 (quotations and footnotes

omitted); see also Cleckley, 738 A.2d at 433.




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     Based on our review of the certified record, including the notes of

testimony from the suppression hearing, we conclude that the record supports

the trial court’s determination that Appellant’s consent to the blood draw was

knowing and voluntary. See N.T., 3/27/17, at 2-17. Accordingly, the trial

court did not err in denying Appellant’s suppression motion.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/2/18




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