J-A24031-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
KAITLYN N. WOLFEL : No. 1357 WDA 2016
Appeal from the Order August 19, 2016
in the Court of Common Pleas of Cameron County
Criminal Division at No(s): CP-12-CR-0000040-2015
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED JANUARY 12, 2021
The Commonwealth of Pennsylvania appeals from the Order granting
the Motion to Suppress a blood alcohol content (“BAC”) test filed by Kaitlyn N.
Wolfel (“Wolfel”). This case returns to this Court upon remand from the
Pennsylvania Supreme Court. See Commonwealth v. Wolfel, 233 A.3d 784
(Pa. 2020). Upon further review, we affirm the Order of the trial court.
On December 21, 2014, Wolfel, while operating her vehicle, struck two
pedestrians in Cameron County, Pennsylvania. One of the pedestrians
sustained serious injuries, and the other was pronounced dead at the scene.
When police arrived, Pennsylvania State Police Trooper Josiah Reiner
(“Trooper Reiner”) asked Wolfel to perform a field sobriety test, which she
performed poorly. Wolfel thereafter submitted to a portable breath test.
Subsequently, Wolfel was placed under arrest on suspicion of driving under
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the influence (“DUI”). The police transported Wolfel to the Cameron County
Health Center for a BAC test. At the hospital, Trooper Reiner read Wolfel the
O’Connell1 and implied consent warnings, as contained on the Pennsylvania
State Police DL-26 form, after which Wolfel consented to a BAC test. Wolfel
subsequently was charged with the following offenses: homicide by vehicle
while DUI; aggravated assault by vehicle while DUI; DUI of alcohol or
controlled substance; DUI of alcohol or controlled substance with a BAC of
.178%; DUI of alcohol or controlled substance; and careless driving. 2 Prior to
trial, Wolfel filed a Motion to Suppress the results of the BAC test, based upon
the United States Supreme Court’s holding in Birchfield v. North Dakota,
136 S. Ct. 2160 (2016).3
On allowance of appeal, our Supreme Court summarized the pre-trial
suppression proceedings as follows:
____________________________________________
1 In Commonwealth v. O’Connell, 555 A.2d 873 (Pa. 1989), the
Pennsylvania Supreme Court held that when a motorist is required to submit
to chemical testing under the provisions of Pennsylvania’s Implied Consent
Law, 75 Pa.C.S.A. § 1547, the law enforcement officer making the request
has a duty to explain to the motorist that the rights provided by the United
States Supreme Court decision in Miranda v. Arizona, 384 U.S. 436 (1966),
are inapplicable to a request for chemical testing under the Implied Consent
Law.
2 See 75 Pa.C.S.A. §§ 3735(a); 3735.1(a); 3802(a)(1), (c), (d)(3); 3714(a).
3 Wolfel had previously filed a Motion to suppress the BAC test on the basis
that the sample was drawn after the expiration of the two-hour testing window
provided by 75 Pa.C.S.A. § 3802(a)(2). However, that suppression Motion
was denied, and is not at issue in this appeal.
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In 2016, while the present case remained at the pretrial stage,
the Supreme Court of the United States issued its decision
in Birchfield …. Birchfield held, among other things, that
consent to a warrantless blood draw is vitiated when such assent
follows the administration by police of a warning of enhanced
criminal penalties upon refusal of the testing. See id. at []
2186 (“[M]otorists cannot be deemed to have consented to submit
to a blood test on pain of committing a criminal
offense[.]”). [Wolfel] then lodged a [M]otion contending, in very
general terms, that Birchfield required suppression of the blood
evidence. See Motion to Suppress Commonwealth v. Wolfel[,]
dated July 25, 2016, No. CP-12-CR-40-2015 (C.P. Cameron), at 1
([stating that] “the United States Supreme Court, in Birchfield v.
North Dakota, held that the Fourth Amendment does not permit
warrantless blood tests.”).
At a hearing before the suppression court, [Wolfel’s]
position was refined to encompass Birchfield’s recognition of the
heightened coerciveness when an arrestee is warned of enhanced
criminal penalties inuring upon a refusal of chemical
testing. See N.T., Aug. 12, 2016, at 20. The Commonwealth, on
the other hand, asserted that Birchfield shouldn’t be
retroactively applied to [Wolfel’s] circumstances, particularly
given that police acted in good faith by merely advising her of the
enhanced-penalty provisions embedded in the governing
statutory regime. See id. at 4-5, 21-23.
