J-S35009-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
GREGORY SWATSKY,
Appellant No. 1834 MDA 2017
Appeal from the Judgment of Sentence November 13, 2017
In the Court of Common Pleas of Schuylkill County
Criminal Division at No(s): CP-54-CR-0002231-2015
BEFORE: BENDER, P.J.E., PANELLA, J., and MURRAY, J.
MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 27, 2018
Appellant, Gregory Swatsky, appeals from the judgment of sentence of
72 hours’ to 6 months’ incarceration, imposed after he was convicted of driving
under the influence of a controlled substance (DUI) pursuant to 75 Pa.C.S.
§3802(d)(2). Appellant solely argues that the trial court erred by denying his
motion to suppress the results of a blood test because his consent to that test
was involuntary. We affirm.
Briefly, Appellant was charged with DUI after he was stopped by a police
officer for driving erratically, admitted to the officer that he had taken certain
controlled substances, failed several field sobriety tests, and then consented
to a blood draw that ultimately confirmed the presence of drugs in his system.
Prior to trial, Appellant filed a motion to suppress the results of the blood test,
contending that his consent to that test was coerced and invalid under
J-S35009-18
Birchfield v. North Dakota, 136 S.Ct. 2160, 2186 (2016) (holding “that
motorists cannot be deemed to have consented to submit to a blood test on
pain of committing a criminal offense”). The trial court denied Appellant’s
motion to suppress and his case proceeded to a non-jury trial. At the close
thereof, the court convicted him of DUI. On November 13, 2017, Appellant
was sentenced to the term of imprisonment stated supra.
Appellant filed a timely notice of appeal, and he complied with the trial
court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. On January 3, 2018, the trial court filed a Rule
1925(a) opinion. Therein, the court addressed the following, single issue that
Appellant presents for our review: “Did the [t]rial [c]ourt err in denying
Appellant’s [m]otion to [s]uppress because[,] based on the totality of the
circumstances, Appellant did not consent to the blood draw[?]” Appellant’s
Brief at 1.
We begin by noting that,
[a]n appellate court’s standard of review in addressing a challenge
to a trial court’s denial of a suppression motion is limited to
determining whether the factual findings are supported by the
record and whether the legal conclusions drawn from those facts
are correct. [Because] the prosecution prevailed in the
suppression court, we may consider only the evidence of the
prosecution 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 record supports the factual findings of the
trial court, we are bound by those facts and may reverse only if
the legal conclusions drawn therefrom are in error.
-2-
J-S35009-18
Commonwealth v. Reese, 31 A.3d 708, 721 (Pa. Super. 2011) (citations
omitted).
Additionally, a trial court’s error in denying a suppression motion will
not require reversal if the Commonwealth can establish beyond a reasonable
doubt that the error was harmless. See Commonwealth v. Baez, 720 A.2d
711, 720 (Pa. 1998). “An error is harmless if it could not have contributed to
the verdict. In other words, an error cannot be harmless if there is a
reasonable possibility the error might have contributed to the conviction.”
Commonwealth v. Cooley, 118 A.3d 370, 380 (Pa. 2015).
Here, we have reviewed the briefs of the parties, the certified record,
and the applicable case law. We have also considered the well-reasoned
opinion authored by the Honorable Jacqueline L. Russell of the Court of
Common Pleas of Schuylkill County. Judge Russell concludes that, even if it
was improper to deny Appellant’s motion to suppress the results of his blood
test, the admission of that cumulative evidence of Appellant’s intoxication was
harmless error. The Commonwealth presents this same argument on appeal,
relying on Judge Russell’s rationale. See Commonwealth’s Brief at 5. We
agree with the Commonwealth and Judge Russell that any error in admitting
the results of Appellant’s blood test would be harmless; therefore, we need
not access whether his consent to that test was coerced. We adopt Judge
Russell’s opinion as our own, and affirm Appellant’s judgment of sentence for
the reasons set forth therein.
Judgment of sentence affirmed.
-3-
J-S35009-18
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/27/2018
-4-
Circulated 08/09/2018 02:33 PM
COURT OF COMMON PLEAS OF SCHUYLKILL COUNTY--CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA No. 2231-15
vs.
