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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                     v.                    :
                                           :
TERRA N. MOHACSI,                          :         No. 509 WDA 2019
                                           :
                          Appellant        :


        Appeal from the Judgment of Sentence Entered March 19, 2019,
            in the Court of Common Pleas of Westmoreland County
               Criminal Division at No. CP-65-CR-0001842-2017


BEFORE: SHOGAN, J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED FEBRUARY 18, 2020

        Terra N. Mohacsi appeals from the March 19, 2019 judgment of sentence

entered by the Court of Common Pleas of Westmoreland County following her

conviction of driving under the influence (“DUI”) – highest rate of alcohol

(BAC 0.16+) (second offense) and DUI – general impairment (second

offense).1 After careful review, we vacate appellant’s judgment of sentence.

        The trial court provided the following procedural history:

              [Appellant] was charged with the [aforementioned]
              offenses due to an incident that occurred on
              February 13, 2017[.]

              ....

              [Appellant] filed an omnibus pre-trial motion on
              August 7, 2017. In the motion, she argued that her
              consent to the blood draw was involuntary and no

1   75 Pa.C.S.A. §§ 3802 (c) and (a)(1), respectively.
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             other exception to the warrant requirement
             recognized in Birchfield[2] applies; therefore, the
             blood test results should be suppressed and [the
             count of DUI highest rate of alcohol] should be
             dismissed.   An omnibus pre-trial motion hearing
             occurred before [the trial c]ourt on May 15, 2018.
             After reviewing briefs that were submitted by
             [appellant] and the Commonwealth, [the trial court]
             denied [appellant’s] omnibus pre-trial motion.

             A non-jury trial occurred before [the trial c]ourt on
             December 13, 2018. The parties did not present any
             additional testimony at the non-jury trial.        They
             stipulated that the stop of [appellant’s] vehicle was
             proper, that she was driving while impaired due to
             alcohol, a blood test was requested, and the result of
             the blood test was .238. Additionally, defense counsel
             noted that the stipulation regarding the blood test
             would include the facts set forth in the omnibus
             pre-trial motion hearing transcript. [Appellant] was
             found guilty [of the aforementioned charges] based
             upon the stipulation by the parties, the transcript, and
             the lab report that was admitted as Commonwealth’s
             Exhibit 1.

             Subsequently, [appellant]       was sentenced on
             March 19, 2019, to the mandatory minimum on a
             Tier III second offense DUI. At Count 1 [(DUI highest
             rate of alcohol), appellant] was sentenced to five (5)
             years of intermediate punishment with six (6) months
             [of] home electronic monitoring. She was granted
             work release and ordered to pay a fine and restitution.
             She was also sentenced to an eighteen (18) month
             license suspension and was ordered to follow all
             treatment      recommendations     from    her    CRN
             evaluation.[ ] Her sentence was to be terminated
                          3



2   Birchfield v. North Dakota, 136 S.Ct. 2160 (2016).

3 “A CRN evaluation is ‘[a] uniform prescreening evaluation procedure for all
[DUI] offenders to aid and support clinical treatment recommendations
offered to the judiciary, prior to sentencing.       67 Pa.Code § 94.2.”
Commonwealth v. Parsons, 166 A.3d 1242, 1244 n.1 (Pa.Super. 2017)
(emphasis and citation omitted).


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            after three (3) years, assuming she has completed the
            treatment and got into no other trouble. Count 2
            [(DUI – general impairment)] merged for purposes of
            sentencing.

Trial court opinion, 4/23/19 at 1-2 (extraneous capitalization and citations to

the record omitted; footnote omitted).

      Appellant filed a timely notice of appeal.       The trial court ordered

appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b) and appellant timely complied. The trial court

subsequently filed an opinion pursuant to Pa.R.A.P. 1925(a).

      Appellant raises the following issues for our review:

            I.     Did the [t]rial [c]ourt err in failing to suppress
                   the test results obtained by a warrantless
                   search and seizure of [a]ppellant’s blood?

            II.    Did the [trial c]ourt impose an illegal sentence
                   in the [sic] failing to dismiss Count 1 of the
                   Information and failing to sentence only at
                   Count 2, an ungraded misdemeanor, with a
                   maximum penalty of 6 months in prison, and a
                   maximum twelve month driver’s license
                   suspension?

Appellant’s brief at 4.

      In her first issue, appellant contends that the trial court erred when it

determined that appellant’s consent to a warrantless blood draw was a

knowing and voluntary relinquishment of her right to refuse.        (Id. at 16.)

Specifically, appellant argues that she subjectively believed that she would

have faced enhanced criminal penalties if she refused to consent to a blood

draw. (Id.) Appellant further contends that the police failed to provide her


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with any warning pertaining to an effect of a potential refusal, nor did the

police affirmatively tell appellant that she had a right to refuse the blood draw.

