J-A19008-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                    Appellant             :
                                          :
              v.                          :
                                          :
 JUSTIN MITCHELL HAINES                   :
                                          :
                    Appellee              :       No. 1957 MDA 2017

             Appeal from the Order Entered November 30, 2017
                In the Court of Common Pleas of York County
            Criminal Division at No(s): CP-67-CR-0005514-2015


BEFORE: GANTMAN, P.J., NICHOLS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY GANTMAN, P.J.:                     FILED OCTOBER 15, 2018

      Appellant, the Commonwealth of Pennsylvania, appeals from the order

entered in the York County Court of Common Pleas, following remand, and

reaffirming its decision to grant Appellee’s motion to suppress. We affirm.

      In its original opinion, the trial court set forth the relevant facts and

procedural history of this case as follows:

         [Appellee] is charged with the following offenses[:] (1)
         Murder of the Third Degree, 18 Pa.C.S.A. § 2502(c); (2)
         Aggravated Assault, 18 Pa.C.S.A. § 2702(a)(1); (3)
         Homicide by Vehicle While Under the Influence of Alcohol or
         Controlled Substance, 75 Pa.C.S.A. § 3735; (4) Aggravated
         Assault by Vehicle While Under the Influence of Alcohol or
         Controlled Substance, 74 Pa.C.S.A. § 3735.1; (5) Homicide
         by Vehicle, 75 Pa.C.S.A. § 3732; (6) Aggravated Assault by
         Vehicle 75 Pa.C.S.A. § 3732.1; (7) two counts of DUI, 75
         Pa.C.S.A. § 3802(a)(1), (c); (8) Reckless Driving, 75
         Pa.C.S.A. § 3736; (9) Careless Driving, 75 Pa.C.S.A. § 3714
         (a); (10) Careless Driving−Unintentional Death, 75
         Pa.C.S.A. § 3714(b); (11) Careless Driving−Serious Bodily
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       Injury, 75 Pa.C.S.A. 3714(c); and (12) Driving Vehicle at
       Safe Speed, 75 Pa.C.S.A. § 3361.

       The incident that gave rise to these charges occurred in the
       early evening hours of February 8, 2015, in New
       Cumberland, York County, Pennsylvania at the intersection
       of Lewisberry and Poplar Road.           According to the
       Commonwealth’s testimony, this incident occurred as
       [Appellee] was traveling west on Lewisberry Road in his
       black Honda Pilot. The victims, Kyle Richard Quigley and his
       wife, Amy L. Marburger, were entering Lewisberry Road
       from Poplar Road in Mr. Quigley’s White Honda Civic, when
       they were hit by [Appellee’s] vehicle. Mr. Quigley, who was
       driving at the time of the incident, was ejected from his
       vehicle and later pronounced dead.          Ms. Marburger
       sustained severe injuries, including, but not limited to, a
       brain injury, a shoulder injury, and internal injuries.
       Immediately following the incident, she was transported to
       Hershey Medical Center for treatment.

       When [Sergeant] Timothy Dehoff and Sergeant Holland
       arrived on scene, they began the investigation of their
       reports. It was concluded that there were no adverse
       weather conditions and the roadway was dry at the time of
       the crash. Further, [Appellee] did not have any visual
       obstructions as he was traveling west on Lewisberry Road
       approaching Poplar Road.

       [Sergeant] Dehoff spoke with [Appellee] on the scene after
       he was placed in the ambulance.          [Appellee] advised
       [Sergeant] Dehoff he was heading home at the time of the
       incident after picking up food for his family. At that time,
       the [sergeant] smelled a strong order of alcohol coming
       from [Appellee’s] breath and when asked, [Appellee] stated
       he had consumed one beer earlier that day.

       [Appellee] was transported to Harrisburg Hospital for
       medical observation.     [Sergeant] Dehoff drove to the
       hospital to determine if personnel were going to perform a
       medical blood draw on [Appellee].       Medical personnel
       informed [Sergeant] Dehoff that the hospital was not going
       to draw blood due to the lack of [Appellee’s] significant
       injury.    At that time, [Sergeant] Dehoff requested
       [Appellee] to submit to a blood chemical test to determine

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          his blood alcohol concentration (“BAC”) based on the smell
          of intoxicants emanating from [Appellee’s] breath. After
          being verbally advised of the warnings set forth on Penn-
          DOT’s “DL-26” form, [Appellee] submitted to the test. The
          blood sample was sent to Quest Diagnostics for testing.
          [Appellee’s] BAC was measured at 0.250%. As a result of
          these facts, the aforementioned charges were filed.

          On June 29, 2016, [Appellee] filed a Motion to Suppress
          Evidence of Blood Results. On August 24, 2016, this [c]ourt
          held a hearing on the matter. Following the hearing, on
          September 1, 2016, [Appellee] filed a Memorandum in
          support thereof.

