J-A15019-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ROBIN DWAYNE SMITH                         :
                                               :
                       Appellant               :   No. 1927 MDA 2017

          Appeal from the Judgment of Sentence November 15, 2017
     In the Court of Common Pleas of Franklin County Criminal Division at
                       No(s): CP-28-CR-0001098-2016

BEFORE: PANELLA, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MURRAY, J.:                              FILED AUGUST 29, 2018

       Robin Dwayne Smith (Appellant) appeals from the judgment of sentence

imposed following his convictions of driving under the influence of alcohol

(DUI) – general impairment and DUI – high rate of alcohol.1 We affirm.

       The trial court detailed the factual and procedural history of this case as

follows:

          The credible testimony established that on March 12, 2016,
       Officer [Matthew] Lynch [(Officer Lynch)] was on routine patrol in
       the borough of Chambersburg in the area of the intersection of
       Stouffer Avenue and Wayne Avenue, near the Giant grocery store.
       Notes of Testimony, December 8, 2016 at 5. He observed a
       vehicle turn right from Stouffer Avenue onto Wayne Avenue
       heading west toward the Borough of Chambersburg and then
       accelerate quickly. N.T. at 6. The vehicle crossed the center line.
       Id. He attempted to pace the vehicle to get an idea of how fast it
       was going, but the vehicle kept getting further away. Id. He
       attempted to maintain the same distance between his patrol
____________________________________________


1   75 Pa.C.S.A. § 3802(a)(1), (b).
J-A15019-18


     vehicle and the suspect vehicle. In doing so, Officer Lynch had to
     drive his patrol vehicle at speeds in excess of 60 mph. Id. When
     it appeared the patrol vehicle and the suspect vehicle were
     traveling at the same pace, Officer Lynch noted that he was
     traveling at 63 mph. N.T. at 7. Officer Lynch explained that he
     followed the vehicle from the 900 block of Wayne Avenue to the
     400 block of Wayne Avenue before initiating a traffic stop. N.T.
     at 6. The speed limit on the area of roadway in question is 35
     mph. N.T. at 7.

        Officer Lynch admitted that he did not pace the suspect vehicle
     for three-tenth[s] of a mile and the speedometer in his patrol
     vehicle had not been recently calibrated to ensure accuracy. N.T.
     at 21, 22. When asked how he c[ould] be positive that the vehicle
     was going the speed that he alleged, Officer Lynch explained,

           Based on my training and experience. I drive those
           roads every single day. We clock vehicles using speed
           timing devices, which are calibrated, and so it’s pretty
           easy to differentiate between a vehicle going 35 and
           a vehicle going almost 65.

     N.T. at 22.

        Officer Lynch stopped the suspect vehicle for failing to obey
     traffic control devices; specifically, the speed limit signs posted in
     the area. N.T. at 7. Traveling in excess of the posted speed limit
     is particularly dangerous in this residential stretch of Wayne
     Avenue because of the many driveways, intersecting roadways,
     and some businesses along the roadway. Id.

         Officer Lynch approached the suspect vehicle and identified
     himself. . . . [Appellant] produced only his license, not his
     registration and insurance card, causing the officer to need to
     clarify what he had requested and needed. N.T. at 13, 14.
     [Appellant] had difficulty locating these items. When asked by
     Officer Lynch why he was “going so fast,” [Appellant] responded
     that “his house was just up the road.” N.T. at 12. Officer Lynch
     observed [Appellant]’s speech to be raspy, low and “thick” and his
     eyes to be bloodshot and glassy. Id. There was a strong odor of
     cigarette smoke masking other odors coming from [Appellant]’s
     vehicle. N.T. at 12. When asked, [Appellant] admitted to the
     officer that he had two drinks while working as a DJ at Pappy’s (a
     bar in Waynesboro). N.T. at 12-13. Officer Lynch observed a

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     large amount of DJ equipment in the back of [Appellant]’s vehicle.
     N.T. at 12.

