J   -S86021-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA                      1   IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                               Appellee

                          v.

GARRETT J. GAETANO

                               Appellant                  No. 449 WDA 2016


            Appeal from the Judgment of Sentence February 25, 2016
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0013376-2015


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

MEMORANDUM BY MOULTON, J.:                                 FILED APRIL 4, 2017

         Garrett   J.   Gaetano appeals from the February 25, 2016 judgment of

sentence entered in the Allegheny County Court of Common Pleas.              We

reverse the judgment of sentence and remand this case to the trial court to

determine whether Gaetano's consent to the blood test was validly obtained

in    light of Birchfield v. North Dakota, 136 S.Ct. 2160 (2016), which was

decided after the trial court's decision in this case.

         The trial court set forth the following facts:

            The evidence presented established that at 3:09 a.m., on
            September 7, 2015, Sgt. Gary Watkins was on routine
            patrol in the Borough of Castle Shannon in Allegheny
            County. He was travelling North on State Route 88 when
            he noticed [Gaetano's] vehicle in the Southbound lane with
            both passenger side tires on the shoulder of the roadway


*    Former Justice specially assigned to the Superior Court.
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          with tires over the fog line. [Gaetano's] vehicle appeared
          to [be] travelling in excess of the speed limit so Sgt.
          Watkins turned around in order to follow [Gaetano] to pace
          the vehicle to determine his speed. [Gaetano] made a left
          turn on Hamilton Road and traveled up Hamilton by driving
          up the middle of the road, his vehicle in both lanes of
          travel. There were no obstructions or road conditions that
          would cause [Gaetano] to drive his vehicle taking up both
          lanes of travel. Sgt. Watkins then activated his lights and
          conducted a traffic stop.
          Sgt. Watkins approached [Gaetano's] vehicle and detected
          a strong odor of alcohol emanating from [Gaetano]. He
          asked [Gaetano] if he had been drinking alcohol, which
          [Gaetano] denied. After [Gaetano's] performance on field
          sobriety tests Sgt. Watkins came to the opinion that
          [Gaetano] was under the influence of alcohol and incapable
          of safely operating a motor vehicle.
Opinion, 4/14/16, at 2-3 ("1925(a) Op."). Sergeant Watkins testified that,

as he was arresting Gaetano, he "requested            that [Gaetano] submit to   a

blood draw, and I said if you refuse to submit to that blood draw, your

license will be suspended and you will suffer enhanced penalties through

PennDOT." N.T., 2/25/16, at 36.       On cross-examination, Sergeant Watkins

also testified as follows:

          [Defense Counsel:] I'm trying to make sure the record is
          clear that in this particular case you handcuffed him, then
          you said you asked him to give blood and told him that the
          consequence of a refusal was a license suspension and
          enhanced penalties through PennDOT?
          [Sgt. Watkins:] Yes.
          [Defense Counsel:] Okay. At some point in time, though,
          didn't Gaetano start to - didn't he ask you if he could give
          breath?
          [Sgt. Watkins:] I recall -- I believe so.



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          [Defense Counsel:] All right. And I'm just trying to move
          along here. After he asked for breath, you would have told
          him what? No, that's not your call, or something to that
          effect?
          [Sgt. Watkins:] Correct.
          [Defense Counsel:] Didn't you then remind him that the
          penalties for a refusal to the test you were asking for was
          a license suspension and enhanced penalties?

          [Sgt. Watkins:] Yes.
          [Defense Counsel:] Okay. And based upon the review of
          the tape, without going through it, during your encounter
          with Gaetano before you transported him from the scene,
          you would have said words to that effect to him about
          three times total?
          [Sgt. Watkins:] And the only reason why I say that      is   if
          they say something --
          [Defense Counsel:] Okay.
          [Sgt. Watkins:] -- you know? So --
          [Defense Counsel:] I do.
          [Sgt. Watkins:] -- if he said something afterwards and I
          just reiterated. Because if I remember, in this case I was
          close to reading the entire DL -26, because he made
          mention that he didn't want a needle and he wanted blood
          (sic), it's not your choice, I have to inform you that I'm
          taking you for blood and what you cited there.
          [Defense Counsel:] All right. So just so the record's clear,
          you indicate that sometimes you have to reiterate it if
          there's some kind of questioning from a suspect?
          [Sgt. Watkins:] Yes.
          [Defense Counsel:] Okay. And if I understand what you're
          saying, you sometimes will get to the point where you will
          have to read the full DL-26 when you suspect this person's
          about to refuse? I don't want to put words in your mouth,
          but I think that's what you're saying.



