J-S83019-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RICKY LEE ANDERSON                         :
                                               :
                       Appellant               :   No. 649 WDA 2018

             Appeal from the Judgment of Sentence April 5, 2018
     In the Court of Common Pleas of McKean County Criminal Division at
                       No(s): CP-42-CR-0000293-2017


BEFORE: PANELLA, J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY SHOGAN, J.:                               FILED MARCH 11, 2019

       Ricky Lee Anderson (“Appellant”) appeals from the judgment of

sentence entered following a nonjury trial on multiple vehicular charges.

Appellant challenges the denial of his motion to suppress blood-test results.

We affirm.

       This case arises from a traffic stop conducted by Pennsylvania State

Trooper Brandon W. Anderson on April 15, 2017. Sitting as the finder of fact,

the trial court:

       found the testimony of Trooper Brandon Anderson credible. He
       was running radar traffic enforcement when [Appellant] passed by
       traveling 56 mph in a 40 mph zone. He then conducted a traffic
       stop. Supp. Tr.[1] Page 5. When he spoke to [Appellant,] [Trooper
       Anderson] noticed that [Appellant] had bloodshot, glassy eyes and
       constricted pupils. [Appellant] also had an active warrant for his
       arrest. Supp. Tr. Page 6. Trooper Anderson afforded [Appellant]
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1   N.T. Suppression, 10/3/17.
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      “the opportunity for a blood draw;” and “[Appellant] consented to
      the blood draw.” Supp. Tr. Pages 8 and 40–42. Trooper Anderson
      did not advise [Appellant] that he faced enhanced penalties if he
      refused the test. Supp. Tr. Page 8. He simply asked [Appellant]
      if he would submit to a blood draw and [Appellant] indicated “yes.”
      Supp. Tr. Page 9. [Appellant] was “cooperative.” Supp. Tr. Page
      13.

             Corporal Theodore Race also responded to the scene of the
      stop to assist Trooper Anderson. The court found his testimony
      credible. He testified that [Appellant] failed field sobriety tests
      and he “noticed track marks on [Appellant’s] arms;” and, “they
      were pretty fresh to me.” Supp. Tr. Pages 19, 20. [Corporal Race]
      asked [Appellant] to consent to a blood draw and [Appellant]
      answered “yes.” Supp. Tr. Page 20. [Corporal Race] did not
      advise [Appellant] that he faced any enhanced penalties if he
      refused the test/blood draw. Supp. Tr. Pages 22–23. “I asked
      him to go to the Bradford Hospital; and I told him we were going
      to go there and asked him to consent to a chemical test of his
      blood. The entire time that [Appellant] was with me, he was
      cooperative; and I didn’t have any issue with him as far as he
      didn’t say that he didn’t want to take a test or anything like that;
      and I didn’t have any indicators that he was going to decline
      anything; and I didn’t offer any — any idea of there was going to
      be some kind of penalty or anything like that.” Supp. Tr. Page 24.

             [Appellant] also testified. He did not “recall” the troopers
      asking him to consent to a draw/test. Supp. Tr. Page 29. The
      court found that [Appellant] may not recall being asked to consent
      but it nonetheless occurred. Supp. Tr. Pages 40–41. The court
      found incredible [Appellant’s] testimony that he was “ordered
      around” and told “to go have a seat in some chair in a closet (at
      the hospital)[.]” Supp. Tr. Pages 29–30.

Trial Court Opinion, 9/6/18, at unnumbered 1–2 (emphasis in original).

      Appellant’s blood-test results were positive for amphetamine and

methamphetamine.       N.T. Nonjury Trial, 3/13/18, at 7.        Consequently,

Appellant was charged with driving under the influence of alcohol or controlled

substances (general impairment), driving under the influence of alcohol or


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controlled substances (high rate of alcohol), driving while operating privilege

suspended or revoked, exceeding maximum speed limit by 16 MPH, careless

driving, and safety restraints.2        The trial court denied Appellant’s pretrial

motion to suppress the blood-test results on October 3, 2017. Following a

nonjury trial on March 13, 2018, the trial court found Appellant guilty of all

charges, except the offense of careless driving; it sentenced Appellant on April

5, 2018, to incarceration for a period of one to five years.

       This appeal followed, in which Appellant’s sole challenge is to the denial

of his motion to suppress test results based on the warrantless seizure of his

blood. Appellant’s Brief at 15. With respect to an appeal from the denial of a

motion to suppress, our Supreme Court has stated the following:

              Our standard of review in addressing a challenge to a trial
       court’s denial of a suppression motion is whether the factual
       findings are supported by the record and whether the legal
       conclusions drawn from those facts are correct. When reviewing
       the ruling of a suppression court, we must consider only the
       evidence of the prosecution and so much of the evidence of the
       defense as remains uncontradicted.... Where the record supports
       the findings of the suppression court, we are bound by those facts
       and may reverse only if the legal conclusions drawn therefrom are
       in error.

Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007) (citations

omitted). “It is within the suppression court’s sole province as factfinder to

pass on the credibility of witnesses and the weight to be given their


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2 75 Pa.C.S. §§ 3802(d)(1)(ii), 3802(d)(2), 1543(a), 3362(a)(3), 3714(a),
and 4581(a)(1.1), respectively.


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testimony.” Commonwealth v. Gallagher, 896 A.2d 583, 585 (Pa. Super.

2006). Moreover, we note that our scope of review from a suppression ruling

is limited to the evidentiary record that was created at the suppression

hearing. In re L.J., 79 A.3d 1073, 1087 (Pa. 2013). Further, Pa.R.Crim.P.

581, which addresses the suppression of evidence, provides in relevant part

as follows: “The Commonwealth shall have the burden ... of establishing that

the challenged evidence was not obtained in violation of the defendant’s

rights.” Pa.R.Crim.P. 581(H).

      The Fourth Amendment to the United States Constitution and Article I,

Section 8 of the Pennsylvania Constitution prohibit unreasonable searches and

seizures. “The administration of a blood test, performed by an agent of, or at

the direction of the government, constitutes a search under both the United

States and Pennsylvania Constitutions.” Commonwealth v. Evans, 153 A.3d

323, 327–328 (Pa. 2016) (quoting Commonwealth v. Kohl, 615 A.2d 308,

315 (Pa. 1992)).    If an officer performs a blood-draw search without a

warrant, it is “unreasonable and therefore constitutionally impermissibile,

unless an established exception applies.        Exceptions to the warrant

requirement include the consent exception.     For the consent exception to

apply, the consent must be voluntary.” Id.

      Appellant argues that the trial court erred in determining that his

consent to the warrantless blood draw was voluntary. Appellant’s Brief at 14.

According to Appellant, the Commonwealth failed to carry its “burden of


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establishing that the alleged 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.” Id. at 15.

       Pennsylvania’s Implied Consent Law provides that any person who

drives a vehicle in the Commonwealth “shall be deemed to have given

consent” to a blood draw if a police officer has reasonable grounds3 to believe

the person has been driving under the influence of a controlled substance. 75

Pa.C.S. § 1547(a). The Implied Consent Law sets forth numerous civil and

evidentiary consequences of a person’s refusal to consent to the testing

authorized in Section 1547(a). 75 Pa.C.S. §§ 1547(b), (b.1), (b.2), (c), (e),

(f), (g.1).4   Additionally, the statute provides that any person arrested for

____________________________________________


3 “Reasonable grounds” has been interpreted to mean “probable cause”; thus,
the police officer must have “knowledge of sufficient facts and circumstances,
gained through trustworthy information, to warrant a prudent man in the
belief that a crime has been committed.” Commonwealth v. Aiello, 675
A.2d 1278, 1280 (Pa. Super. 1996) (internal citations omitted). Appellant
does not dispute that the traffic stop and his arrest were supported by
probable cause.

4   Pennsylvania’s Implied Consent Law has recently changed:

       Beginning on February 1, 2004, section 1547(b)(2)(ii) of the
       Motor Vehicle Code required a police officer to warn an individual
       arrested for suspected DUI that the individual’s refusal to submit
       to a blood test would subject that individual to enhanced criminal
       penalties. 75 Pa.C.S.A. § 1547(b)(2)(ii) (West 2016). Officers
       followed that requirement by reading from PennDOT’s Form DL–
       26, a portion of which tracked that statutory language. On June
       23, 2016, the United States Supreme Court issued the Birchfield
       [v. North Dakota, ___ U.S. ___, 136 S.Ct. 2160 (2016)]



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suspicion of DUI possesses an express “statutory right to refuse chemical

testing.” Commonwealth v. Myers, 164 A.3d 1162, 1170 (Pa. 2017); 75

Pa.C.S. §§ 1547(b)(1). Notwithstanding a defendant’s express right to refuse

a blood draw, the police do not have an affirmative duty to inform a defendant

that he has a right to refuse a blood test without risking enhanced criminal

penalties. Robertson, 186 A.3d at 447 (citing Commonwealth v. Smith,

77 A.3d 562 (Pa. 2013)); see also Commonwealth v. Cleckley, 738 A.2d

427 (Pa. 1999) (affirming denial of suppression where sole basis to suppress

was lack of showing that defendant was aware of his right to refuse consent).