        While [Appellant] was still in his vehicle, Officer Lynch
     attempted to gauge [Appellant]’s sobriety by looking up his
     nostrils and in his mouth; [Appellant] appeared lethargic. N.T. at
     14. Officer Lynch requested that he recite the alphabet starting
     with letter D through letter R; however, [Appellant] recited D
     through S and then uttered an expletive, realizing his error. N.T.
     at 15. Officer Lynch requested the assistance of another officer
     for backup pursuant to department policy. N.T. at 15.

         Officer Lynch asked [Appellant] to exit the vehicle to conduct
     standardized field sobriety testing. Upon attempting to administer
     the horizontal gaze nystagmus test, Officer Lynch determined that
     the results were inconclusive, as [Appellant] had significant
     difficulty just following the instructions. N.T. at 16. He also
     attempted to administer the walk-and-turn test; however, as
     [Appellant] was unable to maintain his balance to proceed past
     the instruction phase, the test was not finished. N.T. at 17.
     [Appellant] reported that he just wasn’t coordinated. Id. A
     preliminary breath test was administered which was positive for
     alcohol. N.T. at 17. In addition, away from the heavy cigarette
     odor of the vehicle’s interior, Officer Lynch detected the odor of
     alcoholic beverages coming from the [Appellant’s] breath. Id.

        Officer Lynch subsequently placed [Appellant] under arrest for
     suspicion of driving under the influence, placed him in handcuffs,
     and transported him to the Chambersburg Hospital. N.T. at 18,
     25. He told [Appellant] they were going to the hospital to get a
     blood sample. N.T. at 25. Two blood samples were drawn by the
     phlebotomist; one to test for the presence of alcohol, one to test
     for the presence of controlled substances. N.T. at 18. The blood
     alcohol concentration was determined to be .113 percent. No
     controlled substances were present in [Appellant]’s blood.

         Prior to the blood draw, Officer Lynch did not advise [Appellant]
     of the . . . warnings in the DL-26 form; instead, Officer Lynch “just
     told him that he was under arrest for a DUI and [the officer] was
     requesting a blood test from him at the hospital.” N.T. at 18-19.
     [Appellant] was not advised that if he refused a blood test he could
     be subject to an enhanced criminal penalty upon conviction for
     DUI. N.T. at 19. In fact, Officer Lynch explained that it was


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      typically the procedure of the Chambersburg Police Department to
      discuss the penalty for refusal

              [...] only if the subject begins questioning about
              whether or not they have to give a blood test. Once
              somebody begins questioning me about that, at that
              point in time, I would read them the DL-26 at the
              hospital, just to clarify their rights. However, absent
              [Appellant] asking me any questions about whether or
              not he had to give his blood or any of the
              repercussions, that protocol was not initiated.
              Therefore, we d[id] not read the DL-26.

Trial Court Opinion, 2/3/17, at 2-5 (footnotes omitted).

      Appellant was charged with one count each of (DUI) – general

impairment and DUI – high rate of alcohol. On August 22, 2016, Appellant

filed a pre-trial motion to suppress in which he challenged the constitutionality

of his vehicle stop. On October 14, 2016, with the trial court’s permission,

Appellant filed an amended motion to suppress, which added a challenge to

the constitutionality of his blood draw under Birchfield v. North Dakota,

136 S. Ct. 2160 (2016). On December 8, 2016, the trial court held a hearing

on Appellant’s suppression motion where Officer Lynch, as the sole witness,

testified for the Commonwealth. On February 3, 2017, the trial court denied

the motion.

      On October 2, 2017, the trial court held a stipulated bench trial, after

which it found Appellant guilty of the aforementioned crimes. On November

15, 2017, the trial court sentenced Appellant to 30 days to 6 months of

incarceration. This timely appeal followed. Both Appellant and the trial court




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have complied with Rule 1925 of the Pennsylvania Rules of Appellate

Procedure.

      On appeal, Appellant presents the following issues for review:

      I.    Did [t]he [t]rial [c]ourt err in finding probable cause for a
      vehicle stop?

      II.   Did [t]he [t]rial [c]ourt err in finding [Appellant]’s lack of
      objection to a blood draw is the equivalent to consenting to the
      blood draw?

