J-S40035-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
             v.                           :
                                          :
STACEY LANE,                              :
                                          :
                   Appellant              :             No. 884 EDA 2014

             Appeal from the Judgment of Sentence March 7, 2014
             in the Court of Common Pleas of Philadelphia County,
               Criminal Division, No(s): CP-51-CR-0006498-2013

BEFORE: BOWES, MUNDY and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                       FILED AUGUST 29, 2016

        Stacey Lane (“Lane”) appeals from the judgment of sentence imposed

following his conviction of driving under the influence (“DUI”)—general

impairment, and DUI—controlled substance or metabolite. See 75 Pa.C.S.A.

§ 8302(A)(1), (D)(1). We reverse and remand for further proceedings.

        On December 1, 2012, at about 9:55 p.m., Philadelphia Police Officer

Amina Oliver (“Officer Oliver”) observed Lane’s vehicle blocking the

eastbound lane on Loudon Street. Trial Court Opinion, 7/1/15, at 2. Upon

Officer Oliver’s approach, Lane exited his vehicle, began undressing, and

shouted “Stacey Lane (his name) got love for Logan (the neighborhood of

the incident).”   Id. (quoting N.T., 8/21/13, at 14).   As Lane continued to

scream at passing cars, Officer Oliver observed that Lane had dilated pupils

and his body and car smelled strongly of PCP. Trial Court Opinion, 7/1/15,

at 2.    Officer Oliver called for a police wagon to transport Lane to the
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hospital.     Id.   At about 11:22 p.m., the chemical testing officer

unsuccessfully tried to rouse Lane, who was unconscious in his hospital bed.

Id. at 2-3.     That testing officer observed that hospital personnel had

administered Ativan and Haldol to Lane.       Id. at 3.   After reading the

unconscious Lane his implied consent warnings, the officer ordered the nurse

to draw blood from Lane. Id. Upon testing, Lane’s blood tested positive for

the presence of morphine, codeine, ethyl alcohol, and marijuana metabolite.

Id. at 3-4.

      The Philadelphia Municipal Court convicted Lane of the above-

described charges on March 13, 2013. Lane filed a timely appeal seeking a

trial de novo before the common pleas court. After a bench trial, the trial

court convicted Lane of the above charges. Lane filed a post-verdict Motion

for extraordinary relief, claiming newly discovered evidence, and requesting

a new trial based upon the United States Supreme Court’s decision in

Missouri v. McNeely, ___ U.S. ___, 133 S. Ct. 1552, 185 L. Ed. 2d 686

(2013). The trial court granted Lane’s Motion in part, reopening the trial to

allow Lane to present additional evidence, but denying relief pursuant to

McNeely. Following Lane’s presentation of the new evidence, the trial court

again convicted Lane of the above-described charges, and sentenced him to

a jail term of seventy-two hours to six months, followed by six months of

probation.




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      Lane filed a post-sentence Motion, which the trial court denied.

Thereafter, Lane filed the instant timely appeal, followed by a court-ordered

Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal.

      Lane presents the following claim for our review:

      Where the controlling case law changed after [Lane] waived his
      right to litigate a [M]otion to suppress the blood drawn in his
      prosecution for driving under the influence, but while his case
      was still before the trial court, was it not error for the trial court
      to deny his post-verdict [M]otion for extraordinary relief and a
      new trial so that he may litigate the [M]otion to suppress?

Brief for Appellant at 3.

      Lane contends that in McNeely, the United States Supreme Court

opined that a police-ordered blood draw is a “search,” and “warrantless

searches are presumed unreasonable unless they meet some well-founded

exception to the warrant requirement.”      Id. at 8. Lane contends that the

procedural rules governing municipal court trials and appeals precluded him

from seeking relief immediately prior to the trial de novo.            Id. at 9.

According to Lane, he presented his claim, based upon McNeely, at the first

opportunity—i.e., in his post-verdict Motion for extraordinary relief and a

new trial. Id.

      We first address whether Lane has preserved his claim for appellate

review.   An appellant convicted in Philadelphia’s Municipal Court has two

options for seeking relief from a municipal court’s verdict: (1) file an appeal

for a trial de novo, or (2) petition for certiorari. Pa.R.Crim.P. 1006(1)(a).




