J-E01009-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

SARAH RUTH DEFER,

                         Appellant                 No. 1119 MDA 2014


           Appeal from the Judgment of Sentence of June 6, 2014
               In the Court of Common Pleas of Berks County
            Criminal Division at No(s): CP-06-CR-0003966-2013


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., BOWES, SHOGAN,
        LAZARUS, MUNDY, OLSON, OTT, and STABILE, JJ.

MEMORANDUM BY OLSON, J.:                            FILED APRIL 20, 2016

      Appellant, Sarah Ruth Defer, appeals from the judgment of sentence

entered on June 6, 2014.       After careful consideration of the arguments

raised before this Court, we affirm.

      This case centers on the facts contained in the Wyomissing Police

Department Incident Report Form, which the parties stipulated to at a

hearing on Appellant’s motion to suppress. Wyomissing Police Officer Robert

J. Pehlman created the Incident Report Form, wherein he wrote:

        At [10:24 p.m.] on Sunday[,] March 31, 2013[,] I
        responded to 845 Woodland Road for [a] report of an
        accident with injuries. On location I discovered a one
        vehicle accident involving a white 2013 Dodge [A]venger
        bearing North Carolina registration [].        The car was
        apparently attempting to negotiate a slight left turn and
        struck a curb and guard rail on the right side of the road,
        throwing the vehicle to the left side of the [r]oad, where it
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        became disabled against the curb on that side. Inside the
        vehicle, and seated in the passenger seat, was a white
        female subsequently identified as [Appellant,] of Laveen[,]
        Arizona.    [Appellant] was wearing a Reading Hospital
        employee identification and was in possession of a [V]ocera
        belonging to the hospital. [Appellant] was barely conscious
        and unable to provide any information other than to say
        that she was the operator of the vehicle at the time of the
        crash.    [Appellant] must have been thrown [into] the
        passenger seat from the driver’s side on impact.
        [Appellant] had visible injuries to her face and appeared to
        be visibly intoxicated. There was a strong odor of alcohol
        emanating from the vehicle. . . .

        After obtaining the necessary documentation from the
        vehicle and a bag in the vehicle belonging to [Appellant], I
        followed Western Berks ambulance to the Reading Hospital.
        [Appellant] was not conscious enough to speak to, and was
        immediately sedated by the [h]ospital staff in order to
        facilitate treatment. I requested that blood be drawn[,] at
        which time a Geriann Kuberski drew the blood at exactly
        [11:28 p.m.] and prepared the specimen to be transported
        to [St. Joseph’s Hospital] to ascertain a blood [alcohol]
        content. . . .

        I left [] Reading Hospital at exactly [11:39 p.m.], and
        arrived at [St. Joseph’s Hospital] at [11:50 p.m.] where I
        delivered the [specimen] to the laboratory at that location.
        I subsequently received the laboratory report which was
        certified on April 2, 2013. The blood alcohol content for
        [Appellant], as documented in [the] specimen, was 0.264.
        Charges of driving under the influence to be filed against
        [Appellant].

Incident Report Form, dated 4/14/13, at 1.




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       Following Appellant’s arrest for driving under the influence of alcohol

(“DUI”),1 Appellant filed a pre-trial motion to suppress.   In relevant part,

Appellant’s suppression motion reads:

         I. Factual Background

         1. On or about March 31, 2013[, Appellant] was involved in
         a single vehicle motor vehicle crash in Wyomissing, Berks
         County, [Pennsylvania].

         2. [Appellant] was rendered unconscious and was taken by
         ambulance to the Reading Hospital and Medical Center.

         3. At the Hospital, Wyomissing Police Officer Pehlman
         instructed the hospital to draw blood from [Appellant;
         Appellant] was still unconscious at this time.  Officer
         Pehlman then transported the blood for blood alcohol
         testing.

         4. Officer Pehlman did not obtain or attempt to obtain a
         search warrant for [Appellant’s] blood.

         5. Officer Pehlman did not have consent to draw blood.

         6. There was no exigent circumstance, which would have
         waived the warrant requirement.

         7. This procedure is known as a “forced blood draw.”

         8. [Appellant] was subsequently charged with DUI and
         related offenses.

