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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellant

                    v.

FRANK C. PISCATELLO,

                         Appellee                   No. 1703 WDA 2016


                  Appeal from the Order October 5, 2016
             In the Court of Common Pleas of Cambria County
            Criminal Division at No(s): CP-11-CR-0000325-2016

BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY OLSON, J.:                         FILED OCTOBER 13, 2017

      The Commonwealth of Pennsylvania appeals from the October 5, 2016

order granting Appellee Frank Piscatello’s suppression motion.   We vacate

and remand for further proceedings consistent with this memorandum.

      The factual background and procedural history of this case are as

follows. On October 13, 2015, Appellee was pulled over by a member of the

Pennsylvania State Police and admitted to drinking several beers prior to

operating the vehicle.    Appellee was transported to a local hospital and

informed, by a reading of the DL-26 form, that, if he did not consent to a

blood draw, he would face increased criminal penalties.      Appellee then

agreed to the blood draw, which showed the presence of alcohol in his blood

stream.




* Retired Justice specially assigned to the Superior Court
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        On April 14, 2016, the Commonwealth charged Appellee via criminal

information with two counts of driving under the influence (“DUI”)-general

impairment1 and five summary offenses. On September 6, 2016, Appellee

moved to suppress the blood draw evidence. Thereafter, the trial court held

a suppression hearing which encompassed this case and six other cases

which raised similar legal issues. On October 5, 2016, the trial court granted

the suppression motion. The Commonwealth filed this timely interlocutory

appeal as of right.2 See Pa.R.A.P. 311(d).

        The Commonwealth presents two issues for our review:

     1. Whether the [trial] court erred by suppressing evidence that was
        seized based upon the [trooper’s] good faith reliance on
        appellate precedent[?]

     2. Whether [Appellee’s] inculpatory statements regarding his
        alcohol use render any potential coercion inert as [Appellee] was
        ready and willing to admit to his alcohol use[?]

Commonwealth’s Brief at 6.

        Both of the Commonwealth’s claims challenge the trial court’s order

suppressing the results of the blood draw.       “Once a motion to suppress

evidence has been filed, it is the Commonwealth’s burden to prove, by a

1
    75 Pa.C.S.A. §§ 3802(a)(1), 3802(a)(2).
2
  On November 8, 2016, the trial court ordered the Commonwealth to file a
concise statement of errors complained of on appeal (“concise statement”).
See Pa.R.A.P. 1925(b). On November 29, 2016, the Commonwealth filed its
concise statement. On December 9, 2016, the trial court issued an order
stating that its reasoning for granting Appellee’s suppression motion was
included in its October 5, 2016 opinion. Both of the Commonwealth’s issues
were included in its concise statement.



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preponderance of the evidence, that the challenged evidence was not

obtained in violation of the defendant’s rights.” Commonwealth v. Evans,

153 A.3d 323, 327 (Pa. Super. 2016) (citation omitted).       Our standard of

review in addressing a challenge to a trial court’s order granting a

suppression motion is whether the factual findings are supported by the

record and whether the legal conclusions drawn from those facts are correct.

See Commonwealth v. Champney, 161 A.3d 265, 271 (Pa. Super. 2017)

(en banc) (citation omitted). “[O]ur scope of review is limited to the factual

findings and legal conclusions of the [trial] court.” In re L.J., 79 A.3d 1073,

1080 (Pa. 2013) (citation omitted). “When the Commonwealth appeals from

a suppression order, we . . . consider only the evidence from the defendant’s

witnesses together with the evidence of the prosecution that, when read in

the context of the entire record, remains uncontradicted.” Commonwealth

v. Young, 162 A.3d 524, 527 (Pa. Super. 2017) (citation omitted). “Where

the [trial] court’s factual findings are supported by the record, we are bound

by these findings and may reverse only if the [trial] court’s legal conclusions

are erroneous.”    Commonwealth v. Palmer, 145 A.3d 170, 173 (Pa.

Super. 2016) (citation omitted).

      In order to understand the issues presented in this case, it is

necessary to review the change in the law which prompted Appellee to file

his suppression motion. When Appellee was arrested and gave consent to

the blood draw, the warnings regarding increased criminal penalties for



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refusing a blood draw (included in form DL-26) were legally correct. While

Appellee’s case was pending, however, the Supreme Court of the United

States decided Birchfield v. North Dakota, 136 S.Ct 2160 (2016).             In

Birchfield, the Supreme Court of the United States considered whether a

blood draw was subject to one of the limited exceptions to the Fourth

Amendment’s warrant requirement.

