J-A06026-18
2018 PA Super 132
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
JOSHUA R. MOSER : No. 1225 WDA 2017
Appeal from the Order Entered August 1, 2017
In the Court of Common Pleas of Westmoreland County Criminal Division
at No(s): CP-65-CR-0000223-2015
BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER*, J.
OPINION BY SHOGAN, J.: FILED MAY 18, 2018
The Commonwealth appeals1 from the order granting the motion to
suppress filed by Appellee, Joshua R. Moser (“Moser”). After careful
consideration, we reverse and remand.
The trial court summarized the factual history of this case as follows:
On May 26, 2013, Tim Allen Frye (hereinafter “Frye”) was
at his residence at 58 Beeno Road, New Stanton, Pennsylvania.
At approximately 1:00 a.m., Frye heard a sound that resembled a
car hitting a bank. Approximately twenty (20) to thirty (30)
minutes later, Frye saw an ambulance and police with their lights
activated on Route 136. Frye estimated that the scene was
approximately two-hundred (200) feet away from his residence.
Nicholas D’Orazio, Jr. (hereinafter “Mr. D’Orazio”), owner of
the 2000 Dodge Stratus automobile, testified that the vehicle was
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1 The Commonwealth has certified in its notice of appeal that the trial court’s
order suppressing physical evidence substantially handicaps the prosecution
of this case. Pa.R.A.P. 311(d); Commonwealth v. Moser, 999 A.2d 602,
604-605 (Pa. Super. 2010).
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* Retired Senior Judge assigned to the Superior Court.
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normally operated by his son, Nicholas A. D’Orazio (hereinafter
“D’Orazio”). Mr. D’Orazio testified that, on May 26, 2013, the
vehicle was parked at his son’s residence. Mr. D’Orazio did not
give [Moser] permission to use his vehicle.
D’Orazio testified that, on May 25, 2013, he traveled to Lake
Erie for the weekend and left his vehicle, the 2000 Dodge Stratus,
at 2065 Main Street, Arona, Pennsylvania. [Moser] called D’Orazio
in the middle of the night and then again in the morning. D’Orazio
spoke to [Moser] during the morning phone call, and before that
conversation, [Moser] left a voicemail that stated, “Nick, I stole
your car, I completely totaled it, and I killed my friend.” D’Orazio
stated that [Moser] was hysterical during the phone call. D’Orazio
then called his father to inform him of what had happened.
D’Orazio stated that, between May 25th and May 26th of 2013, he
never gave [Moser] permission to use his vehicle.
Jacob Vranish (hereinafter “Vranish”) and his then girlfriend
Alyssa Grushecky (hereinafter “Grushecky”) were travelling on
State Route 136 in the early morning hours of May 26, 2013.
While traveling down into the valley, Vranish noticed debris on the
road along with a vehicle. Vranish stated that the vehicle was on
the bank and a little on the hillside. Vranish did not see anyone
at the scene when a group of young women in a vehicle stopped
and told him that they saw someone running away from the scene.
Vranish then called 911. Between the time Vranish called 911 and
the firefighter arrived, [Moser] arrived on the scene. [Moser]
asked if anyone was in the car, and then he and Vranish proceeded
to walk along the hillside, when Vranish noticed someone lying on
the hillside. At this point, [Moser] knelt by the Victim, picked him
up, yelled “Josh!” tried to give the victim CPR, and then realized
the victim had passed away. [Moser] told Vranish he was not
driving. Vranish heard [Moser] make a phone call and said, “Josh
was dead.” [Moser] kept telling Vranish and Grushecky that he
was sorry.
Trooper Joshua B. Johnson (hereinafter “Officer Johnson”)
and Trooper Paul Ton[o]ni (hereinafter “Officer Ton[o]ni”) were
dispatched to a one motor vehicle crash on State Route 136 at
approximately 1:00 a.m. Trooper Johnson indicated that the
vehicle had struck a stump that was off the road. Trooper Johnson
indicated that [Moser] appeared to be under the influence of
alcohol since [Moser] was emitting an odor of alcoholic beverage,
his eyes were bloodshot and glassy, and his speech was slurred.