         9. On April 17, 2013, the [United States] Supreme Court
         found that “forced blood draws” were a violation of a
         defendant’s [F]ourth [A]mendment rights. [Missouri v.
____________________________________________


1
  Specifically, the Commonwealth charged Appellant with DUI, highest rate
of alcohol (second offense). See 75 Pa.C.S.A. § 3802(c).




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         McNeely, ___ U.S. ___, 133 S.Ct. 1552, 1568 (2013)].
         Specifically, the Court noted that blood could only be
         withdrawn with consent or a search warrant.


         II. Suppression

         10. All of the foregoing paragraphs are incorporated herein
         by reference.

         11. As [Appellant’s] blood was a “forced blood draw” made
         in violation of her [F]ourth [A]mendment rights, the blood,
         the testing results[,] and any fruits derived therefrom are
         unlawful and must be suppressed under the [United States]
         and Pennsylvania Constitutions.

Appellant’s Pre-Trial Motion, 9/4/13, at 1-2.2

       Within Appellant’s motion to suppress and brief in support of her

motion to suppress, Appellant never once cited to or mentioned 75

Pa.C.S.A. § 1547 (which is the Commonwealth’s implied consent statute) or

75 Pa.C.S.A. § 3755 (which is entitled “[r]eports by emergency room

personnel” – and which granted Officer Pehlman the statutory right to both

have the hospital take Appellant’s blood and receive the blood alcohol test

results without a warrant). See Commonwealth v. Riedel, 651 A.2d 135,

139-140 (Pa. 1994) (“[t]ogether, [sections 1547 and 3755] comprise a

statutory scheme that implies the consent of a driver to undergo chemical

blood testing under particular circumstances”).   Further, within Appellant’s
____________________________________________


2
  On December 2, 2013, Appellant filed a “Supplemental Omnibus Pretrial
Motion.” However, the supplemental pre-trial motion did not raise any
additional relevant claim or state any additional relevant averment. See
Appellant’s Supplemental Omnibus Pretrial Motion, 12/2/13, at 1-4.




                                           -4-
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motion to suppress and brief in support of her motion to suppress, Appellant

never once claimed that the Commonwealth’s implied consent law or the

“[r]eports   by    emergency    room    personnel”   law    were      either   facially

unconstitutional or unconstitutional as applied to her case.

      The Commonwealth opposed Appellant’s motion and argued that the

United States Supreme Court’s opinion in McNeely – which Appellant solely

relied upon in her suppression motion – did not apply to Appellant’s case.

As the Commonwealth argued, McNeely was concerned only with the

“exigent circumstances” exception to the warrant requirement. In this case,

however, the Commonwealth claimed that Appellant’s blood was taken

pursuant     to   the   “consent”   exception   to   the    warrant     requirement.

Commonwealth’s          Response,   12/2/13,    at   1-2.       Specifically,      the

Commonwealth argued that, pursuant to 75 Pa.C.S.A. § 1547(a), since

Appellant was the driver of an automobile that was involved in a motor

vehicle accident and since Officer Pehlman had probable cause to believe

that Appellant was drunk, Appellant impliedly consented to the blood draw.

See 75 Pa.C.S.A. § 1547(a). The Commonwealth further argued that, under

75 Pa.C.S.A. § 3755, Officer Pehlman did not need to obtain a warrant or

demonstrate exigent circumstances in order to instruct the hospital staff to

perform the blood draw while Appellant received treatment in the hospital

for injuries she sustained as a result of the motor vehicle accident.             See

Commonwealth’s Response, 12/2/13, at 1-2; 75 Pa.C.S.A. § 3755(a).

Rather, the Commonwealth argued, Appellant’s consent to the search was

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implied under the circumstances.    Commonwealth’s Response, 12/2/13, at

2; see also Riedel, 651 A.2d at 139-140 (“[t]ogether, [sections 1547 and

3755] comprise a statutory scheme that implies the consent of a driver to

undergo chemical blood testing under particular circumstances”).

      Appellant did not respond to the Commonwealth’s reply and Appellant

did not file an additional supplemental pre-trial motion.    Therefore, even

though the Commonwealth made Appellant aware that Sections 1547 and

3755 existed – and that Section 3755 specifically authorized the

warrantless blood draw in this case – Appellant did not amend her pre-

trial motion to claim that Section 3755 was either inapplicable to her case or

unconstitutional.

