J-S34025-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT
                                                       OF PENNSYLVANIA
                             Appellee

                        v.

    SAMUEL PATRICK KULKA

                             Appellant                 No. 1730 WDA 2017


        Appeal from the Judgment of Sentence imposed October 5, 2017
               In the Court of Common Pleas of Crawford County
               Criminal Division at No: CP-20-CR-0000047-2016


BEFORE: BOWES, STABILE, AND STRASSBURGER,* JJ.

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

        Appellant, Samuel Patrick Kulka, appeals from the judgment of sentence

imposed on October 5, 2017 in the Court of Common Pleas of Crawford

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 31, 2016, at approximately 3:38 a.m., Conneaut
        Lake Regional Police Officer Clay M. Doolittle was on routine patrol
        in a marked vehicle cruiser in full uniform. At that time, he was
____________________________________________


*   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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     parked in Sadsbury Township, Crawford County, Pennsylvania, in
     a funeral home parking lot near the intersection of Route 322 and
     Route 18.

     While observing traffic, a vehicle passed him in the right-hand
     lane. A larger GMC truck then passed the first vehicle in the left
     lane. This caught the [o]fficer’s attention, so he followed the GMC
     truck, which was [Appellant]’s vehicle. The [o]fficer pulled the
     truck over when [Appellant] turned left off of Water Street onto
     Fourth Street without a turn signal.

     When the [o]fficer exited his vehicle and approached [Appellant]’s
     truck, [Appellant]’s truck was still running but he had rolled the
     driver’s door window down. Upon approaching the truck, the
     [o]fficer smelled an extremely strong alcoholic beverage odor.

     The [o]fficer indicated that [Appellant] was in the driver’s seat and
     was exceptionally excited when he approached, repeatedly saying
     please don’t “taze me and don’t shoot me.”              He felt that
     [Appellant]’s actions were somewhat exaggerated. Additionally,
     the [o]fficer noted that [Appellant] spoke with slurred words and
     had a thick tongue with regard to his speech.

     Based on how Appellant was acting, the [o]fficer asked [Appellant]
     if he had a weapon in the truck. [Appellant] indicated that he did
     have a firearm in the glove box. The [o]fficer then asked if he
     could remove [Appellant]’s weapon from the glove box, and
     [Appellant] consented. The [o]fficer asked [Appellant] to get out
     of the truck so that he could remove the weapon. However,
     [Appellant] indicated to him that the door was stuck, so the
     [o]fficer directed [Appellant] to keep his hands on the steering
     wheel while he went around to the glove compartment to remove
     the firearm.

     [Appellant] complied, and the [o]fficer removed, unloaded, and
     took control of the firearm. Thereafter, [Appellant] was able to
     push his door open and exit the truck. The [o]fficer then
     determined that the strong odor of an alcoholic beverage was
     coming from [Appellant]’s person.

     The [o]fficer asked [Appellant] to perform an HGN test – which he
     failed; a walk and turn test – which he failed; and a one[-]leg
     stand test – which he failed.          Additionally, the [o]fficer
     administered a PBT test; and when he did, [Appellant] inquired as

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     to whether that would be used for an official determination of his
     blood alcohol [content]. The [o]fficer indicated to him that it was
     just a preliminary reading. During the discussion[,] [Appellant]
     said that he had consumed ten alcoholic beverages. Prior to that,
     [Appellant] had indicated that he had seven drinks and then
     chugged four drinks before driving because he had gotten into an
     argument with his significant other. [Appellant] also indicated
     that he did not drink often.

     The [o]fficer concluded that [Appellant] was not able to safely
     drive the vehicle and placed him under arrest. Typically[,] at this
     point, they would have gone to the Conneaut Lake Regional Police
     facility for a breath test, but that equipment was being serviced
     that weekend. Thus, the [o]fficer asked [Appellant] if he would
     consent to a blood test, and [Appellant] said he would.
     [Appellant] was taken to the hospital and blood was drawn.

     Because [Appellant] did not refuse the blood test, the [o]fficer
     testified that he never read the warnings on the DL-26 form to
     [Appellant].

     According to the [o]fficer, [Appellant] was taken to the Conneaut
     Lake Regional Police Station, where the [o]fficer read [Appellant]
     the Miranda warnings from a gold card that he carries with him.
     Ultimately, the [o]fficer said he took no statement from
     [Appellant].   The [o]fficer never discussed with [Appellant]
     possible consequences for refusing a blood draw during their
     interaction.

     Before [Appellant] was released into the custody of his significant
     other and another woman, the [o]fficer testified that he told
     [Appellant] he would retain his firearm until he came back for it
     when he was sober.

     When asked by defense counsel on cross-examination whether he
     recalled [Appellant] saying anything about possibly going to jail if
     he did not agree to the blood draw, the [o]fficer testified that he
     did not recall. He then stated that it was not in his report and
     normally something like that would have been in his report
     because of its significance. The [o]fficer did say that although he
     did not recall [Appellant] saying that, he may have said that.