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[Moser] told Trooper Johnson that he had been at a friend’s house
drinking, and that he went to a few places in Hermin[i]e. [Moser]
remembered flashes of driving fast. [Moser] also remembered
being in the driver’s seat after the crash, and that he had to force
the driver’s door of the vehicle open. [Moser] stated that, after
the crash, he walked down the roadway to call his friends. [Moser]
admitted that, after he returned to the crash, he attempted to do
CPR on the other occupant of the vehicle. [Moser] explained that
he drives on Route 136 often and knows the speed limit to be
between 35 and 45 miles an hour. [Moser] stated that the vehicle
belonged to his roommate who was in Erie, and that he did not
have a Pennsylvania Driver’s License. [Moser] further told
Trooper Johnson that he was unable to drive because he did not
have a Pennsylvania driver’s license. Trooper Ton[o]ni testified
that [Moser] was adamant that he wasn’t the driver of the vehicle.
In Trooper Johnson’s report, it provided that [Moser] made a
statement that he did not know if there was anybody else in the
vehicle with him. [Moser] provided the name of “Josh” to Trooper
Johnson regarding the fatality involved in the crash.
Trooper Johnson instructed [Moser] to perform field sobriety
tests, which [Moser] failed. Trooper Johnson formed the opinion
that [Moser] was under the influence of alcohol to such an extent
that he could not safely drive. Trooper Tononi also witnessed
[Moser] perform the field sobriety tests, and concluded that
[Moser] was impaired. [Moser] was then handcuffed, placed
under arrest, and put into the back of a patrol vehicle. Trooper
Tononi confirmed that [Moser] was taken into custody and then
transported to Westmoreland County Hospital. As Trooper
Johnson and Trooper Ton[o]ni were taking [Moser] to the hospital,
they informed him as to why they were going, and requested that
[Moser] submit to a blood test to determine his BAC, and [Moser]
agreed. [Moser] was taken to the Westmoreland Hospital in
Greensburg, Pennsylvania. Trooper Johnson advised [Moser] of
the implied consent form and the O’Connell Warnings,[2] and
[Moser] indicated that he understood. Trooper Johnson read
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2 An O’Connell warning specifically informs a motorist that his or her driving
privileges will be suspended for one year if he or she refuses chemical testing.
Com., Dept. of Transp., Bureau of Traffic Safety v. O'Connell, 555 A.2d
873, 877-878 (Pa. 1989).
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[Moser] the DL -26 form.[3] [Moser] did not sign the DL-26 form,
but held out his arm instead. Trooper Johnson never asked for a
search warrant for [Moser’s] blood sample. [Moser] agreed to
submit to a blood sample, and [Moser’s] sample was collected at
2:50 a.m. at the hospital. The victim was identified as Joshua
Michael Jordan.
Trial Court Opinion, 9/26/17, at 1-3 (internal citations omitted; footnotes
omitted).
Moser was charged with homicide by vehicle while under the influence
of alcohol or controlled substance (“DUI”), three counts of DUI, homicide by
vehicle, exceeding maximum speed limit by thirty miles per hour, driving at
an unsafe speed, unauthorized use of automobile, accident involving death or
personal injury while not properly licensed, and driving without a license.4 On
March 17, 2017, Moser filed a motion to suppress the results of the blood test.
Moser argued that the warrantless blood draw was a violation of the United
States Supreme Court’s holding in Birchfield v. North Dakota, ___ U.S. ___,
136 S.Ct. 1535 (2016).5 On August 1, 2017, the trial court entered an order
granting Moser’s motion to suppress the blood test results. The
Commonwealth filed an appeal on August 21, 2017. The trial court entered
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3 The DL–26 Form informs an arrestee for driving under the influence (“DUI”)
of the Implied Consent Law and alerts him to the consequences of refusing to
submit to chemical testing. Nardone v. Com., Dept. of Transp., Bureau
of Driver Licensing, 130 A.3d 738, 741 (Pa. 2015).