      On November 18, 2014, the trial court held a hearing on Appellant’s

suppression motion, where the parties stipulated to the facts contained in

Officer Pehlman’s Incident Report Form.     During this abbreviated hearing,

Appellant did not contest the applicability Section 3755 and Appellant did not

claim that the statute was unconstitutional. See N.T. Suppression Hearing,

1-11. The trial court denied Appellant’s motion on December 13, 2014.

      Following a bench trial, the trial court found Appellant guilty of DUI,

highest rate of alcohol (second offense) under 75 Pa.C.S.A. § 3802(c) and,

on June 6, 2014, the trial court sentenced Appellant to serve a term of 90

days to 5 years in prison.

      On Monday, July 7, 2014, Appellant filed a timely notice of appeal from

her judgment of sentence. The trial court then ordered Appellant to file and

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serve a concise statement of errors complained of on appeal, pursuant to

Pennsylvania Rule of Appellate Procedure 1925(b). Appellant complied and,

within her Rule 1925(b) statement, Appellant raised the following issue:

         Whether th[e trial] court erred in denying [Appellant’s pre-
         trial] suppression motion, where the blood drawn from
         [Appellant] was obtained without a warrant or exigent
         circumstance[s] in violation of [Appellant’s] Fourth
         Amendment rights and no other blood sample has been
         shown to be admissible?

Appellant’s Rule 1925(b) Statement, 8/11/14, at 1.        As was true with

Appellant’s motion to suppress, Appellant’s Rule 1925(b) statement relied

entirely upon her claim that exigent circumstances were absent in this

case and, therefore, that the warrantless blood draw violated her Fourth

Amendment right to be free from unreasonable searches and seizures. See

id.   Further, as was true with Appellant’s motion to suppress, Appellant’s

Rule 1925(b) statement did not claim that the trial court erred in admitting

the blood alcohol test results under either the Commonwealth’s implied

consent law or the “[r]eports by emergency room personnel” law.            In

addition, Appellant’s Rule 1925(b) statement did not claim that either the

Commonwealth’s implied consent law or the “[r]eports by emergency room

personnel” law was unconstitutional. See id.

      Appellant raises one claim on appeal:

         Whether th[e trial] court erred in denying [Appellant’s pre-
         trial] suppression motion, where the blood drawn from
         [Appellant] was obtained without a warrant or exigent
         circumstance[s] in violation of [Appellant’s] Fourth



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           Amendment rights and no other blood sample has been
           shown to be admissible?

Appellant’s Brief at 4 (some internal capitalization omitted).

      “Once a motion to suppress evidence has been filed, it is the

Commonwealth’s burden to prove, by a preponderance of the evidence, that

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

rights.”    Commonwealth v. Wallace, 42 A.3d 1040, 1047-1048 (Pa.

Super. 2012) (en banc); see also Pa.R.Crim.P. 581(H). With respect to an

appeal from the denial of a motion to suppress, our Supreme Court has

declared:

           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
           when read in the context of the record. . . . 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 (internal 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

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

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




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

suppression hearing.3 In re L.J., 79 A.3d 1073, 1087 (Pa. 2013).

       On appeal, Appellant has attempted to raise a number of claims in her

brief that were never raised in her suppression motion or in her Rule

1925(b) statement, including claims that:        “75 Pa.C.S.A. § 3755 [(the

“[r]eports by emergency room personnel” law)] does not apply in the instant

case;” if 75 Pa.C.S.A. § 3755 is applicable, the statute is unconstitutional as

applied to her; and, “implied consent does not apply to situations in which

the driver is unable to refuse consent.” Appellant’s Brief at 17-18, 21, and

22. These additional claims are waived on appeal, as Appellant did not raise

the claims before the trial court or in her Rule 1925(b) statement. Pa.R.A.P.

