J-S35021-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    MATTHEW EDWARD THOMAS                      :   No. 1695 MDA 2017

                Appeal from the Order Entered October 25, 2017
              In the Court of Common Pleas of Huntingdon County
              Criminal Division at No(s): CP-31-CR-0000252-2017


BEFORE: BENDER, P.J.E., PANELLA, J., and MURRAY, J.

JUDGMENT ORDER BY PANELLA, J.:                         FILED OCTOBER 29, 2018

       The    Commonwealth         of   Pennsylvania   appeals1   from   the   order

suppressing the results of blood tests administered to Appellee, Matthew

Thomas. The Commonwealth argues the suppression court erred in concluding

that the failure to advise Thomas of the effect of Birchfield v. North Dakota,

136 S.Ct. 2160 (2016), negated his consent to the blood test. We reverse and

remand.

       Our scope and standard of review following an order granting a

suppression motion are as follows.

       When reviewing the propriety of a suppression order, an appellate
       court is required to determine whether the record supports the
       suppression court’s factual findings and whether the inferences
       and legal conclusions drawn by the suppression court from those
____________________________________________


1 The Commonwealth has certified that the trial court’s order substantially
handicaps its prosecution as required by Pa.R.A.P. 311(d).
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      findings are appropriate. Because Appellee prevailed in the
      suppression court, we may consider only the evidence of the
      defense and so much of the evidence for the Commonwealth as
      remains uncontradicted when read in the context of the record as
      a whole. Where the record supports the factual findings of the
      suppression court, we are bound by those facts and may reverse
      only if the legal conclusions drawn therefrom are in error.
      However, where the appeal of the determination of the
      suppression court turns on allegations of legal error, “[t]he
      suppression court’s conclusions of law … are not binding on an
      appellate court, whose duty it is to determine if the suppression
      court properly applied the law to the facts.” As a result, the
      conclusions of law of the suppression court are subject to plenary
      review.

Commonwealth v. Salter, 121 A.3d 987, 992 (Pa. Super. 2015) (citation

omitted; brackets in original).

      An extended factual and procedural history is unnecessary to the

resolution of this appeal. Patrolman Shaun McCready found Thomas at the

scene of an accident and noticed that he appeared to be intoxicated. At the

local hospital, Patrolman McCready read the recently modified DL-26 form.

This form had been modified in reaction to Birchfield so it did not include a

warning that Thomas could suffer enhanced criminal penalties if he refused

the blood test.

      The suppression court found that “[n]o evidence suggested any coercion

by [Patrolman McCready] to influence [Thomas’s] decision as to whether or

not to take the test.” However, the court suppressed the test results since

Thomas could not knowingly and consciously consent to the test without being

explicitly informed that he could refuse the test “without any criminal law

consequences.”

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J-S35021-18


      This Court has rejected that reasoning. See Commonwealth v.

Johnson, 188 A.3d 486 (Pa. Super. 2018). “Johnson’s ignorance of the most

recent Supreme Court decisional law did not impose upon [police] an

affirmative duty to provide [Johnson] with an update on criminal procedure

prior to requesting a blood draw.” Id., at 491.

      The same is true here. The court relied only on Thomas’s ignorance of

Birchfield in suppressing the blood test results. It found no other suggestion

of coercion. Under these circumstances, the court erred in suppressing the

results.

      Order reversed. Case remanded for further proceedings. Jurisdiction

relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/29/2018




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