4 75 Pa.C.S. § 3735(a); 75 Pa.C.S. § 3802; 75 Pa.C.S. § 3732(a); 75 Pa.C.S.
§ 3362(a)(3-30); 75 Pa.C.S. § 3361; 18 Pa.C.S. § 3928(a); 75 Pa.C.S.
§ 3742.1(a); and 75 Pa.C.S § 1501(a), respectively.
5 Moser also cited Commonwealth v. Giron, 155 A.3d 635 (Pa. Super.
2017), and Commonwealth v. Evans, 153 A.3d 323 (Pa. Super. 2016).
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an order on September 22, 2017, continuing the case pending the decision by
this Court. The trial court issued an opinion in compliance with Pa.R.A.P.
1925.
The Commonwealth presents the following issues for our review:
1. The Suppression Court erred in suppressing the blood test
results. The Commonwealth contends that [Moser] had
voluntarily consented to the blood draw before the Trooper
read the implied consent warnings from the DL-26 form to him.
Thus, his consent was not tainted by the warnings.
Commonwealth v. Haines, 168 A.3d 231, 236 (Pa. Super.
2017).
2. Because the warrantless blood draw was conducted pursuant
to well-established statutory and case law, and the request was
supported by probable cause, the Commonwealth contends
that suppression of the results is not warranted. A narrow good
faith exception to the exclusionary rule should apply to pre-
Birchfield cases where the law enforcement officers followed
long-established procedures.
Commonwealth’s Brief at 8.
In its first issue, the Commonwealth argues that the trial court erred in
granting Moser’s motion to suppress the results of his blood test.
Commonwealth’s Brief at 8. The Commonwealth maintains that Moser
voluntarily consented to the blood draw before the trooper read to Moser the
implied consent warnings from form DL-26, which threatened additional
criminal penalties if Moser refused the blood test. Id. at 8, 13. The
Commonwealth posits that because the officer read form DL-26 to Moser after
Moser consented to the blood draw, Moser was not “coerced” by language in
the form regarding heightened penalties. Id. at 13.
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When the Commonwealth appeals from a suppression order:
we follow a clearly defined standard of review and consider only
the evidence from the defendant’s witnesses together with the
evidence of the prosecution that, when read in the context of the
entire record, remains uncontradicted. The suppression court’s
findings of fact bind an appellate court if the record supports those
findings. The suppression court’s conclusions of law, however, are
not binding on an appellate court, whose duty is to determine if
the suppression court properly applied the law to the facts.
Commonwealth v. Miller, 56 A.3d 1276, 1278–1279 (Pa. Super. 2012)
(citations omitted). We may consider only evidence presented at the
suppression hearing. In re L.J., 79 A.3d 1073, 1085–1087 (Pa. 2013).
This Court has summarized the holding in Birchfield and its application
to Pennsylvania’s implied consent statutes as follows:
In Birchfield, the United States Supreme Court recognized
that “[t]here 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.” Birchfield, 136 S.Ct. at 2185.
Of particular significance, Birchfield held that “motorists cannot
be deemed to have consented to submit to a blood test on pain of
committing a criminal offense.” Id. at 2185–2186. Accordingly,
this Court has recognized that Pennsylvania’s implied consent
scheme was unconstitutional insofar as it threatened to impose
enhanced criminal penalties for the refusal to submit to a blood
test. Commonwealth v. Ennels, 167 A.3d 716, 724 (Pa. Super.
2017), reargument denied (Sept. 19, 2017) (noting that “implied
consent to a blood test cannot lawfully be based on the threat of
such enhanced penalties”); Commonwealth v. Evans, 153 A.3d
323, 330–31 (Pa. Super. 2016).