302(a) (“[i]ssues not raised in the lower court are waived and cannot be

raised for the first time on appeal”); Pa.R.A.P. 1925(b)(4)(vii) (“[i]ssues not

included in the [Rule 1925(b) s]tatement . . . are waived”).      To be sure,

____________________________________________


3
  On October 30, 2013, our Supreme Court decided In re L.J. In L.J., our
Supreme Court held 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 at 1087. Prior to L.J., this Court routinely held
that, when reviewing a suppression court’s ruling, our scope of review
included “the evidence presented both at the suppression hearing and at
trial.” See Commonwealth v. Charleston, 16 A.3d 505, 516 (Pa. Super.
2011), quoting Commonwealth v. Chacko, 459 A.2d 311, 317 n.5 (Pa.
1983). L.J. thus narrowed our scope of review of suppression court rulings
to the evidence presented at the suppression hearing.           In this case,
Appellant’s suppression hearing occurred after L.J. was decided. Therefore,
the procedural rule announced in L.J. applies to the case at bar.




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Appellant has preserved one claim on appeal: that exigent circumstances

were absent in her case and, because of the McNeely decision, the

warrantless blood draw violated her Fourth Amendment right to be free from

unreasonable searches and seizures.      Appellant’s Rule 1925(b) Statement,

8/11/14, at 1; Appellant’s Pre-Trial Motion, 9/4/13, at 1-2.       We conclude

that Appellant’s preserved claim does not entitle her to relief.

      “The Fourth Amendment to the [United States] Constitution and Article

I, Section 8 of [the Pennsylvania] Constitution protect citizens from

unreasonable searches and seizures.”          Commonwealth v. McAdoo, 46

A.3d 781, 784 (Pa. Super. 2012). “A search conducted without a warrant is

deemed to be unreasonable and therefore constitutionally impermissible,

unless an established exception applies.”       Commonwealth v. Strickler,

757 A.2d 884, 888 (Pa. 2000).       As the Pennsylvania Supreme Court has

held, “exceptions to the warrant requirement do exist. For example, actual

consent, implied consent, search incident to lawful arrest, and exigent

circumstances may negate the necessity of obtaining a warrant before

conducting a search.” Riedel, 651 A.2d at 139 (internal footnote omitted).

      At the trial court level, Appellant based her claim for relief entirely

upon her contention that exigent circumstances did not permit a warrantless

search under the rationale elucidated by the United States Supreme Court in

McNeely.     As such, we will begin our analysis with an examination of

McNeely.




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     In McNeely, a Missouri police officer pulled McNeely’s vehicle over and

arrested him for DUI.     After McNeely refused to provide the officer with a

breath-test sample, the officer transported McNeely to a hospital and asked

him whether he would consent to a blood test. “Reading from a standard

implied consent form, the officer explained to McNeely that under state law

refusal to submit voluntarily to the test would lead to the immediate

revocation of his driver’s license for one year and could be used against him

in a future prosecution.”      McNeely, ___ U.S. at ___, 133 S.Ct. at

1556-1557. McNeely refused to consent to the blood test. Id. ___ U.S. at

___, 133 S.Ct. at 1557.

     Notwithstanding McNeely’s explicit refusal to consent to the blood test

– and the fact that the officer had not obtained a warrant to search

McNeely’s person – the officer directed a hospital employee to take

McNeely’s blood.   The employee took the blood sample and later testing

revealed that McNeely’s blood alcohol content was in excess of the legal

limit. Id. ___ U.S. at ___, 133 S.Ct. at 1557.

     Following McNeely’s arrest, McNeely filed a suppression motion and

claimed that the results of his blood test must be suppressed because “under

the circumstances, taking his blood for chemical testing without first

obtaining a search warrant violated his rights under the Fourth Amendment.”

Id. ___ U.S. at ___, 133 S.Ct. at 1557. The trial court agreed with McNeely

and ordered the chemical test results suppressed; the Missouri Supreme

Court affirmed. Both state courts concluded that, under the totality of the

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circumstances, exigent circumstances did not justify the warrantless search

of McNeely’s person. Id. ___ U.S. at ___, 133 S.Ct. at 1557.

      The United States Supreme Court granted the State’s petition for writ

of certiorari upon the following issue: “whether the natural metabolization

of alcohol in the bloodstream presents a per se exigency that justifies an

exception     to   the    Fourth   Amendment’s       warrant   requirement    for

nonconsensual blood testing in all drunk-driving cases.”        Id. ___ U.S. at

___, 133 S.Ct. at 1556.       The Supreme Court concluded that the natural

metabolization of alcohol in the bloodstream did not present a per se

exigency and that, “consistent with Fourth Amendment principles, []

exigency in [drunk-driving cases] must be determined case by case based

on the totality of the circumstances.”      Id. ___ U.S. at ___, 133 S.Ct. at

1556 and 1558.

