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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
KIMBERLY D. NEWDECK
Appellant No. 974 EDA 2016
Appeal from the Judgment of Sentence February 25, 2016
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0001874-2015
BEFORE: BENDER, P.J.E., BOWES, J. AND SHOGAN, J.
MEMORANDUM BY BOWES, J.: FILED SEPTEMBER 27, 2017
Kimberly Newdeck appeals from the judgment of sentence of a flat
ninety-day period of confinement1 followed by three years of probation,
imposed following her convictions for two counts of driving a bicycle under
the influence (DUI).2 We vacate Appellant’s judgment of sentence, vacate
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1
The trial court states that Appellant “was made eligible for Recovery
Court.” Trial Court Opinion, 11/10/16, at 4. The record does not indicate
what that entails. To the extent the sentence is for a period of total
confinement, it is illegal as those sentences must specify both a minimum
and a maximum sentence. 42 Pa.C.S. § 9756(b)(1); Commonwealth v.
Mitchell, 986 A.2d 1241, 1244 (Pa.Super. 2009) (flat sentence of ninety
days incarceration was illegal). However, because we vacate judgment of
sentence on other grounds, any illegality is irrelevant.
2
A bicycle qualifies as a vehicle under the Vehicle Code, and the DUI laws
therefore apply. See Commonwealth v. Brown, 620 A.2d 1213
(Footnote Continued Next Page)
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the suppression order, and remand the case for proceedings consistent with
this memorandum.
We adopt the facts as ably set forth by the trial court in its Pa.R.A.P.
1925(a) opinion.
On November 6, 2014 . . . . Ms. Jennings testified that she was
on Route 100 at the intersection of Commerce Boulevard. She
had a green light and was proceeding into the intersection when
she then heard and felt defendant [,who was riding a bicycle,]
collide with her driver's side door. As soon as the defendant hit
her car, she stopped her vehicle and checked to see if the
defendant was okay. She heard her moan, and then immediately
grabbed her phone and called 911. The police were already
dispatched to the scene after a 911 call was placed by a Mr. Fred
Slack at 9:54 p.m. Ms. Jennings' car sustained damage to the
driver's side of the vehicle, including to the driver's side mirror.
Officer Richard Barth of the West Whiteland Police Department
was dispatched to the scene for an accident involving a bicyclist
and a vehicle. Upon his arrival, Officer Barth found the defendant
lying on the road next to her bicycle with serious injuries. She
was unable to speak clearly and was in obvious pain and
discomfort. While attempting to talk to defendant, he detected a
strong odor of alcohol emanating from her breath and person.
He also found an unopened bottle of vodka on the ground about
a foot away from where she was lying, which he later
ascertained was hers. While at the accident scene, Officer Barth
formed the opinion that defendant was intoxicated to the point
that she was incapable of safely operating a bicycle.
....
Defendant was transported to Paoli Memorial Hospital's trauma
unit where she was treated for serious injuries including a
_______________________
(Footnote Continued)
(Pa.Super. 1993) (“A bicycle is clearly not a motor vehicle . . . However, it is
the operators of vehicles, not the operators of motor vehicles, who are
regulated[.]”).
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hemoneumothorax, collapsed lung, fractured ribs, broken
scapula and a head injury, which required 8-9 staples in her
scalp. While in the trauma room and receiving treatment, Officer
Barth waited either in the room or right outside.
While defendant was obtaining treatment for her injuries, Officer
Barth advised her that he suspected that she was operating her
bicycle while she was intoxicated, and he was therefore
investigating her for Driving Under the Influence (hereinafter
"DUI"). He then requested a sample of her blood for testing.
Defendant, who was 45 years old at the time, responded that
she wanted to speak with her father. The officer told her that
she was above the age of 18 and had to make the decision
herself, and she replied, "well, I guess." He then asked if she
was consenting to the blood draw and he told her she could
refuse, but that she would face penalties from the Department of
Transportation including the loss of her license and a $1,000.00
fine. She then asked to speak to her father again. Officer Barth
explained that she needed to make the decision, not her father,
and she replied, "okay, I guess." At that point, the nurse came in
and drew the blood, which was then provided to the officer and
tested through the regular means of testing. The results showed
a blood alcohol content (hereinafter "BAC ") of .173%. . . .
