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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ASHLEY RENE STEVENSON :
:
Appellant : No. 685 WDA 2017
Appeal from the Judgment of Sentence April 13, 2017
In the Court of Common Pleas of Mercer County Criminal Division at No(s):
CP-43-CR-0001428-2016
BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 9, 2018
Ashley Rene Stevenson (“Appellant”) appeals from the judgment of
sentence following her conviction for Second Offense Driving Under the
Influence (“DUI”) (highest rate).1 We affirm.
Before we address the merits of Appellant’s appeal, we first consider
the ramifications of her failure to file a statement or errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b). Although Appellant failed to file her
1925(b) Statement, she brought an unstamped copy of it to the post-appeal
conference on June 9, 2017. Appellant, however, failed to file that
Statement as there is no docket entry memorializing the filing of the
Statement and there is no such Statement in the record. Despite Appellant’s
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1 75 Pa.C.S. § 3802(c).
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failure to file a Statement, it appears Appellant served a copy of the
Statement on the trial court, as that court authored an opinion addressing
the two issues raised therein.
Failure to file a Rule 1925(b) Statement constitutes per se
ineffectiveness of counsel. See Commonwealth v. Scott, 952 A.2d 1190,
1192 (Pa. Super. 2008). Pursuant to Pa.R.A.P. 1925(c)(3), “If an appellant
in a criminal case was ordered to file a Statement and failed to do so, such
that the appellate court is convinced that counsel has been per se
ineffective, the appellate court shall remand for the filing of a Statement
nunc pro tunc and for the preparation and filing of an opinion by the judge.”
On October 12, 2017, in the interest of judicial economy and not to forestall
further delay in the disposition of the appeal, this Court ordered Appellant to
file the outstanding Rule 1925(b) Statement within five days of the date of
the order. Order, 10/12/17. Appellant complied, and we will now address
the merits of the appeal.
We summarize the history of this case as follows. Officer Matthew Ran
of the Grove City Police Department stopped Appellant on August 2, 2016 at
approximately 1:40 a.m. Notes of Testimony (“N.T.”) (Omnibus hearing)
2/8/17, at 4. Officer Ran followed Appellant for more than one mile but less
than two miles prior to stopping her. Id. at 11. In that time, he witnessed
Appellant driving in the center of an unlined roadway. Id. at 5. He further
observed her make several jerking corrective motions on a lined road and
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observed Appellant cross over the center yellow line three times. Id. at 8–
9.
Following field sobriety tests, Appellant was arrested, and Officer Ran
transported her to the Grove City Medical Center and read her the revised
version of the DL-26 Form (“revised DL-26 Form”)2. N.T. (Omnibus
Hearing), 2/8/17, at 13. The revised DL-26 Form includes the following
language:
It is my duty as a police officer to inform you of the following:
You are under arrest for driving under the influence of alcohol or
a controlled substance in violation of Section 3802 of the Vehicle
Code. I’m requesting that you submit to a chemical test of
blood. If you refuse to submit to the blood test, your operating
privilege will be suspended for at least 12 months. If you
previously refused a chemical test or were previously convicted
of driving under the influence you will be suspended for up to 18
months. You have no right to speak to an attorney or anyone
else before you decide whether to submit to testing. If you
request to speak with an attorney or anyone else after being
provided these warnings, or if you remain silent when asked to
submit to a blood test, you will have refused the test.
N.T. (Omnibus Hearing), 2/8/17, at 13. Officer Ran did not provide any
other information regarding the ramifications of taking or refusing the blood
test to Appellant. Id. at 21. Appellant signed the revised DL-26 Form and
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2 The revised DL-26 Form, “Chemical Testing Warnings and Report of
Refusal to Submit to a Blood Test as Authorized Section 1457. . .” is known
as the Implied Consent Form and informs the arrestee of the penalties to
which they could be subjected if they refuse to consent to a blood draw
following arrest for DUI. See, e.g., Penndot v. Weaver, 912 A.2d 259,
261 (Pa. 2006)
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consented to the blood draw. Id. at 15. Her blood alcohol level was .246
percent. Appellant’s Brief at 12.
Prior to trial, Appellant filed an omnibus pretrial motion in which she
sought to suppress all evidence from the traffic stop because Officer Ran
lacked probable cause to stop Appellant’s vehicle. Appellant also moved to
suppress the warrantless blood draw because she alleged it violated her
rights under Article 1, Section 8 of the Pennsylvania Constitution and the
Fourth Amendment of the United States Constitution. She further argued
the warrantless blood draw was a violation of the United States Supreme
Court’s holding in Birchfield v. North Dakota, 136 S.Ct. 1535 (2016).3
Finding the traffic stop was proper and Appellant’s consent was valid, the
trial court denied Appellant’s motion.