      The Supreme Court began its analysis by noting that the “compelled

physical intrusion beneath McNeely’s skin and into his veins to obtain a

sample of his blood for use as evidence in a criminal investigation”

constituted a search for Fourth Amendment purposes and that the invasion

into McNeely’s body “implicate[d McNeely’s] most personal and deep-rooted

expectations of privacy.” Id. ___ U.S. at ___, 133 S.Ct. at 1558 (internal

quotations and citations omitted). As the Supreme Court explained, under

its precedent, “a warrantless search of the person is reasonable only if it falls

within   a   recognized   exception”   to   the   warrant   requirement.     “One

well-recognized exception, and the one at issue in [McNeely], applie[d]

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when the exigencies of the situation make the needs of law enforcement so

compelling that a warrantless search is objectively reasonable under the

Fourth Amendment.”      Id. ___ U.S. at ___, 133 S.Ct. at 1558 (internal

quotations and citations omitted).        In particular, the Supreme Court

explained, it has “recognized that in some circumstances law enforcement

officers may conduct a search without a warrant to prevent the imminent

destruction of evidence.” Id. ___ U.S. at ___, 133 S.Ct. at 1559.

      The McNeely Court noted that, in applying the exigent circumstances

exception, Supreme Court precedent requires that a court look “to the

totality of the circumstances” and determine whether “there [was a]

compelling need for official action and no time to secure a warrant.” Id. ___

U.S. at ___, 133 S.Ct. at 1559. Nevertheless, before the Supreme Court,

the State of Missouri requested that the Court “adopt [a] categorical rule” of

exigency in drunk-driving cases. As Missouri argued:

        whenever an officer has probable cause to believe an
        individual has been driving under the influence of alcohol,
        exigent circumstances will necessarily exist because [blood
        alcohol content] evidence is inherently evanescent. As a
        result, the State claims that so long as the officer has
        probable cause and the blood test is conducted in a
        reasonable manner, it is categorically reasonable for law
        enforcement to obtain the blood sample without a warrant.

Id. ___ U.S. at ___, 133 S.Ct. at 1560.

      The Supreme Court recognized the fact that, “as a result of the human

body’s natural metabolic processes, the alcohol level in a person’s blood

begins to dissipate once the alcohol is fully absorbed and continues to


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decline until the alcohol is eliminated.”          Id. ___ U.S. at ___, 133 S.Ct. at

1560. Nevertheless, the McNeely Court concluded that it would not depart

from its “totality of the circumstances” test in drunk-driving cases and, thus,

it would not adopt Missouri’s proposed “categorical rule” of exigency in such

cases. Id. ___ U.S. at ___, 133 S.Ct. at 1560-1561. Although the Supreme

Court “d[id] not doubt that some circumstances will make obtaining a

warrant impractical such that the dissipation of alcohol from the bloodstream

will support an exigency justifying a properly conducted warrantless blood

test,” the McNeely Court held:             “[i]n those drunk-driving investigations

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.”                Id. ___ U.S. at ___,

133 S.Ct. at 1561.

       McNeely focused solely upon the exigent circumstances exception to

the warrant requirement.         Indeed, the Supreme Court noted that McNeely

explicitly refused to consent to a blood test; therefore, the Supreme Court

did not consider the validity or effect of Missouri’s “implied consent” statute.4
____________________________________________


4
  In McNeely, a plurality of the Court recognized (with seeming approval)
the fact that “all 50 States have adopted implied consent laws that require
motorists, as a condition of operating a motor vehicle within the State, to
consent to [blood alcohol content] testing if they are arrested or otherwise
detained on suspicion of a drunk-driving offense.” McNeely, ___ U.S. at
___, 133 S.Ct. at 1566. The plurality recognized that these implied consent
laws “impose significant consequences when a motorist withdraws consent”
and are one of the “legal tools” that states use “to enforce their
(Footnote Continued Next Page)


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      Despite this fact, Appellant based her entire claim for relief at the trial

court level upon McNeely. See Appellant’s Pre-Trial Motion, 9/4/13, at 1-3.