While Officer Barth did inform the defendant of the
consequences for refusing to provide a blood sample, he did not
read the Implied Consent Form (DL-26) to her or ask her to sign
one since she consented to the blood draw. He testified that he
only provides the form to a person if they refuse to give consent.
Trial Court Opinion, 11/10/16, at 1-3.
Appellant was charged with a summary traffic offense, and two counts
of driving under the influence, one for general impairment and one for
driving with a blood alcohol concentration (“BAC”) greater than 0.16% within
two hours of driving. Appellant filed a motion to suppress the blood results,
asserting that the warrantless blood draw did not fall within any valid
exception to the warrant requirement.
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The trial court denied the motion after an evidentiary hearing.
Appellant then submitted, on October 14, 2015, a supplemental motion to
suppress, averring that “[t]he original seizure of blood was unlawful,” and
that a subsequent warrant for hospital records was predicated upon the
results of the blood draw taken by Officer Barth. Supplemental Motion to
Suppress, 10/14/15, at ¶ 6-7. An evidentiary hearing was not held, nor was
the motion ruled upon, presumably because the trial court had already
determined that the Commonwealth could introduce the evidence obtained
by Officer Barth.
Following a bench trial, Appellant was convicted of all counts. The trial
court subsequently imposed the foregoing sentence. Appellant filed a timely
notice of appeal and complied with the trial court’s order to file a concise
statement. The trial court authored an opinion in response and we now
examine the two issues posed by Appellant.
1. Did the trial court err in denying defendant's Motion to
Suppress and in concluding that she knowingly, intelligently and
voluntarily consented to the seizure of a sample of her blood,
after the officer refused to allow her to consult with another, and
told the defendant that there would be an enhanced penalty if
she refused to consent to blood testing?
2. Did the trial court err in denying defendant's Motion For
Judgment of Acquittal, and in concluding that the
Commonwealth's evidence was sufficient to prove, beyond a
reasonable doubt, the charged violation of 75 Pa.C.S. § 3802(c)
that defendant drove a vehicle within two hours before a sample
of her blood was drawn?
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Appellant’s brief at 4. We agree that the order denying suppression must be
reversed; however, we address the second issue first. “Since a sufficiency
claim warrants automatic discharge rather than retrial, we address that issue
at the outset.” Commonwealth v. Coleman, 130 A.3d 38, 41 (Pa.Super.
2015) (reviewing sufficiency claim before addressing suppression claim).
Following the Commonwealth’s presentation of evidence, Appellant
moved for judgment of acquittal at the § 3802(c) charge, which criminalizes
the following:
(c) Highest rate of alcohol.--An individual may not drive,
operate or be in actual physical control of the movement of a
vehicle after imbibing a sufficient amount of alcohol such that
the alcohol concentration in the individual's blood or breath is
0.16% or higher within two hours after the individual has driven,
operated or been in actual physical control of the movement of
the vehicle.
75 Pa.C.S. § 3802(c). That motion challenged the sufficiency of the
evidence. See Pa.R.Crim.P. 606(A)(1) (motion for judgment of acquittal
challenges the sufficiency of the evidence). Whether the evidence was
sufficient to support the conviction presents a question of law. Our standard
of review is de novo and our scope of review is plenary. Commonwealth v.
Walls, 144 A.3d 926, 931 (Pa.Super. 2016) (citation omitted). In
conducting our inquiry, we
examine whether the evidence admitted at trial, and all
reasonable inferences drawn therefrom, viewed in the light most
favorable to the Commonwealth as verdict winner, support the
jury's finding of all the elements of the offense beyond a
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reasonable doubt. The Commonwealth may sustain its burden by
means of wholly circumstantial evidence.
Commonwealth v. Doughty, 126 A.3d 951, 958 (Pa. 2015).3
The only element at issue is whether the Commonwealth established
that Appellant’s BAC was 0.16% or higher within two hours of operation.
While our standard of review is de novo, the trial court’s rationale for
denying the motion is well-stated:
Defendant claims that the Commonwealth failed to establish the
third element. The court disagrees. Ms. Jennings testified that
as soon as the defendant hit her car, she stopped her vehicle
and checked to see if the defendant was okay. She heard her
moan, and then immediately grabbed her phone and called 911.
