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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                     v.                    :
                                           :
CHRISTOPHER ANTILL,                        :          No. 886 EDA 2018
                                           :
                          Appellant        :


                     Appeal from the Order March 19, 2018,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. MC-51-CR-0043141-2014


BEFORE: PANELLA, P.J., OLSON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED FEBRUARY 04, 2020

        Christopher Antill appeals from the March 19, 2018 order entered by the

Court of Common Pleas of Philadelphia County (“Court of Common Pleas”)

denying his petition for a writ of certiorari following review of his convictions

in the Municipal Court of Philadelphia County (“Municipal Court”) of the

following driving under the influence (“DUI”) offenses: general impairment,

highest rate of alcohol; driving under the influence of a controlled substance

or combination of controlled substances; and driving under the influence of

alcohol and a controlled substance or combination of controlled substances.1

After careful review, we reverse the March 19, 2018 order of the Court of

Common Pleas denying appellant’s writ of certiorari, vacate appellant’s




1   75 Pa.C.S.A. §§ 3802(a)(1), (c), (d)(2), and (d)(3), respectively.
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judgment of sentence, and remand for further proceedings consistent with

this memorandum.

     The Court of Common Pleas provided the following factual and

procedural history:

           On December 24, 2014, Officer Chavez responded to
           a call for a vehicle accident near the 4000 block of
           Cottman Avenue in Philadelphia. Upon his arrival, he
           saw an ambulance and the two cars involved in the
           accident. First, he responded to the car that was
           stricken, because it contained a child passenger.
           Then, Officer Chavez examined appellant’s car[,]
           noted the vehicle’s airbags had not deployed and the
           vehicle’s    front   end    had    severe    damage.
           Officer Chavez approached the vehicle where
           appellant was alone and settled in the driver’s seat.
           Officer Chavez asked appellant if he was okay, and
           appellant responded in a slurred and unintelligible
           manner. Appellant could not provide Officer Chavez
           with his identification or any other documents.
           Officer Chavez directed appellant to step out of the
           vehicle. Appellant needed assistance from the officer
           to open the door and he stumbled while exiting the
           vehicle. Officer Chavez testified he placed appellant
           under arrest, because he thought appellant could not
           safely operate a vehicle.     While being placed in
           handcuffs, appellant tried to regain his bearing, but
           fell instead and lost consciousness. Officer Chavez
           called for rescue, which transported appellant to the
           hospital via ambulance with officers following behind
           the transport.

           At the hospital, Officer Chavez asked if appellant
           would consent to the blood draw and read him the
           O’Connell[2] warnings. These warnings contained a
           provision that refusal to submit to testing alone would
           result in enhanced criminal penalties. In between


2See Commonwealth, Dept. of Transp., Bureau of Traffic Safety v.
O’Connell, 555 A.2d 873 (Pa. 1989).


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            bouts of sleep, appellant agreed to submit to the blood
            testing verbally, but refused to sign the document.

            This matter’s procedural history is as follows.
            Appellant filed a motion to suppress the following: the
            observations made by the officer; the statements
            made to the officer; and appellant’s consent to draw
            his blood.

            On September 30, 2015, the [Municipal C]ourt heard
            and denied appellant’s motion, holding the officers
            had probable cause to arrest him and finding that
            appellant’s consent to draw his blood was voluntary.

            On November 15, 2015, appellant was found guilty of
            driving under the influence under subsections
            75 Pa.C.S.[A.] § 3802(a)(1) general impairment;
            (c) highest rate of alcohol; (d)(2) under the influence
            of a controlled substance or combination of controlled
            substances; and (d)(3) under the combined influence
            of alcohol and a controlled substance or combination
            of controlled substances.

            On January 19, 2016, appellant was sentenced to
            three days to six months[’] incarceration with a
            concurrent period of probation.

            On April 15, 2016, the Court of Common Pleas granted
            appellant’s [petition for] writ of certiorari in part and
            denied in part, finding [] appellant’s arrest was
            supported by probable cause and that appellant’s
            blood [test results] should be suppressed.            The
            Commonwealth appealed the finding to [the] Superior
            Court.

Court of Common Pleas opinion, 10/2/18 at 1-3 (extraneous capitalization and

citations to the record omitted; formatting modified).

      Preliminarily, we note that this case involves an appellate procedure

unique to Philadelphia County:




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            When the Municipal Court (1) denies a motion to
            suppress, (2) finds the defendant guilty of a crime,
            and (3) imposes sentence, the defendant has the right
            to either request a trial de novo or to file a petition
            for a writ of certiorari in the Court of Common Pleas
            of Philadelphia County. Pa.R.Crim.P. 1006(1)(a). If
            the defendant files a certiorari petition challenging
            the denial of a suppression motion, the Court of
            Common Pleas of Philadelphia County sits as an
            appellate court and reviews the record of the
            suppression hearing in the Municipal Court.
            Commonwealth v. Coleman, 19 A.3d 1111, 1118-
            1119 (Pa.Super. 2011); Commonwealth v.
            Menezes, 871 A.2d 204, 207 n.2 (Pa.Super. 2005).
            Importantly, when performing this appellate review,
            the Court of Common Pleas of Philadelphia County
            applies precisely the same standard that the Superior
            Court applies in appeals from common pleas court
            orders denying motions to suppress.

