Com. v. Venable, D. , 200 A.3d 490 ( 2018 )

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2018 PA Super 329COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DAVID HAYS VENABLE, SR., :
:
Appellant : No. 3581 EDA 2017
Appeal from the Judgment of Sentence October 6, 2017
in the Court of Common Pleas of Northampton County
Criminal Division at No(s): CP-48-CR-0001327-2017
BEFORE: STABILE, J., STEVENS, P.J.E.* and STRASSBURGER, J.**
OPINION BY STRASSBURGER, J.: FILED DECEMBER 04, 2018
David Hays Venable, Sr. (Appellant) appeals from the October 6, 2017
judgment of sentence of 30 days to six months of incarceration following his
convictions for driving under the influence (DUI) and careless driving.
Specifically, Appellant challenges the denial of his pre-trial suppression
motion, which alleged that his warrantless blood draw was obtained in
violation of Birchfield v. North Dakota, __ U.S. __, 136 S.Ct. 2160(2016),1 and the traffic stop was unlawful. We affirm.
On November 16, 2016, at approximately 1:30 a.m., Sergeant Jeffrey
Johnston of the Hellertown police department was stopped at a red light on
Main Street behind Appellant. When the light turned green, Appellant made
1 Birchfield held that “motorists cannot be deemed to have consented to
submit to a blood test on pain of committing a criminal offense.” Id. at
2186.
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* Former Justice specially assigned to the Superior Court.
** Retired Senior Judge assigned to the Superior Court.
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a quick right turn onto High Street, “spinning his tires, causing the rear end
of the truck to kick out or fishtail[ into the other lane, and] … then
accelerated very quickly west on High Street.” N.T., 8/15/2017, at 7, 17.
At that point, Sergeant Johnston activated his lights and sirens to conduct a
traffic stop. Appellant did not stop. He continued to drive carelessly,
including failing to utilize a turn signal. He eventually stopped on Diamond
Street and attempted to reverse into a parking space, forcing Sergeant
Johnston to reverse his police vehicle to avoid being struck. Id. at 7-8.
Appellant exited the driver’s seat and attempted to leave, but
Sergeant Johnston instructed Appellant to remain in his vehicle. Sergeant
Johnston approached Appellant in the driver’s seat, and informed him that
he was stopped because of “the reckless driving of spinning his tires and
fishtailing at the intersections of High and Main Street[.]” Id. at 9.
Appellant’s speech was slurred, he was unable to grab his requested
paperwork with his fingers, and Sergeant Johnston detected the odor of
alcohol from inside the vehicle. Id. at 10.
Based on this interaction, Sergeant Johnston had Appellant perform
multiple field sobriety tests, including the walk-and-turn test and one-leg
stand test, which Appellant failed. Based upon his entire interaction with
Appellant to that point, Sergeant Johnston believed Appellant was under the
influence of alcohol to the point that he was incapable of driving safely. Id.
at 14.
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Appellant was arrested and transported to the Bethlehem Township
DUI Center for further processing. The blood draw procedure was video
recorded at the DUI Center, and that recording was presented to the
suppression court in connection with Appellant’s challenge to the warrantless
blood draw. The video was not made part of the certified record on appeal.
However, the parties agree2 that Appellant was read the revised DL-26B
form,3 he signed it, and he agreed to submit to a blood draw, which
indicated a blood alcohol content (BAC) of 0.15. Id. at 19-20, 24. See also
Appellant’s Brief at 9-10.
Appellant was charged with DUI – general impairment (as a first
offense), DUI – high rate of alcohol (as a second offense), and careless
driving. Prior to trial, Appellant filed a motion to suppress, claiming that the
2Appellant’s Birchfield claim does not challenge the court’s factual findings,
but instead challenges the court’s legal conclusions about the effect of
Birchfield and Appellant’s prior knowledge of enhanced criminal penalties
pre-Birchfield on Appellant’s ability to voluntarily consent after being read a
DL-26B form. Thus, we are not hampered by the video’s absence.
