Com. v. Veasy, J.

J-S23014-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JERMAINE VEASY :
:
Appellant : No. 1100 EDA 2019

Appeal from the Judgment of Sentence Entered March 25, 2019
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0000503-2018

BEFORE: NICHOLS, J., McCAFFERY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY NICHOLS, J.: Filed: December 30, 2020

Appellant Jermaine Veasy appeals from the judgment of sentence

imposed following his conviction for driving under the influence (DUI)—highest

rate of alcohol and related offenses at a non-jury trial. Appellant argues that

the trial court erred by denying his pre-trial motion to suppress.1 For the

reasons that follow, we vacate the judgment of sentence, reverse the order

denying suppression, and remand for a new trial.

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1 On October 1, 2020, this Court entered a memorandum decision reversing
the trial court’s order denying Appellant’s motion to suppress and remanding
for a new trial. On October 15, 2020, the Commonwealth filed an application
for reargument, arguing that our decision conflicted with this Court’s recent
precedential decision in Commonwealth v. Gaston, 239 A.3d 135 (Pa.
Super. 2020). App. for Rearg., 10/15/20, at 4-5, 7-8. Gaston was filed
between the time the original memorandum was circulated and filed. This
Court granted reconsideration on November 25, 2020, to address Gaston.
J-S23014-20

The trial court set forth its factual findings regarding the suppression

hearing as follows:

On November 5, 2017, at approximately 1:40 a.m., [Appellant]
was observed traveling west on 10th Street in Marcus Hook
Borough, Delaware County, Pennsylvania by Officer Daniel Barnett
and Officer Daniel Pasley. The officers, while sitting in their patrol
cars in a parking lot at the intersection of 10th Street and Church
Street, noticed [Appellant’s] white Mercedes-Benz was audibly
operating at a high rate of speed. As they continued to observe
[Appellant’s] vehicle, the Officers noticed [Appellant’s] vehicle did
not have headlights on in conditions that were dark and rainy.
After pulling behind [Appellant], Officer Barnett witnessed as
[Appellant’s] vehicle came up on another vehicle at a high rate of
speed and then went around a median on the road to travel into
the oncoming traffic lane. Officer Barnett immediately attempted
to pull [Appellant] over following these observations. [Appellant]
stopped his vehicle two blocks later at around 10th Street and
Blueball Avenue.

Officer Barnett noticed a strong odor of alcoholic beverages
coming from the vehicle immediately upon making contact with
[Appellant]. [Appellant] informed Officer Barnett of his license to
carry a Smith & Wesson M&P firearm, located in the glove
compartment. After checking [Appellant’s] credentials, Officer
Barnett returned to the vehicle and asked [Appellant] to step out.
Officer Barnett then asked [Appellant] whether or not he had been
drinking that evening, to which [Appellant] responded by asking,
“What time is it?” [Appellant] had slurred speech and difficulty
speaking throughout the encounter. Officer Barnett then
requested [Appellant] undergo a series of three field sobriety
tests. [Appellant] was compliant with the Officer but failed each
of the three field sobriety tests administered. Officer Barnett then
asked [Appellant] to submit to a Preliminary Breath Test (PBT) but
was unable to get a proper readout from the device.

Following [Appellant’s] failure to complete the field sobriety tests,
Officer Barnett placed him under arrest for suspicion of driving
while intoxicated. [Appellant] was placed in the back of Officer
Pasley’s patrol car in handcuffs. Officer Barnett then requested
[Appellant] submit to a chemical test of his blood, warning
[Appellant] that his refusal “could” lead to the suspension of his
license for “approximately 12 months.” [Appellant] gave verbal

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consent to Officer Barnett’s request. [Appellant] was transported
by Officer Pasley to Crozer-Chester Medical Center. During the
ride, Officer Pasley and [Appellant] made no conversation besides
[Appellant’s] request for his handcuffs to be loosened. At the
hospital, [Appellant] was brought into an examination room and
uncuffed by Officer Pasley, who warned him, “not to do anything
stupid”. A nurse extracted two vials of blood from [Appellant].
Later testing of the blood revealed a BAC of 0.239%.

Trial Ct. Op., 8/2/19, at 2-3 (record citations omitted). We add that Officer

Barnett testified that he did not read the DL-26B Form, which contains implied

consent warnings, to Appellant immediately before the extraction of

Appellant’s blood because Appellant had already given his verbal consent to

the blood draw. N.T. Suppress Hr’g, 9/20/18, at 40-41. Officer Barnett

testified that it was his understanding that the DL-26B Form is only used when

a motorist is going to refuse the blood test. Id.

Appellant was later charged with DUI—general impairment, DUI—

highest rate of alcohol, failing to use required lighting, driving at an unsafe

speed, careless driving, reckless driving, and disregarding traffic lanes.2 See

Criminal Compl., 11/5/17; see also Criminal Information, 2/28/18. On March

29, 2018, Appellant filed an omnibus pretrial motion, which included a motion

to suppress. Therein, Appellant argued that pursuant to Birchfield v. North

Dakota, ___ U.S. ____, 136 S. Ct. 2160 (2016), the trial court should

suppress evidence of the blood test results, because the Commonwealth

conducted an illegal, warrantless blood draw, and Appellant did not provide
____________________________________________

275 Pa.C.S. §§ 3802(a)(1), 3802(c), 4302(a)(2), 3361, 3714(a), 3736(a),
3309(1), respectively.

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knowing, voluntary, or intelligent consent to the blood draw. See Omnibus

Pretrial Mot., 3/29/18, at 1-4.

