J-S51004-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 KYLE DOLAN                                :
                                           :
                    Appellant              :   No. 36 MDA 2019

    Appeal from the Judgment of Sentence Entered December 13, 2018
              In the Court of Common Pleas of Centre County
           Criminal Division at No(s): CP-14-CR-0001722-2017


BEFORE: PANELLA, P.J., GANTMAN, P.J.E., and MUSMANNO, J.

MEMORANDUM BY PANELLA, P.J.:                     FILED NOVEMBER 07, 2019

      Kyle Dolan appeals from the judgment of sentence imposed on

December 13, 2018, in the Centre County Court of Common Pleas. Prior to

sentencing, the trial court, sitting as fact-finder, convicted Dolan of one count

of driving under the influence (“DUI”) of a Schedule II or Schedule III

controlled substance – second offense, see 75 Pa.C.S.A. § 3802(d)(1)(ii), one

count of DUI impairing his ability to safely drive or operate his vehicle, see 75

Pa.C.S.A. § 3802(d)(2), and one count of possession of drug paraphernalia,

see 35 P.S. § 780-113(a)(32). The court sentenced Dolan to five years of

intermediate punishment consecutively followed by twelve months of

probation. On appeal, Dolan claims the trial court erred in failing to grant his

motion to suppress his blood test results based on lack of consent. See

Appellant’s Brief, at 4. After review, we affirm the judgment of sentence.

      As recounted by the trial court:
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     On May 12, 2017[,] at approximately 4:04 p.m., Officer Kurt Stere
     was dispatched to a two-vehicle accident at the 1400 block of East
     College Avenue in State College[,] Pennsylvania. Officer Stere
     arrived at the accident scene at 4:11 p.m.[,] and EMS arrived at
     approximately the same time. When Officer Stere arrived, both
     vehicles were still in the roadway[,] and EMS determined that Kyle
     Dolan … was in need of medical attention.

     Officer Stere observed that one vehicle had rear end damage[,]
     and [Dolan’s] vehicle had damage to the front end. While EMS
     evaluated [Dolan], Officer Stere spoke to the driver of the other
     vehicle to obtain his version of events, obtain his information, and
     provide him with a crash notification form. Officer Stere also spoke
     with a witness to the accident.

     [Dolan] vomited while being evaluated by EMS. At some point
     during the EMS evaluation, [Dolan] refused medical treatment.
     After [Dolan] declined medical treatment, Officer Stere
     approached [Dolan] to obtain his version of events. While Officer
     Stere was speaking with [Dolan], he observed [Dolan] to be
     confused, dazed, and on the nod. [Dolan]’s eyelids were droopy,
     [Dolan] had difficulty keeping his eyes open, and [Dolan] was
     unable to explain his version of events.

     After making these observations, Officer Stere was concerned that
     [Dolan] was under the influence of some type of controlled
     substance. Officer Stere did not believe [Dolan] was under the
     influence of alcohol, as there was no smell of alcohol on his breath.
     Several times during Officer Stere’s conversations with [Dolan],
     [Dolan] asked if he could leave the scene. Officer Stere indicated
     that [Dolan] could not leave.

     …

     Officer Stere had only been on patrol for two weeks at the time of
     this incident and was not trained to conduct field sobriety tests.
     Because of this, Officer Stere contacted Officer Diedre Houck to
     assist his investigation of the accident as soon as he was notified
     that Officer Houck was available to respond to calls[.] Officer
     Houck was also not trained to conduct field sobriety tests, but as
     she travelled to the scene of the accident, she requested Patton
     Township Officer Brian Shaffer respond to the scene. Officer
     Shaffer documented in his [drug recognition expert] report that
     Officer Houck contacted him at 4:53 p.m.

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     Officer Houck arrived at the scene within minutes[.] While Officers
     Houck and Stere waited for Officer Shaffer to arrive, they spoke
     to [Dolan]. [Dolan] claimed to be travelling from [the Central
     Pennsylvania Institute of Science and Technology] in Bellefonte to
     Texas Roadhouse in State College. Officers Houck and Stere noted
     that this information did not seem truthful, as it did not match the
     direction of travel of [Dolan]’s vehicle. At some point in this
     conversation, [Dolan] admitted to having taken Suboxone[,]
     which was prescribed to him by a doctor.