3 Prior to Birchfield, officers were statutorily required to warn individuals
arrested for DUI that refusal to submit to a blood draw would result in
enhanced criminal penalties. 75 Pa.C.S. § 1547(b)(2)(ii). To comply with
this statutory requirement, officers would read Pennsylvania Department of
Transportation (PennDOT) Form DL-26, which warned individuals of the
enhanced criminal penalties if they refused to consent to a blood draw. One
week after Birchfield was issued, “PennDOT, at the request of the
Pennsylvania District Attorneys Association and a number of county district
attorneys, amended Form DL–26 to remove any reference to enhanced
criminal penalties for the refusal to submit to a blood test. The new form is
known as Form DL–26B.” Commonwealth v. Robertson, 186 A.3d 440,
443 n.1 (Pa. Super. 2018).
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traffic stop was unlawful, and any consent to the warrantless blood draw
“was accomplished only after a warning that a failure to consent would result
in enhanced criminal penalties if convicted, as set forth in Pennsylvania’s DL-
26 Implied Consent Form, … and was therefore not voluntary and knowing.”
Omnibus Pre-Trial Motion, 7/7/2017, at ¶ 9. A hearing was held where the
aforementioned facts were developed. The trial court denied the motion,
finding that Sergeant Johnston had probable cause to conduct the traffic
stop and Appellant voluntarily consented to a blood draw after being read
the DL-26B form. Order, 9/27/2017, at 5-6.
Following a stipulated nonjury trial, Appellant was convicted of DUI –
high rate of alcohol and careless driving, and was sentenced as indicated
above. Appellant timely filed a notice of appeal.4 Appellant presents two
issues for this Court’s consideration.
1. Whether the trial court erred in refusing to suppress the
results of a blood draw where Appellant was read the DL-26B
warnings which do not address enhanced criminal penalties
and under the totality of the circumstance[s] Appellant did
not know[ingly] and voluntary[ily] give his consent to the
blood draw?
2. Whether the trial court erred in finding the arresting officer
had probable cause or re[a]sonable suspicion to perform a
valid traffic stop?
4 Appellant complied with Pa.R.A.P. 1925(b). The trial court complied with
Pa.R.A.P. 1925(a) by filing a statement directing this Court to its September
27, 2017 order and statement of reasons denying Appellant’s motion to
suppress.
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Appellant’s Brief at 5 (unnecessary capitalization and suggested answers
omitted).
We consider Appellant’s claims mindful of the following.
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. Because the Commonwealth prevailed before the
suppression court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the defense as
remains uncontradicted when read in the context of the record
as a whole. Where the 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.
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. Perel, 107 A.3d 185, 188 (Pa. Super. 2014) (quoting
Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010)).
We begin with an overview of Birchfield, its effect on our DUI laws,
and forms DL-26 and DL-26B, as they relate to Appellant.
In Birchfield, the Supreme Court of the United States
held that criminal penalties imposed on individuals who refuse to
submit to a warrantless blood test violate the Fourth Amendment
(as incorporated into the Fourteenth Amendment). Within one
week of that decision, PennDOT revised the DL–26 form to
remove the warnings mandated by 75 Pa.C.S.[] § 3804 that
theretofore informed individuals suspected of DUI that they
would face enhanced criminal penalties if they refused to submit
to a blood test [in order to comply with Birchfield]. It was this
revised form, known as Form DL–26B (which did not include
warnings regarding enhanced criminal penalties), that the
[police] read to [Robertson].
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***
This Court subsequently held that imposing enhanced criminal
penalties for failure to consent to a blood draw constituted an
illegal sentence because of Birchfield. [See] Commonwealth
v. Giron, 155 A.3d 635, 639 (Pa. Super. 2017).
On July 20, 2017, Governor Thomas W. Wolf signed into
law Act 30 of 2017[,] which amended 75 Pa.C.S.[] § 3804 to
comport with Birchfield. Specifically, Act 30 provides for
enhanced criminal penalties for individuals who refuse to submit
to blood tests only when police have obtained a search warrant
for the suspect’s blood. See 75 Pa.C.S.[] § 3804(c). Hence, from
July 20, 2017 onwards the DL–26B form conforms to [the
revised] statutory law. For approximately the previous 13
months, including at the time[] of [Robertson’s] arrest[], the
DL–26B form warnings were consistent with the law as
interpreted by the Supreme Court of the United States and this
Court, but inconsistent with the (unconstitutional) provisions of
Title 75.