Moreover, on appeal, Appellant again argues that, since there were no

exigent circumstances in this case, McNeely is “directly on point” with her

case and McNeely demands that we vacate her judgment of sentence,

reverse the trial court’s suppression order, and remand for a new trial.

Appellant’s Brief at 13.       We conclude Appellant’s specific argument to this

Court does not entitle her to relief.

      As is relevant to the current case, Pennsylvania has an “implied

consent” law that reads:

         [75 Pa.C.S.A.] § 1547. Chemical testing to determine
         amount of alcohol or controlled substance

         (a) General rule.--Any person who drives, operates or is
         in actual physical control of the movement of a vehicle in
         this Commonwealth shall be deemed to have given consent
         to one or more chemical tests of breath, blood or urine for
         the purpose of determining the alcoholic content of blood or
         the presence of a controlled substance if a police officer has
         reasonable grounds to believe the person to have been
         driving, operating or in actual physical control of the
         movement of a vehicle:

             (1) in violation of . . . 3802 (relating to driving under
             influence of alcohol or controlled substance) . . .; or

             (2) which was involved in an accident in which the
             operator or passenger of any vehicle involved or a
                       _______________________
(Footnote Continued)

drunk-driving laws and to secure [blood alcohol content] evidence without
undertaking warrantless nonconsensual blood draws.” Id. ___ U.S. at ___,
133 S.Ct. at 1566.



                                           - 15 -
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            pedestrian required treatment at a medical facility or
            was killed.

         (b) Suspension for refusal.—

            (1) If any person placed under arrest for a violation of
            section 3802 is requested to submit to chemical testing
            and refuses to do so, the testing shall not be conducted
            but upon notice by the police officer, the department
            shall suspend the operating privilege of the person as
            follows:

               (i) Except as set forth in subparagraph (ii), for a
               period of 12 months.

               (ii) For a period of 18 months if any of the following
               apply: . . .

                                      ...

            (2) It shall be the duty of the police officer to inform the
            person that:

               (i) the person's operating privilege will be suspended
               upon refusal to submit to chemical testing; and

               (ii) if the person refuses to submit to chemical
               testing, upon conviction or plea for violating section
               3802(a)(1), the person will be subject to the
               penalties provided in section 3804(c) (relating to
               penalties).

            (3) Any person whose operating privilege is suspended
            under the provisions of this section shall have the same
            right of appeal as provided for in cases of suspension for
            other reasons.

75 Pa.C.S.A. § 1547(a) and (b).

     Also relevant to the case at bar is 75 Pa.C.S.A. § 3755, entitled

“[r]eports by emergency room personnel.”        In pertinent part, this statute

reads:


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        [75 Pa.C.S.A.] § 3755. Reports by emergency room
        personnel

        (a) General rule.--If, as a result of a motor vehicle
        accident, the person who drove, operated or was in actual
        physical control of the movement of any involved motor
        vehicle requires medical treatment in an emergency room of
        a hospital and if probable cause exists to believe a violation
        of section 3802 (relating to driving under influence of
        alcohol or controlled substance) was involved, the
        emergency room physician or his designee shall promptly
        take blood samples from those persons and transmit them
        within 24 hours for testing to the Department of Health or a
        clinical laboratory licensed and approved by the Department
        of Health and specifically designated for this purpose. . . .
        Test results shall be released upon request of the person
        tested, his attorney, his physician or governmental officials
        or agencies.

75 Pa.C.S.A. § 3755(a).

     A panel of this Court has previously explained:

        together, sections 1547 and 3755 comprise a statutory
        scheme which, under particular circumstances, not only
        imply the consent of a driver to undergo chemical or blood
        tests, but also require hospital personnel to withdraw blood
        from a person, and release the test results, at the request
        of a police officer who has probable cause to believe the
        person was operating a vehicle while under the influence.

Commonwealth v. Seibert, 799 A.2d 54, 64 (Pa. Super. 2002) (internal

quotations and citations omitted); see also Riedel, 651 A.2d at 139-140

(“[t]ogether, [sections 1547 and 3755] comprise a statutory scheme that

implies the consent of a driver to undergo chemical blood testing under

particular circumstances”).