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         [Sgt. Watkins:] The only time I read the DL -26 is, number
         one, if they do not answer me --
         [Defense Counsel:] Okay.
         [Sgt. Watkins:] -- or, number two, if they flat out refuse.
         [Defense Counsel:] All right. And with Gaetano, you're
         saying you were close to having to read the full DL -26?
         [Sgt. Watkins:] If he would have pushed the issue further
         as far as to go give breath --

         [Defense Counsel:] Right.
         [Sgt. Watkins:]   - I   would have read the DL -26.
         [Defense Counsel:] Okay. But instead, as a result of his
         interaction with you and your interaction with him, you
         told him -- you had to tell him about three times that the
         consequence of a refusal was a loss of his license and
         enhanced penalties?[1]
         [Sgt. Watkins:] Correct.
         [Defense Counsel:] At the hospital did anybody reiterate
         any warnings to him?
         [Sgt. Watkins:] No.




       1 In its 1925(a) opinion, the trial court stated that Sergeant Watkins
read to Gaetano the Commonwealth, Dep't of Trans. v. O'Connell, 555
A.2d 873 (Pa. 1989), warnings. The O'Connell warnings are contained on
the DL-26 form, which provides that if a person refuses to consent to a
blood test, his or her license could be suspended for at least one year and
that, if convicted of violating 75 Pa.C.S. § 3802(a), he or she will face more
severe penalties because of the refusal.        However, as outlined above,
Sergeant Watkins testified that he informed Gaetano, "[Y]our license will be
suspended and you will suffer enhanced penalties through PennDOT," and
did not read the full DL -26 form to Gaetano.


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Id. at 42-45.       Gaetano was transported to St. Clair Hospital. While his blood

was being drawn he told Sergeant Watkins,            "I fucked up." 1925(a)          Op. at 3.

Gaetano's blood -alcohol content was determined to be .205%.                   Id.
        On January 6, 2016, Gaetano filed an omnibus                pre-trial motion, which

included     a   motion to suppress the results from the blood test, arguing that

his consent was involuntary because it was given only after he was informed

he would face enhanced penalties if he refused to consent to the blood test.

        On February 25, 2016, the         trial court held   a   hearing on Gaetano's pre-

trial motion and conducted        a   non -jury trial. The court denied Gaetano's pre-

trial motion and found Gaetano guilty of driving under the influence ("DUI")

-    highest rate, DUI    -   general impairment, and failing to drive on right side

of roadway.2 That same day, the trial court sentenced Gaetano to                      3   days'

incarceration and 6 months' probation.              Gaetano filed       a   timely notice of

appeal.

        On appeal, Gaetano raises the following issue:

             WHETHER THE TRIAL COURT ERRED IN FAILING TO
             SUPPRESS EVIDENCE OF [GAETANO'S] BLOOD ALCOHOL
             CONTENT WHERE THE WARNINGS         PROVIDED TO
             [GAETANO] PRIOR TO HIS CONSENT TO PROVIDE HIS
             BLOOD, FOR THE PURPOSE OF TESTING, CAME AFTER HE
             WAS INFORMED THAT IF HE REFUSED, HE FACED
             ENHANCED PENALTIES?

Gaetano's Br. at 4.




        2   75 Pa.C.S. §§ 3802(c), 3802(a)(1), and 3301(a), respectively.



