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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
CRAIG BRIAN WEINER : No. 1803 MDA 2017
Appeal from the Order Entered October 25, 2017
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0001704-2017
BEFORE: GANTMAN, P.J., OTT, J., and KUNSELMAN, J.
MEMORANDUM BY OTT, J.: FILED JUNE 11, 2018
The Commonwealth appeals from the order entered October 25, 2017,
in the Court of Common Pleas of Berks County, that granted appellee’s, Craig
Brian Weiner’s, motion to suppress blood test results obtained after he gave
consent to a blood draw during the course of a driving under the influence
(DUI) investigation,1 and granted his motion for writ of habeas corpus as to
Count 2, DUI – 75 Pa.C.S. § 3802(c). The Commonwealth contends (1) the
trial court erred in suppressing evidence pursuant to Birchfield v. North
Dakota, 136 S.Ct. 2160 (2016),2 where the DL-26B form read to appellee
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1The Commonwealth has certified that the trial court’s ruling terminated or
substantially handicaps the prosecution of this case.
2 Birchfield “prohibit[s] states from imposing criminal penalties upon an
individual’s refusal to submit to a warrantless blood test.” Commonwealth
v. Smith, 177 A.3d 915, 921 (Pa. Super. 2017), citing Birchfield, 136 S.Ct.
at 2185.
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had been modified to remove the objectionable language regarding the
enhanced penalties for a blood testing refusal, rendering the consent to the
blood draw voluntary, (2) the trial court erred in suppressing evidence
pursuant to Birchfield, supra, where the totality of the circumstances
indicates that the consent to the blood draw was voluntary, and (3) the trial
court erred in granting the request for a writ of habeas corpus for Count 2,
DUI -75 Pa.C.S. § 3802(c), without permitting the Commonwealth to appeal
from the adverse suppression ruling. See Commonwealth Brief at 4. Based
upon the following, we reverse the trial court’s suppression order, reinstate
the dismissed DUI charge at Count 2, and remand for further proceedings.
On December 10, 2016, Trooper James Green of the Pennsylvania State
Police arrested appellee for suspected DUI.3 Appellee was transported to the
Berks County DUI Processing Center. Trooper Green read appellee
Pennsylvania Department of Transportation (PennDOT) Form DL-26B.4 The
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3 75 Pa.C.S. § 3802.
4 The DL-26B form provided, in relevant part:
It is my duty as a police officer to inform you of the following:
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 that you submit to a chemical test of blood.
3. If you refuse to submit to the blood test, your operating
privileges will be suspended for at least 12 months. If you
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DL-26B form that Trooper Green used to obtain consent for blood testing was
updated following Birchfield to remove previous DL-26 language regarding
enhanced criminal penalties for refusal to submit to a blood test. Appellee
signed the DL-26B form and submitted to the blood draw. The testing
revealed a BAC of .204.
On December 28, 2016, appellee was charged with DUI,5 illegally
operating a motor vehicle not equipped with ignition interlock,6 and related
offenses. On June 7, 2017, appellee filed an omnibus pretrial motion, seeking
to suppress the blood test results. A hearing was held on August 14, 2017.
Thereafter, on October 25, 2017, the trial court issued findings of fact and
conclusions of law and granted appellee’s suppression motion as well as
appellee’s motion for writ of habeas corpus as to Count 2, DUI – 75 Pa.C.S. §
3802(c). This appeal by the Commonwealth followed.
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previously refused a chemical test or were previously
convicted of driving under the influence, you will be suspended
for up to 18 months.
4. You have no right to speak to 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 a blood test, you will
have refused the test.
N.T., 8/14/2017, Commonwealth’s Exhibit 1.
5 75 Pa.C.S. § 3802(a)(1) and (c).
6 75 Pa.C.S. § 3808(a)(1).
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Our standard of review of the trial court’s suppression ruling is well
settled:
When the Commonwealth appeals a suppression order, we
consider only the evidence from [Appellee’s] witnesses
together with the portion of the Commonwealth’s evidence
which is uncontroverted. Our standard of review is limited
to determining whether the suppression court’s factual
findings are supported by the record, but we exercise de
novo review over the suppression court's conclusions of
law.
Further, “[a]ppellate courts are limited to reviewing only the
evidence presented at the suppression hearing when examining a
ruling on a pre-trial motion to suppress.” “It is within the
suppression court's sole province as factfinder to pass on the
credibility of witnesses and the weight to be given their
testimony.”
Commonwealth v. Thomas, 179 A.3d 77, 81 (Pa. Super. 2018) (citation
and internal citations omitted).
The Commonwealth first contends “the trial court err[ed] in suppressing
evidence pursuant to Birchfield … where the DL-26B form was modified to
remove the objectionable language regarding the enhanced penalties for a
blood testing refusal, rendering the consent to the blood draw voluntary.”
Commonwealth Brief at 4. Appellee counters that “[a]t the time of the alleged
offense, our Legislature had not responded to Birchfield and hence, [75
Pa.C.S.] § 3804(c) and [75 Pa.C.S.] § 1547(b)(2) (both relating to penalties
for refusing chemical testing) remained unmodified.” Appellee’s Brief at 10.
The identical claim presented by the Commonwealth in this appeal was
recently addressed in Commonwealth v. Robertson, ___ A.3d ___ [2018
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Pa. Super. LEXIS 426] (Pa. Super. May 3, 2018), where a panel of this court
found merit in the Commonwealth’s argument. Accordingly, because
Robertson is controlling in this case, we simply reiterate its holding that
PennDOT had the authority to amend the DL-26 form prior to the legislation
that amended Section 3804, and that appellee was presumed to know both
statutory and case law.7 Accordingly, applying Robertson, we find merit in
the Commonwealth’s first issue.
