Com. v. Gaston, T.

J-S38031-20

2020 PA Super 211

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TEDDY A. GASTON :
:
Appellant : No. 109 MDA 2020

Appeal from the Judgment of Sentence Entered December 11, 2019
In the Court of Common Pleas of Schuylkill County Criminal Division at
No(s): CP-54-CR-0001237-2015

BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.: FILED SEPTEMBER 01, 2020

Appellant, Teddy A. Gaston, appeals from the December 11, 2019,

judgment of sentence entered in the Court of Common Pleas of Schuylkill

County following his conviction by a jury on the charges of driving while under

the influence (“DUI”) of a controlled substance-schedule 1-1st offense, driving

while operating privilege is suspended or revoked (with a BAC .02% or

greater), and limitations on driving (backing up of vehicle improperly).1 On

appeal, Appellant challenges the denial of his pre-trial suppression motion, in

which he alleged that his consent to a warrantless blood draw was coerced in

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* Former Justice specially assigned to the Superior Court.

1 75 Pa.C.S.A. § 3802(d)(1)(i), 75 Pa.C.S.A. § 1543(b)(1.1)(i), and 75
Pa.C.S.A. § 3702, respectively.
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violation of Birchfield v. North Dakota, ___ U.S. ___, 136 S.Ct. 2160

(2016). After a careful review, we affirm.

The relevant facts and procedural history are as follows: The police

effectuated a stop of Appellant’s motor vehicle in Shenandoah on November

2, 2014, and Appellant underwent a blood test. The test yielded a blood

alcohol content of 0.038%. N.T., 11/1/19, at 50. Additionally, Appellant’s

blood tested positive for amphetamines, Delta-9-THC, Delta-9-Carboxy-THC,

and 11-Hydroxy-Delta-9-THC. Id. at 61. All of the THC drugs are

“cannabinoids,” which remain in a person’s system after he or she ingests

marijuana. Id. Consequently, Appellant was charged with, inter alia,

numerous DUI-related offenses.

In 2016, while the present case remained pending at the pre-trial stage,

the Supreme Court of the United States issued its opinion in Birchfield,

supra. Relevantly, Birchfield held the Fourth Amendment does not permit

warrantless blood test results2 incident to arrests for DUI and refined the

notion of consent in the context of intoxicated driving, concluding that

“motorists cannot be deemed to have consented to submit to a blood test on

pain of committing a criminal offense.”3 Id. at 2186.

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2It is well-settled that a blood test constitutes a “search” within the meaning
of the Fourth Amendment. See Birchfield, supra.

3 We note Birchfield is applicable to cases in which a driver has been arrested
for alcohol-related and/or drug-related DUI. Commonwealth v. Ennels, 167

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On September 11, 2017, Appellant filed a counseled pre-trial motion

contending Birchfield required suppression of the blood evidence.

Specifically, in a motion entitled “Birchfield Motion,” Appellant averred the

following:

1. On November 2, 2014[,] [Appellant] was driving a vehicle
in the Borough of Shenandoah at or about 0223 hours.
2. [Appellant] was stopped by David Stamets of the
Shenandoah Police Department.
3. [Appellant] was detained after a series of psychophysical
divided attention test[s].
4. He was transported to the Pottsville South Hospital and
blood was drawn.
5. The blood test was positive for amphetamines and
marijuana as well as registering a .038% WT/VOL blood alcohol.
6. The police obtained consent to the blood test after reading
him the Pennsylvania DL-26 Form[4] advising of enhanced criminal
penalties for refusal and without a warrant.
WHEREFORE, the blood test results must be suppressed.

Appellant’s Pre-Trial Motion, filed 9/11/17 (footnote added).

____________________________________________

A.3d 716, 721-22 (Pa.Super. 2017) (“No matter the substance suspected of
affecting a particular DUI arrestee, Birchfield requires that a blood test be
authorized either by a warrant (or case-specific exigency), or by individual
consent not based on the pain of criminal consequences.”). In the case sub
judice, there was no warrant, and consent to the blood draw is the only
exception the suppression court found to be applicable.
4 Form DL-26 is issued by Pennsylvania’s Department of Transportation and
describes Pennsylvania’s implied consent law, 75 Pa.C.S.A. § 1547. In the
case sub judice, as further discussed infra, there is no dispute that the DL-26
Form, which was provided to Appellant on November 2, 2014, was not
Birchfield complaint. Notably, the U.S. Supreme Court issued its decision in
Birchfield on June 23, 2016.

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The matter proceeded to a suppression hearing on September 25, 2017,

at which Police Officer David Stamets and Appellant testified.