     As both our Supreme Court and this Court have held, Pennsylvania’s

implied consent law is not a mere subpart of the “exigent circumstances”

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exception to the warrant requirement. Rather, our Courts have held that an

individual’s implied consent in drunk-driving cases satisfies the “consent”

exception to the warrant requirement – which is an entirely separate

exception from the “exigent circumstances” exception. Riedel, 651 A.2d at

139-140 (our Supreme Court held: “[t]ogether, [sections 1547 and 3755]

comprise a statutory scheme that implies the consent of a driver to

undergo chemical blood testing under particular circumstances”) (emphasis

added); Seibert, 799 A.2d at 64 (“together, sections 1547 and 3755

comprise a statutory scheme which, under particular circumstances, . . .

imply the consent of a driver to undergo chemical or blood tests”)

(emphasis added); Commonwealth v. Keller, 823 A.2d 1004, 1010 (Pa.

Super. 2003) (interpreting sections 1547 and 3755 and holding that, since

the trooper had probable cause to believe the defendant was driving under

the influence of alcohol, “[the defendant’s] consent to undergo chemical

or blood tests was implied, and [hospital] personnel were required to

withdraw blood from [the defendant] and release the test results”)

(emphasis added); Commonwealth v. Eisenhart, 611 A.2d 681, 683 (Pa.

1992) (“[b]ecause his consent is implied until the person actually

refuses, under subsection (a) of Section 1547, his actual consent would be

no different from his remaining silent.      Thus, under the Implied Consent

provision, Section 1547(a), testing is allowed absent an affirmative showing

of the subject’s refusal to consent to the test at the time that the testing is

administered”) (emphasis added); see also Commonwealth v. Shaw, 770

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A.2d 295, 301-302 (Pa. 2001) (Castille, J. dissenting) (explaining:            “[T]he

Riedel Court simply acknowledged and applied certain bedrock principles of

search and seizure jurisprudence: i.e., that searches without a warrant are

generally unreasonable, but exceptions to the warrant requirement exist,

including actual and implied consent, where warrantless searches have been

deemed reasonable.       [The Pennsylvania Supreme] Court’s construction of

Article I, § 8 is identical in this particular instance, i.e., [the Supreme Court]

recognize[s]   a     preference   for    warrants,    while   also   recognizing   the

reasonableness of warrantless searches in some circumstances, including

consent cases”) (internal citations and emphasis omitted); see also

Commonwealth v. McCoy, 975 A.2d 586, 589 (Pa. 2009) (holding, in a

Sixth Amendment “right to counsel” case that, “[b]ased upon the statutory

language [contained in section 1547(a)], it is clear that if an individual

chooses to operate a motor vehicle in this Commonwealth, the

consent to submit to a chemical test has already been given”)

(emphasis added).

      Before   the    trial   court,    Appellant    simply   claimed   that   exigent

circumstances were absent in her case and, because of the McNeely

decision, the warrantless blood draw violated her Fourth Amendment right to

be free from unreasonable searches and seizures.                Appellant’s Pre-Trial

Motion, 9/4/13, at 1-2; Appellant’s Rule 1925(b) Statement, 8/11/14, at 1.

Appellant repeats this claim on appeal. Yet, from the above discussion, it is

apparent that Appellant’s claim on appeal necessarily and immediately fails,

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as Appellant’s blood was not withdrawn under the “exigent circumstances”

exception – but rather under the “consent” exception and under the

specific statutory authority contained in 75 Pa.C.S.A. § 3755.                    Since

Appellant has preserved no claim that the Commonwealth’s implied consent

law or the “[r]eports by emergency room personnel” law are unconstitutional

(either facially or as applied) or that, under the totality of the circumstances

in this case, her implied consent was not objectively valid, we conclude that

Appellant is not entitled to relief in this case.5

       Lastly, we note that, within Appellant’s brief to this Court, Appellant

claims    our   holding    today     will   conflict   with   our   recent   opinion   in

Commonwealth v. Myers.               Commonwealth v. Myers, 118 A.3d 1122

(Pa. Super. 2015), appeal granted, ___ A.3d ___ 2016 WL 413082 (Pa.

2016); see Appellant’s Brief at 13 and 17-24. We disagree with Appellant’s

argument. Myers is easily distinguishable from the case at bar.