The trial court held a suppression hearing on September 20, 2018.

Officer Barnett, Officer Pasley, and Appellant testified at the hearing. At the

end of hearing, the trial court held its decision under advisement. Additionally,

the trial court ordered the parties to submit briefs containing their arguments,

which they did.3 In his brief, Appellant argued that Officer Barnett’s verbal

implied consent warning, including the use of the word “could” instead of “will”

for a defendant’s license suspension upon refusal, was inaccurate and

therefore, Appellant did not voluntarily consent to the blood draw. Mem. of

Law, 12/10/18, at 2, 7-11. On December 6, 2018, the trial court issued an

order denying Appellant’s motion to suppress.4

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3 Appellant and the Commonwealth apparently served their briefs on the trial
court without filing them as of record. After the trial court denied his motion
to suppress, Appellant filed a copy of his brief, captioned “Defendant’s
Memorandum of Law in Support of Motion to Suppress” with the trial court on
December 10, 2019.

4 The trial court’s order reads as follows: “AND NOW, to wit, this 6th day of
December, AD, 2018, upon consideration of Defendant’s Omnibus Pretrial
Motion filed on March 29, 2018, and after a hearing thereon, it is hereby
ORDERED and DECREED that said Motion is DENIED.” Order, 12/6/18. The
trial court’s order did not include findings of fact and conclusions of law
required under Pa.R.Crim.P. 581(I). However, we may “look at the trial
court’s Rule 1925(a) opinion to garner findings of fact and conclusions of law.”
Commonwealth v. Stevenson, 832 A.2d 1123, 1126 (Pa. Super. 2003)
(citation omitted). The trial court’s Pa.R.A.P. 1925(a) opinion adequately
relates the court’s findings of fact and conclusions of law. See Trial Ct. Op.
at 1-3. Therefore, we need not remand for this case for the trial court to

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On January 25, 2019, the Commonwealth withdrew the charge of

reckless driving, and the case proceeded to a non-jury trial. The trial court

held the verdict under advisement. On February 11, 2019, the trial court

found Appellant guilty of DUI—general impairment, DUI—highest rate of

alcohol, driving at an unsafe speed, and careless driving. The trial court found

Appellant not guilty of the remaining charges.

On March 25, 2019, the trial court sentenced Appellant to twenty-three

months’ county intermediate punishment, of which 180 days were to consist

of home confinement with electronic home monitoring, and a consecutive term

of three years’ probation. Appellant was also ordered to undergo a drug and

alcohol evaluation and to pay $1,550 in fines, $300 in court costs, and a $134

lab fee.

On April 15, 2019, Appellant filed a timely notice of appeal. He filed an

untimely court-ordered Pa.R.A.P. 1925(b) statement.5 The trial court issued

a Rule 1925(a) opinion addressing Appellant’s claims.

____________________________________________

comply with Pa.R.Crim.P. 581(I), and may review the trial court’s decision.
See Stevenson, 832 A.2d at 1126.

5 We note that the trial court ordered Appellant to file a Rule 1925(b)
statement by May 7, 2019. Appellant filed his 1925(b) statement on May 15,
2019. Appellant did not request, nor did the trial court grant, an extension of
time to file the 1925(b) statement. Therefore, it was untimely filed. Under
Commonwealth v. Burton, 973 A.2d 428 (Pa. Super. 2009) (en banc), the
late filing of a Rule 1925(b) statement is per se ineffectiveness of counsel in
criminal cases. Burton, 973 A.2d at 433; accord Pa.R.A.P. 1925(c)(3).
Nevertheless, a remand is not necessary here because “the trial court has filed

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Appellant raises two issues for our review:

1. Based on the totality of the circumstances relayed during the
suppression hearing, did the trial court commit an error of law
in denying Appellant’s motion to suppress?

2. Did the trial court err in denying Appellant’s suppression
motion when the arresting officer did not provide Appellant
with the required opportunity to cho[o]se between yielding
consent to a warrantless chemical test or, alternatively,
refusing to yield[?]

Appellant’s Brief at 6-7 (unpaginated) (some capitalization omitted).6

We summarize Appellant’s arguments together as they are closely

related. Appellant argues that the trial court erred in denying his motion to

suppress because Appellant did not voluntarily consent to the blood draw. Id.

at 13-23 (unpaginated). Appellant argues the trial court erred in not

considering our Supreme Court’s decision in Commonwealth v. Myers, 164

____________________________________________

an opinion addressing the issue[s] presented in [Appellant’s] 1925(b) concise
statement.” Id.