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      “A trial de novo gives the defendant a new trial without
      reference to the Municipal Court record; a petition for writ of
      certiorari asks the Common Pleas Court to review the record
      made in the Municipal Court.” Commonwealth v. Menezes,
      2005 PA Super 90, 871 A.2d 204, 207 n.2 (Pa. Super. 2005).
      These options are mutually exclusive. Pa.R.Crim.P. 1008(A)
      (“The notice [of appeal from a Municipal Court ruling] shall state
      which method of review is being sought in the court of common
      pleas by indicating whether it is a notice of appeal or notice of a
      petition for a writ of certiorari.”).

Commonwealth v. Beaufort, 112 A.3d 1267, 1269 (Pa. Super. 2015). “A

trial de novo is generally limited to a relitigation of guilt or innocence only.”

Commonwealth v. Douglass, 701 A.2d 1376, 1379 (Pa. Super. 1997).

Accordingly, “a defendant [can]not relitigate at the trial de novo issues

raised, or which could have been raised, at the Municipal Court suppression

hearing.” Commonwealth v. Dobson, 405 A.2d 910, 914 (Pa. 1979).

      The bar on relitigation of pre-trial suppression motions at trials de

novo is codified in Philadelphia Court Criminal Division Rule 630(G):

      Unless specially allowed in accordance with subsection (d) of this
      Rule,[1] the trial de novo shall not include relitigation of the
      application to suppress. A defendant may seek a review of the
      record of the suppression hearing heard on the day set for
      Municipal Court trial as part of a Writ of Certiorari.

Phila.Co.Crim.Div. Rule 630(G) (footnote added).         However, Philadelphia

Court Criminal Division Rule 630(H) provides a mechanism for review of

evidentiary issues after the trial de novo:


1
 Subsection (D) provides that pre-trial suppression motions “shall be heard
on the same day set for trial and immediately prior to trial. The Judge
hearing the application to suppress will hear the same as a Common Pleas
Court Judge.” Phila.Co.Crim.Div. Rule 630(D).


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      In the event a defendant is convicted after appeal and trial de
      novo in the Common Pleas Court, a defendant may raise in an
      application for a Motion for a New Trial the admissibility of the
      evidence introduced at trial. If the evidence so challenged was
      the subject of an application to suppress heard prior to Municipal
      Court trial, the Court shall review the transcript and decision of
      the suppression hearing as part of the Common Pleas Court
      record.

Phila.Co.Crim.Div. Rule 630(H). Thus, Rule 630 did not prohibit Lane from

challenging the admissibility of the blood test results by means of his Motion

for extraordinary relief. Because Lane properly raised his claim in his Motion

for extraordinary relief, we conclude that his claim is preserved for our

review. See id.

      The administration of a blood test is a search under the Fourth

Amendment of the U.S. Constitution and Article I, Section 8 of the

Pennsylvania Constitution.   Birchfield v. North Dakota, 2016 U.S. LEXIS

4058, *28 (U.S. June 23, 2016); Commonwealth v. Kohl, 615 A.2d 308,

312, 315 (Pa. 1992).

      A search conducted without a warrant is constitutionally
      impermissible unless an established exception applies.            A
      consensual search is one such exception, and the central
      inquiries in consensual search cases entail assessment of the
      constitutional validity of the citizen/police encounter giving rise
      to the consent, and the voluntariness of the consent. . . . Where
      the underlying encounter is lawful, the voluntariness of the
      consent becomes the exclusive focus.

Commonwealth v. Caban, 60 A.3d 120, 127 (Pa. Super. 2012).

      In McNeely, the United States Supreme Court determined “whether

the natural dissipation of alcohol in the bloodstream establishes a per se



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exigency that suffices[,] on its own[,] to justify an exception to the warrant

requirement        for   nonconsensual   blood   testing   in    drunk-driving

investigations.”    McNeely, 133 S. Ct. at 1561. The McNeely Court ruled

that “[i]n those driving situations where police officers can reasonably obtain

a warrant before a blood sample can be drawn[,] without significantly

undermining the efficacy of the search, the Fourth Amendment mandates

that they do so.” McNeely, 133 S. Ct. at 1561.