Commonwealth v. Kurtz, 172 A.3d 1153, 1157 (Pa. Super. 2017).
Despite Moser’s assertion to the contrary, Birchfield is not controlling
in the case at hand. As explained above, Birchfield applies to situations in
which a defendant’s consent is obtained based upon the threat of additional
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criminal penalties if the blood test is refused. Here, although form DL-26 was
read to Moser and improperly warned of criminal penalties if the blood test
was refused,6 Moser’s consent was not obtained after he was read the DL-26
form. Instead, he consented to the blood draw prior to the reading of the
form, in the police cruiser on the way to the hospital.
This Court’s decision in Commonwealth v. Haines, 168 A.3d 231 (Pa.
Super. 2017), is instructive. In Haines, we addressed a situation in which it
was unclear as to whether the defendant had consented to the blood test
before or after having been read the DL-26 form that improperly threatened
criminal penalties for refusal to submit to the blood test in violation of
Birchfield and its progeny. We explained that:
[I]f Haines validly consented before being informed that he faced
enhanced criminal penalties for failure to do so, then his consent
would not be tainted by the warning and the blood test results
would be admissible. If, however, he did not consent until after
[the officer] informed him that he would face enhanced criminal
penalties if he refused to consent, then the trial court did not
necessarily err in granting his motion to suppress the test results.
Haines, 168 A.3d at 236 (emphasis in original). Thus, pursuant to Haines,
if consent was provided prior to the reading of the DL-26 form, then the
consent would not have been tainted by the threat of additional criminal
penalties and, therefore, would not be in violation of Birchfield.
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6 The Commonwealth does not dispute that form DL-26 read to Moser
improperly referenced additional criminal penalties for refusal of the blood
test.
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Here, Moser gave his consent to the blood test while he was in the patrol
car on the way to the hospital. N.T., 6/27/17, at 18-21. Officers read form
DL-26 to Moser at the hospital, after he had already consented to the blood
draw. Id. at 20-21. Accordingly, Moser’s consent was not tainted by the
threat of additional criminal penalties as outlined in form DL-26, and therefore,
was not obtained in violation of Birchfield and Evans. Consequently, the
trial court erred in suppressing Moser’s blood test results on this basis.
Furthermore, we need not consider the voluntariness of Moser’s consent
given to officers prior to arriving at the hospital. Moser makes no assertion
before this Court that his consent was not voluntary. Moreover, Moser’s
motion to suppress seeks suppression of his blood test results on the basis of
the holding in Birchfield;7 Moser did not challenge the voluntariness of his
consent given to officers prior to his arrival at the hospital in that motion.
Motion to Suppress Evidence Nunc Pro Tunc, 3/17/17 at 1. “[A]ppellate review
of [a ruling on] suppression is limited to examination of the precise basis under
which suppression initially was sought; no new theories of relief may be
considered on appeal.” Commonwealth v. Little, 903 A.2d 1269, 1272-
1273 (Pa. Super. 2006); see also Commonwealth v. Thur, 906 A.2d 552,
566 (Pa. Super. 2006) (“When a defendant raises a suppression claim to the
trial court and supports that claim with a particular argument or arguments,
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7 For reasons stated previously, we note that Moser is incorrect in his
assertion that Birchfield is controlling in this case.
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the defendant cannot then raise for the first time on appeal different
arguments supporting suppression.”).
Accordingly, the trial court erred in granting Moser’s motion to suppress
the blood test results on the bases of Birchfield and Evans. Thus, we are
constrained to reverse the trial court’s order granting Moser’s motion to
suppress the blood test results.8
Order reversed. Case remanded for further proceedings.
Jurisdiction relinquished.
P.J.E. Bender joins the Opinion.
Judge Strassburger files a Dissenting Opinion.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/18/2018
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8 Based on our determination of the Commonwealth’s first issue, we need not
address its second.
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