Commonwealth v. Neal, 151 A.3d 1068, 1070 (Pa.Super. 2016).

      Here, following the Commonwealth’s filing of a timely appeal, this court,

while relinquishing jurisdiction, remanded the case to the Court of Common

Pleas with instructions to remand to the Municipal Court for findings of fact

and conclusions of law for its denial of the motion to suppress and for the

Court of Common Pleas to reconsider appellant’s petition for writ of certiorari

following the Municipal Court’s findings of fact and conclusions of law. See

Commonwealth v. Antill, 175 A.3d 377 (Pa.Super. 2017) (unpublished

memorandum), citing Neal, 151 A.3d at 1071. The Municipal Court orally

entered its findings of fact and conclusions of law into the record on

October 26, 2017. The Municipal Court found the police officers’ testimony to




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be credible and concluded that appellant consented to a blood draw. (Notes

of testimony, 10/26/17 at 5.)

        The Court of Common Pleas subsequently reconsidered appellant’s

petition for a writ of certiorari and denied the petition on March 19, 2018.

Appellant filed a timely notice of appeal to this court. The Court of Common

Pleas ordered appellant to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b), and appellant timely complied.               The

Court    of   Common      Pleas   subsequently   filed   an   opinion   pursuant    to

Pa.R.A.P. 1925(a).

        Appellant raises the following issue for our review:

              Did not the Philadelphia Court of Common Pleas err in
              denying appellant’s petition for a writ of certiorari
              after the Philadelphia Municipal Court improperly
              denied appellant’s motion to suppress the results of
              his warrantless blood draw, where appellant was
              unable to make a knowing and conscious choice and
              was threatened with criminal penalties for refusal, and
              where there were no exigent circumstances?

Appellant’s brief at 3.

              Our standard of review in addressing a challenge to a
              [suppression] 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


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             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. Yandamuri, 159 A.3d 503, 516 (Pa. 2017) (citation

omitted); see also Coleman, 19 A.3d at 1115 (applying same standard of

review to consideration of Court of Common Pleas’ denial of defendant’s writ

of certiorari following Municipal Court denial of suppression motion).

      In his brief, appellant cites the Supreme Court of the United States’

decision in Birchfield v. North Dakota, 136 S.Ct. 2160, 2186 (2016), which

held that “motorists cannot be deemed to have consented to submit to a blood

test on pain of committing a criminal offense.”             (See appellant’s brief at

15-16.)

      We must first determine whether Birchfield applies retroactively to the

instant case. In Commonwealth v. Hays, 218 A.3d 1260 (Pa. 2019), our

supreme court held that in order for Birchfield to apply retroactively, an

appellant must preserve the issue in question “at all stages of adjudication up

to   and   including   any    direct   appeal.”       Id.   at   1266-1267,    quoting

Commonwealth v. Cabeza, 469 A.2d 146, 148 (Pa. 1983); see also

Commonwealth           v.    Sneed,    899     A.2d    1067,     1076   (Pa.   2006),

Commonwealth v. Tilley, 780 A.2d 649, 652 (Pa. 2001).



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      Based on our review of the record, we find that appellant has preserved

the issue that his consent was not rendered voluntarily at all stages of

adjudication, up to and including direct appeal, in compliance with Hays. The

record reflects that on September 30, 2015, the Municipal Court held a hearing

on appellant’s oral motion to suppress in which appellant sought suppression

of the evidence stemming from the blood draw based on Missouri v.

McNeely, 569 U.S. 141 (2013), and Commonwealth v. Myers, 118 A.3d

1122 (Pa.Super. 2015).     (See notes of testimony, 9/30/15 at 31, 38-39.)

Following his conviction by the Municipal Court, appellant filed a petition for a

writ of certiorari with the Court of Common Pleas on February 18, 2016, in

which he raised the same issues.        (See appellant’s petition for writ of

certiorari, 2/18/16.)   Following remand from this court and the Municipal

Court’s entry of its findings of fact and conclusions of law, the Court of

Common Pleas held a hearing to reconsider appellant’s writ of certiorari.

Therein, appellant continued to raise the argument that appellant’s consent to

a blood draw was neither knowing nor voluntary. (See notes of testimony,

3/19/18 at 7-9.) Accordingly, we find that Birchfield applies retroactively to

appellant’s case.

      Here, appellant specifically avers that he was unable to make a knowing

and conscious choice of whether to submit to a blood draw and was threatened

with criminal penalties for refusal to submit.       (Appellant’s brief at 11.)