     …

     When Officer Shaffer arrived between five and ten minutes after
     Officer Houck, he spoke to [Dolan] and noted that [Dolan]’s story
     of events did not seem to make sense. Officer Shaffer observed
     [Dolan] to have a low, raspy voice, constricted pupils and droopy
     eyelids. Officer Shaffer [having much experience administering
     field sobriety tests] conducted three standard field sobriety tests
     on [Dolan].

     …

     Upon completion of the tests, Officer Shaffer determined that
     [Dolan] was impaired and informed Officer Stere that there was
     probable cause to arrest [Dolan] for driving under the influence.
     Officer Shaffer offered [Dolan] the opportunity to complete a[n]
     … evaluation at the station[,] and [Dolan] agreed.

     [Dolan] was then placed under arrest for [DUI,] and Officer
     Shaffer conducted a search of [Dolan]’s person. Officer Shaffer
     found a glassine baggie with white residue in [Dolan]’s pocket.
     The packaging was consistent with the packaging for street-level
     heroin. After placing [Dolan] in the patrol car, Officers Stere and
     Shaffer then searched [Dolan]’s vehicle where they found a glass
     pipe with marijuana residue inside of a shoe in the back seat, two
     small Ziploc baggies in the center console, and blue glassine
     baggie under the driver’s seat.

     Officer Stere transported [Dolan] to the Patton Township Police
     Department for the … evaluation. The station was between three
     and five mile from the scene of the accident. Before beginning the
     exam, Officer Shaffer removed the handcuffs from [Dolan]’s wrists
     and read [Dolan] his Miranda warnings.

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      [The] exam took between 40 and 45 minutes[.] … During the
      exam, Officer Shaffer observed several signs of intoxication which
      … allowed him to identify a category of substance causing
      [Dolan]’s intoxication. As a result of this exam [which uncovered
      at least eight signs of intoxication], Officer Shaffer opined that
      [Dolan] was under the influence of narcotic analgesics and
      cannabis.

      …

      Officer Stere then transported [Dolan] … to Mount Nittany Medical
      Center. Once at the hospital, Officer Stere removed the handcuffs
      from [Dolan] and read him the DL-26B form. This version of the
      form did not indicate that [Dolan] would be subject to any increase
      in criminal penalties if he refused a blood test. Officer Stere did
      not raise his voice, draw his weapon, or use any other form of
      force to get [Dolan] to agree to a blood draw. When asked if he
      had any questions, [Dolan] responded that he did not. [Dolan]
      signed the form consenting to a blood draw. The blood draw was
      performed at 7:19 p.m.

Trial Court Opinion and Order, 8/24/18, at 1-6 (formatting altered).

      Several months later as a result of this incident, Dolan was charged with

a total of three DUI and drug-related offenses. Thereafter, Dolan filed an

omnibus pre-trial motion challenging, inter alia, the voluntariness of the

warrantless blood draw performed on him. After a full briefing and hearing

testimony, the trial court denied Dolan’s motion. Dolan’s case then proceeded

to a non-jury trial, where he was found guilty of the three charged offenses.

      Dolan filed a timely notice of appeal. Moreover, Dolan and the trial court

both complied with the dictates of Pa.R.A.P. 1925. In this appeal, Dolan raises

one question for our review:

      1) Did the lower court err in denying [Dolan’s] motion to suppress
         evidence obtained by a warrantless blood draw since any

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          purported consent given by [Dolan] was not rendered
          knowingly, intelligently or voluntarily, and was otherwise the
          product of intimidation, coercion, and/or duress?1

Appellant’s Brief, at 4.

       Dolan seeks suppression of the evidence obtained from the blood draw.

Our standard of review as to this type of challenge is well-settled:

       Our 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, we are bound by these findings and may
       reverse only if the court's legal conclusions are erroneous. 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 [trial court's]
       conclusions of law [ ] are subject to our plenary review.