       The Supreme Court’s decision in Myers stands for the proposition that

the implied consent statute does not itself serve as an exception to the warrant

requirement; therefore, the voluntariness of an arrestee’s consent must be

evaluated under the totality of the circumstances: “Simply put, statutorily


____________________________________________


       decision. One week later, PennDOT, at the request of the
       Pennsylvania District Attorneys Association and a number of
       county district attorneys, amended Form DL–26 to remove any
       reference to enhanced criminal penalties for the refusal to submit
       to a blood test. The new form is known as Form DL–26B.

Commonwealth v. Robertson, 186 A.3d 440, 443 n.1 (Pa. Super. 2018),
appeal denied, 195 A.3d 852 (Pa. 2018) (internal quotation marks and
citations omitted). With the enactment of Act 30 of 2017 on July 20, 2017,
amending 75 Pa.C.S. § 3804 to comport with Birchfield, the DL-26B form
conforms to statutory law. Id. at 445.

      We observe that the case at hand is not a Birchfield case because the
troopers did not advise Appellant that he would be subjected to greater
criminal penalties if he refused the blood draw. The sole issue in this case is
the voluntariness of Appellant’s consent.

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implied consent cannot take the place of voluntary consent.” Myers, 164 A.3d

at 1178.

             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 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.

Robertson, 186 A.3d at 447 (quoting Commonwealth v. Gillespie, 821

A.2d 1221, 1225 (Pa. 2003) (Eakin, J., opinion announcing the judgment of

the court)).

      On the record, the trial court specifically found “that [Appellant] was

asked if he would consent to a blood draw and that he did indicate that he

would consent to the blood draw. ... [Appellant] himself indicated he was

never specifically threatened about the test.” N.T., 10/3/17, at 41, 42. In its

written opinion, the trial court explained its denial of suppression as follows:

      [Appellant] will likely assert that the following facts demonstrate
      that his consent was invalid: 1) he was not afforded a full
      explanation of his right to decline; 2) he had previously been
      placed under arrest for DUI; and, 3) he was “ordered around.”
      Regarding number 3 the court has found that [Appellant] was
      asked if he would consent to a blood draw, he was cooperative
      and the troopers did not threaten him. [Appellant’s] assertion
      that he was not advised of his right to refuse is accurate. The
      troopers did not explain that the U.S. and Pennsylvania
      Constitutions afforded him the right to decline the search.
      However, . . . an individual under arrest does not have to be
      specifically advised of the right to refuse a test in order for consent
      to be voluntary. Commonwealth v. Cleckley, 738 A.2d 427, 428
      (Pa. 1999). [Appellant’s] assertion that he was placed under
      arrest before he was transported to the hospital and, therefore, to

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      some extent was “ordered around,” is also accurate. However, he
      was not ordered to take the test. The court has found credible
      Trooper Anderson’s and Corporal Race’s testimony that they asked
      [Appellant] to consent to the test and they did not threaten him
      or order him to provide a sample. [Appellant] was cooperative
      and agreed to provide a sample. He may regret that cooperation
      now but that does not change the fact that he voluntarily agreed
      to provide a sample. Therefore, considering all the facts and
      circumstances his consent was voluntary; and, his request for
      relief on appeal should be denied.

Trial Court Opinion, 9/6/18, at unnumbered 4.

      Our review of the record confirms that Appellant, who was fifty years

old at the time of his arrest, was cooperative and never wavered in his consent

to the blood draw. N.T., 10/3/17, at 9, 20, 24. Nothing in the record suggests

that Appellant lacked the education or intelligence to understand the

procedures or believed no incriminating evidence would be found. Although

Appellant was handcuffed upon his arrest, the cuffs were removed at the

hospital.   Id. at 29.   The troopers did not threaten, coerce, or subject

Appellant to duress. Id. at 32. They did not read Appellant the DL-26 form,

which set forth the pre-Birchfield understanding of the consequences

attached to refusal, nor did they otherwise discuss with Appellant the

consequences of refusal.    See Commonwealth v. Smith, 177 A.3d 915,

921–922 (Pa. Super. 2017) (holding that denial of suppression was proper

when arresting officer never told the defendant that she would be subjected

to greater criminal penalties if she refused the blood-draw).

      Based on our review of the record and giving deference to the trial

court’s credibility determinations, we agree with the trial court’s conclusion

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that, under the totality of the circumstances, Appellant’s consent was

voluntary. Trial Court Opinion, 9/6/18, at unnumbered 4. The record supports

the trial court’s finding that Appellant consented, and its legal conclusion that

suppression was not warranted is without error.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/11/2019




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