Specifically, Officer Stamets testified he was on routine patrol on

November 2, 2014, when at 2:23 a.m., he observed Appellant exit the West

Street Bar, enter a parked vehicle, and drive the vehicle in reverse for

approximately one and one-half blocks, including through an intersection.

N.T., 9/25/17, at 9-10. Officer Stamets activated his police cruiser’s lights

and effectuated a traffic stop of Appellant’s vehicle. Id. at 10.

Upon approaching Appellant, who was in the driver’s seat, Officer

Stamets noticed the odor of alcohol and observed Appellant’s eyes were

bloodshot with pupils dilated. Id. Appellant was sweating profusely and had

goosebumps. Id.

After Appellant exited the vehicle, Officer Stamets conducted field

sobriety tests, which Appellant failed. Id. Officer Stamets asked Appellant if

he was using stimulants or alcohol, and Appellant admitted he had smoked

marijuana, as well as ingested alcohol. Id. at 11. Officer Stamets discovered

Appellant’s driver’s license had been suspended. Id.

Officer Stamets testified that, at this point, he “requested that

[Appellant] submit to blood tests, which he agreed he would submit to. Later,

he read a DL-26 Form to [Appellant]. And [Appellant] signed the form

acknowledging the form was provided to him.” Id. Officer Stamets clarified

that, after the traffic stop, he transported Appellant to the police station where

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he asked Appellant to submit to a blood test, Appellant verbally agreed to a

blood test, and then he read to Appellant the DL-26 Form verbatim. Id. at

12-14, 17-18. Officer Stamets testified he did not advise Appellant of any

increased penalties for not submitting to the blood test until after Appellant

had already agreed to the test. Id. at 34-35.

Appellant offered a contrary version of events. He testified Officer

Stamets stopped his vehicle, transported him to the police station, and after

being at the police station for ten minutes, Officer Stamets told him he was

taking him to the hospital for a blood test. Id. at 21. Appellant testified the

officer stated, without looking at any form, “You can take the test or you

cannot take the test.” Id. at 22. Moreover, Appellant indicated the officer

stated, “If you don’t take the test…your license will be suspended with further

penalties. You’ll have further penalties and fines.” Id. Appellant testified the

officer also specifically told him he would go to jail upon refusing the test. Id.

at 23. Appellant testified that, at this point, he agreed to the blood test. Id.

Appellant testified that, after he agreed to the blood test, the officer

transported him to the Pottsville Hospital, and the officer read the DL-26 Form

to Appellant for the first time while Appellant was sitting in the technician’s

chair in order to have his blood drawn. Id. at 24-25.

By order entered on October 3, 2017, the trial court denied Appellant’s

suppression motion. Initially, with regard to the DL-26 Form, the suppression

court acknowledged the form, which was read to Appellant on November 2,

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2014, advised Appellant “of enhanced criminal penalties in the event of a blood

test refusal.” Suppression Court Opinion, filed 10/3/17, at 1. However,

concluding Officer Stamets’ testimony was credible, the suppression court

further found that Appellant consented to the blood test at the police station

before Officer Stamets read Appellant the information on the Pennsylvania

DL-26 Form.5 Id. at 2 (suppression court found: “While at the station,

[Officer] Stamets asked [Appellant] if he would agree to a blood test.

[Appellant] agreed. Thereafter, [Officer] Stamets read [Appellant] the

information on the Pennsylvania DL-26 Form.”).

Moreover, the suppression court found incredible Appellant’s testimony

that, before he consented to the blood draw, the officer, without reference to

the DL-26 Form, advised him that if he refused to give consent he would face

increased penalties, including jail, a license suspension, and a fine. Id.

Accordingly, the suppression court reasoned that, since Appellant consented

to the warrantless blood draw without being aware that his refusal would result

in enhanced criminal penalties, Appellant voluntarily consented to the blood

draw and test. See id.

Specifically, the suppression court concluded:

[I]t is found that [Appellant] submitted to the blood draw
voluntarily without duress or compulsion arising from anything the
officer did or stated, including by his reading the DL-26 Form
____________________________________________

5 The suppression court noted that Appellant, in his own testimony, asserted
the officer read the DL-26 Form to him for the first time at the hospital while
he was sitting in the technician’s chair in order to have his blood drawn. Id.

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language following [Appellant’s] consent to the blood draw. As
the reliable proof provided no indication that the information
[Appellant] received subsequent to his consent served in any
manner to vitiate, effect or otherwise impact the consent which
rendered the search reasonable, [Appellant’s] suppression motion
is…denied.

Id.