The suppression court nonetheless awarded the
exclusionary remedy, and the Commonwealth lodged an
interlocutory appeal as of right. See Pa.R.A.P. 311(d). In an
ensuing [O]pinion, the suppression court found the contested
legal issue to be one of first impression. The [suppression] court
noted, however, that retroactive application had been assumed in
the Superior Court’s decision in Commonwealth v. Evans, 153
A.3d 323 (Pa. Super. 2016) (awarding a new trial based on
a Birchfield violation)….
Wolfel, 233 A.3d at 787. Thereafter, the Commonwealth filed a timely Notice
of Appeal.
Before this Court, the Commonwealth had raised the following claim for
our review: “Did the [trial] court err in suppressing the results of the testing
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of [Wolfel’s] blood[,] after a fatal, suspected DUI motor vehicle accident[,] on
the basis of the United States Supreme Court’s decision in Birchfield v. North
Dakota?” Brief for the Commonwealth at 4 (some capitalization omitted).
The Commonwealth argued that, because Birchfield was not decided
until June 23, 2016, the warnings in the DL-26 form were valid at the time
Trooper Reiner provided them to Wolfel, on December 21, 2014. Brief for the
Commonwealth at 10. The Commonwealth argued that, because the United
States Supreme Court recognized a “good faith exception” to the general rule
of exclusion of the fruits of illegal police conduct, established in criminal cases
as a remedy for searches and seizures deemed illegal under the Fourth
Amendment to the United States Constitution, this Court should recognize an
exception to the exclusionary rule in this case. See Brief for the
Commonwealth at 10-11 (citing to exceptions recognized in U.S. v. Leon, 468
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U.S. 897 (1984),4 and Illinois v. Krull, 480 U.S. 340 (1987)).5
The Commonwealth conceded that, in Commonwealth v. Edmunds,
586 A.2d 887, 905-06 (Pa. 1991), our Supreme Court held that Article I,
Section 8 of the Pennsylvania Constitution does not incorporate a “good faith
exception” to the exclusionary rule. Brief for the Commonwealth at 12. While
the Commonwealth did not claim that Edmunds was improperly decided, it
posited that Edmunds should not apply to the instant case. Id. at 13.
According to the Commonwealth, “Birchfield was decided solely on the basis
of federal Fourth Amendment jurisprudence[,] and Article I, Section 8 of the
Pennsylvania Constitution played no part in that decision.” Brief for the
Commonwealth at 14.
____________________________________________
4 In Leon, the Supreme Court held that, where a police officer conducts a
search in objective good faith reliance upon a search warrant duly issued by
a magistrate or judge, the Fourth Amendment does not require exclusion of
evidence found pursuant to the warrant, even if it is later determined that
there was no probable cause for the warrant to issue. Leon, 468 U.S. at 926.
The Supreme Court considered that the deterrence goal of the federal
exclusionary rule based on the Fourth Amendment would not be served by
applying it in circumstances where officers have properly relied on a
subsequently invalidated search warrant. Id.
5 In Krull, police conducted a warrantless administrative search pursuant to
a state statute, which was later determined to be unconstitutional.
Nonetheless, the Supreme Court of the United States held that the good-faith
exception to the exclusionary rule applied because the officer acted in an
objectively reasonable manner in relying upon the subsequently invalidated
statute. Krull, 480 U.S. at 349-51.
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The Commonwealth argued that, because Wolfel had couched her
suppression Motion solely as a Birchfield issue, this case should have been
determined upon Fourth Amendment jurisprudence, without consideration of
the Pennsylvania Constitution. Id. at 14. The Commonwealth asserted that
application of Fourth Amendment jurisprudence, without consideration of
Article I, Section 8 of the Pennsylvania Constitution, “would allow for the
possibility of a good faith exception to the exclusionary rule as described in
Krull and Leon, supra.” Brief for the Commonwealth at 15.
This Court ultimately reversed the Order of the suppression court. See
Commonwealth v. Wolfel, 181 A.3d 1285 (Pa. Super. 2017) (unpublished
memorandum). As our Supreme Court summarized, on subsequent allowance
of appeal,
[i]nitially, the [Superior Court] repeatedly highlighted that, at the
time at which [Wolfel] lent her consent to the testing, the
warnings about increased criminal penalties were “legally correct.”
But again, the intermediate court decided the case based on issue-
preservation considerations rather than on the merits.