GREGORY SWATSKY,
Defendant
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SUPPLEMENTAL OPINION AND ORDER OF COURT
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PURSUANT TO Pa.R.A.P. 1925
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RUSSELL, J.
Defendant/Appellant Gregory Swatsky filed an appeal from this court's
judgment of sentence of November 13, 2017. Defendant was found guilty following a
non-jury trial of driving under the influence of drugs (75 Pa.C.S. 3802(d)(2)) and driving
on sidewalks (75 Pa.C.S. 3703(a) ). Defendant was sentenced, inter alia, to serve 72
hours to 6 months in prison on the driving under the influence offense.
Defendant's statement of complaints on appeal consists of one issue; namely, he
claims that the suppression court erred in failing to suppress the results of a blood test
in violation of Birchfield v. Norlh Dakota, _US_, 136 S.Ct. 2160 (2016). The
suppression determination was made by The Honorable Cyrus Palmer Dolbin of this
court who issued a 1925 opinion on December 28, 2017. This member of the court held
the trial and writes separately to address the impact of the evidence that was the
subject of the suppression ruling on the verdict of the court.
1
At trial, Officer William Moyer of the Shenandoah Police Department testified that
he stopped a vehicle driven by Defendant on September 20, 2015 at about 2:40 a.m. in
the Borough after he saw it make a right turn at an intersection, drive onto the sidewalk
and then drive off thesidewalk and continue to travel about a block and a half in the
wrong Jane of the roadway.
Trooper Michael O'Neill of the Pennsylvania State Police had been a
Shenandoah police officer at the time of the stop and had been assisting Officer Moyer.
Trooper O'Neill had extensive experience with impaired drivers and testified about his
observations of Defendant that early morning.
When asked for his driver's license, Defendant handed the trooper his AARP
card. The trooper observed indicators of drug use in Defendant, including a dry mouth,
constricted pupils and eyelid tremors. Defendant was asked if he had taken any drugs
that day. Defendant stated that he had taken more Ativan than had been recommended
because he was stressed and that he had taken Suboxone. Both Ativan and Suboxone
are controlled substances. Defendant agreed to take field sobriety tests and failed all of
them - being the walk-and-turn, one-leg stand and finger-to-nose tests.
Defendant was then asked if he would agree to take a blood test and he agreed
to do so. As a result, Trooper O'Neill took Defendant to the hospital where the
PennDOT DL-26 form was first read to Defendant. Defendant consented again to the
blood draw. Trooper O'Neill requested that the hospital test only for drugs as he did not
suspect that alcohol use had been involved. Trooper O'Neill opined that Defendant
had not been capable of driving safely.
2
The laboratory which tested Defendant's blood reported a positive result for
Lorazepam which is a benzodiazepine and includes the brand name Ativan, which is an
"impairing substance" that affects the ability to drive safely. According to Dr. Edward
Barbieri of MNS Labs, an expert in forensic science, Defendant's having taken more
Ativan than normally - as Defendant had stated to Trooper O'Neill - would result in an
"acute effect" upon Defendant. In other words, the sedative effect upon Defendant
would have impaired his driving.
As observed by this member of the court at the end of trial after rendering its
verdict, more than sufficient evidence of Defendant's guilt existed whether or not the
results of the blood test had been admitted into evidence. Consequently, assuming for
the sake of argument that the results of the test had never been admitted or are
deemed to have been improperly admitted, the other evidence was, nevertheless, more
than sufficient to prove Defendant's guilt beyond a reasonable doubt, thereby resulting
in any possible erroneous admission of the blood test results harmless to Defendant.
See, Commonwealth v. Petrol/, 738 A.2d 993 (Pa. 1999) (harmless error where
improperly admitted evidence did not prejudice Defendant, was cumulative of properly
admitted evidence, or, contradicted overwhelming evidence of guilt.)
As noted, Defendant was observed driving erratically on the sidewalk and then in
the wrong lane of travel for well over a block in the Borough of Shenandoah. After
being stopped, he exhibited numerous physical signs of being under the influence of
drugs. He failed all field sobriety tests after having admitted that he took more Ativan
than recommended. Ativan, a controlled substance, impairs driving, particularly when
3
taken above the recommended dosage. Consequently, it is believed that whether or not
the suppression ruling is upheld, Defendant's judgment of sentence should be affirmed.
4