J-S63027-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    BRANDON S. BAKER                           :
                                               :
                      Appellant                :   No. 320 WDA 2017

                Appeal from the PCRA Order December 7, 2016
     In the Court of Common Pleas of Somerset County Criminal Division at
                       No(s): CP-56-CR-0000481-2015,
                           CP-56-CR-0000639-2006


BEFORE: BOWES, J., SOLANO, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.:                                FILED MARCH 16, 2018

       Brandon S. Baker appeals from the order denying his PCRA petition.

Appellant’s case returns to us after we quashed the order at Docket No. 639-

06, and remanded the matter at Docket No. 481-15 with directions to

counsel to file a Turner/Finley1 brief or an advocate’s brief addressing the

issues raised by Appellant.        Counsel complied with our directive, and, on

January 12, 2018, filed an advocate’s brief with this Court.2 We affirm.




____________________________________________


1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988)                          and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

2 On February 9, 2018, the Commonwealth filed a motion requesting an
extension of time to file its brief. Based on our disposition, infra, we deny
this petition as moot.
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       As we previously quashed Appellant’s appeal at Docket No. 639-06,

see Commonwealth v. Baker, 320 WDA 2017 (Pa.Super. filed December

26, 2017),3 we briefly recount the pertinent facts regarding the appeal at

Docket No. 481-15. The affidavit of probable cause filed in this matter noted

the following.     Shortly after midnight on October 6, 2014, Pennsylvania

State Trooper Scott Kemerer observed a Jeep stopped in the roadway facing

north in the southbound lane. Trooper Kemerer approached the vehicle, and

he saw Appellant slumped over the steering wheel, while the transmission

remained in the drive position. The trooper placed the vehicle in park, and

after unsuccessfully attempting to wake Appellant, he removed him from the

vehicle. Trooper Kemerer detected a strong odor of alcohol emanating from

Appellant. After being brought to his feet, the trooper noticed that Appellant

was severely intoxicated and unable to maintain his balance. As a result, he

placed Appellant under arrest for suspicion of driving under the influence

(“DUI”). Appellant was transported to Somerset Hospital where the trooper

read him his implied consent and O’Connell warnings4 from a DL-26 Form




____________________________________________


3 In our prior disposition in this matter, we determined that Appellant had
failed to properly file a notice of appeal from the order dismissing his PCRA
petition at Docket No. 639-06. Hence, we quashed that portion of his
appeal.

4See Commonwealth, Dep’t of Transp., Bureau of Traffic Safety v.
O’Connell, 555 A.2d 873 (Pa. 1989).



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issued by the Pennsylvania Department of Transportation. Appellant refused

to submit to blood testing.

       Appellant was charged with DUI, his fourth offense, with refusal to

submit to blood testing, and various related crimes.        On September 16,

2015, he pled guilty to the DUI charge.          On January 7, 2016, the court

imposed a sentence of one to five years imprisonment. Appellant did not file

a post-sentence motion or timely appeal that decision. Thus, his judgment

of sentence became final on February 6, 2016.             On August 4, 2016,

Appellant filed a timely pro se PCRA petition, and counsel was appointed.

Appellant contended that he was illegally sentenced following the United

States Supreme Court’s decision in Birchfield v. North Dakota, 136 S.Ct.

2160 (2016), and that information regarding his refusal to submit to a blood

test was submitted to the District Attorney’s Office in violation of federal law.

Following a hearing on the matter, the court denied Appellant’s PCRA

petition, and this appeal followed.

       Previously, we determined that, due to a breakdown in the PCRA

court’s operations Appellant had timely filed his notice of appeal.5 Baker,

supra at *9. In that disposition, as is pertinent herein, we denied counsel’s
____________________________________________


5 In our previous memorandum opinion, we declined to dismiss Appellant’s
appeal on the basis of an untimely filed notice of appeal because the record
revealed that, due to a breakdown in the PCRA court’s operations,
Appellant’s counsel was not served notice of the December 27, 2016 order
dismissing his petition.    Commonwealth v. Baker, 320 WDA 2017
(Pa.Super. filed December 26, 2017) at *9.



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petition to withdraw and remanded this matter with instructions to counsel

to file a compliant Turner/Finley brief or an advocate’s brief. Thereafter,

counsel filed an advocate’s brief, and this matter is once again ready for our

review.

      Appellant raises two questions for our consideration:

      1. Whether the lower court’s findings concerning Appellant’s
         post-conviction relief act petition were supported by the
         record, such that the lower court’s legal conclusions that
         Appellant was not illegally sentenced and his rights of privacy
         were not violated were appropriate.

      2. Whether Appellant was illegally subjected to enhanced
         sentencing provisions for refusing to submit to a warrantless
         blood test.

Appellant’s brief at 16 (unnecessary capitalization omitted).

      When reviewing a PCRA court’s denial of a PCRA petition, “[w]e must

examine whether the record supports the PCRA court’s determinations, and

whether     the   PCRA   court’s   determination   is   free   of    legal   error.”

Commonwealth v. Wilcox, 174 A.3d 670, 672 (Pa.Super. 2017) (citation

omitted).    Further, we will not disturb the PCRA court’s findings, “unless

there is no support for the findings in the certified record.” Id.