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      The [o]fficer then testified that he did have a DL-26 form, which
      he would have read to [Appellant] had [Appellant] refused to allow
      a blood draw.

      [Appellant] then testified that he had previously had a DUI about
      10 years ago, and therefore, believed that he could go to jail if he
      refused to provide blood. He also testified that while at the scene
      where he was pulled over by the [o]fficer, the [o]fficer pulled a
      card out and started to read it. [Appellant] stated that he
      interrupted the [o]fficer while reading the card and asked the
      [o]fficer if that was the card that tells him that he will go to jail if
      he refused to give blood. [Appellant] then testified that the
      [o]fficer said yeah and that they would get to that later.

      [Appellant] indicated that he was 17-years old and had his prior
      DUI, the Pennsylvania State Police had read the consequences of
      refusal to him, and he gave blood; so [Appellant] was aware of
      the procedure. It was also [Appellant]’s recollection that the
      Miranda statute warnings were read to him after the PBT test was
      administered, in front of the police cruiser where he had been
      pulled over.

      On cross-examination, [Appellant] admitted that he had several
      drinks and was over the legal limit. He indicated he should not
      have been driving. Further, he indicated that he remembered the
      conversation he had with the [o]fficer “vaguely well.” [Appellant]
      further testified that he was never told that he would lose his
      license if he refused the blood test, nor that he would go to jail if
      he refused the blood test.

Trial Court’s Findings of Facts, Conclusions of Law and Order, 2/14/17, at 1-3

(citation omitted).

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

“clearly and articulately consented voluntarily to the blood draw,” id. at 4, and

that his consent to the blood draw “was in fact voluntarily and knowingly given

by unconstrained choice and not the result of duress, coercion, or a will

overborne.”   Id. at 6.


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        After the suppression court denied his motion to suppress, on June 30,

2017, Appellant proceeded to a bench trial, after which he was convicted of

violating 75 Pa.C.S.A. § 3802(a)(1), (c) (DUI - general impairment, and

highest rate of alcohol) and 75 Pa.C.S.A. § 3334(b) (relating to turning

movements and required signals).               On October 5, 2017, Appellant was

sentenced to, inter alia, sixty months of intermediate punishment, which

accounted for Appellant’s two prior DUI offenses. Appellant filed a motion for

reconsideration, which the trial court granted in part (not relevant to the

instant appeal), and denied in part. This appeal followed.

        On appeal, Appellant, relying on            Birchfield   and 75 Pa.C.S.A.

§ 1547(b)(2),2 argues that the blood test results had to be suppressed


____________________________________________


2   Section 1547(b)(1)-(2), in relevant part, reads as follows:

        Civil penalties 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, the department shall suspend the operating privilege of
        the person as follows:
                                        ....

        (2) It shall be the duty of the police officer to inform the person
        that:

           (i) the person's operating privilege will be suspended upon
           refusal to submit to chemical testing and the person will be
           subject to a restoration fee of up to $2,000; and




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because: (i) his consent to the blood draw was not voluntary, but coerced

based on his own knowledge of DUI law, and (ii) the officer failed to inform

Appellant of the consequences resulting from failure to the take a chemical

test.

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

standard:


        [O]ur 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
____________________________________________


           (ii) if the person refuses to submit to chemical breath testing,
           upon conviction or plea for violating section 3802(a)(1), the
           person will be subject to the penalties provided in section
           3804(c) (relating to penalties).

75 Pa.C.S.A. § 1547(b)(1)-(2).

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     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
     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 first 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. Appellant’s argument is meritless.

     “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)


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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.         Here, as noted above, the

suppression court found that “[Appellant] . . . testified that he was never told

that he would lose his license if he refused the blood test, nor that he would

go to jail if he refused the blood test.”      Trial Court’s Findings of Facts,

Conclusions of Law and Order, 2/14/17, at 3. Because, as acknowledged by

Appellant, there was no threat, there cannot be coercion. Thus, Appellant’s

reliance on Birchfield is misplaced.    See Commonwealth v. Smith, 177

A.3d 915 (Pa. Super. 2017) (Birchfield did not apply because the arresting

officer never told the defendant that he would be subjected to greater criminal

penalties if he refused the blood-draw).

      To the extent Appellant, on direct examination, “stated that he

interrupted the [o]fficer while reading the card and asked the [o]fficer if that

was the card that tells him that he will go to jail if he refused to give blood,”

id. at 3, to which the officer, according to Appellant, replied “yeah,” the trial

court credited the officer’s recollection of the events on the night, which did

not include any discussion between Appellant and officer concerning the

consequences of refusal. It is well-established that it is not our role to make

credibility determinations, reweigh the evidence, or resolve conflicts in the


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testimony. Accordingly, the trial court’s findings, which are supported by the

record, will not be disturbed. See, e.g., Commonwealth v. Clemens, 66

A.3d 373, 378 (Pa. Super. 2013) (“It is within the suppression court’s sole

province as fact finder to pass on the credibility of witnesses and the weight

to be given their testimony’); Commonwealth v. Camacho, 625 A.2d 1242,

1245 (Pa. Super. 1993) (because “credibility at a suppression hearing is an

important     determination      best   resolved   through   the   court’s   personal

observations, we will not reverse a suppression court’s assessment of

credibility absent clear and manifest error”).