6 Appellant’s brief lacks page numbers. Pa.R.A.P. 2173 requires that all pages
of a brief, except for the table of contents and table of citations, to be
numbered separately in Arabic figures. We have explained that “compliance
with the Rules of Appellate Procedure concerning the briefs and reproduced
record are not guideposts but a mandate.” McGee v. Muldowney, 750 A.2d
912, 913 n.1 (Pa. Super. 2000) (citation omitted). However, the lack of page
numbers and other technical defects in Appellant’s brief do not impede our
review. See Commonwealth v. Levy, 83 A.3d 457, 461 n.2 (Pa. Super.
2013) (noting that despite the defects in the appellant’s brief, the appellant
“has presented to this Court a thorough and well-developed brief in support
of his arguments. Thus, [the appellant’s] omissions do not impede our review.
Accordingly, we do not find them to be ‘substantial,’ and we will not exercise
our discretion to quash or dismiss his brief.” (citations omitted)).

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A.3d 1162 (Pa. 2017) (plurality).7 Id. at 13 (unpaginated). More specifically,

Appellant argues that the trial court erred in concluding that “because

[Appellant] gave verbal consent immediately upon the request of [Officer

Barnett], there was no need to read the DL-26B [F]orm . . . . [and] because

[Appellant] consented to the blood test . . . [Officer Barnett’s] statements

were not misleading and did not affect [Appellant’]s decision.” Id. at 15

(unpaginated) (quoting Trial Ct. Op. at 4 (some formatting altered)).

Appellant argues that the facts of this case are comparable to those of

Commonwealth v. Krenzel, 209 A.3d 1024, 1032 (Pa. Super. 2019), appeal

denied, 222 A.3d 370 (Pa. 2019). Id. at 19 (unpaginated). According to

Appellant, in both Krenzel and this case, the defendants were pulled over and

arrested for DUI after police administered field sobriety tests. Id. (citations

omitted). Appellant states that neither he nor Krenzel were informed of their

rights under 75 Pa.C.S. § 1547. Id. at 20 (unpaginated). Appellant argues

that the police are “statutorily obligated” under 75 Pa.C.S. § 1547 to inform a

suspect of the “right to refuse chemical testing and the consequences arising

therefrom” and the failure to do so is grounds to suppress the blood draw.

Id. (quoting Krenzel, 209 A.3d at 1032).

Appellant also argues that the trial court’s and the Commonwealth’s

reliance on Commonwealth v. Gorbea-Lespier, 66 A.3d 382 (Pa. Super.

____________________________________________

7Only section II(C) of Myers is a plurality opinion. Myers, 164 A.3d at 1164,
1173-81. A majority of our Supreme Court joined the remainder of the
decision. Id. at 1164.

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2013), to establish that he consented to the blood draw is in error. Id. at 20-

22 (unpaginated). According to Appellant, in Gorbea-Lespier, the defendant

was informed that a refusal to submit to the test would result in a minimum

twelve month license suspension. Id. at 21 (unpaginated) (citing Gorbea-

Lespier, 66 A.3d at 384). Here, Appellant contends that Officer Barnett

informed him that a refusal to submit to the blood test “could” result in a

license suspension of “up to twelve months” instead of informing him that

refusal will result in a twelve month license suspension. Id. (citation omitted).

Appellant additionally notes that in Gorbea-Lespier, the defendant was

informed that he did not have a right to consult with anyone, including an

attorney prior to testing, while here, Officer Barnett did not provide the

statutorily required warning that Appellant did not have a right to consult

anyone, including an attorney, before choosing to consent to the blood test.

Id. at 21-22 (unpaginated) (citing Gorbea-Lespier, 66 A.3d at 384).

Lastly, Appellant notes that Officer Pasley, who escorted Appellant to

the hospital for the blood draw, also failed to provide Appellant with the

necessary implied consent warnings at the time of the blood draw, which is

tantamount to a separate statutory violation supporting the suppression of the

blood draw as nonconsensual. Id. at 22-23 (unpaginated). Appellant claims

that implied consent warnings should have been given at the time of the blood

draw, which Officer Pasley did not do. Id. (citing Myers, 164 A.3d at 1174).

The Commonwealth responds that under 75 Pa.C.S. § 1547(a), a

defendant is deemed to have consented to chemical testing and a police officer

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has the duty to inform the defendant that his or her driver’s license will be

suspended upon refusal to submit to chemical testing. Commonwealth’s Brief

at 7-8. According to the Commonwealth, the trial court properly concluded

that an officer only has a duty to advise a defendant of the right to refuse

chemical testing and need only read the implied consent warnings if the

defendant refuses to submit to testing. Id. at 8 (citing Gorbea-Lespier, 66

A.3d at 389-90); see also App. for Rearg., 10/15/20, at 5-6 (same). The

Commonwealth reasons that because Appellant did not refuse testing, the

officers had no obligation to provide Appellant with the implied consent

warnings. Commonwealth’s Brief at 8; see also App. for Rearg. at 5-6.

In support, the Commonwealth argues that this Court’s decision in

Gorbea-Lespier held that implied consent warnings are only required when

a defendant refuses chemical testing and that our Supreme Court’s decision

in Myers did not overrule that holding of Gorbea-Lespier. App. for Rearg.

at 6. The Commonwealth further asserts that if a defendant “is cooperative,

immediately consents, and does not indicate a desire to speak to an attorney,

then why does the officer need to tell him that he does not have the right to

speak with an attorney?” Id. at 7-8.