Robertson, 186 A.3d at 444-45 (some citations omitted).
Like Robertson, Appellant was read the DL-26B warnings prior to Act
30’s amendment of section 3804. On appeal, Appellant contends that this
inconsistency between the DL-26B form and the provisions of our DUI
statute that were rendered unconstitutional by Birchfield, but not
statutorily amended until Act 30, required suppression of his blood draw.
Appellant’s Brief at 19-20. In other words, Appellant argues that because
subsection 3804(c) subjected him to enhanced criminal penalties, and
subsection 1547(b)(2)(ii) required the police to warn Appellant of such
penalties, the blood draw violated Birchfield.
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We recently rejected Appellant’s flawed argument and held that
PennDOT had the authority to amend the DL-26 form to comport with
Birchfield prior to the enactment of Act 30. Robertson, 186 A.3d at 446.
In doing so, we adopted the following well-reasoned analysis of the
Commonwealth Court.
It is true, as [Garlick] argues, that the language contained in
[subs]ection 1547(b)(2)(ii) was mandatory at the time [the
t]rooper requested that [Garlick] submit to a blood test.
However, while [subs]ection 1547(b)(2)(ii) then commanded
that a warning about enhanced criminal penalties be given, the
purpose behind that provision is to make a licensee aware of the
consequences of a refusal to take the test so that he can make a
knowing and conscious choice.
Following Birchfield, and as the Superior Court concluded
thereafter, a licensee cannot be criminally punished for refusing
a police officer’s request to test his blood pursuant to the
Implied Consent Law. Although, at the time [the t]rooper
requested that [Garlick] submit to a blood test, [subs]ection
1547(b)(2)(ii) still required a warning that a licensee would be
subject to enhanced criminal penalties under [subs]ection
3804(c) for refusing a test of his blood, [Garlick] could not, as a
matter of constitutional law, be subject to such penalties. Stated
simply, enhanced criminal penalties were not a consequence of
[Garlick]’s refusing the requested blood test. [Garlick]’s
argument is, in effect, that because the General Assembly did
not immediately amend [subs]ection 1547(b)(2)(ii), [Penn]DOT
and the police had to continue to apply [subs]ection
1547(b)(2)(ii). However, the effect of Birchfield and the
Superior Court cases that followed was to render the criminal
penalties warned of in [subs]ection 1547(b)(2)(ii) as applied to
blood testing unenforceable and to effectively sever that section
from the rest of the [Motor] Vehicle Code. See 1 Pa. C.S.[]
§ 1925.
Id. at 445-46, quoting Garlick v. Commonwealth, Dep't of Transp.,
Bureau of Driver Licensing, 176 A.3d 1030, 1036 (Pa. Cmwlth. 2018) (en
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banc). For the same reasons stated in Robertson and Garlick, Appellant is
not entitled to relief on this basis.
As to Appellant’s alternative argument that his awareness of pre-
Birchfield enhanced criminal penalties for refusing a blood draw rendered
the instant blood draw involuntary, this Court has also rejected this claim.
[I]t is not necessary that the police completely review
changes in the law, from the time of a motorist’s
previous arrest or DUI-related schooling until the motorist’s next
traffic stop. Johnson’s ignorance of the most recent Supreme
Court decisional law did not impose upon [the police officer] an
affirmative duty to provide her with an update on criminal
procedure prior to requesting a blood-draw. Neither our state
nor the federal constitution compels our police officers to serve
as road-side law professors.
Given the foregoing, Johnson’s personal failure to realize
that the Supreme Court’s issuance of Birchfield struck
down § 3804(c)’s enhanced criminal penalties is irrelevant. She
apparently believed that our Commonwealth’s enhanced
penalties remained in full force and effect until a Pennsylvania
appellate court declared them unconstitutional or the General
Assembly amended them to comport with Birchfield. Her
misconception…is predicated upon a fundamentally flawed view
of our federalism.