The police were already dispatched to the scene, however, after
a 911 call was placed by a Mr. Fred Slack at 9:54 p.m. It is
clear, based on the totality of the circumstances, that the
accident happened within moments of that call. This conclusion
is based on the time of day, the location of the accident, and the
number of people in the area. It is supported by the fact that
Ms. Jennings called almost immediately after the accident but
the police were already on their way because of the call from Mr.
Slack. Defendant's blood was drawn at 11:50 p.m., which was
within two hours of the accident and the test reflected a BAC of
0.173%. Accordingly, the court finds that the Commonwealth
established that defendant's BAC was 0.16% or higher within
two hours of riding her bicycle as required by the statute.
Order Denying Motion for Judgment of Acquittal, 11/17/15, at 1, n.1.
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3
Since Appellant moved for judgment of acquittal at the close of the
Commonwealth’s case-in-chief, we slightly modify the inquiry by asking
whether the evidence could support a finding of guilt beyond a reasonable
doubt. The distinction is immaterial for legal purposes.
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We fully agree with this analysis, as the Commonwealth may establish
its burden of proof as to any element of a crime through wholly
circumstantial evidence. In Commonwealth v. Johnson, 833 A.2d 260
(Pa.Super. 2003), we noted that “an eyewitness is not required to establish
that a defendant was driving, operating, or was in actual physical control of
a motor vehicle. The Commonwealth can establish [that] through wholly
circumstantial evidence[.]” Id. at 263. The evidence established that
Appellant, riding a bicycle, struck a vehicle driven by Brandy Jennings. Ms.
Jennings testified that she immediately stopped her vehicle and called 911.
N.T., 10/19/15, at 111. Police arrived within minutes of the accident. Id. at
96. Corporal Gary Moore, the first police officer on scene, stated that he
was dispatched by 911 at 9:55 p.m. Tara Capoferri testified that the blood
was drawn at 11:50 p.m.4 Id. at 74.
Viewing this evidence in a light most favorable to the Commonwealth
establishes that Appellant was operating the bicycle at approximately 9:54
p.m. Hence, the blood draw at 11:50 p.m. was within two hours. In other
words, the blood draw was timely unless Appellant was last operating the
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4
Appellant maintains that the time of the blood draw was 11:55 p.m., as
Officer Barth listed that time in his testimony. Appellant’s brief at 22-23.
However, the nurse who conducted the blood draw testified that the blood
was drawn at 11:50 p.m. It is for the fact-finder to resolve these types of
factual discrepancies, and for sufficiency purposes we must view the facts in
the light most favorable to the Commonwealth, not Appellant.
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bicycle prior to 9:50 p.m. We find that the Commonwealth’s circumstantial
evidence established that was not the case. Therefore, the trial court
properly denied the motion.
Furthermore, even if the circumstantial evidence alone did not suffice,
the Commonwealth clearly established, pursuant to 75 Pa.C.S. § 3802(g),
that the blood was drawn within two hours of operation for purposes of the
underlying DUI crime. That subsection states:
(g) Exception to two-hour rule.--Notwithstanding the
provisions of subsection (a), (b), (c), (e) or (f), where alcohol or
controlled substance concentration in an individual's blood or
breath is an element of the offense, evidence of such alcohol or
controlled substance concentration more than two hours after
the individual has driven, operated or been in actual physical
control of the movement of the vehicle is sufficient to establish
that element of the offense under the following circumstances:
(1) where the Commonwealth shows good cause
explaining why the chemical test sample could not be
obtained within two hours; and
(2) where the Commonwealth establishes that the
individual did not imbibe any alcohol or utilize a
controlled substance between the time the individual
was arrested and the time the sample was obtained.
75 Pa.C.S. § 3802(g).
The Commonwealth, recognizing that the two-hour window was close,
established each of these two requirements, a fact that Appellant does not
dispute. Instead, Appellant maintains that the Commonwealth cannot rely
on that subsection, since “Section 3802(g) creates an ‘aggravated’ offense
that is different and separate from the offenses set forth in . . . Section
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3802(c).” Appellant’s brief at 24. Appellant avers that the (g)(1), (2)
provisions constitute “additional elements” that, when proven, result in
increased penalties in violation of United States v. Alleyne, 133 S.Ct. 2151
(2013) (holding that any fact that, by law, increases the penalty for a crime
is an element that must be submitted to the jury and found beyond a
reasonable doubt). Appellant’s brief at 24-25.
