J-S55008-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
MICHAEL R. BARNA
Appellee No. 2668 EDA 2015
Appeal from the Order August 6, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): MC-51-CR-0021676-2012
BEFORE: LAZARUS, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY LAZARUS, J.: FILED AUGUST 09, 2016
The Commonwealth of Pennsylvania appeals from the order of the
Court of Common Pleas of Philadelphia County that granted a writ of
certiorari from a judgment of sentence imposed by the Philadelphia
Municipal Court following Michael R. Barna’s convictions for DUI (impaired
ability)1 and DUI (controlled substance).2 After careful review, we affirm
based on the opinion of the Honorable Michael E. Erdos.
On May 25, 2012, at 5:25 a.m., Barna was involved in a motor vehicle
accident. When an EMT arrived on the scene he saw needles, syringes and
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
75 Pa.C.S. § 3802(d)(2).
2
75 Pa.C.S. § 3802(d)(1).
J-S55008-16
pills scattered around the vehicle. Believing that Barna was suffering from
an opiate overdose, the EMT administered Narcan, which reverses the
effects of opiates.
Barna was arrested for DUI and was transported to Hahnemann
Hospital. At 6:10 a.m., Philadelphia Police Officer William Lackman arrived
at the hospital where medical personnel were stabilizing Barna, who was
unconscious and intubated. At Officer Lackman’s request, a nurse drew
blood from Barna for chemical testing. Officer Lackman did not obtain a
warrant before the blood draw.
Barna filed a motion to suppress the blood test results, which the
Municipal Court denied on February 24, 2014. Following a non-jury trial,
Barna was convicted of the above-referenced offenses and on June 23,
2014, the court sentenced him to 90 to 180 days’ incarceration and 18
months’ probation.
On October 31, 2014, the Municipal Court granted Barna’s request to
file a petition for writ of certiorari nunc pro tunc. Barna then filed a petition
asserting that the seizure of his blood was unlawful.
On August 6, 2015, the trial court granted the writ of certiorari, thus
reversing Barna’s conviction and vacating his sentence.
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The Commonwealth filed this timely appeal,3 in which it raises the
following issue for our review:
Where police had probable cause to believe that [Barna] had
been driving under the influence of a controlled substance, and
where [Barna] was unconscious following a car accident, did the
lower court err in suppressing drug results based on his failure to
express consent notwithstanding the implied consent statute?
Appellant’s Brief, at 4.
“A lower court’s decision on the issuance of a writ of certiorari will not
be disturbed absent an abuse of discretion. Certiorari provides a narrow
scope of review in a summary criminal matter and allows review solely for
questions of law.” Commonwealth v. Elisco, 666 A.2d 739, 740 (Pa.
Super. 1995) (citations omitted). Because we are reviewing a question of
law, our standard of review is de novo and our scope of review is plenary.
Bastian v. Sullivan, 117 A.3d 338, 342 (Pa. Super. 2015).
In his Pa.R.A.P. 1925(a) opinion, Judge Erdos explains that in
Commonwealth v. Myers, 118 A.3d 1122 (Pa. Super. 2015), this Court
held that in the absence of exigent circumstances, police may not obtain a
____________________________________________
3
In its statement of jurisdiction, the Commonwealth notes that it has
certified that the order on appeal will terminate or substantially handicap the
prosecution of the case. See Pa.R.A.P. 311(d). However, Rule 311(d) is
inapposite because the case has already been prosecuted. While it is
possible that the judgment of sentence imposed by the Municipal Court may
eventually be affirmed, any further prosecution would violate double
jeopardy principles.
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blood sample under the implied consent law without a warrant. Accordingly,
the writ of certiorari was granted.
On February 3, 2016, our Supreme Court granted allowance of appeal
in Myers.4 Nevertheless, as the Commonwealth recognizes, this Court’s
decision in Myers “is controlling.” Appellant’s Brief, at 5.