      At the outset, we observe that a portion of Appellant’s brief is

dedicated to challenging the sentence imposed at Docket No. 639-06.              As

noted above, we previously quashed the portion of this appeal related to

that order, and thus we do not reach the merits of this claim here.            With

regard to the instant appeal, Appellant first argues that the PCRA court erred



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in determining that his right to privacy under the Health Insurance

Portability and Accountability Act of 1996 (“HIPAA”) was not violated when

his refusal to submit to blood testing was provided to the District Attorney’s

Office without his consent.      Appellant contends that if the DL-26 form

memorializing his refusal to submit to blood testing was provided by the

hospital, then it would be protected from disclosure under HIPAA.

        We find that the PCRA court did not err in determining that the DL-26

form was not a protected health information form under HIPAA, and thus,

Appellant’s right to privacy was not violated when the Pennsylvania State

Police transmitted the form to the District Attorney’s Office. First, we note

that Appellant does not cite which HIPAA provision protects his right to

confidentiality in this instance. Nevertheless, even assuming Appellant had

more fully developed this argument, he would not be entitled to relief.

        HIPAA   prohibits the   disclosure   of “individual   identifiable   health

information” by “covered entities” under the statute. T.M. v. Elwyn, Inc.,

950 A.2d 1050, 1059 (Pa.Super. 2008) (citing 42 U.S.C. § 1320d-6)); 45

C.F.R. 160.103.    A “covered entity” is defined as a “health plan, a health

care clearinghouse, or a health care provider who transmits any health

information in electronic form in connection with a transaction covered by

Act.”    In addition, “health information” means “any information, including

genetic information, whether oral or recorded in any form or medium, that:

(1) is created or received by a health care provider, health plan, public

health authority, employer, life insurer, school or university, or health care

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clearinghouse; and (2) relates to past, present, or future physical or mental

health or condition of the individual; the provision of health care to an

individual; or the past, present, or future payment for the provision of health

care to an individual.” Id.

      Assuming that Somerset Hospital is a covered entity pursuant to

HIPAA and that it provided Trooper Kemerer with the DL-26 form, we do not

find that the hospital disclosed any individual identifiable health information

to the District Attorney’s Office. First, the DL-26 form was created by the

Pennsylvania Department of Transportation, not a health care provider.

Thus, the form itself does not constitute “health information” since it was not

created by a covered entity, and it does not relate to an individual health

condition or the provision of medical care. Second, Trooper Kemerer, whom

Appellant does not argue was a “covered entity,” received Appellant’s refusal

to submit to blood testing, memorialized it on the DL-26 form, and disclosed

that information to the District Attorney’s Office.       As such, the hospital

neither created nor received the alleged “health information” that Appellant

claims was unlawfully provided to the District Attorney’s Office. Hence, the

disclosure did not violate HIPAA, and no relief is due.

      Appellant next contends that, pursuant to Birchfield, supra, he was

illegally sentenced to an enhanced sentence based on his refusal to submit

to a warrantless blood test.    He claims that in Birchfield, the Supreme

Court found that warrantless blood testing was a violation of the Fourth

Amendment, and thus, “any enhanced sentencing provisions as a result of a

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criminal defendant’s refusal to submit to a warrantless blood test is also

unconstitutional.” Appellant’s brief at 24.

      Before we reach the merits of this claim, we must determine whether

it is properly before us. We observe that Appellant’s judgment of sentence

became final on February 6, 2016, thirty days after the imposition of his

sentence, since he filed neither a post-sentence motion nor an appeal.

Pa.R.Crim.P. 720. The United States Supreme Court decided Birchfield on

June 23, 2016, nearly five months after Appellant’s judgment of sentence

became final. The Supreme Court held that “where, as in Birchfield, one of

its decisions ‘results in a ‘new rule,’ that rule applies to all criminal cases still

pending on direct review. As to convictions that are already final, however,

the rule applies only in limited circumstances.’”         Wilcox, supra at 672

(quoting Schriro v. Summerlin, 542 U.S. 348, 351 (2004)).                     Under

Pennsylvania jurisprudence, those “limited circumstances” are restricted to

situations when the new rule is found to be a “substantive rule” or a

“watershed procedural rule” under Teague v. Lane, 489 U.S. 288 (1989).

See Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016).

      In light of this principle, Appellant’s challenge fails. Simply, his case

was not pending on direct appeal when Birchfield was decided, and the

holding in Birchfield has not been found to be a substantive rule or a

watershed procedural rule. Thus, he is not entitled to retroactive application

of its holding. Wilcox, supra; Commonwealth v. Moyer, 171 A.3d 849

(Pa.Super. 2017) (finding Birchfield does not apply retroactively to

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judgment of sentence imposed two days before it was decided).              Since

Birchfield, supra, is not applicable to Appellant’s petition for relief, we do

not reach his second issue. Accordingly, we find that the PCRA court did not

err in denying Appellant’s PCRA petition.

        Order affirmed. Commonwealth’s application for extension of time to

file brief denied as moot.

        Judge Solano did not participate in the consideration or decision of this

case.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/16/2018




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