Appellant’s Brief at 4.

      Both of Appellant’s issues challenge the trial court’s decision to deny his

suppression motion. The standard of review is as follows:

      Our 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.
      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 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. Singleton, 169 A.3d 79, 82 (Pa. Super. 2017)). “It is

within the suppression court’s sole province as factfinder to pass on the




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credibility of witnesses and the weight to be given their testimony.”

Commonwealth v. Clemens, 66 A.3d 373, 378 (Pa. Super. 2013).

       First, Appellant argues that Officer Lynch lacked the probable cause

necessary to conduct a vehicle stop. Specifically, Appellant asserts that Officer

Lynch lacked probable cause to stop him for a speeding violation because

Officer Lynch did not clock Appellant’s speed, did not pace Appellant’s vehicle

for the required three tenths of a mile, and had not recently calibrated his

speedometer. Appellant thus maintains that there is no accurate evidence

indicating his speed at the time of the vehicle stop. Additionally, Appellant

contends that is no other evidence indicating that he violated any other traffic

law.

       The analysis of the quantum of cause required for a traffic stop begins

with Section 6308(b) of the Motor Vehicle Code, which provides:

            (b) Authority of police officer.--Whenever a police
            officer is engaged in a systematic program of checking
            vehicles or drivers or has reasonable suspicion that a
            violation of this title is occurring or has occurred, he
            may stop a vehicle, upon request or signal, for the
            purpose of checking the vehicle’s registration, proof of
            financial responsibility, vehicle identification number
            or engine number or the driver’s license, or to secure
            such other information as the officer may reasonably
            believe to be necessary to enforce the provisions of
            this title.

75 Pa.C.S.A. § 6308(b).

       Section 6308(b) requires only reasonable suspicion in support of a

vehicle stop for gathering information necessary to enforce the Vehicle Code.



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However, a police officer must have probable cause to support a vehicle stop

where the officer’s investigation following the stop serves no “investigatory

purpose     relevant    to   the   suspected     [Motor   Vehicle   Code]   violation.”

Commonwealth v. Feczko, 10 A.3d 1285, 1291 (Pa. Super. 2010) (en

banc), appeal denied, 25 A.3d 397 (Pa. 2011).               Our Supreme Court has

explained:

              Indeed, the language of § 6308 reflects this very
              intent. Stops based on reasonable suspicion are
              allowed for a stated investigatory purpose: “to secure
              such other information as the officer may reasonably
              believe to be necessary to enforce the provisions of
              this title.” 75 Pa.C.S. § 6308(b). This is conceptually
              equivalent to the purpose of a Terry[2] stop. It does
              not allow all stops to be based on the lower quantum—
              it merely allows this for investigatory stops, consistent
              with the requirements of both federal and state
              constitutions.       We interpret the legislature’s
              modification of § 6308 as merely eliminating the
              statutory requirement of a greater level of information
              for a stop under the Vehicle Code than is
              constitutionally required for all other stops.

Commonwealth v. Chase, 960 A.2d 108, 116 (Pa. 2008). “[I]f the officer

has a legitimate expectation of investigatory results, the existence of

reasonable suspicion will allow the stop – if the officer has no such

expectations of learning additional relevant information concerning the

suspected criminal activity, the stop cannot be constitutionally permitted on

the basis of mere suspicion.” Id. at 115.



____________________________________________


2   Terry v. Ohio, 392 U.S. 1 (1968).

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      Probable cause exists “where the facts and circumstances within the

officers’ knowledge are sufficient to warrant a person of reasonable caution in

the belief that an offense has been or is being committed.” Commonwealth

v. Stultz, 114 A.3d 865, 883 (Pa. Super. 2015) (quotations and citations

omitted). “We evaluate probable cause by considering all relevant facts under

a totality of circumstances analysis.” Commonwealth v. Hernandez, 935

A.2d 1275, 1284 (Pa. 2007). “[P]robable cause does not require certainty,

but rather exists when criminality is one reasonable inference, not necessarily

even the most likely inference.” Commonwealth v. Salter, 121 A.3d 987,

994 (Pa. Super. 2015) (quotations and citations omitted).