We affirm the order granting a writ of certiorari based on the opinion
of Judge Erdos. We direct the parties to attach a copy of that decision in the
event of further proceedings in this matter.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/9/2016
____________________________________________
4
The Supreme Court has docketed the appeal at 7 EAP 2016.
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.. Circulated 06/24/2016 01:18 PM
IN THE COURT OF COM1\!IONPLEAS
FIRST JUDICIAL DISTIUCT OF PENNSYLVANIA
CIUMINAL TIUAL DIVISION
COMMON WEALTH OF PENNSYLVANIA MC-51-CR-0021676-2012
v.
MICHAEL BARNA 2668 EDA 2015
~1C-51-CR-C021676·2012 Corr,m. v. Bama, IAlchael R.
Cpln!on
F!LED
OPINION OCT 2 0 2015
1111111111111111111111111 Criminal Appeals Unit
7359100461 First Judicial District of PA
ERDOS,J.
On May 25, 2012, Appellee Michael Barna was arrested and charged with Driving Under
the Influence pursuant to 75 Pa.C.S. § 3802. On, January 14, 2014, Appellee argued a motion to
suppress his drug test results under the Fourth Amendment of United States Constitution and
Article I,§ 8 of the Pennsylvania Constitution. This motion was denied by the Honorable Teresa
Carr Deni. Subsequently, after a non-jury trial on March 12, 2014, the Honorable Gerard A.
Kosinski found Appellee guilty. On June 23, 2014, Judge Kosinski sentenced Appellee to 90-
180 days confinement and 18 months of probation. On July 18, 2014, Appellee filed a Writ of
Certiorari to Common Pleas Court. On August 6, 2015, this Court issued an Order granting
Appellee's Writ of Certiorari, thereby vacating Appellee's sentence and reversing Appellee's
conviction. This Commonwealth appeal followed.
FACTS
On May 25, 2012 at around 5:25 a.rn., Appellee was involved in an automobile collision.
Notes of Testimony (N.T.) 1/14/l 4 at 5, 9. Paramedic Officer Yost was dispatched to the scene.
N.T. I/14/14 at 5. Officer Yost looked inside the vehicle and observed needles, syringes, and
1
pills scattered around. N.T. 1114/14 at 6. He also observed that Appellee's pupils were pinpoint,
indicative of an opiate overdose. N.T. 1/14/14 at 8. Appellee was subsequently arrested for DUI
and transported to Hahnemann University. N.T. 1/14/14 at 6-8, 16. Due to his injuries, Appellee
was not able to cooperate with or answer questions from paramedics at the scene or during his
transport to the hospital. N.T. 1/14/14 at 7, 9. Officer William Lackman of the Accident
Investigation District was dispatched at that time to Hahnemann Hospital to conduct a chemical
test. N.T. 1114/14 at 15-16: He arrived at Hahnemann Hospital around 6: 10 a.m. and was
directed to Appellee, who was located in the trauma bay. N.T. 1/14/14 at 16. At this time,
Appellee was being stabilized by four nurses and a doctor; he was already unconscious and
intubated. N.T. 1/14/14 at 16. Officer Lackman told the trauma nurse that he needed a blood
test from Appellee. N.T. 1/14/14 at 16. The nurse drew Appellee's blood at 6:20 a.m. N.T.
1/14/14 at 17. He was unconscious during the entire process and remained unconscious until
later that afternoon. N.T. 1/14/14 at 18-19. Officer Lackman did not call a magistrate or a judge
for a warrant for the blood test, as he did not believe a warrant was required. N.T. 1/14/14 18-
19. Appellee was neither shown nor signed any forms by Officer Lack.man N.T. 1/14/14 at 19-
20. Nor did he orally agree to a blood draw. N.T. 1114/14 at 20.
DISCUSSION
Appellant raises the following claim on appeal: Did the lower court err in suppressing
drug test results based on the unconscious defendant's failure to express consent notwithstanding
the implied consent statute?
Pennsyl vania' s implied consent statute provides:
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
2
chemical tests of breath, blood or urine for the purpose of determining the alcoholic
content of bloo