J-A06026-18
                                  2018 PA Super 132


COMMONWEALTH OF PENNSYLVANIA                 :      IN THE SUPERIOR COURT OF
                                             :            PENNSYLVANIA
                      Appellant              :
                                             :
           v.                                :
                                             :
                                             :
JOSEPH R. MOSER                              :     No. 1225 WDA 2017

                 Appeal from the Order Entered August 1, 2017
    In the Court of Common Pleas of Westmoreland County Criminal Division
                      at No(s): CP-65-CR-0000223-2015

BEFORE:          BENDER, P.J.E, SHOGAN, J., and STRASSBURGER,* J.

DISSENTING OPINION BY STRASSBURGER, J.:               FILED: May 18, 2018

        In this appeal, the Commonwealth asks this Court to reverse the trial

court’s order, which granted Moser’s motion to suppress his blood test

results.        The Majority agrees with the Commonwealth, concluding that

“Moser’s consent was not tainted by the threat of additional criminal

penalties as outlined in form DL-26, and therefore, was not obtained in

violation of Birchfield[1] and Evans.[2]”        Majority at 8.   In doing so, the

Majority misconstrues the trial court’s findings of fact and misapplies the

relevant case law. Accordingly, I respectfully dissent.

        Following a suppression hearing, the trial court granted Moser’s motion

to suppress because it found that Moser consented to the blood draw after


1   Birchfield v. North Dakota, __ U.S. __, 136 S.Ct. 2160 (2016).

2   Commonwealth v. Evans, 153 A.3d 323 (Pa. Super. 2016).



*Retired Senior Judge assigned to the Superior Court.
J-A06026-18


he was read the DL-26 form. See Trial Court Order, 8/1/2017 (finding that

Moser “consented to the blood draw after being informed that he faced

enhanced criminal penalties for failure to do so as explained to him by the

officer through the DL-26 form, and given the totality of the circumstances,

[Moser’s] consent was invalid”); Trial Court Opinion, 9/26/2017, at 7

(finding same).   Notwithstanding this explicit finding, the Commonwealth

and the Majority instead fixate on an undeveloped part of the record to

reach the conclusion that Moser consented to the blood draw before he was

read the DL-26 form:

      [Moser] was handcuffed, placed under arrest, and put into the
      back of a patrol vehicle. Trooper Tononi confirmed that [Moser]
      was taken into custody and then transported to Westmoreland
      County Hospital. On the way to the hospital, Trooper Johnson
      and Trooper Tononi informed [Moser] as to why they were going,
      and requested that [Moser] submit to a blood test to determine
      his BAC, and [Moser] agreed.

Trial Court Opinion, 9/26/2017, at 6 (record citations and footnote omitted).

      The suppression and preliminary hearing transcripts do not provide

any elaboration on what the troopers specifically asked of Moser in the patrol

vehicle regarding the blood test, nor does it provide any detail whatsoever

as to how Moser allegedly “agreed.” Regardless, the Commonwealth seizes

on this ambiguous encounter to support its argument that Birchfield is

inapplicable.   The Majority agrees with the Commonwealth’s argument,

relying on this Court’s recent decision in Commonwealth v. Haines, 168

A.3d 231 (Pa. Super. 2017), for support.     In Haines, this Court reasoned


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that “if Haines validly consented before being informed that he faced

enhanced criminal penalties for failure to do so, then his consent would not

be tainted by the warning and the blood test results would be admissible.”

Id. at 236 (emphasis in original). While I agree with the Majority that

Haines is instructive, I do not reach the same conclusion as to the

Commonwealth’s argument.

     In Haines, it was unclear whether the trial court found that the

defendant consented before or after the DL-26 form was read. That is not

the case here. As noted above, supra, the trial court explicitly found that

Moser consented after he was read the DL-26 form.          Surprisingly, the

underlying facts here are almost identical to another recent case, which the

Majority inexplicably distinguishes, wherein the trial court also found that

the defendant consented only after being read the DL-26 form. In that case,

after the defendant, Evans, was arrested for DUI,

     Officer Green placed [Evans] in the back of the patrol car and
     advised [Evans] that he was going to take him to submit to a
     chemical test of blood. Lieutenant Beckus testified that [Evans]
     [j]ust kind of shook his head and said okay.

           As Lieutenant Beckus testified, when they arrived at the
     hospital, the officers took [Evans] to the laboratory and Officer
     Green advised [Evans] of [] the implied consent warnings [].

                                    ***

     Lieutenant Beckus testified that, after [Evans] was informed of
     the above, [Evans] agreed to submit to the requested blood
     draw.