Furthermore, the Commonwealth argues that in Gaston, this Court

affirmed the trial court’s denial of suppression of a chemical blood test where

the defendant consented to the test before the police read defective implied

consent warnings. Id. at 5, 7-8. The Commonwealth claims that this Court’s

recent decision in Gaston is consistent with the holding of Gorbea-Lespier

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that full implied consent warnings are not required unless a defendant actually

refuses testing. Id. at 5, 7.

The Commonwealth also argues that Krenzel is distinguishable from

the facts of this matter. Commonwealth’s Brief at 12-13. The Commonwealth

emphasizes that unlike Krenzel, Officer Barnett informed Appellant of his

right to refuse testing but suggested that his refusal “could” result in a

suspension of his driving privileges. App. for Rearg. at 6-7. The

Commonwealth claims that in Krenzel, the police did not provide the

defendant with the implied consent warnings at all, while in this case, Officer

Barnett informed Appellant of his right to refuse and provided some warnings

of the consequences of a refusal. Commonwealth’s Brief at 12-13.

Lastly, the Commonwealth argues that although Officer Barnett’s

warnings differed from those contained in the DL-26B Form, Officer Barnett

sufficiently advised Appellant of the consequences of refusal and Appellant

consented to the blood test. Id. at 13-14. The Commonwealth argues that

the police are not required to read the exact language of the DL-26B Form to

a motorist for consent to a breath or blood test to be knowing and voluntary.

App. for Rearg. at 3. The Commonwealth notes that “[o]ur Supreme Court

has never held that the DL-26 Form must be read word-for-word in order for

the consent to be valid.” Id. at 7. The Commonwealth continues that

although Officer Barnett’s warned Appellant that his driving privilege “could,”

rather than “would” be suspended, that deviation from the DL-26B Form did

not affect Appellant’s decision to consent to the blood draw. Commonwealth’s

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Brief at 11. Consequently, the Commonwealth claims that the trial court’s

finding that Appellant’s consent was voluntary was correct based on the facts

in the record. Id. at 9-10, 13-14.

We apply the following standard when reviewing the denial of a

suppression motion:

[o]ur initial task is to determine whether the [trial court’s] factual
findings are supported by the record. In making this
determination, we must consider only the evidence of the
prosecution’s witnesses, and so much evidence of the defense that
remains uncontradicted when fairly read in the context of the
record as a whole. When the evidence supports the factual
findings, we are bound by such findings; we may reverse only if
the legal conclusions drawn therefrom are erroneous.

Commonwealth v. Bryant, 67 A.3d 716, 724 (Pa. 2013) (citation omitted).

In addition, “our scope of review from a suppression ruling is limited to the

evidentiary record that was created at the suppression hearing.”

Commonwealth v. Rapak, 138 A.3d 666, 670 (Pa. Super. 2016) (citation

omitted).

“The United States Supreme Court has held that because ‘the taking of

a blood sample’ is a search within the meaning of the Fourth Amendment to

the United States Constitution, police officers may not compel the taking of a

blood sample without a search warrant, absent an applicable exception.”

Commonwealth v. Haines, 168 A.3d 231, 234 (Pa. Super. 2017) (quoting

Birchfield, ___ U.S. at ____, ____, 136 S. Ct. at 2173, 2185 (footnote

omitted)). “One such exception is consent, voluntarily given.”

Commonwealth v. Strickler, 757 A.2d 884, 888 (Pa. 2000) (citation

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omitted); see also Myers, 164 A.3d at 1178 (explaining that Birchfield’s

holding “supports the conclusion that . . . an individual must give actual,

voluntary consent at the time that testing is requested.”).

In determining whether Appellant provided voluntary consent to the

warrantless blood test, we note:

[i]n determining the validity of a given consent, the
Commonwealth bears the burden of establishing that a consent is
the product of an essentially free and unconstrained choice—not
the result of duress or coercion, express or implied, or a will
overborne—under the totality of the circumstances. The standard
for measuring the scope of a person’s consent is based on an
objective evaluation of what a reasonable person would have
understood by the exchange between the officer and the person
who gave the consent. Such evaluation includes an objective
examination of the maturity, sophistication and mental or
emotional state of the defendant. Gauging the scope of a
defendant’s consent is an inherent and necessary part of the
process of determining, on the totality of the circumstances
presented, whether the consent is objectively valid, or instead the
product of coercion, deceit, or misrepresentation.

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.

Commonwealth v. Venable, 200 A.3d 490, 497-98 (Pa. Super. 2018)

(citations omitted).

The following Motor Vehicle Code provisions address circumstances in

which an individual arrested for DUI refuses to submit to chemical testing:

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§ 1547. Chemical testing to determine amount of alcohol or
controlled substance

(a) General rule.—Any person who drives, operates or is in
actual physical control of the movement of a vehicle in this
Commonwealth shall be deemed to have given consent to one or
more chemical tests of breath or blood for the purpose of
determining the alcoholic content of blood or the presence of a
controlled substance if a police officer has reasonable grounds to
believe the person to have been driving, operating or in actual
physical control of the movement of a vehicle in violation of . . .
3802 (relating to driving under influence of alcohol or controlled
substance). . . .

