J-S68034-17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
v. :
:
ROBERT JOHN MCMANUS, :
:
Appellee : No. 481 MDA 2017
Appeal from the Order Entered February 17, 2017,
in the Court of Common Pleas of Schuylkill County,
Criminal Division, at No(s): CP-54-CR-0001633-2015
BEFORE: LAZARUS, DUBOW, and STRASSBURGER, JJ.*
MEMORANDUM BY STRASSBURGER, J.: FILED NOVEMBER 09, 2017
The Commonwealth of Pennsylvania appeals from the February 17,
2017 order, which granted the motion to suppress results of blood testing
filed by Robert John McManus (McManus).1 We affirm.
The suppression court summarized the facts of this case as follows
based upon the testimony it found credible at the suppression hearing.
At approximately 3:50 p.m. on March 3, 2015, the affiant,
Shenandoah Police Officer Dave Stamets was dispatched to a
medical call at Redner’s Quick Stop [regarding a vehicle there].
Officer Stamets replied to the dispatch and completed the
necessary steps for a medical call. After completing the call, the
officer received information that both of the occupants of the
vehicle had suspended driver[’s] licenses.
The officer proceeded behind the vehicle, activated his
emergency lights[,] and stopped the vehicle on SR 924 near the
1 The Commonwealth has certified that this order will “substantially handicap
the prosecution,” and therefore this Court has jurisdiction over this
interlocutory appeal pursuant to Pa.R.A.P. 311(d). Commonwealth’s Brief at
1.
*Retired Senior Judge assigned to the Superior Court.
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landfill. The officer approached the vehicle and spoke to
[McManus] who was the driver of the vehicle. Officer Stamets
testified that [McManus] had red, glassy, blood shot eyes,
constricted pupils[,] and [] low raspy speech. The officer
conducted field sobriety tests and testified that [McManus] failed
the test[s]. [In addition, Officer Stamets found “light blue,
glassine bags, which are commonly used for … packaging …
heroin, inside the vehicle.” N.T., 1/30/2017, at 5.] Officer
Stamets placed [McManus] into the back of the vehicle and
requested he submit to a drug evaluation at the Shenandoah
Police Department. Officer Stamets is recognized as a drug
recognition expert. Officer Stamets concluded that [McManus]
was under the influence of a drug and requested that he submit
to a blood test at the Pottsville Hospital. [McManus] consented
to the blood draw and was taken to the Pottsville Hospital.
[McManus] was read the DL-26 form and [McManus] consented
to the drawing of his blood. The pertinent language of the form
as read to [McManus] provided:
1. You are under arrest for driving under the influence
of alcohol or a controlled substance in violation of
section 3802 of the Vehicle Code.
2. I am requesting you submit to a chemical test of
blood.
3. If you refuse to submit to a chemical test, your
operating privilege will be suspended for at least 12
months…. In addition, if you refuse to submit to the
chemical test and you are convicted of violating
section 3801(a)(1) (relating to impaired driving) of
the Vehicle Code, then, because of your refusal, you
will be subject to more severe penalties set forth []
in Section 3804(c) (relating to penalties) of the
Vehicle Code. []
4. You have no right to speak with an attorney or
anyone else before deciding whether to submit to
testing. If you request to speak with an attorney or
anyone else after being provided these warnings or
you remain silent when asked to submit to chemical
testing, you will have refused the test.
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(Commonwealth’s Exhibit No. 2, January 30, 2017.)
Suppression Court Opinion, 2/17/2017, at 2-4 (unnecessary capitalization
omitted).
The blood test was conducted, and McManus’s blood tested positive for
morphine. Motion to Suppress, 8/23/2016, at ¶ 6. Based on this incident,
Appellant was charged with two counts of driving under the influence of
drugs, possession of a controlled substance, possession of drug
paraphernalia, and driving with a suspended license. On August 23, 2016,
McManus filed a motion to suppress the results of the blood testing pursuant
to the United States Supreme Court’s holding in Birchfield v. North
Dakota, 136 S.Ct. 2160 (2016).2 The suppression court held a hearing on
the motion on January 30, 2017. On February 17, 2017, the suppression
court issued an order granting the motion, concluding the results of the
blood test are inadmissible at trial.
The Commonwealth timely filed a notice of appeal, and both the
Commonwealth and the suppression court complied with Pa.R.A.P. 1925.
On appeal, the Commonwealth presents two issues for our review.
1. Did the suppression court err in holding that Birchfield []
applied with equal force to cases where the driver of a motor
2“In Birchfield, the Supreme Court of the United States held that police can
compel a driver to give a breath sample without a warrant; however, police
cannot compel a driver to provide a blood sample without first obtaining a
search warrant except in certain limited circumstances.” Commonwealth v.
Giron, 155 A.3d 635, 640 (Pa. Super. 2017).
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vehicle was under the influence of drugs and not alcohol and
thus the warnings of enhanced criminal penalties were not
applicable to him?
2. Did the suppression court err in determining that [McManus’s]
consent to submit to blood testing was involuntary?
Commonwealth’s Brief at 4 (suggested answers omitted).3
We review these issues mindful of our well-settled standard of review.
When reviewing the grant of a suppression motion, we
must determine whether the record supports the [suppression]
court’s factual findings and whether the legal conclusions drawn
from those facts are correct. We may only consider evidence
presented at the suppression hearing. In addition, because the
defendant prevailed on this issue before the suppression court,
we consider only the defendant’s evidence and so much of the
Commonwealth’s evidence as remains uncontradicted when read
in the context of the record as a whole. We may reverse only if
the legal conclusions drawn from the facts are in error.
Commonwealth v. Ennels, 167 A.3d 716, 720 (Pa. Super. 2017) (internal
quotation marks and citations omitted).
In Ennels, this Court considered the same argument the
Commonwealth presents in its first issue on appeal: whether Birchfield
applies in cases where a defendant is “charged not with drunk driving but
with driving under the influence of a controlled substance.” Ennels, 167
A.3d at 721. This Court considered that issue and held that “[n]o matter the
substance suspected of affecting a particular DUI arrestee, Birchfield
requires that a blood test be authorized either by a warrant (or case-specific
3 McManus has not filed a brief on appeal.
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exigency), or by individual consent not based on the pain of criminal
consequences.” Id. 721-22. Accordingly, we conclude that the
Commonwealth is not entitled to relief based upon the argument set forth in
its first issue.
The Commonwealth also contends that the suppression court erred in
concluding that McManus’s consent was involuntary. Commonwealth’s Brief
at 12-17. Once again, this argument was considered and addressed in
Ennels, and this Court concluded that “implied consent to a blood test
cannot lawfully be based on the threat of … enhanced penalties.” Id. at 724.
Accordingly, we hold that the suppression court did not err in concluding that
McManus’s “consent was [not] the product of an essentially free and
unconstrained choice when he consented to the blood test after being read
the DL-26 Form from Officer Stamets which informed [McManus] that he
would be subject to enhanced criminal penalties for refusal to submit to
blood testing.” Suppression Court Opinion, 5/17/2017, at 5.
Because this Court’s decision in Ennels controls the outcome of this
case, we affirm the order of the suppression court granting McManus’s
motion to suppress the blood test.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/9/2017
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