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        Gaetano maintains that his consent was not constitutionally obtained

because he was informed that if he refused the blood test he would face

"enhanced penalties." He contends that, although Sergeant Watkins stated

the "enhanced        penalties" were through         PennDOT,     Gaetano, who was

intoxicated and being arrested at the time, likely did not differentiate

between enhanced criminal            penalties and enhanced           penalties through

PennDOT.

        The United States Supreme Court has established that because "the

taking of   a    blood sample" is    a   search within the meaning of the Fourth

Amendment of the United              States     Constitution,   absent an applicable

exception, police officers may not compel the taking of           a   blood sample of   a

defendant without     a   search warrant.     Birchfield, 136 S.Ct. at 2173, 2185.3
After concluding that "the search incident to arrest doctrine does not justify

the warrantless taking of     a   blood sample," id. at 2185, the      Birchfield Court
considered whether implied -consent laws, in which cooperation with blood -

alcohol testing is "a condition of the privilege of driving on state roads,"

could provide an exception to the warrant requirement.             Id. at 2168, 2185-
86.    The Court held that, although implied -consent laws that impose civil

penalties   and     evidentiary consequences for           refusing    to   consent   are



        In contrast, the Supreme Court also held that police officers may
        3

administer a breath test without a warrant as a search incident to arrest.
Birchfield, 136 S.Ct. at 2185.



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constitutional,4 implied -consent laws that "impose criminal penalties" for

refusing to consent to        a   blood test are unconstitutional because "motorists

cannot be deemed to have consented to submit to                     a       blood test on pain of

committing      a   criminal offense."       Id. at 2185-86.5
        Section 1547 of the Pennsylvania Vehicle Code, commonly referred to

as the Implied         Consent Law, provides that             a   person's license may be

suspended if he or she refuses           a    requested blood test. 75 Pa.C.S               §   1547(b)

("If any person placed under arrest for                  a   violation of section 3802               is

requested to submit to chemical testing and refuses to do so, the testing

shall not be conducted but upon notice by the police officer, the department

shall suspend the operating privilege of the person                     .   .   .   .").   The Implied




        4   The Court in   Birchfield stated:
             Our 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. See, e.g., [Missouri v.] McNeely, []133 S.Ct.
             [1552,] 1565-1566 [(2013)] (plurality opinion); [South
             Dakota v. Neville, 459 U.S. 553, 560, 103 S.Ct. 916, 920
             (1983)]. Petitioners do not question the constitutionality
             of those laws, and nothing we say here should be read to
             cast doubt on them.
136 S.Ct. at 2185.

        5The trial court's Rule 1925(a) opinion preceded the decision in
Birchfield.     However, where a United States Supreme Court decision
"results in a 'new rule,' that rule applies to all criminal cases still pending on
direct review." Schriro v. Summerlin, 542 U.S. 348, 351 (2004).



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Consent Law further provides that the police officer shall inform the person

that:

           (i) the person's operating privilege will be suspended upon
           refusal to submit to chemical testing; and
           (ii) if the person refuses to submit to chemical testing,
           upon conviction or plea for violating section 3802(a)(1),
           the person will be subject to the penalties provided in
           section 3804(c) (relating to penalties).
75 Pa.C.S.     §    1547(a)(2).   Section 3804(a) of the Vehicle Code provides

increased criminal penalties if          a   person refuses    a    blood test and is later

convicted of violating section 3802(a)(1).                 See 75 Pa.C.S             §   3804(c)

(providing sentencing ranges for "[a]n individual who violates section

3802(a)(1) and refused testing of blood or breath or an individual who

violates section 3802(c) or (d)," including that, for                    a    first offense, the

individual shall be sentenced to, among other things, "imprisonment of not

less than 72 consecutive hours").              Accordingly, in Pennsylvania, although          a

driver cannot be convicted of        a   separate offense for refusing to consent to           a

blood test, the driver faces increased penalties if later convicted of certain

DUI     offenses.      See Commonwealth v. Evans, --- A.3d ----, 2016

Pa.Super. 293, *7-8 (filed Dec. 20, 2016); Commonwealth v. Giron, ---

A.3d ----, 2017 Pa.Super. 23, *4 (Jan. 31, 2017) (finding sentence under 75

Pa.C.S. §§ 3803-04 for defendant who refused               a   blood test illegal following

Birchfield).
        Gaetano      argues   that       his    consent   to       the       blood   draw   was

unconstitutionally obtained.         In particular, he contends that because he

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consented only after being informed he would face "enhanced penalties" if

he refused, his consent was        involuntary and thus invalid.