(b) Civil penalties for refusal.—

(1) If any person placed under arrest for a violation of section
3802 is requested to submit to chemical testing and refuses to
do so, the testing shall not be conducted but upon notice by
the police officer, the department shall suspend the operating
privilege of the person. . . .

(2) It shall be the duty of the police officer to inform the
person that:

(i) the person’s operating privilege will be suspended
upon refusal to submit to chemical testing and the
person will be subject to a restoration fee of up to $2,000;
and

(ii) if the person refuses to submit to chemical breath
testing, upon conviction or plea for violating section
3802(a)(1), the person will be subject to the penalties
provided in section 3804(c) (relating to penalties).

75 Pa.C.S. § 1547 (emphases added).

In Myers, our Supreme Court examined a substantially identical Section

1547 and determined that

[b]y operation of the implied consent statute, once a police officer
establishes reasonable grounds to suspect that a motorist has
committed a DUI offense, that motorist shall be deemed to have
given consent to one or more chemical tests of breath or blood for
the purpose of determining the alcoholic content of blood or the

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presence of a controlled substance. Notwithstanding this
provision, Subsection 1547(b)(1) confers upon all individuals
under arrest for DUI an explicit statutory right to refuse chemical
testing, the invocation of which triggers specified consequences.

Under this statutory scheme, a motorist placed under arrest for
DUI has a critical decision to make. The arrestee may submit to
a chemical test and provide the police with evidence that may be
used in a subsequent criminal prosecution, or the arrestee may
invoke the statutory right to refuse testing, which: (i) results in a
mandatory driver’s license suspension under 75 Pa.C.S. §
1547(b)(1); (ii) renders the fact of refusal admissible as evidence
in a subsequent DUI prosecution pursuant to 75 Pa.C.S. §
1547(e); and (iii) authorizes heightened criminal penalties under
75 Pa.C.S. § 3804(c) if the arrestee later is convicted of DUI. In
very certain terms, this Court has held that, in requesting
a chemical test, the police officer must inform the arrestee
of the consequences of refusal and notify the arrestee that
there is no right to consult with an attorney before making
a decision. See [Commonwealth, Department of
Transportation, Bureau of Traffic Safety v. O’Connell, 555
A.2d 873, 877-78 (Pa. 1989)]. An arrestee is entitled to this
information so that his choice to take a chemical test can be
knowing and conscious. Id. at 878. The choice belongs to the
arrestee, not the police officer.

Myers, 164 A.3d at 1170-71 (some citations and footnote omitted, some

formatting altered, and emphasis added).

In Krenzel, this Court interpreted Section 1547 and Myers as requiring

the police to inform suspects arrested for DUI of their right to refuse chemical

testing in order for their consent to be valid. See Krenzel, 209 A.3d at 1031-

32. In Krenzel, the police stopped the defendant for erratic driving and

observed that the defendant exhibited physical signs of intoxication. Id. at

1026. The defendant failed field sobriety tests. Id. The officer then asked if

the defendant was willing to submit to a blood test, but the officer did not read

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any part of the DL-26 implied consent form to the defendant. Id. at 1026,

1031. The defendant consented to the blood test and was transported to

Chester County Hospital where her blood was drawn. Id. The defendant filed

a motion to suppress, which the trial court denied. Id. at 1027. Following

her conviction, the defendant appealed, arguing her consent was not voluntary

because, among other reasons, “the police never advised her of her right to

refuse the blood draw.” Id. (citation omitted). The Krenzel Court concluded

that because the officer “was statutorily obligated to inform [the defendant]

of her right to refuse chemical testing and the consequences arising

therefrom and failed to effectuate those precautions, [the defendant] did not

make a knowing and conscious choice of whether to submit to the blood draw.”

Id. at 1032 (emphasis added).

In Gaston, the police stopped the defendant’s vehicle, the defendant

failed field sobriety tests, and the defendant admitted to consuming both

alcohol and marijuana. Gaston, 239 A.3d at 138. The arresting officer

testified “that, after the traffic stop, he transported [the defendant] to the

police station where he asked [the defendant] to submit to a blood test, [the

defendant] verbally agreed to a blood test, and then [the officer] read to [the

defendant] the DL-26 Form verbatim.” Id. (citations omitted). “[T]he

suppression court [] found that [the defendant] consented to the blood test

at the police station before [the officer] read [the defendant] the information

on the Pennsylvania DL-26 Form.” Id. (citation, emphasis, and footnote

omitted); see also id. at 142 (noting “the suppression court in the instant

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case concluded the officer read the DL-26 Form to [the defendant] after he

had already consented to the blood draw.”).

On appeal, the Gaston defendant argued that the trial court erred in

denying his motion to suppress, because, among other reasons, under

Birchfield, “his consent was coerced by the police officer’s reading of the DL-

26 Form.”8 Id. at 139. The Gaston Court affirmed the denial of Appellant’s

the motion to suppress for the same reasons. Id. at 140-42. Notably, the

Gaston Court indicated that its analysis was limited to the defendant’s

challenge that his consent was coerced on the basis of Birchfield because the

defendant limited his “motion to suppression of his blood test results on the

basis of Birchfield’s holding.” Id. at 142 n.9. Appellant did not raise, and

the Gaston Court did not address, whether the defendant’s consent to the

blood test upon request was voluntary under the totality of the circumstances.