(Opinion in Support of Order Granting Defendant’s Motion to Suppress

Evidence of Blood Results, issued October 17, 2016, at 1-4). The trial court

granted Appellee’s motion and suppressed the BAC evidence.                The

Commonwealth appealed and, on August 2, 2016, this Court reversed and

remanded with instructions for the trial court to make a factual determination

of the voluntariness of Appellee’s consent to the blood draw, i.e., whether he

consented before or after Sergeant Dehoff read the DL-26 form to Appellee.

       Following remand, the trial court reaffirmed its decision to grant

Appellee’s suppression motion on November 30, 2017. The court stated it

found Appellee had consented to the blood draw only after Sergeant Dehoff

had read him the deficient DL-26 form. The Commonwealth filed a timely

notice of appeal and Rule 311(d) certification1 on December 18, 2017. The

____________________________________________


1 Pursuant to Pa.R.A.P. 311(d), the Commonwealth has certified in its notice
of appeal that the suppression order substantially handicapped or terminated
the prosecution of the Commonwealth’s case. Accordingly, this appeal is



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court ordered the Commonwealth on December 19, 2017, to file a concise

statement of errors complained of on appeal per Pa.R.A.P. 1925(b); the

Commonwealth timely complied on January 3, 2018.

       The Commonwealth raises one issue for our review:

          I. [WHETHER] THE TRIAL COURT ERRED IN GRANTING
          [APPELLEE]’S MOTION TO SUPPRESS HIS BLOOD ALCOHOL
          RESULTS, AS [APPELLEE] VOLUNTARILY CONSENTED TO
          HAVING HIS BLOOD DRAWN FOR PURPOSES OF BLOOD
          ALCOHOL TOXICOLOGICAL TESTING[?]

              A. [WHETHER] THE TRIAL COURT MISAPPREHENDED
              THE FACTS OF RECORD IN FINDING [APPELLEE] DID
              NOT VOLUNTARILY CONSENT TO A BLOOD DRAW, BY:

                 i. FAILING TO FIND THAT [APPELLEE] VOLUNTARILY
                 CONSENTED TO A BLOOD DRAW WHILE NOT UNDER
                 ARREST WHILE AT A HOSPITAL, WHERE HE WAS
                 TRANSPORTED TO RECEIVE MEDICAL TREATMENT
                 FOLLOWING HIS FATAL COLLISION, PRIOR TO BEING
                 READ A PARTIALLY INACURRATE DL-26 FORM; [AND]

                 ii. FINDING THAT [APPELLEE] DID NOT VOLUNTARILY
                 CONSENT TO A BLOOD DRAW BEFORE HE WAS READ
                 A PARTIALLY INACURRATE DL-26 FORM, BUT MERELY
                 ACKNOWLEDGED THE [SERGEANT’S] INTENTION TO
                 READ [APPELLEE] THE PARTIALLY INACURRATE DL-
                 26 FORM RATHER THAN CONSENTING TO THE BLOOD
                 DRAW ITSELF[?]

              B. [WHETHER] THE TRIAL COURT MISAPPREHENDED
              THE LAW REGARDING THE VOLUNTARY CONSENT
              EXCEPTION TO THE SEARCH WARRANT REQUIREMENT,
              WHICH ALLOWS FOR A WARRANTLESS BLOOD DRAW,
              BY:


____________________________________________


properly before us for review. See Commonwealth v. Cosnek, 575 Pa. 411,
836 A.2d 871 (2003) (stating Rule 311(d) applies to pretrial ruling that results
in suppression, preclusion, or exclusion of Commonwealth’s evidence).

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               i. FAILING TO CONSIDER AND ANALYZE THE LAW
               REGARDING THE VOLUNTARY CONSENT EXCEPTION
               TO THE SEARCH WARRANT REQUIREMENT;

               ii. IMPROPERLY CONSIDERING THE LAW GOVERNING
               IMPLIED CONSENT AS [APPELLEE] EFFECTUATED
               VOLUNTARY CONSENT WITHOUT BEING PLACED
               UNDER ARREST AND PRIOR TO BEING READ A
               PARTIALY INACURRATE DL-26 FORM; [AND]

               iii. MISAPPLYING BIRCHFIELD V. NORTH DAKOTA,
               ___ U.S. ___[, 136 S.CT. 2160, 195 L.ED.2D 560]
               (2016) AND REDUCING THAT DECISION TO
               ESTABLISHING A MERE FORMALITY THAT IF A
               PARTIALLY INACURRATE DL-26 FORM IS READ, THEN
               A BLOOD DRAW IS CONSTITUTIONALLY INFIRM,
               REGARDLESS       OF   ALL    OTHER     FACTORS
               ESTABLISHING VOLUNTARY CONSENT[?]