In the second issue, the Commonwealth contends the trial court erred
in suppressing evidence pursuant to Birchfield, supra, where the totality of
the circumstances indicates that the consent to the blood draw was voluntary.
In reviewing this claim, Robertson is instructive:
Under [Commonwealth v.] Evans[,153 A.3d 323 (Pa. Super.
2016)], a trial court must consider the totality of the
circumstances when determining if a defendant’s consent to a
blood draw was voluntary. Evans, 153 A.3d at 328 (citation
omitted). As our Supreme Court explained:
While there is no hard and fast list of factors evincing
voluntariness, some considerations include: 1) the
defendant’s custodial status; 2) the use of duress or
coercive tactics by law enforcement personnel; 3) the
defendant’s knowledge of his right to refuse to consent; 4)
the defendant’s education and intelligence; 5) the
defendant’s belief that no incriminating evidence will be
found; and 6) the extent and level of the defendant’s
cooperation with the law enforcement personnel.
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7 A three-judge panel of this Court is not empowered to overrule another
three-judge panel of the Superior Court. Commonwealth v. Beck, 78 A.3d
656, 659 (Pa. Super. 2013). See also Commonwealth v. Hull, 705 A.2d
911, 912 (Pa. Super. 1998).
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Commonwealth v. Gillespie, 573 Pa. 100, 821 A.2d 1221, 1225
(Pa. 2003) (Eakin, J., opinion announcing the judgment of the
court) (cleaned up), citing Commonwealth v. Cleckley, 558
Pa. 517, 738 A.2d 427, 433 n.7 (Pa. 1999).
Robertson, supra at *14-*15.
The trial court and appellee take the position appellee’s consent was
involuntary because Form DL-26B did not correctly state the law since the
constitutional defects in Section 3804 had not been cured at the time of
appellee’s arrest. However, this reasoning fails because, as the Robertson
panel held, an individual is presumed to know statutory law and case law,
i.e., Birchfield. The trial court does not point to any other fact to justify its
finding of lack of voluntary consent.
For his part, appellee relies on Commonwealth v. Myers, 164 A.3d
1162 (Pa. 2017) to argue his consent was involuntary. This argument,
however, was rejected in Commonwealth v. Miller, ___ A.3d ___ [2018 Pa.
Super. LEXIS 427] (Pa. Super. May 3, 2018), which was issued
contemporaneously with Robertson. The Miller panel distinguished Myers,
which involved a defendant who was unconscious and incapable of consent to
a blood draw. Miller, supra, at *4-*5. In addition, we point out that in
Miller, the panel rejected the defendant’s argument that based on his prior
DUI convictions he had a subjective belief that he could not refuse a blood
test without criminal penalties. The Miller Court held, “Appellee’s failure to
recognize that [the police officer’s] warnings differed from those he received
in the past, and his reliance on the previous police interaction, cannot weigh
heavily against finding voluntary consent.” Miller, supra at *6.
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Here, the trial court made the following findings of fact that are relevant
to the factors to be considered in determining voluntariness of consent. On
December 10, 2016, Trooper Green arrested appellee for suspected DUI and
transported him to the Berks County DUI Processing Center. Trooper Green
read the DL-26B form to appellee in a conversational tone. Trooper Green
testified he, the phlebotomist, his partner, and one or two Berks County
detectives were present in the room when he read the DL-26B form to
appellee. Trooper Green did not recall if appellee was in handcuffs, and if he
asked anything about the consequences of refusing the blood test. Trooper
Green testified appellee did not ask about Birchfield. Appellee had been
convicted of DUI three or four times prior to the date that Trooper Green read
the DL-26B to appellee. Trooper Green did not inform appellee that he had a
constitutional right to refuse the blood test. Trooper Green did not advise
appellee he would not face increased criminal penalties if he refused the blood
test. Trooper Green did not have a warrant. Appellee submitted to the blood
draw. See Trial Court’s Findings of Fact and Conclusions of Law, 10/23/2017,
¶¶1-12.
Based on our review, this Court concludes that the facts of the instant
case, set forth above, clearly weigh in favor of a finding of voluntariness. The
only factor that weighs against a finding of voluntariness is the fact that
appellee was in custody. While several law enforcement officers were present
in the room, there is no evidence of duress or coercive tactics. Trooper Green
properly advised appellee he could refuse the blood test and be subject to
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certain civil penalties. Furthermore, any subjective belief of appellee that he
could not refuse a blood test without criminal penalties does not weigh heavily
against voluntariness. No evidence was presented regarding whether appellee
was aware that incriminating evidence would be found in his blood. Lastly,
appellee cooperated with police. As such, this Court concludes no reasonable
factfinder could determine appellee’s consent was involuntary. Therefore, we
find merit in the Commonwealth’s second argument.
The Commonwealth’s final claim is that the trial court erred in granting
the request for a writ of habeas corpus for Count 2, DUI - 75 Pa.C.S.
§ 3802(c), without permitting the Commonwealth to exercise its absolute
right to appeal from the adverse suppression ruling. We agree. In
Commonwealth v. Micklos, 672 A.2d 796, 801 (Pa. Super. 1996) (en banc),
this Court held that the trial court lacked the power to grant a writ of habeas
corpus before allowing the Commonwealth an opportunity to appeal the
adverse suppression ruling. By entering an order granting suppression and
concurrently dismissing the DUI charge, “the trial court deprived the
Commonwealth from any opportunity to exercise its absolute right to appeal
from [the] adverse suppression ruling[].” Id.
Accordingly, we reverse the trial court’s suppression order, reinstate the
DUI charge at Count 2, and remand for further proceedings consistent with
this memorandum.
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Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/11/2018
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Com. v. Weiner, C.
Combined Opinion