      “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, 637 n.1 (Pa. Super. 2017)

(citation omitted). Therefore, in the wake of Birchfield, the DL-26 warnings

read to Appellee were partially incorrect insofar as they advised Appellee

that he faced additional charges and/or enhanced penalties if he refused the

blood draw. Notwithstanding the issuance of Birchfield, the Commonwealth

maintains that the results of Appellee’s blood test withstand suppression

since the good-faith exception to the exclusionary rule applies in this case.3




3
  The Commonwealth attempts to draw a distinction between the rule set
forth in Davis v. United States, 564 U.S. 229 (2011) and Illinois v. Krull,
480 U.S. 340 (1987) and the good-faith exception to the exclusionary rule
originally announced in United States v. Leon, 468 U.S. 897 (1984).
Referred to as the Davis/Krull rule, in those two cases the Supreme Court
of the United States held that when the police conduct a search in
objectively reasonable reliance upon binding appellate precedent or statutory
(Footnote Continued Next Page)


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      It is well-settled that a blood draw is a search under the Fourth

Amendment of the United States Constitution. See Skinner v. Ry. Labor

Execs.’ Assn., 489 U.S. 602, 616–617 (1989); Schmerber v. California,

384 U.S. 757, 767–768 (1966).              The fact that a blood draw is a search,

however, does not end the inquiry. “As the text indicates and [the Supreme

Court of the United States has] repeatedly affirmed, the ultimate touchstone

of the Fourth Amendment is reasonableness.”             Heien v. North Carolina,

135 S.Ct. 530, 536 (2014) (internal quotation marks and citation omitted).

For this reason, the Supreme Court of the United States has created a

number of exceptions to the Fourth Amendment’s warrant requirement. One

such exception is if a defendant consents to a search.            See Illinois v.

Rodriguez, 497 U.S. 177, 183–186 (1990).              Another such exception is a

search conducted pursuant to exigent circumstances, i.e., when police have

insufficient time to seek a warrant because of an emergency. See Michigan

v. Tyler, 436 U.S. 499, 509 (1978). In Missouri v. McNeely, 569 U.S. 141

(2013), the Supreme Court of the United States held that the exigent
                       _______________________
(Footnote Continued)
authority which is later invalidated, the exclusionary rule does not apply.
Davis, 564 U.S. at 249-250; Krull, 480 U.S. at 347.

The Supreme Court of the United States made clear in both Davis and Krull
that it was merely applying the good-faith exception to the exclusionary rule
and not announcing a new exception to the exclusionary rule. See Davis,
564 U.S. at 249 (this case “comes within the good-faith exception”); Krull,
480 U.S. at 346 (internal citation omitted) (“We granted certiorari to
consider whether [the] good-faith exception to the Fourth Amendment
exclusionary rule applies” in this case.). Thus, the Davis/Krull rule is just a
specific example of the good-faith exception.



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circumstances exception rarely applies in DUI cases.    See id. at 149-156.

Consent, on the other hand, is a factual issue.

      “To effectuate the rights guaranteed under the Fourth Amendment, in

the early part of the last century, the [Supreme Court of the United States]

adopted the exclusionary rule, which bars the use of evidence obtained

through an illegal search and seizure.” Commonwealth v. Arter, 151 A.3d

149, 153 (Pa. 2016) (citation omitted). After approximately two decades of

strict adherence to the exclusionary rule, the Supreme Court of the United

States adopted the good-faith exception to the exclusionary rule.

      Under the good-faith exception, “when the police act with an

objectively reasonable good-faith belief that their conduct is lawful, or when

their conduct involves only simple, isolated negligence, the deterrence

rationale loses much of its force, and exclusion [is not appropriate].” Davis

v. United States, 564 U.S. 229, 238 (2011) (internal quotation marks and

citations omitted).   In Davis, the Court held that when a police officer

conducts a search pursuant to binding appellate precedent, which is later

overturned, the evidence seized as a result of that search is admissible

under the good-faith exception. Id. at 239-241. In Illinois v. Krull, 480

U.S. 340 (1987), police conducted a warrantless administrative search

pursuant to a state statute.        Later, that statute was found to be

unconstitutional. Nonetheless, the Supreme Court of the United States held

that the good-faith exception to the exclusionary rule applied because the



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officer acted in an objectively reasonable manner in relying upon the

subsequently invalidated statute. Id. at 349-351. Therefore, evidence that

is collected pursuant to a state statute that has previously been upheld by

an appellate court, but which is later declared unconstitutional, is generally

admissible under the good-faith exception.

