J-S14007-19

                                   2019 PA Super 149


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    ALFRED LAMONT GEARY                        :   No. 1393 EDA 2017

                      Appeal from the Order April 10, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0011672-2016


BEFORE:      LAZARUS, J., NICHOLS, J., and PELLEGRINI*, J.

OPINION BY LAZARUS, J.:                                   FILED MAY 06, 2019

       The Commonwealth of Pennsylvania appeals from the order, entered in

the Court of Common Pleas of Philadelphia County, granting Alfred Lamont

Geary’s motion to suppress the results of his blood test.1 After careful review,

we reverse and remand.

       The Honorable Roxanne Covington summarized her findings of fact

underlying the stop of Geary’s vehicle, his arrest, and the subsequent blood

draw at issue from his suppression hearing as follows:

       On October 22, 2016[,] at approximately 10:00 a.m., Police
       Officers [Gerard] Brennan and [his partner Officer] Young were on
       routine patrol [and] stopped at a red light on the 2200 block of
       Diamond Street. [Geary’s] car drove by at such a high rate of
       speed that it shook their car. Officers Brennan and Young stopped
       the car approximately two blocks away. [Geary] was the only
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1 The Commonwealth, pursuant to Pa.R.A.P. 311(d), has certified that the
suppression order “terminates or substantially handicaps the prosecution.”
See Commonwealth’s Notice of Appeal, at 1.
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* Retired Senior Judge assigned to the Superior Court.
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       occupant inside the vehicle, located in the driver’s seat. When
       Officer Brennan requested [Geary’s] driver’s license, registration,
       and insurance, [Geary] laughed and did not comply. Officer
       Brennan testified that this happened at least twice[.] Officer
       Brennan noticed [Geary’s] eyes were bloodshot and dilated.
       Officer Brennan inquired whether [Geary] was diabetic[2] and
       based on [Geary’s] answers and actions, and Officer Brennan’s
       four years of experience as a police officer[, Geary] was arrested
       for suspicion of DUI. Police Officer Brennan requested a blood
       draw and [Geary] was taken to the police station.

       At the police station, Officer [Shawn] Hughes[,] who was assigned
       to the accident investigation district at the time[,] observed
       [Geary] with alcohol on his breath, glassy eyes, and slurred
       speech. [Geary] was read his O’Connell [w]arnings[3] and signed
       the warnings in the presence of other police officers, as well as
       Officer Hughes.

Pa.R.A.P. 1925(a) Opinion, 9/21/18, at 2 (citations to the record omitted).

       At his suppression hearing on March 20, 2018, Geary challenged the

voluntariness of his consent to give a blood sample for chemical testing under

Birchfield v. North Dakota, 136 S.Ct. 2160 (2016).4           N.T. Suppression

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2Officer Brennan was attempting to discern if Geary’s behavior could have
been the result of something other than intoxication. See N.T. Suppression
Hearing, 3/20/18, at 12–13.

3 The O'Connell warnings, first announced in Commonwealth, Department
of Transportation, Bureau of Traffic Safety v. O'Connell, 555 A.2d 873
(Pa. 1989), describe the duty of police officers to inform motorists they lack
the right to speak with an attorney before deciding whether to consent to
chemical testing and the legal consequences that follow from refusal to submit
to such testing. Commonwealth v. Evans, 153 A.3d 323, 325 n.6 (Pa.
Super. 2016).

4 Though Geary also asserted he was stopped without reasonable suspicion
and arrested without probable cause, the overwhelming majority of his
argument concerned consent. N.T. Suppression Hearing, 3/20/18 at 6.



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Hearing, 3/20/18, at 4–5. Specifically, Geary argued the consent form used

was invalid because it stated that “his refusal could be used in subsequent

legal proceedings.[5]” Id. (quoting Commonwealth Ex. 2, at 1). In support,

Geary cited the Supreme Court’s conclusion that “motorists cannot be deemed

to have consented to submit to a blood test on pain of committing a criminal

offense.” Id. at 49 (quoting Birchfield, supra at 2186).


____________________________________________



5   The warnings and rights announced in the consent form read as follows:

        1.    You are under arrest for driving under the influence of
              alcohol or a controlled substance in violation of Section 3802
              of the Vehicle Code, and I am requesting that you submit to
              a chemical test of your blood.

        2.    You have the right to refuse to submit to a chemical test of
              your blood. If you refuse to submit to a chemical test of
              your blood, your operating privileges will be suspended for
              at least 12 months. If you previously refused a chemical
              test or were previously convicted of driving under the
              influence, your operating privileges will be suspended for 18
              months.