In this respect, the Superior Court explained that [Wolfel] had
never sought suppression under Article I, Section 8 of the
Pennsylvania Constitution, and therefore, the only relevant
protections were those available under the Fourth Amendment to
the United States Constitution. In such circumstances, the
Superior Court found, the good-faith exception to the federal
exclusionary rule clearly applied.
Appeal was allowed to consider the issue, as framed by [Wolfel],
of: “Whether the Superior Court of Pennsylvania disregarded the
controlling authority of Birchfield …, by reversing the trial court’s
decision suppressing the results of the testing of [Wolfel’s]
blood.” Commonwealth v. Wolfel, … 206 A.3d 491 ([Pa.] 2019)
(per curiam).
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Wolfel, 233 A.3d at 788.
Ultimately, the Pennsylvania Supreme Court reversed this Court,
concluding the following, in relevant part:
[T]he Commonwealth waived its challenge to [Wolfel’s]
failure to raise a claim under Article I, Section 8, by failing to
challenge the suppression court’s explicit invocation of that
provision before the Superior Court. Notably—upon the
Commonwealth’s entreaty–[the Supreme] Court recently enforced
waiver against a criminal defendant for failing to properly raise
and preserve a Birchfield-related issue. See Commonwealth
v. Hays, … 218 A.3d 1260, 1266-67 (Pa. 2019). Here, we afford
evenhanded treatment to the Commonwealth.
Since the Superior Court’s sua sponte finding of waiver on
[Wolfel’s] part is unsustainable, we will remand for that [C]ourt to
effectuate the alternative resolution to which the intermediate
court itself referred. See [Commonwealth v.] Wolfel, No. 1357
WDA 2016, 2017 Pa. Super. Unpub. LEXIS 4800, at *9, 2017 WL
6629411, at *4 n.8 (explaining that, absent the asserted waiver
on [Wolfel’s] part, “we would have affirmed the suppression
court’s Order”).
Wolfel, 233 A.3d at 790.
Thus, pursuant to our Supreme Court’s decision, the Commonwealth’s
claim that Wolfel had waived her challenge to the blood draw based upon
Article I, Section 8 of the Pennsylvania Constitution is, itself, waived. See id.
As this Court has explained,
[w]hen reviewing the grant of a suppression motion, we must
determine whether the record supports the trial court’s factual
findings and whether the legal conclusions drawn from those facts
are correct. We may only consider evidence presented at the
suppression hearing. In addition, because the defendant
prevailed on this issue before the suppression court, we consider
only the defendant’s evidence and so much of the
Commonwealth’s evidence as remains uncontradicted when read
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in the context of the record as a whole. We may reverse only if
the legal conclusions drawn from the facts are in error.
Commonwealth v. Haines, 168 A.3d 231, 234 (Pa. Super. 2017) (internal
citations and quotation marked omitted). Where the suppression court’s
factual findings are supported by the record, we are bound by those findings,
and may reverse only if the suppression court’s legal conclusions are
erroneous. See Commonwealth v. Palmer, 145 A.3d 170, 173 (Pa. Super.
2016).
Upon review, in accordance with our Supreme Court’s directive, we
agree with the sound reasoning of the suppression court, as set forth in its
Opinion, and affirm on this basis with regard to the Commonwealth’s claim.
See Suppression Court Opinion, 2/21/17, at 1-3 (unnumbered).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/12/2021
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Circulated 12/14/2020 08:05 PM
IN THE COURT OF COMMON PLEAS OF Ti IE FIFTY-NINTH
JUDICIAL DISTRICT OF PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA, COUNTY BRANCH - CAMERON
vs. CIVIL
KAITLYN N. WOLFEL CP-12-CR-40-20I5
TRIAL. COURT OPINION PURSUANT TO Pa. R.A.P. 1925(a)
The Commonwealth, by the Office of Attorney General, filed a Notice of Appeal in the
above matter on September 12, 2016. The appeal is from this Court's Order of August 19, 2016.
Following a suppression hearing on The Defendant's Motion To Suppress Blood Test, pursuant
to Birchfield v, North Dakota, 136 S. Ct. 2150 (2016), this Court granted said motion and
suppressed all evidence flowing from said blood test.
The Defendant had been charged with Homicide by Vehicle While Driving Under the
Influence, 75 Pa.C.S.A. § 3735 (a); Aggravated Assault by Vehicle while D 'ving Under the
Influence, 75 Pa.C.S.A. §
it ...'