      More recently, the United States Supreme Court confirmed that the

Fourth Amendment prohibits “unreasonable searches,” and “our cases

establish that the taking of a blood sample … is a search.” Birchfield, 2016

U.S. LEXIS 4058, *28.        In Birchfield, the Supreme Court was asked to

determine the constitutionality of implied consent laws, which make it a

crime for a motorist to refuse to be tested after being lawfully arrested for

driving while impaired. Id. at *10. In addressing this issue, the Supreme

Court confirmed the continued applicability of its holding in McNeely, in

determining whether exigent circumstances exist:

            “[T]he text of the Fourth Amendment does not specify
      when a search warrant must be obtained.” Kentucky v. King,
      563 U.S. 452, 459, 131 S. Ct. 1849, 179 L. Ed. 2d 865 (2011);
      see also California v. Acevedo, 500 U. S. 565, 581, 111 S. Ct.
      1982, 114 L. Ed. 2d 619 (1991) (Scalia, J., concurring in
      judgment) (“What [the text] explicitly states regarding warrants
      is by way of limitation upon their issuance rather than
      requirement of their use”). But “this Court has inferred that a
      warrant must [usually] be secured.” King, 563 U.S., at 459,
      131 S. Ct. 1849, 179 L. Ed. 2d 865. This usual requirement,
      however, is subject to a number of exceptions. Ibid.



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            We have previously had occasion to examine whether one
     such exception—for “exigent circumstances”—applies in drunk-
     driving investigations.    The exigent circumstances exception
     allows a warrantless search when an emergency leaves police
     insufficient time to seek a warrant. Michigan v. Tyler, 436 U.S.
     499, 509, 98 S. Ct. 1942, 56 L. Ed. 2d 486 (1978). It permits,
     for instance, the warrantless entry of private property when
     there is a need to provide urgent aid to those inside, when police
     are in hot pursuit of a fleeing suspect, and when police fear the
     imminent destruction of evidence. King, supra, at 460, 131 S.
     Ct. 1849, 179 L. Ed. 2d 865.

                              *         *   *

     More recently, … we have held that the natural dissipation of
     alcohol from the bloodstream does not always constitute an
     exigency justifying the warrantless taking of a blood sample.
     That was the holding of [McNeely], where the State of Missouri
     was seeking a per se rule that “whenever an officer has probable
     cause to believe an individual has been driving under the
     influence of alcohol, exigent circumstances will necessarily exist
     because BAC evidence is inherently evanescent.” [McNeely,
     569 U.S.] at ___, 133 S. Ct. 1552, 185 L. Ed. 2d 696, 707
     (opinion of the Court).       We disagreed, emphasizing that
     Schmerber [v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L.
     Ed. 2d 908 (1966),] had adopted a case-specific analysis
     depending on “all of the facts and circumstances of the particular
     case.” [Id.] at ___, 133 S. Ct. 1552, 185 L. Ed. 2d 696, 707.
     We refused to “depart from careful case-by-case assessment of
     exigency and adopt the categorical rule proposed by the State.”
     Id., at ___ , 133 S. Ct. 1552, 185 L. Ed. 2d 696, 707.

Birchfield, 2016 U.S. LEXIS 4058, *28-30 (emphasis in original). Thus, the

holding in McNeely continues to apply in determining whether exigent




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circumstances warrant the taking of a blood sample without a warrant.2 See

id.

      In Commonwealth v. Myers, 118 A.3d 1122 (Pa. Super. 2015),

appeal granted, 131 A.3d 480 (Pa. 2016), a panel of this Court addressed

the impact of McNeely on Pennsylvania’s implied consent statutes.          In

Myers, a police officer, while on patrol at about 3:30 p.m., encountered the

defendant’s vehicle in the travel lane of West Penn Street. Myers, 118 A.3d

at 1123. The chemical testing officer observed that the defendant engaged,

then disengaged the brake lights repeatedly.      Id.   The officer pulled his

vehicle behind the defendant’s vehicle, with his lights and siren turned on.