      Officer Lynch stopped Appellant’s vehicle for violating Section 3111 of

the Motor Vehicle Code, “Obedience to traffic-control devices,” which provides,

in pertinent part:

      (a) General rule.--Unless otherwise directed by a uniformed
      police officer or any appropriately attired person authorized to
      direct, control or regulate traffic, the driver of any vehicle shall
      obey the instructions of any applicable official traffic-control
      device placed or held in accordance with the provisions of this title,
      subject to the privileges granted the driver of an emergency
      vehicle in this title.

75 Pa.C.S.A. § 3111(a).

      We conclude that Officer Lynch possessed the probable cause necessary

to stop Appellant’s vehicle. At the suppression hearing, Officer Lynch testified

that when he initially encountered Appellant’s vehicle, he noticed that it was

accelerating rapidly in an area that was heavily residential. N.T., 12/8/16, at


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6-7.    As Officer Lynch pursued the vehicle, he attempted to determine

Appellant’s speed by pacing his vehicle. Id. Although he did not pace the

vehicle for three-tenths of a mile, he did notice that in order to keep up with

Appellant, he had to travel 63 miles per hour in a 35 mile per hour zone. Id.

at 7.     Officer Lynch explained that, consequently, he decided to stop

Appellant’s vehicle for failing to obey traffic control devices, in particular, the

speed limit signs posted along road. Id. Officer Lynch, however, did not stop

Appellant’s vehicle merely for speeding, but rather, he testified that driving in

that area significantly in excess of the speed limit is particularly dangerous

because it is a heavily residential area with several driveways, intersections,

and some businesses. Id. He explained:

            In that area, about five years prior, we had a speeding vehicle
        leave the roadway and four people were ejected and killed and a
        fifth person was seriously injured. And so the speed is a concern
        in this area. But that was part of the context for the stop.

           The other part was the fact that there are signs erected
        dictating to people what speed they must go. If they don’t follow
        those lawfully posted signs, then that would be my interpretation
        of a violation of obedience to traffic control devices.

Id. at 30.

        Therefore, the facts and circumstances were sufficient to warrant Officer

Lynch’s reasonable belief that Appellant was operating his vehicle in violation

of Section 3111. See Stultz, 114 A.3d at 883. The record reveals that not

only was Appellant travelling nearly 30 miles per hour in excess of the speed

limit, but he was doing so in a heavily residential area containing several


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driveways, intersections, and businesses. Accordingly, the trial court did not

abuse its discretion in determining that Officer Lynch possessed the probable

cause necessary to stop Appellant’s vehicle for failing to obey traffic control

devices.3

        Appellant next argues that the trial court erred in determining that he

consented to his blood draw. Appellant asserts that his lack of an objection

to a blood draw did not amount to consent and that Officer Lynch never

afforded him an opportunity to refuse the blood draw.

        “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). 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, 615 A.2d 308, 315 (Pa. 1992).                    “A search

conducted without a warrant is deemed to be unreasonable and therefore



____________________________________________


3 We note that Officer Lynch also had probable cause to stop Appellant’s
vehicle for violating Section 3301 of the Motor Vehicle Code, “Driving on right
side of roadway.” Officer Lynch specifically testified that he observed
Appellant’s vehicle cross “over the center line.” N.T., 12/6/18, at 6. This
Court has held that such vehicular movement establishes probable cause to
conduct a vehicle stop. See Commonwealth v. Enick, 70 A.3d 843, 846
(Pa. Super. 2013) (finding a police officer has probable cause to conduct a
vehicle stop for violating 75 Pa.C.S.A. § 3301 after observing the vehicle cross
the double yellow line a single time).

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constitutionally impermissible, unless an established exception applies.”

Commonwealth v. Strickler, 757 A.2d 884, 888 (Pa. 2000).           “One such

exception is consent, voluntarily given.” Id. at 888-889.

