J-A11030-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellant

                       v.

LARRY N. SCHWAB

                            Appellee                     No. 1896 MDA 2016


               Appeal from the Suppression Order October 19, 2016
                  In the Court of Common Pleas of Berks County
               Criminal Division at No(s): CP-06-CR-0002166-2016


BEFORE: SHOGAN, J., MOULTON, J., and STEVENS, P.J.E.*

MEMORANDUM BY MOULTON, J.:                              FILED AUGUST 24, 2017

       The Commonwealth appeals from the October 19, 2016 order entered

in the Berks County Court of Common Pleas granting Appellee Larry N.

Schwab’s motion to suppress the results of a warrantless blood test.1

Because we conclude that the trial court did not err in granting Schwab’s

motion to suppress the evidence, we affirm.

       The trial court set forth the following facts:

____________________________________________


       *
           Former Justice specially assigned to the Superior Court.
       1
        In its notice of appeal, the Commonwealth certified that the trial
court’s order granting Schwab’s motion to suppress terminates or
substantially handicaps the prosecution. See Pa.R.A.P. 311(d) (permitting
interlocutory appeal where Commonwealth certifies with its notice of appeal
that order terminates or substantially handicaps prosecution). Thus, the
appeal is properly before us. See Commonwealth v. Ivy, 146 A.3d 241,
244 n.2 (Pa.Super. 2016).
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        1. On or about Wednesday, February 3, 2016, Defendant,
        Larry Schwab, was placed under arrest for suspicion of
        driving under the influence.

        2. [Schwab] was transported to the Reading Hospital
        Medical Center for chemical blood testing.

        3. Officer Mark McCreary read the Pennsylvania
        Department of Transportation DL-26 form to [Schwab],
        informing [Schwab] of the possible civil and criminal
        penalties associated with a chemical test refusal.

        4. [Schwab] did submit to chemical testing.

        5. [Schwab] did sign the DL-26 form in the presence of
        Officer McCreary.

        6. The document marked as Commonwealth’s Exhibit 2 is a
        true and correct copy of the above-referenced DL-26 form.

Findings of Fact and Conclusions of Law in Disposition of Defendant’s

Omnibus Pretrial Motion, 10/19/16, at 2-3 (“Suppression Op.”).

     The DL-26 form read to and signed by Schwab warned that:

        If you refuse to submit to the chemical test, your operating
        privilege will be suspended for at least 12 months. If you
        previously refused a chemical test or were previously
        convicted of driving under the influence, you will be
        suspended for up to 18 months. In addition, if you
        refuse to submit to the chemical test, and you are
        convicted of violating Section 3802(a)(1) (relating
        to impaired driving) of the Vehicle Code, then,
        because of your refusal, you will be subject to more
        severe penalties set forth in Section 3804(c)
        (relating to penalties) of the Vehicle Code. These
        are the same penalties that would be imposed if you
        were convicted of driving with the highest rate of
        alcohol, which include a minimum of 72 consecutive
        hours in jail and a minimum fine of $1,000.00, up to
        a maximum of five years in jail and a maximum fine
        of $10,000.




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J-A11030-17



Cmwlth.’s Br. in Opposition to Defendant’s Motion for Suppression at Ex. 2

(emphasis added).

       On February 26, 2016, Schwab was charged with DUI (controlled

substance), 75 Pa.C.S. § 3802(d)(2).2            On July 18, 2016, Schwab filed an

omnibus pre-trial motion arguing, among other things, that the trial court

should suppress the blood test results because he did not knowingly and

intelligently consent to the blood draw.          On September 2, 2016, the trial

court conducted a hearing and, on October 19, 2016, it granted Schwab’s

motion to suppress the blood test results. The Commonwealth filed a timely

notice of appeal.

