J-S68034-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              :   IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                  Appellant                :
          v.                               :
                                           :
ROBERT JOHN MCMANUS,                       :
                                           :
                  Appellee                 :   No. 481 MDA 2017

                Appeal from the Order Entered February 17, 2017,
                in the Court of Common Pleas of Schuylkill County,
               Criminal Division, at No(s): CP-54-CR-0001633-2015

BEFORE:        LAZARUS, DUBOW, and STRASSBURGER, JJ.*

MEMORANDUM BY STRASSBURGER, J.:                 FILED NOVEMBER 09, 2017

     The Commonwealth of Pennsylvania appeals from the February 17,

2017 order, which granted the motion to suppress results of blood testing

filed by Robert John McManus (McManus).1 We affirm.

     The suppression court summarized the facts of this case as follows

based upon the testimony it found credible at the suppression hearing.

            At approximately 3:50 p.m. on March 3, 2015, the affiant,
     Shenandoah Police Officer Dave Stamets was dispatched to a
     medical call at Redner’s Quick Stop [regarding a vehicle there].
     Officer Stamets replied to the dispatch and completed the
     necessary steps for a medical call. After completing the call, the
     officer received information that both of the occupants of the
     vehicle had suspended driver[’s] licenses.

          The officer proceeded behind the vehicle, activated his
     emergency lights[,] and stopped the vehicle on SR 924 near the

1 The Commonwealth has certified that this order will “substantially handicap
the prosecution,” and therefore this Court has jurisdiction over this
interlocutory appeal pursuant to Pa.R.A.P. 311(d). Commonwealth’s Brief at
1.

*Retired Senior Judge assigned to the Superior Court.
J-S68034-17


     landfill.  The officer approached the vehicle and spoke to
     [McManus] who was the driver of the vehicle. Officer Stamets
     testified that [McManus] had red, glassy, blood shot eyes,
     constricted pupils[,] and [] low raspy speech.        The officer
     conducted field sobriety tests and testified that [McManus] failed
     the test[s]. [In addition, Officer Stamets found “light blue,
     glassine bags, which are commonly used for … packaging …
     heroin, inside the vehicle.” N.T., 1/30/2017, at 5.]       Officer
     Stamets placed [McManus] into the back of the vehicle and
     requested he submit to a drug evaluation at the Shenandoah
     Police Department. Officer Stamets is recognized as a drug
     recognition expert. Officer Stamets concluded that [McManus]
     was under the influence of a drug and requested that he submit
     to a blood test at the Pottsville Hospital. [McManus] consented
     to the blood draw and was taken to the Pottsville Hospital.
     [McManus] was read the DL-26 form and [McManus] consented
     to the drawing of his blood. The pertinent language of the form
     as read to [McManus] provided:

       1. You are under arrest for driving under the influence
          of alcohol or a controlled substance in violation of
          section 3802 of the Vehicle Code.

       2. I am requesting you submit to a chemical test of
          blood.

       3. If you refuse to submit to a chemical test, your
          operating privilege will be suspended for at least 12
          months…. In addition, if you refuse to submit to the
          chemical test and you are convicted of violating
          section 3801(a)(1) (relating to impaired driving) of
          the Vehicle Code, then, because of your refusal, you
          will be subject to more severe penalties set forth []
          in Section 3804(c) (relating to penalties) of the
          Vehicle Code. []

       4. You have no right to speak with an attorney or
          anyone else before deciding whether to submit to
          testing. If you request to speak with an attorney or
          anyone else after being provided these warnings or
          you remain silent when asked to submit to chemical
          testing, you will have refused the test.



                                   -2-
J-S68034-17


      (Commonwealth’s Exhibit No. 2, January 30, 2017.)

Suppression Court Opinion, 2/17/2017, at 2-4 (unnecessary capitalization

omitted).