Id. (citing Commonwealth v. Little, 903 A.2d 1269, 1272-73 (Pa. Super.

2006)). The Gaston Court also did not cite Gorbea-Lespier or Krenzel.

Lastly, in Gorbea-Lespier, this Court considered the issue of whether

a motorist’s consent to a first blood draw after being given implied consent

warnings extends to a second blood draw. Gorbea-Lespier, 66 A.3d at 384-

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8 The defendant filed a motion to suppress claiming that Birchfield, which the
United States Supreme Court issued approximately one-and-a-half years after
the defendant’s arrest, “required suppression of the blood evidence[]”
because “[t]he police obtained consent to the blood test after reading him the
Pennsylvania DL-26 Form advising of enhanced criminal penalties for refusal
and without a warrant.” Gaston, 239 A.3d at 137 (citation and footnote
omitted).

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85. In that case, the defendant was involved in a two-vehicle accident. Id.

at 384. The defendant was arrested for suspicion of DUI and transported to

a nearby hospital. Id. On the way to the hospital, a state trooper advised

the defendant of the implied consent warnings, and the defendant consented

to a blood test. Id. About thirty minutes after the defendant’s blood was

drawn, a supervisor requested that the troopers obtain a second blood draw.

Id. at 385. The trooper did not read the implied consent warnings to the

defendant a second time before the second blood draw. Id.

The Gorbea-Lespier Court found that under the plain language of 75

Pa.C.S. § 1547(a), “a driver is deemed to give consent to one or more

chemical tests of blood for the purpose of determining the alcoholic content of

blood if the police officer has reasonable grounds to believe that person is

under the influence of alcohol when operating his vehicle.” Id. at 389

(emphasis in original). Therefore, this Court concluded that the defendant’s

consent to the first blood draw extended to the second blood draw, and there

was no need for the police to inform the defendant of implied consent warnings

a second time. Id. The Gorbea-Lespier Court further noted that under

O’Connell, the police only have to inform a motorist of the consequences of

refusing a breathalyzer test upon the motorist’s refusal. Id. at 389-90.

Here, the trial court held that:

Because [Appellant] gave verbal consent immediately upon the
request of the officer, there was no need to read the DL-26B Form.
[Gorbea-Lespier, 66 A.3d at 389-90]. Additionally, because
[Appellant] consented to the blood test, Officer Barnett’s
statements were not misleading and did not affect [Appellant’s]

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decision. Peppelman v. Commonwealth, 403 A.2d 1041, 1042
(Pa. Cmwlth. Ct. 1979).

Officer Barnett and Officer Pasley did not have a general duty to
inform [Appellant] of his right to refuse chemical testing of his
blood. Police officers only have a duty to warn individuals of the
consequences of their right to refuse, if they refuse the test. In
[O’Connell], the Supreme Court of Pennsylvania held that police
officers have a duty to inform citizens of the potential
consequences of refusal. Following the decision by the Supreme
Court of the United States in [Birchfield] the standards formed
under O’Connell were modified slightly as to prevent defendants
from facing both civil and criminal penalties as a result of refusing
to consent to a chemical test of their blood. Later, in [Gorbea-
Lespier], the Superior Court of Pennsylvania held that a
defendant must only be informed of their right to refuse chemical
testing and consequences of doing so after they have already
attempted to refuse. Gorbea-Lespier, 66 A.3d at 389-90.

* * *

Here, Officer Barnett and Officer Pasley did not have a duty to
inform [Appellant] of his right to refuse and the consequences of
doing so because [Appellant] never refused testing. After being
placed into custody, Officer Barnett requested that [Appellant]
submit to a blood test. In response, [Appellant] verbally agreed
to give blood. He did not become argumentative, confused, or
even ask for his attorney; instead he continued to show the same
level of compliance displayed throughout the entire encounter.
While being transported to the hospital by Officer Pasley,
[Appellant] made no statements that indicated he would
withdrawal the consent given to Officer Barnett. At the hospital,
[Appellant] remained compliant with the requests of Officer
Pasley, and allowed the nurse to withdrawal blood without issue.
[Appellant’s] own testimony at the hearing for his Motion to
Suppress offers no evidence suggesting that he otherwise tried to
refuse. At no time, before, during, or after the drawing of
[Appellant’s] blood, did [Appellant] attempt to retract his consent
and refuse a blood test. Because [Appellant] never refused or
attempted to refuse a blood test, Officer Barnett and Officer Pasley
never had a duty to inform him of his right to refuse and the
consequences of doing so.

[Appellant] also argues that Officer Barnett’s extemporaneous
statements violated his right to informed consent, by leading

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defendant to inaccurately believe that his license “could be”
suspended, as opposed to the more precise and accurate term
“would be.” [Appellant] cites to case law showing that
Pennsylvania courts have not only imposed a high standard of care
on the warnings to be given to defendants in this situation, but
even that the “could be” and “would be” difference argued here is
in violation of this standard. Still, Officer Barnett’s statements do
not represent a violation of [Appellant’s] right to informed
consent, even if improper, because under O’Connell and its
progeny, police only have a[] duty to inform a defendant of their
rights to refuse after they have begun to refuse or become
uncompliant.