Commonwealth v. Johnson, 188 A.3d 486, 491 (Pa. Super. 2018) (finding
that Johnson’s ignorance of constitutional law did not render her consent
involuntary). See also Commonwealth v. Miller, 186 A.3d 448, 452 (Pa.
Super. 2018) (“Repeat DUI offenders, owing to past legal transgressions, are
not entitled to a benefit that would be unavailable to first-
time DUI offenders. … The absurdity of [such an] argument is self-
evident.”).
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Thus, on the day that Birchfield became law, Appellant should have
known that the enhanced criminal penalties codified in subsection 3804(c)
were without legal effect, and that the police were not obligated to notify
Appellant of this unconstitutional subsection because it was no longer
applicable. See Johnson, 188 A.3d at 491; Robertson, 186 A.3d at 447.
Accordingly, we reject Appellant’s argument, and find that Appellant’s blood
draw did not violate Birchfield.
Having determined that Birchfield does not require suppression of
Appellant’s blood draw, we now consider whether Appellant’s consent was
voluntary. In that regard, our Supreme Court has held as follows.
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 circumstances
presented, whether the consent is objectively valid, or instead
the product of coercion, deceit, or misrepresentation.
Commonwealth v. Evans, 153 A.3d 323, 328 (Pa. Super. 2016), quoting
Commonwealth v. Smith, 77 A.3d 562, 573 (Pa. 2013) (internal citations,
quotations, and corrections omitted).
While there is no hard and fast list of factors evincing
voluntariness, some considerations include: 1) the defendant’s
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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.
Robertson, 186 A.3d at 447 (citations omitted).
The undisputed facts5 reveal that Appellant’s consent was objectively
valid. As in Johnson, supra, the police “had no obligation to enlighten
[Appellant] as to the full details of federal constitutional law; [the police]
only needed to tell [Appellant] the current, legal consequences of refusing to
consent to the blood-draw. [They] did [so through the DL-26B form]. Thus,
[Appellant’s] consent was voluntary.” Id. at 491 (citation omitted).
We now address Appellant’s claim that the trial court erred in denying
his motion to suppress because Sergeant Johnston lacked the probable
cause necessary to stop Appellant’s vehicle. We begin with an overview of
the law governing the level of proof necessary to justify a traffic stop.
Whenever a police officer … has reasonable suspicion
that a violation of [the Motor Vehicle Code] is
occurring or has occurred, he may stop a vehicle,
upon request or signal, for the purpose of checking
the vehicle’s registration, proof of financial
responsibility, vehicle identification number or engine
5 It is Appellant’s responsibility to complete the certified record on appeal.
Commonwealth v. Bongiorno, 905 A.2d 998, 1000 (Pa. Super. 2006) (en
banc). While we do not have the benefit of the video recording of the blood
draw, as noted supra, Appellant and the Commonwealth agreed to the
underlying facts. Appellant’s argument instead centers upon the legal effect
of Birchfield, the DL-26B warnings, and Appellant’s subjective knowledge of
the law.
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number or the driver’s license, or to secure such
other information as the officer may reasonably
believe to be necessary to enforce the provisions of
this title.
75 Pa.C.S.[ ] § 6308(b).
Thus, § 6308(b) requires only reasonable suspicion in
support of a stop for the purpose of gathering information
necessary to enforce the Vehicle Code violation. However, in
[Commonwealth v. Feczko, 10 A.3d 1285, 1291 (Pa. Super.
2010) (en banc),] this Court held that a police officer must have
probable cause to support a vehicle stop where the officer’s
investigation subsequent to the stop serves no “investigatory
purpose relevant to the suspected [Vehicle Code] violation.”
In Feczko, the police officer observed the defendant’s vehicle
cross over the double yellow median line and the fog line.
During the ensuing vehicle stop, the officer noticed the scent of
alcohol on the defendant’s breath. Importantly, the officer did
not testify that the stop was based on suspicion of DUI. The
defendant was convicted of DUI and a motor vehicle code
violation, and argued on appeal that the vehicle stop was illegal.