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Appellant further avers that there were no exigent circumstances justifying

the warrantless seizure of his blood for chemical testing. (Id.)

      We first turn to Pennsylvania’s implied consent statute and whether

appellant was able to make a knowing and conscious choice to submit to a

blood draw.     At the time of appellant’s arrest, upon conviction of DUI,

motorists were subject to enhanced criminal penalties for refusing to consent

to a blood draw. See 75 Pa.C.S.A. § 1547(b)(2)(ii) (repealed). In 2016, the

Supreme Court of the United States held that “motorists cannot be deemed to

have consented to submit to a blood test on pain of committing a criminal

offense.”    Birchfield, 136 S.Ct. at 2186.     The High Court’s holding in

Birchfield     rendered   “Pennsylvania’s   implied    consent     scheme   []

unconstitutional insofar as it threatened to impose enhanced criminal

penalties for the refusal to submit to a blood test.” Commonwealth v. Kurtz,

172 A.3d 1153, 1157 (Pa.Super. 2017), citing Commonwealth v. Ennels,

167 A.3d 716, 724 (Pa.Super. 2017) (noting that “implied consent to a blood

test cannot lawfully be based on the threat of such enhanced penalties”);

Commonwealth v. Evans, 153 A.3d 323, 330-331 (Pa.Super. 2016). We

have held that the federal good-faith exception to the exclusionary rule does

not apply to cases where Birchfield is retroactively applied. Commonwealth

v. Carper, 172 A.3d 613, 620 (Pa.Super. 2017), appeal denied, 184 A.3d

540 (Pa. 2018), citing Commonwealth v. Frederick, 124 A.3d 748, 756

(Pa.Super. 2015), appeal denied, 138 A.3d 2 (Pa. 2016) (holding that the



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good-faith exception to the exclusionary rule does not exist under Article I,

Section 8 of the Pennsylvania Constitution) (citation omitted).

      Here, the record reflects that the police administered the O’Connell

warnings to appellant, which included language relating to enhanced criminal

penalties for refusing to submit to a blood draw. (Notes of testimony, 9/30/15

at 27-28.) The municipal court found that appellant orally consented to a

blood draw, but he refused to sign the DL-26 form.       (Notes of testimony,

10/26/17 at 5.) In light of Birchfield and its progeny, we find that appellant

cannot be deemed to have voluntarily and knowingly consented to the blood

draw, as he was under the threat of enhanced criminal penalties if he had

elected to decline the blood draw. See Ennels, 167 A.3d at 724.

      We next turn to whether exigent circumstances justified the warrantless

blood draw. In its Rule 1925(a) opinion, the Court of Common Pleas stated

that the warrantless draw of appellant’s blood was subject to exigent

circumstances in this case due to the Court of Common Pleas’ “inference” of

issues arising such as the “availability of [police] officers” during a “busy

holiday weekend,” and the practical issues associated with obtaining a timely

search warrant for a blood draw. (Court of Common Pleas opinion, 10/2/18

at 6, citing Commonwealth v. Trahey, 183 A.3d 444 (Pa.Super. 2018),

appeal granted, 196 A.3d 603 (Pa. 2018).)          Accordingly, the Court of

Common Pleas reached the following conclusion: “In order to deter the likely

ensuing loss of evidence related to the investigation of the vehicle accident,



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we hold the officer’s objective assessment in light of the facts and

circumstances established the requisite elements of the exigent circumstances

exception to the warrant requirement.” (Id. at 6-7.)

      Based on our review of the record, there is no support for the Court of

Common Pleas’ “inferences” concerning the availability of police officers.

Indeed, the Commonwealth did not present any evidence pertaining to the

availability of police officers or the practical issues related to obtaining a

search warrant for a blood draw. Further, there was no evidence presented

concerning the possibility of losing evidence due to the dissipation of alcohol

in appellant’s blood stream. See McNeely, 569 U.S. at 156 (rejecting the

proposition that the natural dissipation of alcohol in a motorist’s bloodstream

creates a per se exigency to justify a warrantless blood draw); Birchfield,

136 S.Ct. at 2174 (reiterating that the Supreme Court “held that the natural

dissipation of alcohol from the bloodstream does not always constitute an

exigency justifying the warrantless taking of a blood sample”) (emphasis in

original); cf. Mitchell v. Wisconsin, 139 S.Ct. 2525, 2539 (2019) (holding

that the police may order a warrantless blood draw of an unconscious driver

whom the police have probable cause to believe that he or she has committed

a drunk-driving offense without violating the Fourth Amendment).

      Accordingly, we find that the Court of Common Pleas erred when it

denied appellant’s writ of certiorari.   Therefore, we reverse the Court of

Common Pleas’ order denying appellant’s petition for a writ of certiorari,



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vacate appellant’s judgment of sentence, and remand for further proceedings

consistent with this memorandum.

      Order denying petition for writ of certiorari reversed.   Judgment of

sentence   vacated.   Remanded for further      proceedings.     Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 2/4/20




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