      In Birchfield, the United States Supreme Court addressed the

constitutionality of warrantless blood draws. Although the Court concluded

that warrantless blood draws are not permissible as searches incident to

arrest, the Court determined that they are nonetheless permissible under the

consent exception to the warrant requirement.      Birchfield, 136 S. Ct. at

2185-2186.    The Court explained that its “prior opinions have referred

approvingly to the general concept of implied-consent laws that impose civil

penalties and evidentiary consequences on motorists who refuse to comply

with BAC tests[.]” Id. at 2185.

      The Court further stated, however, that it is “another matter ... for a

State not only to insist upon an intrusive blood test, but also to impose

criminal penalties on the refusal to submit to such a test.” Id. It reasoned

that “[t]here must be a limit to the consequences to which motorists may be

deemed to have consented by virtue of a decision to drive on public roads.”

Id.   Thus, the Court concluded that “motorists cannot be deemed to have

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

Id. at 2186. As this Court has explained, “Birchfield makes plain that the

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

order to obtain consent, 136 S. Ct. at 2186; whether that enhanced


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punishment is (or can be) 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).

      Our Supreme Court has explained that we evaluate the voluntariness of

consent objectively, based on the totality of the circumstances:

      While there is no hard and fast list of factors evincing
      voluntariness, some considerations include: 1) the defendant’s
      custodial status; 2) the use of duress or coercive tactics by law
      enforcement personnel; 3) the defendant’s knowledge of his right
      to refuse to consent; 4) the defendant’s education and
      intelligence; 5) the defendant’s belief that no incriminating
      evidence will be found; and 6) the extent and level of the
      defendant’s cooperation with the law enforcement personnel.

Commonwealth v. Gillespie, 821 A.2d 1221, 1225 (Pa. 2003) (Eakin, J.,

opinion announcing the judgment of the court) (citing Commonwealth v.

Cleckley, 738 A.2d 427, 433 n.7 (1999)). Importantly, our Supreme Court

has held that an arrestee need not be informed of the right to refuse a

chemical test in order for the consent to be voluntary under Article I, Section

8 of the Pennsylvania Constitution. Cleckley, 738 A.2d at 428.

      Appellant is correct that certain factors weigh against a finding of

voluntariness, as Officer Lynch did not advise Appellant of his right to refuse

consent and he was under arrest at the time of the blood draw.            N.T.,

12/8/16/, at 18-19. There are, however, several other factors that support a

finding of voluntariness. Officer Lynch testified that when he took Appellant

to the hospital for the blood test, Appellant was completely cooperative and

did not provide any indication that he wanted to refuse the test. Id. at 19.

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Officer Lynch further testified that Appellant was not handcuffed during the

blood test or physically restrained in any way. Id. at 26.

      Moreover, there is no evidence of record that Appellant was under

duress during the blood draw or that Officer Lynch used any coercive tactics

to get Appellant to consent to the blood draw. The record reflects that Officer

Lynch did not threaten Appellant with enhanced criminal penalties prior to the

blood test.   Instead, Officer Lynch plainly informed Appellant that he was

placing him under arrest for suspicion of DUI and that he was taking him to

the hospital for a blood test. Id. at 18, 26. Officer Lynch apprised Appellant

of how long the test would take, informed him that he was not going to jail,

and told him he would likely be released within an hour. Id. at 26.

      Therefore, we conclude, based on the totality of the circumstances, that

the record supports the trial court’s determination that Appellant consented

to the blood draw and that his consent was “the product of an essentially free

and unconstrained choice.” Strickler, 757 A.2d at 901. As this Court has

stated, “Appellant consented to the blood test and it is patently illogical to

suggest that [he] would have refused had he known that by doing so, he would

have been subject to additional penalties. Appellant was not prejudiced in any

way.” Commonwealth v. McCoy, 895 A.2d 18, 27 (2006), aff’d, 975 A.2d

586 (Pa. 2009). Accordingly, the trial court did not err in denying Appellant’s

suppression motion.

      Judgment of sentence affirmed.


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     Judge Panella joins the memorandum.

      P.J.E. Ford Elliott files a dissenting Memorandum Statement.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/29/2018




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