3733.1 (a); Driving Under the Influence of Alcohol r ConttelleZ
k., -
Substance, 75 Pa.C.S.A. *38040(1); Driving Under the Influence of Alcoho or CoNroW
IN)
Substance with a I3AC of .178%, 75 Pa.C.S.A. § 3802 (C); Driving Under the nfluenAt orAlcolio)
or Controlled Substance, 75 Pa.C.S.A. § 3802(dX3) and Careless Driving, 75 a.C.S.tig§3t(aj..-,;
The charges resulted from an accident that occurred in Cameron County, P nnsylyinniason Mira
c:,
16, 2015. After the Defendant failed a field sobriety test, failed a portable breath test and we's
given the "O'Connell warnings," the Defendant consented to a blood draw. The O'Connell
warnings threatened a criminal penalty if the Defendant would refuse the blood draw and would
plead guilty or be found guilty of driving under the influence.
The Attorney General's Office filed a Concise Statement of Errors Complained of on
Appeal on October 16, 2015, in which, it is alleged this Court erred in "concluding that
suppression/exclusion of the Defendant's blood alcohol content and the evidence flowing from
that test was required by Birchfield v. North Dakota, When the police acted in good faith reliance
on the legal authority that was in effect at the time of the collection of the blood sample,
Birchfield should not be applied retroactively to exclude evidence obtained prior to its decision."
The retroactive application of Birchfield is one of lirst impression. There art no appellate
decisions where the specific issue of retroactivity is addressed. However, retroactivity is assumed
in Commonwealth v. Evans, 2016 Pa. Super, 293 (2016),
In Evans, the defendant consented to a blood draw after he was given the standard
O'Connell warnings used by police departments in Pennsylvania. The standard O'Connell
warnings used in Evans were the same given to Defendant in the instant case. Defendant Evans
was warned that "because of your refusal you will be subject to more severe penalties...as if you
were - if you would be convicted at the highest rate of alcohol, which can include a minimum of
72 consecutive hours in jail and a minimum fine of $1.000.00 to a maximum of (live) years in
jail and a maximum fine of $10,000.00." Evans, 2016 Pa. Super 293. The court in Evans cited
Hirchfleld and held that the trial court had erred in denying the suppression motion, because
Evans only consented to the blood draw after being warned of criminal penalties. "Since
a!
Blrchfield held that a state may not 'impose criminal penalties on the refuse to subUit trria
cTi prn
warrantless blood) test,' the police officer's advisory to Appellant was parti ly inaguraut
IN)
Therefore, we must vacate Appellant's judgment of sentence", vacate the suppression order, and-,
remand to reevaluate Evans's consent "based on the totality of all the circureistancet Rains -1 07,
2016 Pa. Super. 293. J-
174
In Evans, the court did not discuss retroactivity, as it was not considered to be an issue.
The circumstances under which the blood was drawn in Evans are on point with the facts of the
instant case. The O'Connell warnings, including the criminal penalties, were read to both
defendants by police officers and both defendants then consented to the blood draws. These
events occurred prior to the Eirchfield decision; therefore, the police officers were acting in good
faith in accordance with the case law and statutory law in effect at the time. After blood was
drawn and the laboratory reports completed, the BIrchileld decision came down. In Evans, the
defendant had been tried, found guilty and sentenced, after which he filed an appeal alleging the
trial court's error in denying his motion to suppress the results of the blood test prior to the bench
trial. The Superior Court in Evans vacated the sentence and remanded the case back to the trial
court in order to evaluate the consent given by the defendant under the totality of the
circumstances. This was the same action taken by the U. S. Supreme Court in Birchfield.
In the instant case, the suppression hearing was held after Birchfield had been decided
and had become the law of the land. Therefore, this Trial Court based its decision on the holding
of Birchfield and knew to consider all the circumstances of the arrest, warnings, and blood draw.
This Court had before it all the evidence which could come under the term, "totality of the
circumstances." Therefore, this Court was prepared to render its decision on the suppression with
no need for further evidence.
It is also significant that the decision was based on the fundamental constitutional right of
an individual to be free from unreasonable searches and seizures under the Fourth Amendment to
the United States Constitution and Pa. Const. Art. I, § 8. It would be unconscionable for this
court to hold that defendants who were deprived of such a fundamental right prior to June 23,
2016, and had not yet been tried, were not protected by the Fourth Amendment and that only
those whose warrantless search took place after said date would be protected by its safety net.
For the above reasons, the Honorable Justices of the Superior court are requested to
affirm the decision of this court now being appealed.
BY THE COURT;
William F. Morgan, Senior Judge Spccia Presiding