J-S63027-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRANDON S. BAKER :
:
Appellant : No. 320 WDA 2017
Appeal from the PCRA Order December 7, 2016
In the Court of Common Pleas of Somerset County Criminal Division at
No(s): CP-56-CR-0000481-2015,
CP-56-CR-0000639-2006
BEFORE: BOWES, J., SOLANO, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY BOWES, J.: FILED MARCH 16, 2018
Brandon S. Baker appeals from the order denying his PCRA petition.
Appellant’s case returns to us after we quashed the order at Docket No. 639-
06, and remanded the matter at Docket No. 481-15 with directions to
counsel to file a Turner/Finley1 brief or an advocate’s brief addressing the
issues raised by Appellant. Counsel complied with our directive, and, on
January 12, 2018, filed an advocate’s brief with this Court.2 We affirm.
____________________________________________
1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
2 On February 9, 2018, the Commonwealth filed a motion requesting an
extension of time to file its brief. Based on our disposition, infra, we deny
this petition as moot.
J-S63027-17
As we previously quashed Appellant’s appeal at Docket No. 639-06,
see Commonwealth v. Baker, 320 WDA 2017 (Pa.Super. filed December
26, 2017),3 we briefly recount the pertinent facts regarding the appeal at
Docket No. 481-15. The affidavit of probable cause filed in this matter noted
the following. Shortly after midnight on October 6, 2014, Pennsylvania
State Trooper Scott Kemerer observed a Jeep stopped in the roadway facing
north in the southbound lane. Trooper Kemerer approached the vehicle, and
he saw Appellant slumped over the steering wheel, while the transmission
remained in the drive position. The trooper placed the vehicle in park, and
after unsuccessfully attempting to wake Appellant, he removed him from the
vehicle. Trooper Kemerer detected a strong odor of alcohol emanating from
Appellant. After being brought to his feet, the trooper noticed that Appellant
was severely intoxicated and unable to maintain his balance. As a result, he
placed Appellant under arrest for suspicion of driving under the influence
(“DUI”). Appellant was transported to Somerset Hospital where the trooper
read him his implied consent and O’Connell warnings4 from a DL-26 Form
____________________________________________
3 In our prior disposition in this matter, we determined that Appellant had
failed to properly file a notice of appeal from the order dismissing his PCRA
petition at Docket No. 639-06. Hence, we quashed that portion of his
appeal.
4See Commonwealth, Dep’t of Transp., Bureau of Traffic Safety v.
O’Connell, 555 A.2d 873 (Pa. 1989).
-2-
J-S63027-17
issued by the Pennsylvania Department of Transportation. Appellant refused
to submit to blood testing.
Appellant was charged with DUI, his fourth offense, with refusal to
submit to blood testing, and various related crimes. On September 16,
2015, he pled guilty to the DUI charge. On January 7, 2016, the court
imposed a sentence of one to five years imprisonment. Appellant did not file
a post-sentence motion or timely appeal that decision. Thus, his judgment
of sentence became final on February 6, 2016. On August 4, 2016,
Appellant filed a timely pro se PCRA petition, and counsel was appointed.
Appellant contended that he was illegally sentenced following the United
States Supreme Court’s decision in Birchfield v. North Dakota, 136 S.Ct.
2160 (2016), and that information regarding his refusal to submit to a blood
test was submitted to the District Attorney’s Office in violation of federal law.
Following a hearing on the matter, the court denied Appellant’s PCRA
petition, and this appeal followed.
Previously, we determined that, due to a breakdown in the PCRA
court’s operations Appellant had timely filed his notice of appeal.5 Baker,
supra at *9. In that disposition, as is pertinent herein, we denied counsel’s
____________________________________________
5 In our previous memorandum opinion, we declined to dismiss Appellant’s
appeal on the basis of an untimely filed notice of appeal because the record
revealed that, due to a breakdown in the PCRA court’s operations,
Appellant’s counsel was not served notice of the December 27, 2016 order
dismissing his petition. Commonwealth v. Baker, 320 WDA 2017
(Pa.Super. filed December 26, 2017) at *9.
-3-
J-S63027-17
petition to withdraw and remanded this matter with instructions to counsel
to file a compliant Turner/Finley brief or an advocate’s brief. Thereafter,
counsel filed an advocate’s brief, and this matter is once again ready for our
review.
Appellant raises two questions for our consideration:
1. Whether the lower court’s findings concerning Appellant’s
post-conviction relief act petition were supported by the
record, such that the lower court’s legal conclusions that
Appellant was not illegally sentenced and his rights of privacy
were not violated were appropriate.
2. Whether Appellant was illegally subjected to enhanced
sentencing provisions for refusing to submit to a warrantless
blood test.
Appellant’s brief at 16 (unnecessary capitalization omitted).
When reviewing a PCRA court’s denial of a PCRA petition, “[w]e must
examine whether the record supports the PCRA court’s determinations, and
whether the PCRA court’s determination is free of legal error.”
Commonwealth v. Wilcox, 174 A.3d 670, 672 (Pa.Super. 2017) (citation
omitted). Further, we will not disturb the PCRA court’s findings, “unless
there is no support for the findings in the certified record.” Id.