        3.    Additionally, the fact that you refused to submit to a
              chemical test of your blood may be admitted into
              evidence in subsequent legal proceedings.

        4.    If you refuse a chemical test of your blood we may apply for
              a search warrant to seize a blood sample from you.

        5.    You have no right to speak with an attorney or anyone else
              before deciding whether to submit to testing. If you request
              to speak with an attorney or anyone else after being
              provided these warnings or you remain silent when asked to
              submit to chemical testing, you will have refused the test.

Commonwealth Ex. 2, at 1 (emphasis added).

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        Though the suppression court found Officer Brennan credible, the

vehicle stop occasioned by reasonable suspicion, and Geary’s arrest supported

by probable cause, Judge Covington granted Geary’s motion to suppress the

results of his blood draw, finding the Philadelphia Police Department’s blood

testing consent form facially invalid under Birchfield. See Pa.R.A.P. 1925(a)

Opinion, 9/21/18, at 2–3. The court agreed that the consent form violated

Birchfield because of its “use of the phrase ‘subsequent legal proceedings’

[which neither informs] the driver [of] whether evidence of his refusal will be

used in a civil or a criminal proceeding, nor does it provide accurate

information concerning the status of the law.” Id. at 4–5. Under the totality

of the circumstances, the court held that Geary “believed he had no other

choice but to sign” where he “was in a small area, surrounded by police, and

given misleading instruction regarding his right to refuse [blood] testing.” Id.

at 5.

        The Commonwealth filed a timely notice of appeal on April 25, 2017,

and both the Commonwealth and the suppression court complied with Rule

1925.

        The Commonwealth presents one issue for our review:

        Did the lower court err by concluding as a matter of law that the
        police coerced [Geary’s] consent by informing him that the refusal
        to submit a blood test may be admitted into evidence in
        subsequent legal proceedings?

Brief of Appellant, at 3.




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      Our standard for reviewing the Commonwealth’s appeal from a motion

to suppress is well-settled.

      When reviewing the grant of a suppression motion, we must
      determine whether the record supports the [suppression] court’s
      factual findings and whether the legal conclusions drawn from
      those facts are correct. We may only consider evidence presented
      at the suppression hearing. In addition, because the defendant
      prevailed on this issue before the suppression court, we consider
      only the defendant’s evidence and so much of the
      Commonwealth’s evidence as remains uncontradicted when read
      in the context of the record as a whole. We may reverse only if
      the legal conclusions drawn from the facts are in error.

Commonwealth v. Ennels, 167 A.3d 716, 720 (Pa. Super. 2017) (quotations

and citations omitted).

      It is black letter law that a criminal defendant can only vaildly consent

to a search or seizure when that consent is given voluntarily and knowingly,

as contemplated by the Fourth Amendment of the United States Constitution

and Article I, Section 8 of the Pennsylvania Constitution. Commonwealth v.

Smith, 77 A.3d 562, 568–69 (Pa. 2013). In 2016, the United States Supreme

Court refined the notion of consent in the context of intoxicated driving,

concluding that “motorists cannot be deemed to have consented to submit a

blood test on pain of committing a criminal offense.” Birchfield, supra at

2186. Notably, the Birchfield court limited its holding to a prohibition against

imposing additional criminal penalties for refusing a blood test, noting “prior

opinions have referred approvingly to the general concept of implied-consent

laws that impose civil penalties and evidentiary consequences on motorists




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who refuse to reply. . . . [N]othing we say here should be read to cast doubt

on them.” Id. at 2185 (emphasis added).

       This Court applied Birchfield to Pennsylvania law under circumstances

where drivers suspected of DUI consented to a warrantless blood draw after

being told that withholding consent would result in enhanced criminal

penalties.6 See Commonwealth v. Evans, 153 A.3d 323, 331 (Pa. Super.

2016). Our current scheme of civil and evidentiary penalties,7 however, is not

precluded by Birchfield. See Commonwealth v. Johnson, 188 A.3d 486,

490 (Pa. Super. 2018) (“[T]he threat of civil penalties and evidentiary

consequences is permissible under implied consent laws; however, a threat of

added criminal sanctions is not.”).



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6 In Evans, the police officer informed the driver, “if you refuse to submit to
a chemical test and you are convicted or plead to violating § 3802(a)(1)[,]
related to impaired driving under the vehicle code, because of your refusal,
you will be subject to more severe penalties set forth in § 3804(c)[,] relating
to penalties the same as if you were . . . convicted at the highest rate of
alcohol.” Evans, supra at 331.