____________________________________________


1 Dolan does not suggest that there was a deficiency with the DL-26B form
read to him. See Birchfield v. North Dakota, 136 S.Ct. 2160 (2016) (the
United States Supreme Court holding that criminal penalties imposed on
individuals who refuse to submit to a warrantless blood test violates the Fourth
Amendment); see also Commonwealth v. Giron, 155 A.3d 635, 639 (Pa.
Super. 2017) (our Court employing the Birchfield holding by establishing that
enhanced criminal penalties imposed for failure to consent to a blood draw
constituted an illegal sentence).

      After Birchfield and Giron, 75 Pa.C.S.A. § 3804 was amended on July
20, 2017, to provide for enhanced criminal penalties only when police have
obtained a search warrant for the suspect’s blood. See 75 Pa.C.S.A. §
3804(c). Although the events in question occurred two months prior to this
amendment, the DL-26B form here did not mention any increase in criminal
penalties for failing to submit to a warrantless blood draw. Accordingly, it was
statutorily compliant under this new version of the law.

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      Moreover, appellate courts are limited to reviewing only the
      evidence presented at the suppression hearing when examining a
      ruling on a pre-trial motion to suppress.

Commonwealth v. Shreffler, 201 A.3d 757, 763 (Pa. Super. 2018) (internal

citation omitted).

      In addition, we are guided by the fact that both 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. Evans, 153 A.3d 323, 327 (Pa. Super. 2016)

(citation omitted). “The administration of a blood test, performed by an agent

of, or at the direction of the government, constitutes a search under both the

United States and Pennsylvania Constitutions.” Id., at 328 (internal quotation

marks and citation omitted). “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). “One such exception is consent, voluntarily given.” Id.

(citation omitted).

      In determining the validity of a given consent, the Commonwealth
      bears the burden of establishing that a consent is the product of
      an essentially free and unconstrained choice—not the result of
      duress or coercion, express or implied, or a will overborne—under
      the totality of the circumstances. The standard for measuring the
      scope of a person's consent is based on an objective evaluation of
      what a reasonable person would have understood by the exchange
      between the officer and the person who gave the consent. Such
      evaluation includes an objective examination of the maturity,
      sophistication and mental or emotional state of the defendant.
      Gauging the scope of a defendant's consent is an inherent and
      necessary part of the process of determining, on the totality of the

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      circumstances presented, whether the consent is objectively valid,
      or instead the product of coercion, deceit, or misrepresentation.

Commonwealth v. Venable, 200 A.3d 490, 497 (Pa. Super. 2018) (citation

omitted).

      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.

Id. (citation omitted).

      Dolan suggests six reasons militate against a finding of voluntariness:

      1) Excess police presence while Dolan was detained;

      2) Police use of physical contact on Dolan;

      3) Police directing Dolan’s movements;

      4) Dolan was in custody for several hours and was required to
         perform multiple tests in different locations;

      5) Police asked Dolan confusing questions, potentially as the
         result of a questionable motive;

      6) The initial investigative detention, when looking at all of the
         available facts, was coercive.

See Appellant’s Brief, at 17-24.

      To the extent Dolan challenges anything other than the voluntariness of

the warrantless blood draw, those contentions are waived. See Boutte v.

Seitchik, 719 A.2d 319, 326 (Pa. Super. 1998) (holding that “issues that are

not set forth in the statement of questions presented or reasonably suggested

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thereby are deemed waived”); see also Pa.R.A.P. 2116(a) (“No question will

be considered unless it is stated in the statement of questions involved or is

fairly suggested thereby.”).