       The Commonwealth raises the following issues on appeal:

           A. Did the trial court err in suppressing evidence of
           [Schwab’s] blood test results pursuant to Birchfield v.
           North Dakota, ___ U.S. ___, 136 S.Ct. 2160, 195
           L.Ed.2d 560 (2016) in a drug-related DUI prosecution,
           where blood testing is the only available method in
           Pennsylvania to determine whether a suspect is driving
           under the influence of a controlled substance, and thus the
           Pennsylvania    implied    consent    statute   is   wholly
           enforceable?

           B. Did the trial court err in suppressing evidence of
           [Schwab’s] blood test results pursuant to Birchfield v.
           North Dakota, ___ U.S. ___, 136 S.Ct. 2160, 195
           L.Ed.2d 560 (2016) in a drug-related DUI prosecution,
           where the potential penalties listed on the DL-26 form
           properly reflected the penalties related to drug-related DUI
____________________________________________


       2
       Schwab also was charged with possession of drug paraphernalia and
possession of a controlled substance. 35 P.S. §§ 780-113(a)(32) and 780-
113(a)(16), respectively.



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J-A11030-17


        convictions, rendering the consent to the blood draw
        voluntary?

Cmwlth.’s Br. at 4 (full capitalization, trial court answers, and suggested

answers omitted).

     When reviewing the grant of a suppression motion, we must determine

whether the record supports the trial court’s factual findings and “whether

the legal conclusions drawn from those facts are correct.” Commonwealth

v. Brown, 64 A.3d 1101, 1104 (Pa.Super. 2013) (quoting Commonwealth

v. Cauley, 10 A.3d 321, 325 (Pa.Super. 2010)).        We may only consider

evidence presented at the suppression hearing. In re L.J., 79 A.3d 1073,

1085-87 (Pa. 2013). In addition, because the defendant prevailed on this

issue before the suppression court, we consider only the defendant’s

evidence and so much of the Commonwealth’s evidence “as remains

uncontradicted when read in the context of the record as a whole.” Brown,

64 A.3d at 1104 (quoting Cauley, 10 A.3d at 325). We may reverse only if

the legal conclusions drawn from the facts are in error. Id.

     In Commonwealth v. Ennels, ___ A.3d ____, 2017 WL 2954227

(Pa.Super. July 11, 2017), this Court recently addressed arguments identical

to those raised by the Commonwealth here.        In Ennels, we reached the

following two dispositive conclusions:      (1) “No matter the substance

suspected of affecting a particular DUI arrestee, Birchfield requires that a

blood test be authorized either by a warrant (or case-specific emergency), or

by individual consent not based on the pain of criminal consequences,” id.,

at * 5; and (2) “Under the totality of the circumstances, a reasonable person

                                    -4-
J-A11030-17



would believe that the enhanced penalties [warned of in the DL-26 form]3

applied if he refused the chemical test and later was convicted, regardless of

whether he was convicted of an alcohol-related DUI or a drug-related DUI,”

id. at *7.

       Here,    Ennels     compels     the     conclusion   that   Birchfield   applies

regardless of whether an arrestee is suspected of driving under the influence

of alcohol or of a controlled substance. Further, as in Ennels, we conclude

that the trial court did not err in finding that, under the totality of the

circumstances, Schwab’s consent was involuntary because it was obtained

following an impermissible threat that he would face increased penalties if he

refused to consent and later was convicted. Accordingly, we conclude that

the trial court did not err in granting Schwab’s motion to suppress the blood

test results.




____________________________________________


       3
        This Court has observed that Pennsylvania’s implied-consent law
“impose[s] criminal penalties on the refusal to submit to” a blood test in
contravention of Birchfield. Commonwealth v. Evans, 153 A.3d 323, 331
(Pa.Super. 2016) (quoting Birchfield, 136 S.Ct at 2185-86). The Vehicle
Code provides that an individual convicted of DUI (general impairment) who
refused to submit to a blood test shall be subject to the same minimum
sentence and minimum and maximum fines as someone convicted of DUI
(highest rate) and DUI (controlled substances). 75 Pa.C.S § 3804(c).



                                           -5-
J-A11030-17



     Order affirmed.

     Judge Shogan joins the memorandum.

     President Judge Emeritus Stevens files a dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/24/2017




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