Com. v. Kepner, T. ( 2018 )


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  • J-A04003-18
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT
    OF
    PENNSYLVANIA
    Appellee
    v.
    THOMAS S. KEPNER
    Appellant                 No. 949 MDA 2017
    Appeal from the Judgment of Sentence imposed May 16, 2017
    In the Court of Common Pleas of Cumberland County
    Criminal Division at No: CP-21-CR-0000573-2016
    BEFORE: STABILE, NICHOLS, AND RANSOM,* JJ.
    MEMORANDUM BY STABILE, J.:                             FILED APRIL 23, 2018
    Appellant, Thomas S. Kepner, appeals from the judgment of sentence
    imposed on May 16, 2017 in the Court of Common Pleas of Cumberland
    County. Relying on Birchfield v. North Dakota, 
    136 S.Ct. 2160
     (2016),1
    Appellant argues that the trial court erred in not suppressing the results of his
    warrantless blood test. We disagree. Accordingly, we affirm.
    The underlying facts are not in dispute. As developed at the suppression
    hearing, on October 25, 2015, Officer Robert Powers of the Upper Allen
    Township Department responded to Appellant’s residence following a
    ____________________________________________
    *   Retired Senior Judge assigned to the Superior Court.
    1Birchfield held that the Fourth Amendment to the United States Constitution
    does not permit warrantless blood tests incident to arrests for drunk driving
    and that a state may not criminalize a motorist’s refusal to comply with a
    demand to submit to blood testing. Birchfield, 136 S. Ct. at 2185-86.
    J-A04003-18
    complaint of a reckless driver. The report contained a detailed description of
    the vehicle and a registration number that matched Appellant’s vehicle.
    Appellant admitted to operating his vehicle earlier that night.          In his
    interaction with Appellant, the officer detected a strong odor of an alcoholic
    beverage coming from his breath. Appellant agreed to submit to standard
    field sobriety tests, which he failed. Accordingly, the officer placed Appellant
    under arrest for suspicion of driving under the influence of alcohol.
    Next, the officer placed Appellant in the back seat of his patrol vehicle
    and asked him if he would submit to a legal blood draw to determine his blood
    alcohol content. Appellant agreed. Officer Powers did not provide the implied
    consent warnings (DL-26 Form) or otherwise discuss with him any enhanced
    penalties he might be exposed to for refusing to a blood draw. Officer Powers
    indicated that he did not address the form with Appellant because Appellant
    agreed to the blood draw.
    Appellant also testified at the suppression hearing.       He essentially
    testified that he consented to the blood draw because he knew that if he
    refused it, he would have received harsher penalties.
    The suppression court denied Appellant’s motion, noting that Appellant
    “consented voluntarily to the blood draw, without a real or perceived threat of
    increased sanctions for refusal[.]” Suppression Court Order, 2/3/17.
    On April 13, 2017, following a bench trial, Appellant was found guilty of
    two counts of driving under the influence (general impairment, and high rate
    of alcohol). On May 16, 2017, the trial court sentenced Appellant to term of
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    incarceration of not less than 48 hours nor more than six months, with
    automatic release upon service of his minimum sentence. This appeal
    followed.
    On appeal, Appellant, relying on Birchfiled, argues that Officer Powers
    was required to obtain a warrant to compel Appellant to submit to blood
    testing. Moreover, Appellant argues that his consent to the blood draw was
    not voluntary, but coerced based on his own knowledge of DUI law.
    We review a denial of a motion to suppress based on the following
    standard:
    Our 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. We are
    bound by the suppression court’s factual findings so long as they
    are supported by the record; our standard of review on questions
    of law is de novo. Where, as here, the defendant is appealing the
    ruling of the suppression court, we may consider only the evidence
    of the Commonwealth and so much of the evidence for the defense
    as remains uncontradicted. Our scope of review of suppression
    rulings includes only the suppression hearing record and excludes
    evidence elicited at trial.
    Commonwealth v. Singleton, 
    169 A.3d 79
    , 82 (Pa. Super. 2017) (citations
    omitted).
    “The Fourth Amendment to the [United States] Constitution and
    Article I, Section 8 of [the Pennsylvania] Constitution protect
    citizens   from    unreasonable     searches    and    seizures.”
    Commonwealth v. McAdoo, 
    46 A.3d 781
    , 784 (Pa. Super.
    2012). “A search conducted without a warrant is deemed to be
    unreasonable and therefore constitutionally impermissible, unless
    an established exception applies.” Commonwealth v. Strickler,
    