On April 13, 2017, following a bench trial, the trial court found
Appellant guilty of DUI, highest rate of alcohol. The trial court sentenced
Appellant to ninety days to two years of incarceration and a mandatory fine
of $1,500.00.
On appeal, Appellant presents two questions for our review:
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3 In her omnibus pretrial motion, Appellant dedicated a single line to
discussing Birchfield: “The Grove City Police failed to obtain a Search
Warrant for the blood test in violation of the United States Supreme Court
decision in Birchfield v. North Dakota, 136 S.Ct. 1535 (2016).”
Appellant’s Omnibus Pretrial Motion, 12/27/16, at 2 (unnumbered).
Appellant did not provide any analysis of the manner in which Birchfield
was relevant or controlling in her case.
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1. Did the court employ the wrong standard and err in finding
the stop and seizure of [Appellant’s] vehicle properly [sic]?
2. Does the newly revised DL-26 Form correct the statutory
sentencing scheme to confirm [sic] with Birchfield?
Appellant’s Brief at 7.
In support of her first issue, Appellant argues that the trial court erred
when it found her traffic stop was lawful and denied her motion to suppress
the evidence arising therefrom. Appellant’s Brief at 13. Our standard of
review of the denial of a motion to suppress is well established:
[Our] standard of review 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, [the appellate court is] bound by
[those] findings and may reverse only if the court’s legal
conclusions are erroneous. Where the appeal of the
determination of the suppression court turns on allegations of
legal error, 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 conclusions of law of the courts below are subject to
plenary review.
Commonwealth v. Randolph, 151 A.3d 170, 175 (Pa. Super. 2016)
(quoting Commonwealth v. Jones, 988 A.2d 649, 954 (Pa. 2010)).
In support of her appeal, Appellant alleges that the trial court erred in
applying the reasonable suspicion standard to the stop and argues that the
trial court should have required the police officer to articulate probable cause
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for the traffic stop. Appellant’s Brief at 13–14. (citing Commonwealth v.
Feczko, 10 A.3d 1285 (Pa. Super. 2010)). Specifically, Appellant argues
that was she stopped for a violation of 75 Pa.C.S. § 3301, Driving on Right
Side of Roadway, a traffic offense which required a showing of probable
cause, not reasonable suspicion. Appellant is correct in that a showing of
probable cause would be required if she were stopped for a violation of 75
Pa.C.S. § 3301. See Commonwealth v. Enick, 70 A.3d 843, 846 (Pa.
Super. 2013) (“Where a vehicle stop has no investigatory purpose, the
police officer must have probable cause to support it”). The record in this
case, however, makes clear that Officer Ran stopped Appellant because,
after observing her erratic driving, he suspected she was driving under the
influence.
Indeed, at the hearing, Officer Ran testified “[W]ith the amount of
things that I observed with the vehicle in motion, I thought I had a pretty
reasonable suspicion that this might be a case of driving under the
influence.” N.T. (Omnibus hearing), 2/8/17, at 10–11. Under Pennsylvania
law, “Stops based on reasonable suspicion are allowed for a stated
investigatory purpose: ‘to secure such other information as the officer may
reasonably believe to be necessary to enforce the provisions of this title.’”
Commonwealth v. Chase, 960 A.2d 108, 116 (Pa. 2008) (quoting 75
Pa.C.S. § 6308(b)). See Feczko, 10 A.3d at 1289–1290 (discussing the
difference between an investigative stop for suspected DUI, which requires
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reasonable suspicion, versus other violations of the motor vehicle code,
which require probable cause). Officer Ran specifically testified that he
stopped Appellant because he suspected she was driving under the influence
after he witnessed her driving in the center of the roadway, drifting near the
curb or the center yellow line, and jerking back to the center of the lane
numerous times. N.T. (Omnibus hearing), 2/8/17, 4–11.
As the trial court correctly stated in its opinion, “The investigable
offense allowing for the standard of reasonable suspicion was the offense of
driving under the influence.” Trial Court Opinion, 7/7/17, at 1. Reasonable
suspicion was the proper standard, and the trial court did not err in applying
it. 4
In support of her second issue, Appellant asserts that the trial court
should have suppressed the results of her blood test because the revised DL-
26 Form is “[d]eceitful and [m]isrepresentative of the [l]aw.” Appellant’s
Brief at 16. Specifically, Appellant argues the revised DL-26 Form runs afoul
of both Pennsylvania law and Birchfield, 136 S.Ct. 2160. Appellant’s Brief
at 15. We disagree.