      Dolan fails to cite to any authority for his first five reasons why the

warrantless blood draw should be considered involuntary. Instead, Dolan

asserts that having three law enforcement officers at the accident scene, a

detention of more than an hour along the side of the road followed by two

more hours of detention at two more locations, the multiple testing regimes

performed on him, the physical directing of Dolan’s movements, and suspect

statements made to Dolan by one of the officers created the situation where,

once Dolan went to the medical center for testing, he was under duress or

effectively coerced to consent to the blood draw. See Appellant’s Brief, at 17-

19. As to the sixth reason, that the initial investigative detention was coercive,

the gravamen of Dolan’s argument is that the initial responding officer, Officer

Stere, had nothing more than a legally insufficient “hunch” that Dolan was

impaired, but not a reasonable suspicion of the same, so the entire detention

was unlawful. See id., at 20-21 (pointing to the car accident having been

minor and without damage to either vehicle, Officer Stere’s recent

employment with the police force and lack of DUI recognition training, and

Dolan’s inability to leave the scene); see also Commonwealth v. Freeman,

757 A.2d 903, 908 (Pa. 2000) (citation omitted).

      The trial court denied suppression:


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      [Dolan’s] consent was voluntary. Although [Dolan’s] detention
      was lengthy, much of this time was due to the [drug recognition
      expert] evaluation, which [Dolan] was not required to complete.
      When given the option to go to the hospital or complete the
      evaluation, [Dolan] agreed to complete the evaluation. During the
      course of the evaluation, [Dolan] did not object to any of the tests,
      including those that required Officer Shaffer to physically touch
      [Dolan]. At no point did any of the officers yell, draw their
      weapons, or threaten [Dolan] in any way. Before the [drug
      recognition expert] exam began, [Dolan] was read his Miranda
      warnings. Although there were three officers involved at some
      point in the interaction, Officer Houck’s involvement was brief and,
      at the time [Dolan] consent to the blood draw, only one officer,
      Officer Stere, was present. The DL-26B form read to [Dolan] did
      not threaten any criminal penalties, but did state that civil
      penalties could result from a refusal to provide a blood test.
      Although [Dolan] was not affirmatively told that he did not need
      to consent, an individual is presumed to know the law and the DL-
      26B form specifically states that the officer is “requesting a blood
      draw.” Nothing in the form indicates that consent is mandatory.
      The [c]ourt finds from a review of the totality of the circumstances
      that [Dolan]’s consent was voluntary.

Trial Court Opinion and Order, 8/24/18, at 13.

      We agree with the trial court’s findings, as they are supported by the

record. Further, the court’s legal conclusions do not constitute error. As

adduced from his testimony, Officer Stere had more than a “hunch” when he

proceeded to investigate Dolan. While Officer Stere obviously did not have a

reasonable suspicion of any wrongdoing when he approached the scene of the

accident, after observing Dolan’s behavior, physical appearance, and

disposition, he was able to acquire enough suspicion to proceed with DUI

testing. The court did not err in finding that the initial stop was not coercive.

None of the actions of the police officers nor any of the temporal or locational




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elements of this entire incident contradict the inherent power that Dolan had

to reject the blood draw.

      Under Terry v. Ohio, 392 U.S. 1 (1968), police officers are allowed to

stop and briefly detain an individual to conduct a limited investigation “if the

officer has a reasonable suspicion, based on specific and articulable facts that

criminal activity is afoot.” Commonwealth v. Dangle, 700 A.2d 538, 540

(Pa. Super. 1997) (citation omitted). Our Commonwealth has established that,

while there are no rigid time limits for these types of investigations, the key

factor in analyzing if a “detention lasts too long to be justified as an

investigative stop, is whether the police diligently pursued a means of

investigation that was likely to confirm or dispel their suspicions quickly,

during which time it was necessary to detain the defendant.” Commonwealth

v. Ellis, 662 A.2d 1043, 1048 (Pa. 1995) (quotation marks and citation

omitted). Unless a traffic stop becomes the functional equivalent of an arrest,

ascertained by the totality of the circumstances, a traffic stop typically

constitutes an investigative detention. Commonwealth v. Kiner, 697 A.2d

262, 265 (Pa. Super. 1997).