    563 Pa. 47
    , 
    757 A.2d 884
    , 888 (2000). “Exceptions to the warrant
    requirement include the consent exception, the plain view
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    J-A04003-18
    exception, the inventory search exception, the exigent
    circumstances exception, the automobile exception . . ., the stop
    and frisk exception, and the search incident to arrest exception.”
    Commonwealth v. Dunnavant, 
    63 A.3d 1252
    , 1257 n.3 (Pa.
    Super. 2013).
    The “administration of a blood test . . . performed by an agent of,
    or at the direction of the government” constitutes a search under
    both the United States and Pennsylvania Constitutions.
    Commonwealth v. Kohl, 
    532 Pa. 152
    , 
    615 A.2d 308
    , 315
    (1992); Schmerber v. California, 
    384 U.S. 757
    , 770, 
    86 S.Ct. 1826
    , 
    16 L.Ed.2d 908
     (1966). Since the blood test in the case at
    bar was performed without a warrant, the search is presumptively
    unreasonable “and therefore constitutionally impermissible,
    unless an established exception applies.” Strickler, 
    757 A.2d at 888
    .
    Commonwealth v. Evans, 
    153 A.3d 323
    , 327-28 (Pa. Super. 2016).
    “One such exception is consent, voluntarily given.” Strickler, 
    757 A.2d 888
     (citation omitted). Under the Fourth Amendment, where an encounter
    between law enforcement is lawful, voluntariness of consent to a search
    becomes the exclusive focus. 
    Id.
    As noted above, Appellant contends that his consent was not voluntary
    because it was made with the knowledge of increased penalties for refusal.
    The same coercion measure was fatal to Birchfield, according to Appellant.
    In support, Appellant directs our attention to the ancient maxim that everyone
    is presumed to know the law and ignorance of the law excuses no one.
    Appellant’s argument is meritless.
    First, at the time of Appellant’s arrest, the law was that the police must
    inform an arrestee of the consequences of refusal. Pa. Dep’t of Transport.
    v. O’Connell, 
    555 A.2d 873
    , 877 (Pa. 1989). Absent a proper warning, there
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    J-A04003-18
    could be no consequences for refusal. 
    Id.
     Thus, even if we were to accept
    Appellant’s “presumptive knowledge” argument, his claim would fail.
    Second, Appellant’s reliance on Birchfield is inapposite. “Birchfield
    makes plain that the police may not threaten enhanced punishment for
    refusing a blood test in order to obtain consent, [Birchfield,] 136 S.Ct. at
    2186; whether that enhanced punishment is (or can be) ultimately imposed
    is irrelevant to the question whether the consent was valid.” Commonwealth
    v. Ennels, 
    167 A.3d 716
    , 724 (Pa. Super. 2017) (emphasis in original). Thus,
    the mere existence of legislation that imposed criminal penalties for refusal,
    absent an actual threat, does not amount to coercion or invalidate the consent
    given.
    Ultimately, therefore, the instant appeal hinges on whether Appellant
    validly consented to the blood draw.       As explained below, we conclude
    Appellant validly consented to the blood draw.
    Our Supreme Court has applied the following standard to determine
    whether an individual has validly consented to a chemical test:
    In 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
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    circumstances presented, whether the consent is objectively valid,
    or instead the product of coercion, deceit, or misrepresentation.
    Commonwealth v. Smith, 
    77 A.3d 562
    , 573 (2013) (internal citations and
    quotation marks omitted).
    Of all the circumstances surrounding his consent to the blood test,
    Appellant’s challenge is limited to the effects of his professed knowledge of
    DUI laws. In his view, because he knew enhanced penalties would apply if he
    were to refuse a blood draw, he did not really have a choice other than
    agreeing to the test. His consent, in other words, was coerced. We disagree.
    First, the trial court did not find Appellant’s alleged knowledge of DUI
    laws or consequences resulting from refusal to be credible.2 N.T. Suppression
    Hearing, 2/2/17 at 10-11; Trial Court Opinion, 9/5/17, at 3-5.
    Second, a review of the exchange between the officer and Appellant
    shows no evidence, whether by words or conduct, suggesting coercion by the
    officer. Similarly, there is no indication of any other circumstance surrounding
    the interaction that would suggest Appellant’s free will was overborne. To the
    extent Appellant’s knowledge of the law about refusal might have played a
    ____________________________________________
    2 Appellant first testified that he knew about the enhanced penalties for refusal
    because his lawyer told him about them in 2002 or 2003. When confronted
    with the fact the enhanced penalties were introduced in 2004, he then shifted
    to another source of his knowledge of DUI laws: his experience as bartender.
    Later, however, he opted for another explanation:            “[I]t is common
    knowledge” that refusal to submit to a test is met with harsher penalties. See
    N.T. Suppression Hearing, 2/2/17, at 8.
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    role in consenting to the test, again, there is nothing in the record that would
    suggest that such knowledge overborne his will.
    Judgment of sentence affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 04/23/18
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Document Info

Docket Number: 949 MDA 2017

Filed Date: 4/23/2018

Precedential Status: Precedential

Modified Date: 4/23/2018