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4 Appellant’s reliance on Commonwealth v. Enick, 70 A.3d 843 (Pa.
Super. 2013), which she alleges stands for the proposition that a single
minor traffic violation may be insufficient to establish probable cause for a
traffic stop, is inapposite. Appellant herein stopped because the arresting
officer witnessed her driving erratically and suspected she was driving while
intoxicated, not because she committed a specific traffic violation.
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Commonwealth v. Smith, __ A.3d __, 2017 PA Super 416 (Pa.
Super. 2017) is directly on point. Therein, this Court discussed the
admissibility of a blood test result when consent was obtained using the
revised DL-26 Form, post Birchfield. As in the present case, the appellant
was stopped for suspicion of DUI, arrested, and taken to a hospital for a
blood alcohol test. Id. at *3. The appellant was read the revised DL-26
Form and consented to the blood test, the results of which showed that her
blood alcohol level was over the legal limit. Id. The appellant sought to
have the results of the blood draw suppressed, alleging that the warrantless
seizure of her blood ran afoul of Birchfield and the Pennsylvania and United
States Constitutions. Id.
On appeal, the appellant in Smith raised virtually identical claims to
those raised by Appellant in this case, and this Court provided the following
analysis in addressing those claims:
In Birchfield, the High Court reviewed a consolidated case in
which one of the petitioners, Steve Michael Beylund, was
arrested for DUI and informed that the refusal to submit to blood
testing constituted a crime itself under North Dakota law.
Thereafter, petitioner Beylund argued that his consent had been
coerced by the officer’s warning. Relevant to the instant case,
the United States Supreme Court held that a state may not
“insist upon an intrusive blood test, but also ... impose criminal
penalties upon the refusal to submit to such a test.” Birchfield,
136 S.Ct. at 2185. Moreover, the High Court emphasized that
“motorists cannot be deemed to have consented to a blood test
upon pain of committing a criminal offense.” Id. at 2186. As
petitioner Beylund had consented to a blood test only after police
had erroneously informed him that he could be criminally
penalized if he refused to do so, the Birchfield Court remanded
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for the trial court to “reevaluate Beyland’s consent given the
partial inaccuracy of the officer’s advisory.” Id.
Nevertheless, the Birchfield Court emphasized that its holding
did not apply to the imposition of civil penalties and evidentiary
consequences upon motorists suspected of DUI who refused
blood testing upon their arrest:
It is well established that a search is reasonable
when the subject consents, and that sometimes
consent to a search need not be express but may be
fairly inferred from context. 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.
Birchfield, 136 S.Ct. at 2185 (emphasis added) (citations
omitted).
Thereafter, this Court decided Commonwealth v. Evans, 153
A.3d 323 (Pa.Super. 2016), in which the appellant had similarly
argued that his consent to blood testing after his arrest for DUI
was coerced as he only consented after the police warned him
that his refusal to submit to blood testing would result in harsher
penalties upon conviction. Although the Evans court recognized
that Pennsylvania’s implied consent law did not make refusal to
submit to a blood test a crime, the panel emphasized that the
law “undoubtedly impose[s] criminal penalties on the refusal to
submit to a test.” Evans, 153 A.3d at 331 (quoting Birchfield,
136 S.Ct. at 2185–86). This Court pointed out to the DUI
penalty provisions set forth in 75 Pa.C.S.A. § 3804:
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.
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§ 3804(c). As such, Birchfield controls the case at
bar.
Id.
Since the appellant in Evans had argued that he agreed to
submit to blood testing only after being informed that harsher
penalties would apply if he refused, this Court held that the
officer’s advisory to Evans was “partially inaccurate” as
Birchfield prohibits states from imposing criminal penalties for
the refusal to submit to blood testing. Evans, 153 A.3d at 331.
As a result, this Court vacated the appellant’s sentence and the
suppression order and remanded with instructions for the trial
court to reevaluate the voluntariness of appellant’s consent in
light of this inaccurate warning and the totality of the
circumstances.