This Court noted the distinction between “the investigative
potential of a vehicle stop based on a reasonable suspicion of
DUI as compared to other suspected violations of the Motor
Vehicle Code.” Id. at 1289 (citing Commonwealth v.
Sands, 887 A.2d 261, 270 (Pa. Super. 2005)). Whereas a
vehicle stop for suspected DUI may lead to further incriminating
evidence such as an odor of alcohol or slurred speech, a stop for
suspected speeding is unlikely to lead to further evidence
relevant to that offense. Therefore:
[A] vehicle stop based solely on offenses not
‘investigatable’ cannot be justified by a mere
reasonable suspicion, because the purposes of
a Terry 1 stop do not exist—maintaining the status
quo while investigating is inapplicable where there is
nothing further to investigate. An officer must have
probable cause to make a constitutional
vehicle stop for such offenses.
______
1 Terry v. Ohio, 392 U.S. 1 [] (1968).
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Commonwealth v. Landis, 89 A.3d 694, 702–03 (Pa. Super. 2014) (some
citations omitted).
Here, Sergeant Johnston did not testify that he stopped Appellant in
order to conduct additional investigations into a potential DUI. Rather, he
stopped Appellant for a Motor Vehicle Code violation: careless driving.
Accordingly, a showing of probable cause was necessary to justify the
sergeant’s stop of Appellant for a violation of 75 Pa.C.S. § 3714(a) (“Any
person who drives a vehicle in careless disregard for the safety of persons or
property is guilty of careless driving, a summary offense.”).
In denying Appellant’s motion to suppress, the trial court found that
Sergeant Johnston had probable cause to believe that Appellant was in
violation of subsection 3714(a) of the Motor Vehicle Code based on: (1)
“mak[ing] a quick right turn that caused the rear wheels of his vehicle to
kick-out into the opposing lane of traffic[,]” (2) making a turn without
signaling, and (3) “upon attempting to park the vehicle, [Appellant’s]
revers[ing] in such a manner that Sergeant Johnston was also required to
reverse his vehicle to avoid a collision.” Order, 9/27/2017, at 6.
While pages 28 and 29 are missing from the argument section of
Appellant’s brief, it appears that part of his argument challenges the trial
court’s “consideration of actions that happened after the ‘fishtail[.]’”
Appellant’s Brief at 27. To the extent that the trial court considered events
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that occurred after the traffic stop was initiated in determining whether
probable cause existed for the traffic stop, the trial court erred.
Nevertheless, the trial court’s findings before the stop were enough to
establish probable cause for the stop. Here, Appellant was subjected to a
seizure when Sergeant Johnston activated his lights and sirens to conduct
the traffic stop, notwithstanding Appellant’s failure to comply immediately.
See Commonwealth v. Livingstone, 174 A.3d 609, 621 (Pa. 2017)
(plurality) (noting that “we simply cannot pretend that a reasonable person,
innocent of any crime, would not interpret the activation of
emergency lights on a police vehicle as a signal that he or she is not free to
leave”). Therefore, Sergeant Johnston must have possessed probable cause
to believe that a traffic violation had occurred prior to activating his lights
and sirens. Upon review, we find that Sergeant Johnston’s observations of
Appellant “spinning his tires, causing the rear end of the truck to kick out or
fishtail[ into the other lane, and] … then accelerat[ing] very quickly west on
High Street[,]” were sufficient to give the sergeant probable cause to stop
Appellant for careless driving. N.T., 8/15/2017, at 7, 17. See
Commonwealth v. Wilson, 111 A.3d 747, 755 (Pa. Super. 2015) (finding
that the officer possessed probable cause to believe that Wilson had violated
the Motor Vehicle Code provisions of, inter alia, careless driving, when the
officer observed Wilson, inter alia, swerve over the yellow lines and fog line
multiple times).
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Accordingly, the trial court properly denied Appellant’s motion to
suppress, and we affirm Appellant’s judgment of sentence.6
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/4/18
6We may affirm on any basis. See Commonwealth v. Clouser, 998 A.2d
656, 661 n.3 (Pa. Super. 2010).
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