(Commonwealth’s Brief at 4-5).

      The Commonwealth contends the trial court misapplied the holding of

Birchfield, supra.     The Commonwealth agrees that, under Birchfield, a

defendant’s consent is involuntary if it is given solely in response to an implied

consent warning that the defendant’s refusal to comply could result in

enhanced criminal penalties beyond administrative sanctions, as such

warnings are partially inaccurate. The Commonwealth, however, emphasizes

that a voluntary consent to a blood draw may still exist under the totality of

the circumstances, even if a police officer gave the partially inaccurate implied

consent warnings. The Commonwealth insists the trial court failed to analyze

the relevant factors which established the voluntariness of Appellee’s consent

under the totality of all the circumstances of this case. The Commonwealth

highlights that: (1) Appellee was not under arrest; (2) Appellee was able to

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understand what Sergeant Dehoff stated to him and responded appropriately;

(3) Sergeant Dehoff informed Appellee of the purpose of the blood test; and

(4) Appellee gave his consent by responding “okay.”     The Commonwealth

argues that only after Appellee voluntarily consented to the blood test did

Sergeant Dehoff read the partially inaccurate DL-26 form.     Moreover, the

Commonwealth criticizes the trial court’s attempt to morph Appellee’s

voluntary consent to the blood test into a mere acknowledgement of Sergeant

Dehoff’s intent to read to Appellee the DL-26 form.     The Commonwealth

maintains that Appellee’s understanding and agreement was purely to the

performance of a blood test, not the reading of the DL-26 form.         The

Commonwealth concludes the trial court erred in again suppressing Appellee’s

BAC results and this Court should reverse that decision and remand for full

prosecution. We disagree.

     When the Commonwealth appeals from a suppression order, the

relevant scope and standard of review are:

        [We] consider only the evidence from the defendant’s
        witnesses together with the evidence of the prosecution
        that, when read in the context of the entire record, remains
        uncontradicted. As long as there is some evidence to
        support them, we are bound by the suppression court’s
        findings of fact. Most importantly, we are not at liberty to
        reject a finding of fact which is based on credibility.

        The suppression court’s conclusions of law, however, are not
        binding on an appellate court, whose duty is to determine if
        the suppression court properly applied the law to the facts.

Commonwealth v. Goldsborough, 31 A.3d 299, 305 (Pa.Super. 2011),


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appeal denied, 616 Pa. 651, 49 A.3d 442 (2012) (internal citations and

quotation marks omitted).

      Under Birchfield, police can no longer conduct warrantless blood tests

in Pennsylvania, based on implied consent laws which impose criminal

penalties on a defendant’s refusal to comply. Birchfield, supra. The taking

of a blood sample constitutes a search within the meaning of the Fourth

Amendment to the United States Constitution. Id. at ___, 136 S.Ct. at 2173,

195 L.Ed.2d at ___.    Police may not compel the taking of a blood sample

without a search warrant, unless an exception to the warrant requirement

applies. Id. Implied consent laws which impose only civil penalties and/or

evidentiary consequences for refusing to consent to a blood test are

constitutional and permissible under the consent exception to the warrant

requirement. Id. at ___, 136 S.Ct. at 2185, 195 L.Ed.2d at ___. On the other

hand, implied consent laws which impose criminal penalties for refusal to

comply are unconstitutional because “motorists cannot be deemed to have

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

Id. at ___, 136 S.Ct. at 2186, 195 L.Ed.2d at ___.

      “[E]ven though Pennsylvania’s implied consent law does not make the

refusal to submit to a blood test a crime in and of itself, the law undoubtedly

‘impose[s] criminal penalties on the refusal to submit to such a test.’”

Commonwealth v. Evans, 153 A.3d 323, 331 (Pa.Super. 2016) (quoting

Birchfield, supra at ___, 136 S.Ct. at 2185-86, 195 L.Ed.2d at___).


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        A consensual search provides a legally recognized exception to the

warrant requirement. Commonwealth v. Strickler, 563 Pa. 47, 757 A.2d

884 (2000).    As a general rule, “a search is reasonable when the subject

consents….” Birchfield, supra at ___, 136 S.Ct. at 2185, 195 L.Ed.2d at___.

“Whether an individual has voluntarily consented to a search is one of fact

which    must be    determined in each case        from the    totality   of   the

circumstances.” Commonwealth v. Rosas, 875 A.2d 341, 349 (Pa.Super.

2005), appeal denied, 587 Pa. 691, 897 A.2d 455 (2006).

        “The central Fourth Amendment inquiries in consent cases entail

assessment of the constitutional validity of the citizen/police encounter giving

rise to the consent; and, ultimately, the voluntariness of consent. Where the

underlying encounter is found to be lawful, voluntariness becomes the

exclusive focus.” Strickler, supra at 56-57, 757 A.2d at 888-89.