      The good-faith exception distinguishes the Fourth Amendment of the

United States Constitution from its Pennsylvania counterpart since “it is

settled that under Article I, Section 8 of the Pennsylvania [C]onstitution, a

good[-]faith   exception   to   the   exclusionary   rule   does   not   exist.”

Commonwealth v. Frederick, 124 A.3d 748, 756 (Pa. Super. 2015),

appeal denied, 138 A.3d 2 (Pa. 2016) (citations omitted); Commonwealth

v. Arnold, 932 A.2d 143, 148 (Pa. Super. 2007) (citation omitted);

Commonwealth v. Edmunds, 586 A.2d 887, 888 (Pa. 1991). Although a

concurring opinion authored by a member of this Court suggests that the

good-faith exception may apply to exclusionary claims raised under Article I,

Section 8 of the Pennsylvania Constitution in circumstances such as the ones

present in this case, see Commonwealth v. Burgos, 64 A.3d 641, 657

(Pa. Super. 2013) (Shogan, J., concurring), appeal denied, 77 A.3d 635 (Pa.

2013), the majority in Burgos explicitly rejected this statement and noted

that “the good[-]faith exception does not exist [under] Pennsylvania [law].”

Id. at 657 n.22 (citation omitted).




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         We have traced these distinctions between the Fourth Amendment of

the United States Constitution and Article I, Section 8 because the precise

legal authority Appellee cited in support of his motion has a significant

impact upon the resolution of the instant appeal.          In this case, Appellee

moved to suppress the blood draw evidence under both the Fourth

Amendment of the United States Constitution and Article I, Section 8 of the

Pennsylvania Constitution.     The trial court correctly found that there is no

good-faith exclusion under        Article   I, Section 8   of the   Constitution.

Therefore, the Commonwealth is not entitled to relief on its first claim of

error.

         In its second issue, the Commonwealth argues that Appellee’s

statement that he drank several beers prior to driving renders any coercion

of the partially incorrect DL-26 warnings “inert.” Commonwealth’s Brief at

19.   In other words, the Commonwealth argues that, notwithstanding the

partially inaccurate DL-26 warnings, Appellee’s consent was voluntary.

         When a defendant is given partially inaccurate DL-26 warnings, the

trial court must evaluate his or her “consent based on the totality of all the

circumstances and given the partial inaccuracy of the officer’s advisory.”

Evans, 153 A.3d at 331 (internal ellipses and alterations omitted), quoting

Birchfield, 136 S.Ct. at 2186. Our Supreme Court has explained that:

         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


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      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) (internal quotation marks

omitted), citing Commonwealth v. Cleckley, 738 A.2d 427, 433 n.7 (Pa.

1999).

      The trial court weighed these factors and determined that Appellee’s

consent to the blood draw was not voluntary. We conclude that one of the

trial court’s factual findings is not supported by the record. With respect to

the sixth factor set forth in Gillespie, i.e., Appellee’s cooperation with law

enforcement personnel, the trial court found that there was no evidence

presented regarding whether Appellee cooperated with the trooper.            See

Trial Court Opinion, 10/5/16, at 8.        The record reflects, however, that

Appellee admitted to the trooper that he drank several beers and he

consented to a portable breathalyzer test. N.T., 9/15/16, at 16. After that

test showed a reading of .095, Appellee admitted to the trooper that he was

likely over the legal limit of .08. Id. at 17.

      The Commonwealth, however, does not challenge the trial court’s

conclusion that three of the other five factors weighed against a finding that

Appellee’s consent was voluntary.       He was in custody at the time police

asked him to consent to the blood draw.          The police used coercive tactics

(albeit unknowingly) by reading the partially inaccurate DL-26 warnings.


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Similarly, Appellee had no knowledge of his right to refuse the blood draw as

police informed him that he would be subject to increased criminal penalties

if he refused.

      Thus, this case turns on the weighing of these factors. We believe that

the trial court is in the best position to weigh these factors and determine

whether, in light of our conclusion that Appellee cooperated with police, his

consent was voluntary. Therefore, we will vacate the suppression order and

remand this case to the trial court for further proceedings consistent with

this memorandum.

      Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/13/2017




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