      Although the entire course of events, taking place at three different

locations, lasted for some time, we see no basis to conclude that the police

and specifically Officer Stere acted with anything other than diligence in this

situation. First, Officer Stere’s questioning of Dolan took place on the side of

an active public highway, implying that it was not custodial in nature. Second,


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because this was an automobile accident, Officer Stere had other safety-

related and fact-finding obligations. Among other tasks, Officer Stere had to

take Dolan’s information and make sure he was uninjured, which necessarily

required conversation amongst the two. Third, Officer Stere did not handcuff

Dolan nor use or threaten to use force during the initial investigative phase.

      Officer Stere’s reasonable suspicion of Dolan’s impairment stemmed

from his normal “course of action” duties associated with his handling of the

car accident scene. In his attempt to obtain Dolan’s side of the story, Officer

Stere remarked that he seemed “confused, dazed.” N.T., Suppression

Hearing, 2/16/18, at 11. Officer Stere stated that Dolan “looked like he was

just staring off into space” and “was on the nod. His eyelids were droopy. He

was having a hard time keeping his eyes open. He was unable to tell [Officer

Stere] what happened during the crash.” Id. Further, Dolan’s story as to

where he was traveling did not make geographic sense. See id., at 13.

Resultantly, Officer Stere was “concerned that [Dolan was] under the influence

of some kind of controlled substance.” Id., at 12.

      It is unrefuted that well over half an hour passed between the arrival of

Officer Stere and the third officer who ultimately conducted the DUI testing

on Dolan. See Appellee’s Brief, at 20. However, there is nothing in the record

to objectively conclude that Dolan was under custodial detention prior to the

DUI testing or that Officer Stere or the second officer lacked diligence in

bringing this third officer to the scene.


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       Officer Stere and the second officer were not trained to do field sobriety

testing. Therefore, the only way to act upon Officer Stere’s reasonable

suspicion was to find an officer who was qualified to handle the incident, which

they did as quickly as was possible under the circumstances and in conjunction

with   their   other   attendant   responsibilities.   See   Commonwealth     v.

Douglass, 539 A.2d 412 (Pa. Super. 1988) (finding that a three and one half

hour detention, under the totality of the circumstances, was investigative

rather than custodial).

       As to whether there was probable cause to arrest Dolan, “[p]robable

cause for an arrest exists where the facts and circumstances within the

officers’ knowledge are sufficient to warrant a person of reasonable caution in

the belief that an offense has been or is being committed.” Commonwealth

v. Stultz, 114 A.3d 865, 883 (Pa. Super. 2015) (quotation marks and citation

omitted). Here, we find that Officer Stere’s observations in addition to Dolan’s

unsatisfactory performance on the field sobriety test provided the officers with

enough to establish probable cause for an arrest.

       When Dolan was transported to the second location for additional testing

at his behest, he was Mirandized prior to the evaluation, did not object, was

not handcuffed, and was not threatened. See N.T., Suppression Hearing,

2/16/18, at 39, 43-44, 48, 75-77, 79, 81-82, 109.

       At the third location, the site of the blood draw, Officer Stere read the

DL-26B form to Dolan verbatim. See id., at 18. Dolan “agreed to a blood draw


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and signed the form.” Id., at 19. Dolan was not handcuffed, Officer Stere did

not raise his voice at him, and the officer made sure that Dolan knew he was

available to answer any questions Dolan may have had. See id., at 19-20.

Further, the relevant form clearly indicates that it is merely making a

noncompulsory “request.” See Commonwealth’s Ex. 1. While Dolan was under

arrest at the time of the blood draw, nothing in the record indicates that Officer

Stere nor any other officer used any coercive tactics to compel Dolan to give

in to blood testing.

      Therefore, based on our independent review of the record, we can find

no error or abuse of discretion in the trial court’s conclusion that the totality

of the circumstances weighed in favor of finding that Dolan provided knowing

and voluntary consent to the blood draw. Although Dolan was in custody at

the time of the blood draw, there is no objective evidence to suggest that his

consent to such an act was the product of duress, threats, or coercion on the

part of the police officers. After being read the information contained on the

DL-26B form, Dolan agreed to submit to the test and underwent the blood

draw. Accordingly, we affirm the judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/07/2019

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