      The blood test was conducted, and McManus’s blood tested positive for

morphine. Motion to Suppress, 8/23/2016, at ¶ 6. Based on this incident,

Appellant was charged with two counts of driving under the influence of

drugs,   possession    of   a   controlled    substance,   possession   of   drug

paraphernalia, and driving with a suspended license. On August 23, 2016,

McManus filed a motion to suppress the results of the blood testing pursuant

to the United States Supreme Court’s holding in Birchfield v. North

Dakota, 136 S.Ct. 2160 (2016).2 The suppression court held a hearing on

the motion on January 30, 2017.         On February 17, 2017, the suppression

court issued an order granting the motion, concluding the results of the

blood test are inadmissible at trial.

      The Commonwealth timely filed a notice of appeal, and both the

Commonwealth and the suppression court complied with Pa.R.A.P. 1925.

      On appeal, the Commonwealth presents two issues for our review.

      1. Did the suppression court err in holding that Birchfield []
         applied with equal force to cases where the driver of a motor


2“In Birchfield, the Supreme Court of the United States held that police can
compel a driver to give a breath sample without a warrant; however, police
cannot compel a driver to provide a blood sample without first obtaining a
search warrant except in certain limited circumstances.” Commonwealth v.
Giron, 155 A.3d 635, 640 (Pa. Super. 2017).


                                        -3-
J-S68034-17


             vehicle was under the influence of drugs and not alcohol and
             thus the warnings of enhanced criminal penalties were not
             applicable to him?

        2. Did the suppression court err in determining that [McManus’s]
           consent to submit to blood testing was involuntary?

Commonwealth’s Brief at 4 (suggested answers omitted).3

        We review these issues mindful of our well-settled standard of review.

              When reviewing the grant of a suppression motion, we
        must determine whether the record supports the [suppression]
        court’s factual findings and whether the legal conclusions drawn
        from those facts are correct. We may only consider evidence
        presented at the suppression hearing. In addition, because the
        defendant prevailed on this issue before the suppression court,
        we consider only the defendant’s evidence and so much of the
        Commonwealth’s evidence as remains uncontradicted when read
        in the context of the record as a whole. We may reverse only if
        the legal conclusions drawn from the facts are in error.

Commonwealth v. Ennels, 167 A.3d 716, 720 (Pa. Super. 2017) (internal

quotation marks and citations omitted).

        In    Ennels,   this   Court   considered   the   same   argument   the

Commonwealth presents in its first issue on appeal: whether Birchfield

applies in cases where a defendant is “charged not with drunk driving but

with driving under the influence of a controlled substance.” Ennels, 167

A.3d at 721. This Court considered that issue and held that “[n]o matter the

substance suspected of affecting a particular DUI arrestee, Birchfield

requires that a blood test be authorized either by a warrant (or case-specific



3   McManus has not filed a brief on appeal.


                                        -4-
J-S68034-17


exigency), or by individual consent not based on the pain of criminal

consequences.”     Id.   721-22.     Accordingly,   we   conclude   that   the

Commonwealth is not entitled to relief based upon the argument set forth in

its first issue.

       The Commonwealth also contends that the suppression court erred in

concluding that McManus’s consent was involuntary. Commonwealth’s Brief

at 12-17.     Once again, this argument was considered and addressed in

Ennels, and this Court concluded that “implied consent to a blood test

cannot lawfully be based on the threat of … enhanced penalties.” Id. at 724.

Accordingly, we hold that the suppression court did not err in concluding that

McManus’s “consent was [not] the product of an essentially free and

unconstrained choice when he consented to the blood test after being read

the DL-26 Form from Officer Stamets which informed [McManus] that he

would be subject to enhanced criminal penalties for refusal to submit to

blood testing.” Suppression Court Opinion, 5/17/2017, at 5.

       Because this Court’s decision in Ennels controls the outcome of this

case, we affirm the order of the suppression court granting McManus’s

motion to suppress the blood test.




                                     -5-
J-S68034-17




     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/9/2017




                          -6-
