J-A09036-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellant                :
                                               :
               v.                              :
                                               :
    DANNIE LEE STEPHENSON                      :
                                               :
                      Appellee                 :       No. 1482 MDA 2016

                 Appeal from the Order Entered August 16, 2016
                 In the Court of Common Pleas of Adams County
              Criminal Division at No(s): CP-01-CR-0000430-2016


BEFORE:      GANTMAN, P.J., SHOGAN, J., and OTT, J.

MEMORANDUM BY GANTMAN, P.J.:                               FILED MAY 01, 2017

       Appellant, the Commonwealth of Pennsylvania, appeals from the order

entered in the Adams County Court of Common Pleas, which granted the

pretrial suppression motion of Appellee, Dannie Lee Stephenson, and

suppressed the results of his blood alcohol test.1 We affirm.

       In its opinion, the trial court fully and correctly set forth the relevant

facts and procedural history of this case. Therefore, we have no reason to

restate them.
____________________________________________


1
  Pursuant to Pa.R.A.P. 311(d), the Commonwealth has certified in its notice
of appeal that the trial court’s suppression order substantially handicapped
or terminated the prosecution of the Commonwealth’s case. Accordingly,
this appeal is properly before us for review. See Commonwealth v.
Cosnek, 575 Pa. 411, 421 836 A.2d 871, 877 (2003) (stating Rule 311(d)
applies to pretrial ruling that results in suppression, preclusion or exclusion
of Commonwealth’s evidence).
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       The Commonwealth raises two issues for our review:

          [WHETHER] THE [TRIAL] COURT ERRED IN APPLYING THE
          EXCLUSIONARY RULES OF BOTH THE U.S. CONSTITUTION
          AND THE PENNSYLVANIA CONSTITUTION WHEN A GOOD
          FAITH EXCEPTION SHOULD HAVE BEEN APPLIED[?]

          [WHETHER] THE [TRIAL] COURT ERRED WHEN IT FAILED
          TO RULE THAT VALID CONSENT TO A BLOOD DRAW WAS
          OBTAINED PRIOR TO ANY IMPLICATION OF IMPLIED
          CONSENT LAW AND WHEN THE COMMONWEALTH WAS
          NOT GIVEN THE OPPORTUNITY TO DEVELOP THE RECORD
          ON THAT ISSUE[?]

(Commonwealth’s Brief at 6 and 15, respectively).2

       When the Commonwealth appeals from a suppression order, the

relevant scope and standard of review are:

          [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.       As long as there is some
          evidence to support them, we are bound by the
          suppression court’s findings of fact. Most importantly, we
          are not at liberty to reject a finding of fact which is based
          on credibility.

Commonwealth v. Goldsborough, 31 A.3d 299, 305 (Pa.Super. 2011),

appeal denied, 616 Pa. 651, 49 A.3d 442 (2012) (internal citation omitted).

“The suppression court’s conclusions of law, however, are not binding on an

____________________________________________


2
  The Commonwealth’s appellate brief is missing a statement of questions
involved, as well as a statement of jurisdiction, the order in question, a
statement of the relevant scope of review and standard of review, and a
statement of the case.      See Pa.R.A.P. 2111.      These omissions are
significant. Nevertheless, we decline to waive the Commonwealth’s issues
on these grounds.



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appellate court, whose duty is to determine if the suppression court properly

applied the law to the facts.” Id. (quoting Commonwealth v. Keller, 823

A.2d 1004, 1008 (Pa.Super. 2003), appeal denied, 574 Pa. 765, 832 A.2d

435 (2003)).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Thomas R.

Campbell, we conclude the Commonwealth’s issues merit no relief. The trial

court opinion comprehensively discusses and properly disposes of the

questions presented. (See Trial Court Opinion, filed August 16, 2016, at 4-

12) (finding: Trooper Frazer properly complied with Pennsylvania’s then-

valid implied consent statute pursuant to 75 Pa.C.S.A. § 1547(b) when she

took Appellee to hospital for blood draw; nevertheless, under Birchfield v.

North Dakota, ___ U.S. ___, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016),

police can no longer conduct warrantless blood test based on implied

consent; Birchfield held criminal penalties imposed by implied consent laws

vitiate consent to blood draw; good faith exception to exclusionary rule is

inapplicable here due to significant privacy rights involved in conducting

blood draw; good faith exception fails to further aims of Article I, Section 8

of Pennsylvania Constitution under these circumstances; Commonwealth

presented no evidence of exigent circumstances; Appellee claimed that

threat of enhanced criminal penalties coerced his consent to blood draw;

Appellee was in custody when he signed DL-26 form; inherently coercive


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atmosphere of custodial arrest leaned against finding of voluntary consent;

police did not inform Appellee that he could refuse blood draw; conversely,

DL-26 form explained that if Appellee refused, he would receive harsher

penalties; under objective standard, reasonable person in Appellee’s position

would consent to blood draw because refusal would automatically mean

harsher     criminal    punishment;        Commonwealth       suggested     Appellee’s

statement prior to arrest, “just take me,” was valid consent for blood draw;

this   limited    statement      hardly        demonstrated   Appellee    intentionally

relinquished or abandoned known right or privilege; under totality of

circumstances, Appellee did not provide knowing and voluntary consent for

blood draw).3 Accordingly, we affirm.

       Order affirmed.




____________________________________________


3
   The Commonwealth also argues the court should have allowed the
Commonwealth to present evidence of Appellee’s prior DUI arrest to support
its argument that Appellee voluntarily consented to the blood draw because
evidence of Appellee’s prior DUI would have shown Appellee knew it was
standard procedure to have blood drawn following a DUI arrest. Therefore,
Appellee knew Trooper Frazer was about to take him to the hospital for a
blood draw, and Appellee consented when he said, “Just take me.” We
reject this contention. Even if Appellee knew it was routine to have blood
drawn following a DUI arrest, this fact does not make Appellee’s consent
voluntary. Appellee’s past experience with DUI arrest was irrelevant to the
matter before the court. The court properly excluded evidence of Appellee’s
prior DUI.



                                           -4-
J-A09036-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/1/2017




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