       Appellant next argues that the officer should have warned him of the

consequences of refusal, relying on 75 Pa.C.S.A. § 1547(b)(2).

       Section 1547 presupposes an officer “requested” a driver to submit to

chemical testing, that the driver “refuses to do so,” see Section 1547(b)(1)

and, upon refusal, the arresting officer must provide the warnings set forth in

Section 1547(b)(2). See, generally, Commonwealth v. Barr, 79 A.3d 668

(Pa. Super. 2013). As noted above, this is not the case here. Appellant was

not requested to take a blood test,3 he was not threatened with harsh

penalties (whether civil or criminal) if he were to refuse to take the blood test,

and he did not refuse to take the blood test.           To the contrary, because



____________________________________________


3 “T]he [o]fficer asked [Appellant] if he would consent to a blood test, and
[Appellant] said he would.” Trial Court’s Findings of Facts, Conclusions of
Law and Order, 2/14/17, at 2.

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Appellant consented to the blood test, the conversation between the officer

and Appellant never reached the point of discussing the consequences of

refusal.   Indeed, the trial court noted that “[b]ecause [Appellant] did not

refuse the blood test, the [o]fficer . . . never read the warnings on the DL-26

form to [Appellant].” Trial Court’s Findings of Facts, Conclusions of Law and

Order, 2/14/17, at 1.

      Even if Section 1547 were violated, as Appellant alleges, the

consequence would be the inapplicability of the enhanced penalties for refusal

– which were not applied here.

      In Commonwealth v. Xander, 14 A.3d 174 (Pa. Super. 2011), we held

that the warnings under Section 1547(b) were indeed components of a valid

“refusal,” noting:

      the General Assembly specifically included a requirement in
      § 1547(b)(2)(ii) that the police warn arrestees of the enhanced
      penalties for a refusal [of chemical testing.      Therefore,] a
      “refusal” for purposes of § 3804(c) necessarily requires a
      knowing refusal insofar as the police must have provided
      the arrestee with the warnings beforehand.
                                        ....

      [The arresting officer] was required to provide [defendant]
      with § 1547(b) warnings before [defendant] could receive
      the enhanced penalties for DUI pursuant to § 3804(c).

Id. at 179 (internal quotations and citations omitted) (emphasis added).

Because Xander had not been warned of the consequences of refusing a blood

draw, we affirmed the trial court’s order granting Xander’s motion for

judgment of acquittal on the enhanced penalty pursuant to 75 Pa.C.S.A.


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§ 3804(c). In light of the foregoing, Section 1547(b)(2) provides no relief to

Appellant.

      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
      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.




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       The suppression court found that there were circumstances surrounding

the interaction militating in favor of a finding of coercion.4      On balance,

however, the suppression court found that the non-coercive elements5

outweighed the coercive elements, and that in fact Appellant consented to the

blood test “voluntarily and knowingly given by unconstrained choice and not

the result of duress, coercion, or a will overborne.”   Trial Court’s Findings of

Facts, Conclusions of Law and Order, 2/14/17, at 6.

       Similarly, our 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


____________________________________________


4  The suppression court named the following coercive circumstances
surrounding the interaction leading to the consent: Appellant gave consent at
a late hour; was under arrest at the time he consented to the blood test; may
have been emotional about an argument he had with his significant other;
and, was not told of his ability to refuse the test. Trial Court’s Findings of
Facts, Conclusions of Law and Order, 2/14/17, at 5.

5 Regarding the non-coercive circumstances, the suppression court named the
following: Appellant is an adult male of seemingly average intelligence, with
some experience with the criminal justice system; consent was given not at
the hospital, but on the scene; officer did not pose intimidating line of
questions or statements that would intimidate Appellant; the officer’s
demeanor and expression were not coercive; officer did not employ aggressive
or abusive tactics; the interaction appeared to be one of cooperation; there
was only one officer at the scene; Appellant admitted he had been drinking
large amounts of alcohol before driving. Trial Court’s Findings of Facts,
Conclusions of Law and Order, 2/14/17, at 5-6.




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

role in consenting to the test, and to the extent that Appellant’s understanding

of the law is relevant,6 there is nothing in the record that would suggest that

such knowledge overborne his will.

       In light of the foregoing, we conclude that the suppression court did not

err in denying Appellant’s motion to suppress the blood test results.

       Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/23/2018




____________________________________________


6 In Commonwealth v. Johnson, -- A.3d ----, 2018 WL 2295895 (Pa. Super.
2018) we reiterated that defendant’s ignorance of the law, i.e. Birchfield and
its implications, did not operate to invalidate defendant’s consent to the blood
test.

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