Thereafter, Appellant proceeded to a jury trial, and he was convicted of

the offenses indicated supra. On December 11, 2019, the trial court

sentenced Appellant to an aggregate of one year to five years in prison. This

timely, counseled appeal followed on January 9, 2020. On January 10, 2020,

the trial court ordered Appellant to file a Pa.R.A.P. 1925(b) statement, counsel

filed a statement on behalf of Appellant, and the trial court filed a responsive

Pa.R.A.P. 1925(a) opinion.6

On appeal, Appellant sets forth the following sole issue in his “Statement

of Questions Involved” (verbatim):

1. Did the suppression court err in failing to suppress a
warrantless blood draw?
____________________________________________

6 On January 10, 2020, the trial court directed Appellant to file a Pa.R.A.P.
1925(b) statement within twenty-one days of the entry of the order. On
February 4, 2020, four days late, counsel filed a Rule 1925(b) statement on
behalf of Appellant. Nevertheless, in its Rule 1925(a) opinion, the trial court
addressed the issues raised in the untimely Rule 1925(b) statement.
Accordingly, we overlook the untimely nature of the counseled Rule 1925(b)
statement and proceed to a review of the issues raised on appeal. See
Commonwealth v. Burton, 973 A.2d 428 (Pa.Super. 2009) (en banc)
(holding counsel’s failure to file a timely Pa.R.A.P. 1925(b) statement
constitutes ineffectiveness per se and where the trial court addresses the
issues in its opinion this Court may overlook the untimeliness without
remanding the matter to the lower court).

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Appellant’s brief at 4 (suggested answer omitted).

Relying upon Birchfield, Appellant contends the suppression court

erred in failing to suppress his blood test results since the police did not obtain

a warrant and Appellant did not provide valid consent for the blood draw. In

this vein, he alleges any consent he gave was involuntary since: (1) his

consent was given out of fear when the police officer, without referencing the

DL-26 Form, informed him of enhanced criminal penalties in the event of his

refusal, and (2) his consent was coerced by the police officer’s reading of the

DL-26 Form.

The Commonwealth, in response, contends the suppression court

properly concluded Appellant voluntarily consented to the blood draw prior to

Officer Stamets reading the implied consent warnings from the DL-26 Form or

otherwise advising Appellant of the enhanced criminal penalties for refusing

to consent to the blood test. Thus, the Commonwealth contends Appellant’s

consent was neither tainted nor coerced by the language in the DL-26 Form

or any other statements made by Officer Stamets regarding heightened

criminal penalties for refusal; therefore, the suppression court did not err in

denying the suppression motion based on Birchfield.

Our standard of review in addressing a challenge to the
denial of a suppression motion 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....Where the suppression court’s factual findings are
supported by the record, we are bound by these findings and may
reverse only if the court’s legal conclusions are erroneous.

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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 court[ ] below
are subject to our plenary review.

Commonwealth v. Jones, 605 Pa. 188, 988 A.2d 649, 654 (2010)

(quotation and citation omitted). “Moreover, appellate courts are limited to

reviewing only the evidence presented at the suppression hearing when

examining a ruling on a pre-trial motion to suppress.” Commonwealth v.

Shreffler, 201 A.3d 757, 763 (Pa.Super. 2018) (citation omitted).

As a preliminary matter, we note that, although the legal question

before us is significantly informed by the Birchfield decision, the events at

issue here preceded the issuance of the U.S. Supreme Court’s opinion in that

case.7 Accordingly, we recognize the police officer in this matter had no

reason to anticipate the subsequent change in the law.

“Nonetheless, litigants generally are entitled to benefit from changes in

the law that develop before their judgments of sentence become final,

provided that the issue in question is properly preserved at all stages of

adjudication up to and including any direct appeal.” Commonwealth v.

Trahey, ___ Pa. ___, 228 A.3d 520, 530 (2020) (quotation marks, quotation,

and citation omitted).

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7Appellant was arrested and subject to the blood draw on November 2, 2014.
The U.S. Supreme Court decided Birchfield on June 23, 2016.

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In the case sub judice, Appellant adequately preserved his challenge to

the constitutionality of the blood draw by filing and litigating his pre-trial

suppression motion, which was based on the holdings in Birchfield. See id.

“Accordingly, although the investigating officer [was] reasonably operating

under an older understanding of the requirements of the Fourth Amendment,

[Appellant] is entitled to a review conducted through the lens of the Supreme

Court’s more recent pronouncements in this area.” Trahey, supra, 228 A.3d

at 530 (applying the pronouncement in Birchfield to warrantless blood draw

occurring on September 4, 2015). See Commonwealth v. Hays, ___ Pa.