We disagree. First, Appellant’s legal argument is misdirected; her
argument that § 3802(g) violates Alleyne has nothing to do with the
sufficiency of the evidence to satisfy the two-hour timing element but rather
an assertion that § 3802(g) is unconstitutional for reasons divorced from the
sufficiency context.
More importantly, § 3802(g) does not increase the otherwise
applicable penalty for the pertinent DUI crimes, nor does it involve proof of
any additional facts. A violation of the underlying DUI offense, in this case §
3802(c), remains the pertinent crime that the Commonwealth must establish
beyond a reasonable doubt. Section 3802(g) simply provides an exception
to the normal two-hour requirement where the two delineated conditions are
met. Contrary to Appellant’s argument, the two conditions do not constitute
additional elements, but instead reflect a legislative recognition that the
Commonwealth cannot meet the two-hour time requirement in all DUI cases.
In this sense, § 3802(g) is no different than the constructive possession
doctrine, which serves to satisfy the element of possession. See
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Commonwealth v. Mudrick, 507 A.2d 1212, 1213 (Pa. 1986) (“Clearly the
Commonwealth could not show actual possession of the contraband. Its case
was based on constructive possession. Constructive possession is a legal
fiction, a pragmatic construct to deal with the realities of criminal law
enforcement.”). Likewise, § 3802(g) is a legal fiction, explicitly codified by
the legislature, to deal with the practical realities of enforcing DUI laws. It
applies only when the Commonwealth has good cause for not testing a
defendant’s blood alcohol level within two hours. There is no doubt that the
scenario herein, where the suspected DUI defendant received medical
attention for injuries sustained in a crash, qualified as good cause.
Therefore, even if we accepted that the blood draw occurred a few minutes
outside the two-hour window, the Commonwealth satisfied the statutory
exception.
Having concluded that sufficient evidence supported the verdict, we
now address the suppression issue. During the pendency of this appeal, the
United States Supreme Court issued North Dakota v. Birchfield, 136 S.Ct.
2160 (2016), which concluded that a warrantless blood draw was not
justified as a search incident to arrest. Next, with respect to whether the
consent exception for searches applied based on implied consent, i.e. the
theory that operating a motor vehicle constitutes consent by conduct, the
Court concluded that the warrantless taking of a blood sample could not be
justified based on such laws.
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Our prior opinions have referred approvingly to the general
concept of implied-consent laws that impose civil penalties and
evidentiary consequences on motorists who refuse to comply.
Petitioners do not question the constitutionality of those laws,
and nothing we say here should be read to cast doubt on them.
It is another matter, however, for a State not only to insist upon
an intrusive blood test, but also to impose criminal penalties on
the refusal to submit to such a test. There must be a limit to the
consequences to which motorists may be deemed to have
consented by virtue of a decision to drive on public roads.
Id. at 2185 (citations omitted).
In Commonwealth v. Evans, 153 A.3d 323 (Pa.Super. 2016), we
applied Birchfield, vacated the judgment of sentence, and remanded for an
evidentiary hearing regarding whether, in light of Birchfield, the
defendant’s consent could be deemed voluntary. Therein, David Evans
agreed to provide blood after being read the implied consent warnings. See
75 Pa.C.S. § 1547(a). Like Appellant herein, Evans maintained that his
consent was coerced by the threat of criminal penalties and was therefore
involuntary. Applying Birchfield, we determined that further proceedings
were required:
[E]ven though Pennsylvania's implied consent law does not
make the refusal to submit to a blood test a crime in and of
itself, the law undoubtedly “impose[s] criminal penalties on the
refusal to submit to such a test.” Birchfield, 136 S.Ct. at 2185–
2186. To be sure, Section 3804(c) provides that an “individual
who violates section 3802(a)(1)[, DUI, general impairment] and
refused testing of blood” is punished more severely than an
individual who commits the stand-alone DUI, general impairment
offense under Section 3802(a)(1)—and to the same extent as an
individual who violates Section 3802(c), relating to DUI, highest
rate of alcohol. 75 Pa.C.S.A. § 3804(c). As such, Birchfield
controls the case at bar.