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J-A06026-18


Evans, 153 A.3d at 324–26 (footnotes, quotation marks, and record

citations omitted). Just as in Moser’s case, the trial court found that Evans

consented to the blood draw after being read the implied consent warnings

by the officer, notwithstanding his earlier ambiguous acquiescence to a blood

test while handcuffed in the patrol car. Id. at 326. Thus, this Court held

that Birchfield applied, and vacated the order denying Evans’s suppression

motion because Evans “only consented to the warrantless blood draw after

being informed, by the police, that refusal to submit to the test could result

in enhanced criminal penalties.” Id. at 331.

      I find the same scenario occurred here, and that the trial court did not

err in finding, based on the totality of the circumstances, that Moser did not

consent to the blood test until after he was read the DL-26 form.3

Accordingly, I would affirm the trial court’s order granting suppression

because Moser’s consent was invalid under Birchfield. See Evans, supra.

See also Commonwealth v. Kurtz, 172 A.3d 1153, 1161 (Pa. Super.

3 Even if the trial court had found that Moser consented to the blood draw
before he was read the DL-26 form, he had the right to withdraw that
consent at any point until the needle was placed in his arm and blood was
withdrawn. See Commonwealth v. Myers, 118 A.3d 1122, 1127 n.5 (Pa.
Super. 2015) (noting that a driver’s “initial consent does not preclude him
from revoking his consent to the test. The [implied consent] statute grants
an explicit right to a driver who is under arrest for driving under the
influence to refuse to consent to chemical testing.”). The trial court properly
considered the totality of the circumstances from the time the police came
into contact with Moser until his blood was drawn, and determined that his
consent was invalidated by the threat of enhanced criminal penalties if he
refused.



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J-A06026-18


2017) (“Because the suppression court concluded that Kurtz consented to

the blood draw after being informed that he faced enhanced criminal

penalties for refusal, the court did not err in finding that his consent was

involuntary under the circumstances.”).4

      In its second claim, the Commonwealth argues that a good-faith

exception to the exclusionary rule should apply to pre-Birchfield cases.

Commonwealth’s Brief at 16-30. “The good-faith exception distinguishes the

Fourth Amendment of the United States Constitution from its Pennsylvania

counterpart since it is settled that under Article I, Section 8 of the

Pennsylvania [C]onstitution, a good[-]faith exception to the exclusionary

rule does not exist.” Commonwealth v. Updike, 172 A.3d 621, 626 (Pa.

Super. 2017) (quotation marks and some citations omitted).

      After reviewing the omnibus pretrial motion, the suppression hearing

transcript, the trial court order granting suppression, and the trial court’s

4 The Majority’s conclusion that Moser waived any argument regarding the
voluntariness of his consent on appeal for failure to raise it before the trial
court misapplies the law. The Majority cites Commonwealth v. Little, 903
A.2d 1269 Pa. Super. 2006), and Commonwealth v. Thur, 906 A.2d 552
(Pa. Super. 2006), for the proposition that no new theories for relief on a
suppression motion may be considered on appeal, yet these two cases
involved criminal defendants who raised new arguments on appeal when
requesting that the denial of a motion to suppress be reversed. That is not
the procedural posture we are in. Here, the trial court granted Moser’s
motion to suppress, and the Commonwealth is appealing that decision and
seeking a reversal. While it is true that we may not reverse on a new legal
basis not raised before the trial court, we may affirm on any basis. See
Commonwealth v. Clouser, 998 A.2d 656, 661 n.3 (Pa. Super. 2010) (“It
is well-settled that this Court may affirm on any basis.”).



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J-A06026-18


1925(a) opinion, it is unclear whether Moser sought suppression under the

federal constitution, the Pennsylvania constitution, or both.     Nonetheless,

both the Commonwealth and Moser address the good-faith exception under

both the federal constitution and the Pennsylvania constitution.        Thus, I

review this claim as if Moser sought suppression under both constitutions.

      This Court recently considered a case where a criminal defendant

sought suppression of blood test results under the federal and Pennsylvania

constitutions, and the Commonwealth sought application of the good-faith

exception to the exclusionary rule. This Court affirmed the trial court’s order

granting suppression and refusing to apply a good-faith exception: “Given

the entanglement of privacy interests inherent in a blood test administered

by the state, we decline to recognize a good[-]faith exception to the

exclusionary rule, as it would frustrate the purpose of Article 1, Section 8 of

the Pennsylvania Constitution by undermining privacy interests.”         Kurtz,

172 A.3d at 1159 (citation omitted). Thus, I find that the Commonwealth is

not entitled to application of a good-faith exception to the exclusionary rule.

      Accordingly, I would affirm the trial court’s order.




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