At the outset, we observe that a portion of Appellant’s brief is
dedicated to challenging the sentence imposed at Docket No. 639-06. As
noted above, we previously quashed the portion of this appeal related to
that order, and thus we do not reach the merits of this claim here. With
regard to the instant appeal, Appellant first argues that the PCRA court erred
-4-
J-S63027-17
in determining that his right to privacy under the Health Insurance
Portability and Accountability Act of 1996 (“HIPAA”) was not violated when
his refusal to submit to blood testing was provided to the District Attorney’s
Office without his consent. Appellant contends that if the DL-26 form
memorializing his refusal to submit to blood testing was provided by the
hospital, then it would be protected from disclosure under HIPAA.
We find that the PCRA court did not err in determining that the DL-26
form was not a protected health information form under HIPAA, and thus,
Appellant’s right to privacy was not violated when the Pennsylvania State
Police transmitted the form to the District Attorney’s Office. First, we note
that Appellant does not cite which HIPAA provision protects his right to
confidentiality in this instance. Nevertheless, even assuming Appellant had
more fully developed this argument, he would not be entitled to relief.
HIPAA prohibits the disclosure of “individual identifiable health
information” by “covered entities” under the statute. T.M. v. Elwyn, Inc.,
950 A.2d 1050, 1059 (Pa.Super. 2008) (citing 42 U.S.C. § 1320d-6)); 45
C.F.R. 160.103. A “covered entity” is defined as a “health plan, a health
care clearinghouse, or a health care provider who transmits any health
information in electronic form in connection with a transaction covered by
Act.” In addition, “health information” means “any information, including
genetic information, whether oral or recorded in any form or medium, that:
(1) is created or received by a health care provider, health plan, public
health authority, employer, life insurer, school or university, or health care
-5-
J-S63027-17
clearinghouse; and (2) relates to past, present, or future physical or mental
health or condition of the individual; the provision of health care to an
individual; or the past, present, or future payment for the provision of health
care to an individual.” Id.
Assuming that Somerset Hospital is a covered entity pursuant to
HIPAA and that it provided Trooper Kemerer with the DL-26 form, we do not
find that the hospital disclosed any individual identifiable health information
to the District Attorney’s Office. First, the DL-26 form was created by the
Pennsylvania Department of Transportation, not a health care provider.
Thus, the form itself does not constitute “health information” since it was not
created by a covered entity, and it does not relate to an individual health
condition or the provision of medical care. Second, Trooper Kemerer, whom
Appellant does not argue was a “covered entity,” received Appellant’s refusal
to submit to blood testing, memorialized it on the DL-26 form, and disclosed
that information to the District Attorney’s Office. As such, the hospital
neither created nor received the alleged “health information” that Appellant
claims was unlawfully provided to the District Attorney’s Office. Hence, the
disclosure did not violate HIPAA, and no relief is due.
Appellant next contends that, pursuant to Birchfield, supra, he was
illegally sentenced to an enhanced sentence based on his refusal to submit
to a warrantless blood test. He claims that in Birchfield, the Supreme
Court found that warrantless blood testing was a violation of the Fourth
Amendment, and thus, “any enhanced sentencing provisions as a result of a
-6-
J-S63027-17
criminal defendant’s refusal to submit to a warrantless blood test is also
unconstitutional.” Appellant’s brief at 24.
Before we reach the merits of this claim, we must determine whether
it is properly before us. We observe that Appellant’s judgment of sentence
became final on February 6, 2016, thirty days after the imposition of his
sentence, since he filed neither a post-sentence motion nor an appeal.
Pa.R.Crim.P. 720. The United States Supreme Court decided Birchfield on
June 23, 2016, nearly five months after Appellant’s judgment of sentence
became final. The Supreme Court held that “where, as in Birchfield, one of
its decisions ‘results in a ‘new rule,’ that rule applies to all criminal cases still
pending on direct review. As to convictions that are already final, however,
the rule applies only in limited circumstances.’” Wilcox, supra at 672
(quoting Schriro v. Summerlin, 542 U.S. 348, 351 (2004)). Under
Pennsylvania jurisprudence, those “limited circumstances” are restricted to
situations when the new rule is found to be a “substantive rule” or a
“watershed procedural rule” under Teague v. Lane, 489 U.S. 288 (1989).
See Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016).
In light of this principle, Appellant’s challenge fails. Simply, his case
was not pending on direct appeal when Birchfield was decided, and the
holding in Birchfield has not been found to be a substantive rule or a
watershed procedural rule. Thus, he is not entitled to retroactive application
of its holding. Wilcox, supra; Commonwealth v. Moyer, 171 A.3d 849
(Pa.Super. 2017) (finding Birchfield does not apply retroactively to
-7-
J-S63027-17
judgment of sentence imposed two days before it was decided). Since
Birchfield, supra, is not applicable to Appellant’s petition for relief, we do
not reach his second issue. Accordingly, we find that the PCRA court did not
err in denying Appellant’s PCRA petition.
Order affirmed. Commonwealth’s application for extension of time to
file brief denied as moot.
Judge Solano did not participate in the consideration or decision of this
case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/16/2018
-8-