(Id.)

             [An appellate court’s] standard of review in
             addressing a challenge to the denial of a suppression
             motion is limited to determining whether the
             suppression court’s factual findings are supported by
             the record and whether the legal conclusions drawn
             from those facts are correct.             Because the
             Commonwealth prevailed before the suppression
             court, we may consider only the evidence of the
             Commonwealth and so much of the evidence for the
             defense as remains uncontradicted when read in the
             context of the record as a whole.            Where the
             suppression court’s factual findings are supported by
             the record, [the appellate court is] bound by [those]
             findings and may reverse only if the court’s legal
             conclusions are erroneous. Where . . . the appeal of
             the determination of the suppression court turns on
             allegations of legal error, the suppression court’s legal
             conclusions are not binding on an appellate court,
             whose duty it is to determine if the suppression court
             properly applied the law to the facts. Thus, the
             conclusions of law of the courts below are subject to
             [] plenary review.

Commonwealth v. Jones, 121 A.3d 524, 526-527 (Pa.Super. 2015), appeal

denied, 135 A.3d 584 (Pa. 2016) (citation omitted).

        Initially, we are guided by Commonwealth v. McCoy, 895 A.2d 18, 28

(Pa.Super. 2006), in which we concluded that Section 1547 is an implied

consent statute applicable to all drivers and requires that a motorist consent

to   chemical    tests   under   appropriate    circumstances.           Id.,   citing

Commonwealth v. Mordan, 615 A.2d 102 (Pa.Super. 1992).




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      Following the United States Supreme Court’s decision in Birchfield, this

court decided Commonwealth v. Miller, 186 A.3d 448 (Pa.Super. 2018),

appeal denied, 199 A.3d 858 (Pa. 2018). In Miller, the defendant argued

that because of a prior DUI arrest, he was under the subjective belief that he

was subject to enhanced criminal punishment if he refused to consent to a

blood draw. Id. at 449-450. The Miller court, citing a contemporaneous

decision in Commonwealth v. Robertson, 186 A.3d 440 (Pa.Super. 2018),

appeal denied, 195 A.3d 852 (Pa. 2018), rejected the suppression court’s

rationale for granting the defendant’s motion to suppress because “defendants

are presumed to know case law in addition to statutory law,” and the police

do not have an affirmative duty to “inform defendants that they do not face

enhanced criminal penalties if they refuse a blood test.” Miller, 186 A.3d at

450, citing Robertson, 186 A.3d at 446; see also Commonwealth v.

Krenzel, 209 A.3d 1024, 1029 (Pa.Super. 2019) (finding that a defendant’s

reliance   on   her   subjective,   albeit   erroneous,   misunderstanding    of

constitutional law does not render her consent involuntary), appeal denied,

2019 WL 6873117 (Pa. 2019).

      Our inquiry, however, does not end there. The Krenzel court further

held that a police officer has an affirmative duty to inform an individual of his

or her rights to refuse to consent to a blood draw under form DL 26B or

Section 1547. Id. at 1032. Failure to do so on the part of the officer renders

an individual’s consent involuntary because without being informed of the



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consequences of refusing to submit to a blood draw, an individual’s consent is

neither a knowing nor conscious choice. Id.

      Here, at the time the police requested appellant to consent to a blood

draw, appellant had been orally notified that she was under arrest for DUI,

but she had not been placed into physical custody.       (Notes of testimony,

5/15/18 at 7-8.) The record reflects that appellant consented to the request

for a blood draw without asking any further questions. (Id. at 8.) Appellant

testified that she consented to the blood draw because she “understood that

if [she] did not consent to the blood draw that [she] would receive[,] at

minimum[,] a year license suspension or a possibility [of] facing time in jail.”

(Id. at 15.) Appellant attributed this to “knowing other people that have gone

through similar circumstances.”    (Id. at 15-16.)    There is no evidence of

record that the police used duress or any coercive tactics in order to obtain

appellant’s consent for a blood draw.

      The record, however, further reflects that the police did not advise

appellant of her right to refuse to consent to the blood draw or of the

consequences that could result from such a refusal.          (Id. at 4, 7-8.)

Accordingly, because appellant’s consent to the blood draw was neither

knowing nor conscious, we find that the trial court erred as a matter of law in

denying her suppression motion. Krenzel, 209 A.3d at 1032. We, therefore,

vacate appellant’s judgment of sentence.




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      Because we have vacated appellant’s judgment of sentence and

remanded for a new trial, further discussion of appellant’s second issue is not

necessary, as the issue is now moot.

      Judgment of sentence vacated. Order denying suppression reversed.

Case remanded for a new trial. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/18/2020




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