Trial Ct. Op. at 4-7 (some citations and parentheticals omitted).

The trial court here also rejected Appellant’s argument that his consent

was not knowing, intelligent, and voluntary because Officer Barnett’s implied

consent warnings were defective, stating:

A review of the totality of the circumstances surrounding the
arrest is required in order to determine whether or not a
reasonable person would deduce that the [Appellant] granted
voluntary consent to a blood test.

* * *

[Appellant] was made aware of his right to refuse. Officer Barnett
informed [Appellant] of his right to refuse as he was making his
initial request to [Appellant] to submit to a blood test. [Appellant]
testifie[d] that he was never told he could refuse testing. This
court has already expressed that Officer Barnett’s testimony is
more credible. Additionally, [Appellant] argues in a separate
issue, discussed, supra, that his consent was reliant on the Officer
Barnett’s use of the language “could” instead of “will” when
informing him of his right to refuse. Therefore, it seems that
[Appellant] does in fact recall Officer Barnett informing him of his
right to refuse chemical testing.

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J-S23014-20

Id. at 9-10 (citations omitted). After analyzing the six voluntariness factors,

the trial court concluded that Appellant’s consent to the blood test was

voluntary under the totality of the circumstances. Id. at 10-12.

We initially acknowledge that the trial court concluded, and the

Commonwealth argues on appeal, that the police only had a duty to inform

Appellant of a right to refuse testing, but had no duty to inform Appellant of

the consequences of a refusal unless he actually refused testing. However,

our Supreme Court’s decision in Myers belies this position. As our Supreme

Court explained in Myers, when a police officer requests that an arrestee

submit to a chemical test, the “officer must inform the arrestee of the

consequences of refusal and notify the arrestee that there is no right to consult

with an attorney before making a decision.” See Myers, 164 A.3d at 1171

(citing O’Connell, 555 A.2d at 877-78) (footnote omitted). The Myers Court

held that “[a]n arrestee is entitled to this information so that his choice to

take a [chemical] test can be knowing and conscious.” Id.

Furthermore, applying Myers, the Krenzel Court held that a defendant

cannot make a knowing and conscious choice of whether to submit to a blood

draw when an officer does not inform the arrestee of his or her “right to refuse

chemical testing and the consequences arising therefrom . . . .” See Krenzel,

209 A.3d at 1032. Accordingly, the Myers and Krenzel Courts have held that

Section 1547 requires that police must inform an arrestee of the implied

consent warnings as a threshold to valid consent to a blood test regardless of

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whether an arrestee cooperated with the police up until that point and

consented without hearing the warnings. See id. at 1031-32.

We note the trial court’s and the Commonwealth’s reliance on Gorbea-

Lespier to assert that an arresting officer’s duty to provide implied consent

warnings is limited to instances when the arrestee actually refuses chemical

testing. However, Gorbea-Lespier is distinguishable. As noted above, the

issue in Gorbea-Lespier was whether the defendant’s consent to a first blood

test extended to a second blood test such that separate implied consent

warnings before the second test was required. See Gorbea-Lespier, 66 A.3d

at 385, 388. There was no dispute in that case that the defendant consented

to the first blood test.9 See id. at 387. Moreover, Gorbea-Lespier was

decided before more recent interpretations of Section 1547(b)(2) by the

Pennsylvania Supreme Court’s decision in Myers, this Court’s decision in

Krenzel, as well as the United States Supreme Court decision in Birchfield.

Moreover, to the extent that the Commonwealth argues that Gaston

supports its position that there is no need for an arresting officer to provide

____________________________________________

9 The Gorbea-Lespier Court additionally interpreted O’Connell as requiring
that police only give a motorist implied consent warnings upon a refusal to
submit to chemical testing. See Gorbea-Lespier, 66 A.3d at 389-90. As the
Gorbea-Lespier Court had already determined the defendant’s consent to
the second blood test was voluntary under the plain language of Section 1547,
the portion of the opinion holding that implied consent warnings only have to
be given upon a refusal is dicta, because it was unnecessary to the resolution
of the case. See Commonwealth v. Borrin, 80 A.3d 1219, 1224 n.10 (Pa.
2013) (explaining that any statement that is unnecessary to the court’s
resolution of a case is dicta); see also In re L.J., 79 A.3d 1073, 1081 (Pa.
2013) (same).

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J-S23014-20

implied consent warnings until a defendant refuses, the specific facts and

arguments raised in Gaston are inapposite. See Commonwealth v. Resto,

179 A.3d 18, 22 (Pa. 2018) (plurality) (stating “the holding of a judicial

decision is to be read against its facts.” (citations omitted)). In Gaston, the

defendant consented to the blood draw before the police officer read the

implied consent warnings that informed the defendant of the enhanced

criminal penalties if he refused. See Gaston, 239 A.3d at 138-39.