        Following    Birchfield, the police may validly obtain consent          based on   a

warning of     a   license -suspension penalty, because the Supreme Court made

clear that such penalty may be constitutionally imposed. In contrast, where

consent is obtained following       a   warning that refusal will subject   a   motorist to

"the pain of committing      a   criminal offense," Birchfield, 136 S.Ct. at 2186,         a

penalty that in fact may not be imposed, that consent may be rendered

involuntary.       See Evans, --- A.3d ----, 2016 Pa.Super. 293, *8 (finding

officer's warning "partially inaccurate" where officer informed appellant of

increased    criminal penalties, and vacating judgment of sentence and

remanding for re-evaluation of consent based on totality of circumstances);

cf. Birchfield, 136 S.Ct. at 1286 (remanding to state court to determine

whether appellant voluntarily consented to blood test where appellant had

been informed submission to test was required, his license was suspended,

and he was fined in administrative proceeding).

        The Pennsylvania Supreme Court has stated:

               In determining the validity of a given consent, the
               Commonwealth bears the burden of establishing that a
               consent is the product of an essentially free and
               unconstrained choice-not the result of duress or
               coercion, express or implied, or a will overborne-under
               the totality of the circumstances.      The standard for
               measuring the scope of a person's consent is based on
               an objective evaluation of what a reasonable person
               would have understood by the exchange between the
               officer and the person who gave the consent. Such

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                   evaluation includes an objective examination of the
                   maturity, sophistication and mental or emotional state
                   of the defendant[.] Gauging the scope of a defendant's
                   consent is an inherent and necessary part of the
                   process of determining, on the totality of the
                   circumstances presented, whether the consent is
                   objectively valid, or instead the product of coercion,
                   deceit, or misrepresentation.
Commonwealth v. Smith, 77 A.3d 562, 573                      (Pa. 2013) (internal citations

and quotation marks omitted).

        In this case,       a   crucial component of the "totality of the circumstances"

surrounding Gaetano's consent               is   the warning given by Sergeant Watkins

concerning the consequences of refusal.                   Unlike the warning we recently

addressed in Evans, --- A.3d ----, 2016 Pa.Super., *8, Sergeant Watkins did

not expressly state that Gaetano would face enhanced criminal penalties if

he refused consent.              Instead, he referenced "enhanced penalties through

PennDOT."              N.T., 2/25/16, 36.        The record does not reveal what those

enhanced penalties might be, beyond license suspension.                   In Evans, after

concluding that the more explicit warning there was "partially inaccurate,"

we "remand[ed] the case to the trial court to 'reevaluate [Appellant's]

consent    .   .   .   [, based on] the totality of all the circumstances      .   .   .   [and]

given the partial inaccuracy of the officer's advisory.' --- A.3d ----, 2016

Pa.Super., *8 (quoting Birchfield, 136 S.Ct at 2186) (alterations in




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original).   Here, we must do the same, recognizing that Sergeant Watkin's

warning was less blatantly inaccurate than the warning in Evans.6

         Judgment of sentence reversed.     Case remanded with instructions.

Jurisdiction relinquished.

         President Judge Gantman joins in the Memorandum.

         President Judge Emeritus Stevens files   a   Dissenting Memorandum.



Judgment Entered.



     /
J    seph D. Seletyn,
Prothonotary


Date: 4/4/2017




         6   Gaetano was stopped before the Supreme Court's decision in
Birchfield. At the time of the stop, therefore, it would have been accurate
for Sergeant Watkins to have informed Gaetano that, under Pennsylvania
law, he faced increased criminal penalties if he refused to consent to the
blood draw.