___, 218 A.3d 1260 (2019) (holding that in order for Birchfield to apply

retroactively, an appellant must preserve the issue in question at all stages of

adjudication up to and including any direct appeal).

In Birchfield, the United States Supreme Court “refined the notion of

consent in the context of intoxicated driving.” Commonwealth v. Geary,

209 A.3d 439, 442 (Pa.Super. 2019). One of the petitioners in Birchfield

claimed that his consent to a blood test following his arrest for DUI had been

coerced by the officer’s warning that a refusal to submit to the blood test

constituted a crime itself under North Dakota law. The Supreme Court agreed,

concluding that “motorists cannot be deemed to have consented to submit to

a blood test on pain of committing a criminal offense.” Birchfield, 136 S.Ct.

at 2186. As such, the Supreme Court held that if a defendant’s explicit

consent is found to have been influenced by an improper criminal penalty for

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refusal, the court must then assess the voluntariness of the consent under the

totality of the circumstances. See id.

In the case sub judice, despite Appellant’s contention to the contrary,

Birchfield does not require the conclusion that Appellant’s consent was

involuntary. As explained above, Birchfield applies to situations in which a

defendant’s consent is obtained based upon the threat of additional criminal

penalties if the blood test is refused.

In the instant case, the suppression court found that the DL–26 Form

read to Appellant was not compliant with Birchfield since it improperly

warned Appellant of additional criminal penalties if he refused the blood test.

Suppression Court Opinion, filed 10-/3/17, at 1-2. However, the suppression

court specifically concluded Officer Stamets did not read the DL-26 Form, or

otherwise advise Appellant of any increased criminal penalties for refusal, until

after Appellant explicitly gave his consent to the blood test.8 See id. Thus,

the suppression court concluded that Appellant’s explicit consent was neither

tainted nor coerced by the Birchfield-offending DL-26 Form and/or other

police statements threatening enhanced criminal penalties. We find no error

of law in this regard.

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8 The suppression court’s factual findings are supported by the record.
Accordingly, we are bound by those findings. See Jones, supra.

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This Court’s decision in Commonwealth v. Moser, 188 A.3d 478

(Pa.Super. 2018), is instructive. Therein, this Court relevantly held the

following:

[In] Commonwealth v. Haines, 168 A.3d 231 (Pa. Super.
2017),…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 [F]orm 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 [F]orm, then the consent would not have been tainted by the
threat of additional criminal penalties and, therefore, would not
be in violation of Birchfield.
Here, Moser gave his consent to the blood test while he was
in the patrol car on the way to the hospital. Officers read [F]orm
DL–26 to Moser at the hospital, after he had already consented to
the blood draw. Accordingly, Moser’s consent was not tainted by
the threat of additional criminal penalties as outlined in [F]orm
DL–26, and therefore, was not obtained in violation of
Birchfield[.]

Moser, 188 A.3d at 483 (citations to record omitted) (emphasis in original).

Similar to Moser, the suppression court in the instant case concluded

the officer read the DL-26 Form to Appellant after he had already consented

to the blood draw. Further, the suppression court did not find credible

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Appellant’s testimony that, aside from the DL-26 Form, Officer Stamets made

statements indicating Appellant would face enhanced criminal penalties before

Appellant expressly consented to the blood test. Consequently, the

suppression court did not err in concluding Appellant’s consent to submit to

the blood test was not given on pain of committing a criminal offense in

violation of Birchfield.9 See Commonwealth v. Neysmith, 192 A.3d 184

(Pa.Super. 2018) (holding the defendant’s consent to blood draw, which was

given prior to the defendant being advised of the warnings in the non-

compliant Birchfield DL-26 Form, was voluntary and not coerced by the

threat of enhanced penalties for refusing the test).

For all of the foregoing reasons, we find no merit to Appellant’s

suppression claim, and we affirm his judgment of sentence.

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9 As indicated supra, the suppression court properly concluded Appellant’s
explicit consent was not influenced by an improper criminal penalty for refusal.
Therefore, the suppression court did not otherwise assess the voluntariness
of the consent under the totality of the circumstances. See Birchfield, 136
S.Ct. at 2186. In any event, we note Appellant limited his pre-trial motion to
suppression of his blood test results on the basis of Birchfield’s holding that
the police may not threaten enhanced punishment for refusing a blood test in
order to obtain consent. Accordingly, we so limit our analysis. See
Commonwealth v. Little, 903 A.2d 1269, 1272-73 (Pa.Super. 2006)
(“[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.”) (quotation omitted)). See
also Moser, supra.

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Affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/1/2020

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