The instant case is factually distinguishable from Birchfield and
Evans. To reiterate, the decision in Birchfield, which was
controlling law at the time of Appellant’s arrest, prohibited states
from imposing criminal penalties upon an individual’s refusal to
submit to a warrantless blood test. Birchfield, 136 S.Ct. at
2185. The trial court in this case found Birchfield was
inapplicable since [the appellant] was never advised that she
would be subject to enhanced criminal sanctions upon refusal of
blood testing. Our review of the record confirms this finding;
both parties agree that Trooper Hogue only informed [the
appellant] that her driver’s license would be suspended if she
refused blood testing. [The appellant] signed a DL–26 form
acknowledging that she was advised of this particular
consequence. This form does not contain any reference to
enhanced criminal penalties DL–26 form. Thereafter, [the
appellant] agreed to submit to blood testing, which revealed a
blood alcohol level of 0.274. We cannot conclude that the trial
court erred in denying [the appellant’s] suppression motion that
vaguely cited to Birchfield.
Commonwealth v. Smith, 2017 PA Super 416, at *4–*6 (footnote
omitted). The reasoning in Smith is sound and compels a similar result in
this case. Indeed, in the instant case the Appellant was read the revised DL-
26 Form and was informed that she was subject to the civil penalty of
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license suspension if she refused to consent. She was not informed that she
would be subject to additional jail time or any other sort of criminal
enhancement. Thus, we find that the trial court did not err when it denied
Appellant’s motion to suppress.
Finally, Appellant argues throughout her brief that because the
Pennsylvania legislature had not amended the statutory provisions that allow
for enhanced criminal penalties for failure to refuse a blood test, Appellant
remained subject to enhanced criminal penalties if she refused the blood test.
Appellant’s Brief at 21. Appellant contends that “her consent to the blood
test was based upon misrepresentation and deceit in the [revised] DL-26
[F]orm tantamount to implied coercion, in that she submitted to the
warrantless blood test only on pain of enhanced criminal penalties.” Id. at
20. Because Appellant had a previous DUI, she claims she was aware of the
enhanced criminal penalties and asserts that “all motorists are presumed to
know the law.” Id. at 19–20.
Appellant’s argument lacks merit. As the trial court correctly found,
the revised DL-26 Form is a correct statement of the law following the
decision of the Supreme Court of the United States in Birchfield. Trial Court
Opinion, 7/7/17, at 1–2. The revised DL-26 Form does not warn of any
enhanced criminal penalties for refusal to consent to a blood test because
Birchfield declared such enhancement unconstitutional. See Smith, 2017
PA Super. 416, at *6. (“To reiterate, the decision in Birchfield, which was
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controlling law at the time of Appellant’s arrest, prohibited states from
imposing criminal penalties upon an individual’s refusal to submit to a
warrantless blood test.”).
Indeed, it is well established that when a statute is deemed
unconstitutional, it is ineffective for any purpose and “it is as if it were never
enacted.” Glen-Gery Corp. v. Zoning Hearing Bd. Of Dover Tp., 907 A.2d
1033, 1043 (Pa. 2006). See also Commonwealth v. Giron, 155 A.3d 635,
637 (Pa. Super. 2017) (“In this case, we hold that, pursuant to Birchfield v.
North Dakota, a defendant who refuses to provide a blood sample when
requested by police is not subject to the enhanced penalties provided in 75
Pa.C.S. § 3803-3804”) (citation omitted); Commonwealth v. Evans, 153
A.3d 323, 331 (Pa. Super. 2016) (finding that police officer’s warning that
the appellant could be subject to criminal penalties for refusing to consent to
a blood draw was an incorrect statement of the law after the United States
Supreme Court handed down Birchfield); Fornwalt v. Follmer, 616 A.2d
1040, 1042 (Pa. Super. 1992) (finding that where the Supreme Court of
Pennsylvania held a portion of a statute unconstitutional, that portion is a
nullity.). Thus, the language contained in the revised DL-26 Form was a
correct statement of the law when Officer Ran read it to Appellant.
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The revised DL-26 Form correctly reflects the law in accordance with
Birchfield.5 In the instant case, Officer Ran properly informed Appellant of
the civil penalties to which she would be subject, namely the suspension of
her license, if she refused the blood draw and Appellant consented. The trial
court did not err in denying Appellant’s motion to suppress the results of her
blood alcohol test.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/9/2018
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5 We further note that if Officer Ran had improperly warned Appellant of
enhanced criminal penalties after Birchfield was handed down, that would
have constituted an incorrect statement of the law, which could have
rendered her consent invalid. See Commonwealth v. Evans, 153 A.3d 323
(Pa. Super. 2016).
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