7 The relevant statutory consequences of refusing to submit to a blood test
are as follows: (1) “[i]f any person placed under arrest for a violation of
section 3802 [relating to driving under the influence] is requested to submit
to chemical testing and refuses to do so . . . the department shall suspend the
operating of privilege of the person” for a minimum of twelve months; and (2)
“[i]n any summary proceeding or criminal proceeding in which the defendant
is charged with a violation of section 3802[;] . . . the fact that the defendant
refused to submit to chemical testing . . . may be introduced in evidence along
with other testimony concerning the circumstances of the refusal.” 75
Pa.C.S.A. §§ 1547(b)(1), (e).



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       In light of the foregoing, we find the suppression court erred by

concluding that the Philadelphia Police Department’s consent form was facially

invalid.   Though the language of the consent form threatens penalties for

refusing consent, they are exclusively either civil or evidentiary in nature.8

See Commonwealth Ex. 2, at 1.                  The suppression court conflated the

impermissible practice of threatening additional criminal penalties to coerce

consent with the permissible practice of informing motorists suspected of

intoxicated driving of the civil and evidentiary consequences of refusing a

blood test. See Johnson, supra at 490. The ostensibly offending language

falls squarely within conduct permitted by Birchfield and sanctioned by this

Court. Robertson, supra at 444. Whatever subjective misunderstandings

Geary held as to the meaning of the civil and evidentiary penalties described

in the consent form is of no import with respect to Birchfield. See

Commonwealth v. Johnson, 188 A.3d 486, 491 (Pa. Super. 2018) (finding

defendant’s     ignorance     of   constitutional   law   did   not   render   consent

involuntary).

       Having found the consent form used by the Philadelphia Police

Department facially valid, we now consider the totality of the circumstances




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8 The civil penalties, discussed in the second warning on the consent form, are
limited to license suspensions. Commonwealth Ex. 2, at 1. The evidentiary
penalty, discussed in the third warning on the consent form, is limited to
potentially admitting the act of refusal in a subsequent legal proceeding. Id.

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to determine whether Geary’s consent to a blood draw was voluntary.           In

explicating voluntariness under similar circumstances, we have stated:

       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, supra at 447 (quotation omitted).

       The first factor weighs against voluntariness, as Geary was under arrest.

With respect to the second factor, Geary stated he did not feel as if he had a

choice regarding whether or not to give a blood sample. N.T. Suppression

Hearing, 3/20/18, at 26. The record, however, reveals that Geary was taken

to the standard room9 used by the accident investigation district for DUI

issues, where he was read all five warnings on the consent form by a police

officer.10 Id. at 26, 45–47.         Geary’s complaint, therefore, boils down to

discomfort with his arrest. Consequently, both the second factor, duress, and




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9The room is a “10 x 10 [foot] square room” with “no windows . . . two desks,
some seating, [and] a computer.” N.T. Suppression Hearing, 3/20/18, at 26.

10At the suppression hearing, Geary admitted to having had all five warnings
read to him by a police officer, but claimed to never have seen Officer Hughes
before. N.T. Suppression Hearing, 3/20/18, at 45–47.




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third factor, being informed of one’s right to withhold consent,11 weigh in favor

of voluntariness. The fourth and fifth factors are neutral because there was

no evidence presented regarding Geary’s education and intelligence, or his

belief that there was incriminating evidence in his blood.        Finally, Geary

cooperated with police.        Accordingly, the sixth factor weighs in favor of

voluntariness.      In light of these factors, we find Geary’s consent was

voluntarily given. See Robertson, supra (finding “no reasonable fact-finder”

could find consent involuntarily given when only factor weighing against

voluntariness was custody of defendant). Accordingly, we reverse the trial

court’s suppression order and remand for further proceedings consistent with

this decision.

       Order reversed. Case remanded. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/6/19

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11  In addition to informing Geary of his right to withhold consent, the
suppression court suggests the existence of an additional duty to inform him
of “the status of the law” and “the consequences of his refusal.” Rule 1925(a)
Opinion, 9/21/18, at 5. There is no such duty. It would be impossible for
officers to apprise suspected drunk drivers of the exact status of the law, as
“the fluid nature of searches and seizures render rules that require detailed
warnings by law enforcement simply unfeasible.” Commonwealth v. Smith,
77 A.3d 562, 571 (Pa. 2013).

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