       In Myers:      the police witnessed Mr. Myers in the driver’s seat of a

vehicle that was parked in the middle of the road, with the engine running;

Mr. Myers’ vehicle was not involved in a motor vehicle accident; when Mr.

Myers exited the vehicle, he was clearly intoxicated and the officer

immediately placed him under arrest for suspected DUI; the officer had Mr.
____________________________________________


5
  In reaching this conclusion, we refuse to address the merits of the claims
that McNeely renders 75 Pa.C.S.A. § 1547 and/or § 3755 unconstitutional.
As those issues were not preserved in this case, these claims must wait for
another day.



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Myers transferred to a hospital because “the officer was of the opinion that

[Mr. Myers] was intoxicated to the point where he needed medical

attention;” over one hour later, the hospital gave Mr. Myers drugs, which

rendered him unconscious; and, while Mr. Myers was unconscious, the police

ordered the hospital to perform a warrantless blood draw. Myers, 118 A.3d

at 1123-1124 and 1127.      The trial court concluded that the warrantless

blood draw violated Mr. Myers’ right to be free from unreasonable searches

and seizures and the trial court thus granted Mr. Myers’ motion to suppress

the blood alcohol test results; the Commonwealth appealed to this Court.

Id. at 1124-1125.

     At the outset, as we explained in Myers, 75 Pa.C.S.A. § 3755 (the

“[r]eports by emergency room personnel” law) was “not at issue” in the

case. Id. at 1129. To be sure, Section 3755 clearly did not apply to the

case, as Mr. Myers was not involved in a motor vehicle accident and Mr.

Myers did not receive medical treatment “as a result of” any motor vehicle

accident. Id. at 1129; see also 75 Pa.C.S.A. § 3755(a) (“[i]f, as a result

of a motor vehicle accident, the person who drove, operated or was in

actual physical control of the movement of any involved motor vehicle

requires medical treatment in an emergency room of a hospital . . .”)

(emphasis added).   Further, in Myers, Mr. Myers was under arrest at the

time the police ordered the hospital to perform the warrantless blood draw.

Myers, 118 A.3d at 1123-1124. As we explained in Myers, since Mr. Myers

was under arrest at the time, Mr. Myers possessed an explicit, statutory

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right to refuse chemical testing under Section 1547(b) – which the police

denied him by waiting until he was rendered unconscious to draw his blood.

See 75 Pa.C.S.A. § 1547(b) (providing a statutory right to refuse chemical

testing to “any person placed under arrest for a violation of [75 Pa.C.S.A.

§] 3802”   (“[d]riving   under   the     influence   of   alcohol   or   controlled

substance”)); Myers, 118 A.3d at 1129-1130.

      In the case at bar (and unlike Myers), Appellant was involved in a

motor vehicle accident, which required that she receive “medical treatment

in an emergency room of a hospital” – thus triggering 75 Pa.C.S.A. § 3755 –

and Appellant never claimed that she was under arrest at the time the

hospital took her blood – thus Appellant did not have the statutory right to

refuse chemical testing under 75 Pa.C.S.A. § 1547(b).          See also Riedel,

651 A.2d at 142 (in Riedel, the Pennsylvania Supreme Court held that

individuals who are not under arrest do not have a statutory right to refuse

chemical testing; the Riedel Court explained:         “[a]ppellant’s reliance on

[Commonwealth v. Eisenhart, 611 A.2d 681 (Pa. 1992)] is misplaced.

Appellant was not under arrest at the time the blood test was

administered and cannot claim the explicit statutory protection of

[75 Pa.C.S.A. §] 1547(b).        Moreover, we will not engraft an additional

provision onto the implied consent law. The decision to distinguish between

classes of drivers in the implied consent scheme is within the province of the

legislature. We will not reformulate the law to grant an unconscious

driver or driver whose blood was removed for medical purposes the

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right to refuse to consent to blood testing”) (emphasis added) (some

internal citations omitted).

      Therefore, and contrary to Appellant’s current argument to this Court,

Myers has no application to the case at bar and, since Appellant’s only

preserved claim on appeal fails, we affirm Appellant’s judgment of sentence.

      Judgment of sentence affirmed. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/20/2016




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