Id.   The defendant exited his vehicle, and began staggering toward the

officer’s vehicle.   Id.   Upon smelling an odor of alcohol, and observing a

brandy bottle on the front seat of the defendant’s vehicle, the officer placed

the defendant under arrest. Id. at 1124. The officer called an ambulance,

which transported the defendant to the hospital. Id. The chemical testing

officer, who had responded to the hospital, observed that the defendant was

unconscious and unresponsive. Id. The officer also discovered that hospital

staff had administered Haldol to the defendant. Id.     Because the defendant

was non-responsive to questions, the chemical testing officer read the

2
  The Birchfield Court additionally adopted a categorical approach, rather
than a case-by-case approach, in determining whether a blood sample may
be taken incident to an arrest. Birchfield, 2016 U.S. Lexis 4058, at *44.
Ultimately, the Supreme Court concluded that a blood test may not be
administered as a search incident to a lawful arrest for drunk driving. Id. at
*60.


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“standard informed consent warnings” to the unconscious defendant.            Id.

The defendant never signed consent warnings, and no warrant for the

defendant’s blood was secured; however, the police officer obtained a

warrantless blood sample from the defendant. Id.

        The defendant sought suppression in the Municipal Court based on,

inter alia, the warrantless draw of his blood.       Id.   The Municipal Court

granted the suppression motion with respect to the blood because it

concluded the defendant was unconscious and could not consent, and “it was

not unreasonable” for the Commonwealth to obtain a warrant under the

circumstances.     Id. at 1124-25.    The Philadelphia Court of Common Pleas

affirmed the ruling, and the Commonwealth appealed to this Court. Id. at

1125.

        On appeal, the Commonwealth claimed that the trial court’s reliance

on McNeely was misplaced, because the McNeely Court did not consider

whether an implied consent law is an exception to the warrant requirement.

Id. at 1127.        The Commonwealth argued that, under 75 Pa.C.S.A.

§ 1547(a)(1), “where an officer has probable cause to arrest a defendant for

DUI, and an unresponsive defendant has not affirmatively refused consent,

the officer may conduct a warrantless blood draw.”         Myers, 118 A.3d at

1128. This Court rejected the Commonwealth’s contention:

        Pennsylvania’s implied consent statute provides a driver under
        arrest with the statutory right of refusal to blood testing, see 75
        Pa.C.S.[A.] § 1547(b)(1) (“If any person placed under arrest for
        a violation of section 3802 is requested to submit to chemical


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     testing and refuses to do so, the testing shall not be conducted
     ....”). As discussed, Section 1547 provides for chemical testing
     when consent is not withdrawn pursuant to subsection (b)(1),
     and precludes a blood draw when consent is withdrawn and
     imposes penalties. Here, [the defendant] was arrested for DUI
     and transported to the hospital, but was not given the applicable
     warnings until a later time, at which point he could not claim the
     statutory protection of Section 1547(b)(1)….

                               *        *   *

            We recognize this case differs from McNeely where the
     blood draw was nonconsensual. Nevertheless, because police
     did not act pursuant to the implied consent law until 4:45 p.m.,
     after Myers had been rendered unconscious by an intervening
     cause that occurred subsequent to his DUI arrest and transport
     to the hospital, we conclude McNeely controls here. Further,
     we agree with the trial court that the Commonwealth failed to
     justify the failure to obtain a warrant prior to the 5:01 p.m.
     blood draw….

Myers, 118 A.3d at 1130.

      The facts in the instant case are substantially similar to those

presented in Myers.    Here, Officer Oliver observed Lane exit his vehicle,

which was stopped in the travel lane. N.T., 8/21/13, at 11. Officer Oliver

observed Lane undress and shout at passing vehicles.       Id. at 14.     She

further observed that Lane’s pupils were dilated, and his body and car

smelled strongly of PCP. Id. at 15. Similar to Myers, Lane was transported

to the hospital, where he was administered Ativan and Haldol.     Id. at 18,

29. Similar to Myers, the chemical testing officer in the instant case read

the implied consent warning to an unconscious Lane, thereby depriving him

of his statutory right to withhold his consent for the blood draw. Id. at 32-




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33.   Finally, similar to Myers, the chemical testing officer ordered the

withdrawal of blood from the unconscious Lane. Id. at 30.

      Upon review, we conclude that Myers and McNeely are applicable,

and require the suppression of the blood sample seized from Lane. For this

reason, we reverse the judgment of sentence, and remand for a new trial, in

accordance with McNeely and Myers.

      Judgment of sentence reversed; case remanded for a new trial;

Superior Court jurisdiction relinquished.

      Judge Bowes and Judge Mundy concur in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/29/2016




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