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In this case, Appellant consented to the warrantless blood draw
. . . . [only] after being informed, by the police, that refusal to
submit to the test could result in enhanced criminal penalties.
Since Birchfield held that a state may not “impose criminal
penalties on the refusal to submit to [a warrantless blood] test,”
the police officer's advisory to Appellant was partially inaccurate.
Therefore, we must vacate Appellant's judgment of sentence,
vacate the suppression court's order, and remand the case to
the trial court to “reevaluate [Appellant's] consent ... [, based
on] the totality of all the circumstances ... [and] given the partial
inaccuracy of the officer's advisory.” Birchfield, 136 S.Ct. at
2186.
Evans, supra at 331 (all alterations except first in original).
The Commonwealth concedes that the suppression order must be
vacated, as Appellant preserved the issue at all stages and is therefore
entitled to application of the Birchfield holding. The Commonwealth does
not ask for a remand to address the voluntariness of the consent or suggest
that the order may be affirmed on some other ground, such as exigent
circumstances. Instead, the Commonwealth states that the issue of whether
it may introduce the evidence obtained as a result of the search warrant,
which was the subject of the supplemental suppression motion, is for
litigation upon retrial. We agree that Evans applies, and therefore reverse
judgment of sentence and remand for a new trial at which the suppressed
evidence must be excluded.
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Judgment of sentence vacated. Suppression order vacated.
Jurisdiction relinquished.5
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5
We note that, following oral argument in this case, our Supreme Court
decided Commonwealth v. Myers, --- A.3d ---, 2017 WL 3045867 (Pa.
July 19, 2017). A majority of our High Court agreed that an unconscious
driver retained the statutory right to refuse a blood draw, since that right
applies to all DUI arrestees. See 75 Pa.C.S. § 1547(a) (motorist is deemed
to have consented to chemical testing of breath or blood if police officer has
reasonable basis to suspect motorist is impaired by influence of alcohol or a
controlled substance); § 1547(b) (consequences for refusal).
Justice Wecht, joined by Justices Donohue and Dougherty, expressed the
view that the warrantless blood draw was not otherwise saved under the
implied consent theory. Justice Wecht opined that the driver must be given
the chance to refuse, not only as a statutory right, but as a constitutional
command. “This conclusion not only is commanded by the statute; it is a
constitutional necessity.” Id. at *11 (footnote omitted). Justice Todd filed a
concurring opinion, stating that the statutory violation was enough to
resolve the case, and declined to address the constitutional dimensions.
Chief Justice Saylor, joined by Justice Baer, authored a concurring opinion
disagreeing with the foregoing discussion respecting whether implied
consent serves as consent. “[I]t seems to me that the voluntary act of
operating a vehicle suffices to establish the initial consent to chemical
testing.” Id. at *15 (Saylor, C.J., concurring). Justice Mundy also
expressed that view in dissent. “The text reveals the General Assembly's
intent to generally deem all drivers on Pennsylvania's roads as having
consented to blood or breath tests . . . . one who has been deemed to have
given consent and does not affirmatively revoke consent has still given it.”
Id. at *17-18 (Mundy, J., dissenting).
As is evident from Myers, the issue of implied consent remains unsettled
post-Birchfield. See e.g. State v. Brar, --- N.W.2d ---, 2017 WL 2876142
at *4 (Wi. 2017) (“The use of the word ‘implied’ in the idiom ‘implied
consent’ is merely descriptive of the way in which an individual gives
consent. It is no less sufficient consent than consent given by other
means.”). This case deals with a patient who was apparently conscious at
all times, and may or may not have had blood drawn for independent
(Footnote Continued Next Page)
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Judge Shogan joins the memorandum.
P.J.E. Bender concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/27/2017
_______________________
(Footnote Continued)
medical reasons in addition to investigative reasons. Our disposition is
limited to an agreement that Birchfield rendered involuntary Appellant’s
consent to the requested blood draw.
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