J-S25025-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DONALD EICHLER                             :
                                               :
                       Appellant               :   No. 1518 WDA 2017

                Appeal from the PCRA Order October 3, 2017
               In the Court of Common Pleas of Westmoreland
         County Criminal Division at No(s): CP-65-CR-0004938-2012


BEFORE: GANTMAN, P.J., PANELLA, J., and OTT, J.

JUDGMENT ORDER BY PANELLA, J.                          FILED AUGUST 31, 2018

       Donald Eichler appeals from the order dismissing his petition pursuant

to the Post Conviction Relief Act (“PCRA”). Eichler argues his convictions for

driving under the influence (“DUI”), aggravated assault by vehicle while DUI,

and accidents involving death or personal injury should be vacated as

Birchfield v. North Dakota, 136 S.Ct. 2160 (2016), rendered inadmissible

the blood tests used to convict him.1 We affirm.

       A jury convicted Eichler of hitting, and severely injuring, a wheelchair-

bound pedestrian with his pickup truck while he was highly intoxicated. Eichler


____________________________________________


1 The Birchfield Court found that “motorists cannot be deemed to have
consented to submit to a blood test on pain of committing a criminal offense.”
136 S.Ct. at 2186. In so finding, the Court vacated the conviction of one of
the petitioners who had consented to a blood draw after being informed by
police that he must comply with the blood test, or else face criminal penalties.
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had filed two suppression motions. The first sought the suppression of

evidence seized from his truck, as he claimed the truck was located in the

curtilage of his residence. The second sought to suppress the results of his

blood tests, as he claimed they did not occur within two hours after he drove.

The court denied both motions. Eichler did not challenge the validity of his

consent to the blood test.

      This Court affirmed his judgment of sentence. See Commonwealth v.

Eichler, 133 A.3d 775 (Pa. Super. 2016). Our Supreme Court denied his

petition for allowance of appeal on November 22, 2016. Just over 30 days

later, Eichler filed a pro se PCRA petition, challenging the voluntariness of his

consent to a blood draw under Birchfield. The court appointed counsel, who

later filed an amended petition.

      The PCRA court reviewed the petition and denied it without a hearing.

It concluded that Eichler’s petition was timely, but that Birchfield does not

apply retroactively in PCRA proceedings. This timely appeal followed.

      Eichler argues Birchfield should be applied retroactively in PCRA

proceedings.   However,      “Birchfield   does   not   apply   retroactively   in

Pennsylvania to cases pending on collateral review.” Commonwealth v.

Olson, 179 A.3d 1134, 1139 (Pa. Super. 2018).

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/31/2018




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