          [T]he 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. As noted, while knowledge of the
          right to refuse to consent to the search is a factor to be
          taken into account, the Commonwealth is not required to
          demonstrate such knowledge as a prerequisite to
          establishing a voluntary consent. Additionally, although the
          inquiry is an objective one, the maturity, sophistication and
          mental or emotional state of the defendant (including age,
          intelligence and capacity to exercise free will), are to be
          taken into account.”

Id. at 79, 757 A.2d at 901. “The test for the validity of a consent to search

is the same for both the Fourth Amendment and Article I, Section 8, i.e., that


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the consent is given voluntarily.” Commonwealth v. Mack, 568 Pa. 329,

334, 796 A.2d 967, 970 (2002). When courts consider the “consent” to a

chemical test, courts apply a similar standard:

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

Commonwealth v. Smith, 621 Pa. 218, 236, 77 A.3d 562, 573 (2013)

(internal citations and quotation marks omitted).

        Historically, a defendant who refused to comply with a request for a

blood sample following the reading of the unamended Pennsylvania DL-26

form was subject to enhanced criminal penalties under 75 Pa.C.S.A. §§ 3803–

3804.      See generally Evans, supra.               After Birchfield, however,

Pennsylvania decided its implied consent statutes containing enhanced

criminal penalties for refusal to take a blood test were also unconstitutional.

See Evans, supra at 331 (holding Pennsylvania’s unamended DL-26 form

containing    enhanced   criminal   penalties   is    now   considered   “partially

inaccurate”).

        When a defendant gives consent to a blood test before being read the

deficient Pennsylvania DL-26 form, the defendant’s consent is voluntary as it


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is “not tainted by the threat of additional criminal penalties as outlined in form

DL-26, and therefore, [is] not obtained in violation of Birchfield and Evans.”

Commonwealth v. Moser, 188 A.3d 478, 483 (Pa.Super. 2018).                  When

consent is obtained only after being read the deficient form, however, the

defendant’s consent is involuntary since “Birchfield makes plain that the

police may not threaten enhanced punishment for refusing a blood test in

order to obtain consent[.]” Commonwealth v. Ennels, 167 A.3d 716, 724

(Pa.Super. 2017), appeal denied, ___ Pa. ___, 182 A.3d 431 (2018).

      Instantly, following remand, and in response to the Commonwealth’s

current complaints, the trial court reasoned:

         Upon this [c]ourt’s thorough review of the transcript, we
         make a factual finding that [Appellee] did not consent to a
         blood draw before he was read the DL-26 form but, rather
         acknowledged Sergeant Dehoff’s intention to read
         [Appellee] the form. In his own words, Sergeant Dehoff
         stated that prior to reading a DL-26 form to anyone he
         places under arrest for DUI, he first will “inform them what
         I am about to do.” In this particular case, Sergeant Dehoff
         stated that he explained to [Appellee] that he was going to
         ask him to submit to a blood test to determine his blood
         alcohol level. Sergeant Dehoff testified that [Appellee]
         stated he understood.

         This [c]ourt does not consider [Appellee’s] acknowledgment
         of what was about to happen, which was the reading of the
         DL-26 form to [Appellee], as a consent to have his blood
         drawn. Instead, this [c]ourt finds that [Appellee] did
         consent after he was read the DL-26 form by Sergeant
         Dehoff. Accordingly, because we find [Appellee] did not
         consent to the blood draw until after he was informed by
         Sergeant Dehoff that he would face enhanced criminal
         penalties if he refused to consent, and in light of Birchfield,
         [supra], we reaffirm our order filed on October 17, 2016,


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         in which we granted [Appellee’s] Motion to Suppress and
         suppressed [Appellee’s] blood alcohol results.

(Trial Court Order, issued November 30, 2017, at 4-5) (most internal citations

omitted). Here, this Court previously remanded the case for the trial court to

make a factual finding on whether Appellee had consented to the blood draw

before or after police warned him of the criminal consequences for refusal in

the unamended DL-26 form.         Upon remand, the trial court expressly

determined that Appellee had consented to the blood draw only after the

deficient DL-26 warnings. The court found that Appellee had not consented

to the blood draw before the DL-26 warnings.        Instead, Appellee simply

acknowledged Sergeant Dehoff’s intent to read the DL-26 form to Appellee

and ask Appellee to submit to the blood draw. The threat of criminal penalties

contained in the unamended DL-26 form read to Appellee constituted coercion

under Birchfield and was unconstitutional. See Birchfield, supra; Evans,

supra.   As a result, the trial court reaffirmed its decision to suppress

Appellee’s BAC results. The record supports the court’s decision, and we see

no reason to disturb it. See Goldsborough, supra. Accordingly, we affirm.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/15/2018


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