Furthermore, Gaston involved a narrow determination of whether the

defendant’s consent to the blood test was coerced based upon the threat of

additional criminal penalties if the defendant refused the blood test in violation

of Birchfield. See id. at 140-42. Significantly, the Gaston Court noted that

its analysis was limited to the defendant’s challenge that his consent was

coerced on the basis of Birchfield and that the voluntariness of defendant’s

consent, under the totality of the circumstances, was not at issue in that case.

See id. at 142 n.9.

Here, by contrast, Appellant consented to the blood test after Officer

Barnett verbally informed Appellant of his right to refuse and gave inaccurate

implied consent warnings. See N.T. Suppress Hr’g at 19-20. Therefore,

Gaston is not applicable. The issue in Gaston, namely, whether Appellant’s

consent was tainted or coerced by the Birchfield-offending DL-26 Form

threatening enhanced criminal penalties in the event of refusal is not before

us. Furthermore, unlike the defendant in Gaston, Appellant has preserved

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and raised a challenge to the validity of his consent given after Officer Barnett

provided inaccurate implied consent warnings.

Accordingly, we reject the Commonwealth’s argument that the implied

consent warnings only have to be given in the event of a refusal to consent to

a breath or blood test. A motorist has a statutory right to refuse a blood test

and the statute mandates that the police officer requesting the test must

inform the motorist of his or her rights under the statute, regardless of

whether the motorist is cooperative with or antagonistic towards the police.

See Myers, 164 A.3d at 1170-71; see also Krenzel, 209 A.3d at 1031-32.10

Therefore, as stated in Myers and Krenzel, warnings must be given when

the police request that an arrestee submit to chemical testing of blood. See

Myers, 164 A.3d at 1171; see also 75 Pa.C.S. § 1547(b)(2); Krenzel, 209

A.3d at 1031-32. Therefore, we are constrained to conclude that the trial

____________________________________________

10 We note that nothing in Section 1547 or our case law requires the police to
read the DL-26B Form verbatim to an arrestee when asking for that arrestee
to submit to a chemical test of blood. This Court has held that other versions
of the implied consent warnings are valid so long as they do not offend
Birchfield. See Commonwealth v. Geary, 209 A.3d 439, 443 (Pa. Super.
2019) (finding the Philadelphia Police Department’s blood testing consent form
was facially valid). The present decision should be not be read as mandating
that a specific form of the implied consent warnings be used. Rather our
holding is that the police must follow the mandates of Section 1547 and our
Supreme Court’s decision in Myers, i.e., the police must accurately inform an
arrestee of the rights and consequences of refusal set forth in 75 Pa.C.S. §
1547(b)(2) when asking the arrestee to submit to a chemical test of breath or
blood. See Myers, 164 A.3d at 1171 (stating, “the police officer must inform
the arrestee of the consequences of refusal and notify the arrestee that there
is no right to consult with an attorney before making a decision. The choice
belongs to the arrestee, not the police officer.” (citations and footnote
omitted)).

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court erred by holding that Officers Barnett and Pasley did not have a duty to

inform Appellant the consequences of a refusal because Appellant did not

actually refuse. See Trial Ct. Op. at 6.

We turn to whether Officers Barnett and Pasley complied with their duty

to inform Appellant of his right under Section 1547 to refuse chemical testing

and the consequences of refusal. While in Krenzel, the officer failed to inform

the arrestee of her right to refuse the consequences of refusal, here, Officer

Barnett provided Appellant with the officer’s own version of the implied

consent warnings. Compare Krenzel, 209 A.3d at 1031-32, with Trial Ct.

Op. at 3. Therefore, we review the content of Officer Barnett’s warnings to

determine if they comply with Section 1547. Specifically, Officer Barnett

informed Appellant that he did not have to submit to the blood test, and told

Appellant that his refusal “could” lead to the suspension of his license for

“approximately 12 months.” N.T. Supp. Hr’g, 9/20/2018, at 17, 19

(emphases added). Officer Barnett did not inform Appellant that he did not

have a right to consult with an attorney before making a decision. Officer

Pasley, who transported Appellant to the hospital for the blood test, did not

give Appellant the implied consent warnings. Id. at 50, 68. Therefore,

Appellant was not informed of the actual consequences of refusal nor was he

informed that he did not have a right to speak to an attorney regarding the

blood test before making a decision. See 75 Pa.C.S. § 1547; Myers, 164

A.3d at 1171; Krenzel, 209 A.3d at 1030-31.

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Due to the above-described incompleteness of the police warnings, we

conclude that Officer Barnett did not comply with his statutorily mandated

duty to inform Appellant of his right to refuse the blood test and the

consequences of refusal. Officer Pasley also did not inform Appellant about

his right to refuse and the consequences of refusal prior to the blood draw.

Therefore, because Appellant was misinformed about his rights, we hold that

he did not make a knowing and conscious choice of whether to submit to the

blood draw.

For the foregoing reasons, we are constrained to conclude that the trial

court erred in denying suppression. See Bryant, 67 A.3d at 724 (stating we

may reverse only if the trial court’s legal conclusions drawn from its factual

findings are erroneous).

Judgment of sentence vacated. Order denying suppression motion

reversed. Case remanded for a new trial. Jurisdiction relinquished.

President Judge Emeritus Ford Elliott joins the memorandum.

Judge McCaffery joins and files a concurring statement.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/30/20

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