J-A08017-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

ELMO PENA

Appellee No. 1452 EDA 2016

Appeal from the Order April 20, 2016

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): MC-51-CR-0013593-2015

BEFORE: PANELLA, J., LAZARUS, J., and STEVENS, P.J.E.*

MEMORANDUM BY LAZARUS, J.: FILED JULY 21, 2017

The Commonwealth of Pennsylvania appeals from the order, entered in 

the Court of Common Pleas of Philadelphia County, granting Elmo Pena’s 

motion to suppress.1 We affirm.

On May 2, 2015, Police Officer Lorenz Hardy responded to a radio 

dispatch regarding an automobile accident. Officer Hardy found Pena in his 

car, which was on the lawn of a residential property. Pena was bleeding 

from his head, his speech was slurred and he smelled of alcohol. He was

transported to the hospital and treated for a concussion. 

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 The Commonwealth has certified in its notice of appeal that the 

suppression order will “terminate or substantially handicap the prosecution.” 

See Pa.R.A.P. 311(d). 
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Approximately one hour later, Officer Daniel Shead went to the 

hospital and arrested Pena, charging him with driving under the influence, 

75 Pa.C.S.A. § 3802(a)(1).2 After Officer Shead obtained Pena’s marking on 

the O’Connell3 warnings form and his initials on the date line of the Report 

for Chemical Testing consent form, a nurse drew blood from Pena’s left arm. 

____________________________________________

2 Section 3802(a)(1) provides: 

(a)General impairment.—

(1) An individual may not drive, operate or be in actual physical 

control of the movement of a vehicle after imbibing a sufficient 

amount of alcohol such that the individual is rendered incapable 

of safely driving, operating or being in actual physical control of 

the movement of the vehicle.

3 The O'Connell warnings were first announced in Commonwealth, 

Department of Transportation, Bureau of Traffic Safety v. O'Connell, 

555 A.2d 873 (Pa. 1989). In a later opinion, our Supreme Court explained 

both the O'Connell warnings and the reasoning behind the warnings:

in order to guarantee that a motorist makes a knowing and 

conscious decision on whether to submit to testing or refuse and 

accept the consequence of losing his driving privileges, the police 

must advise the motorist that in making this decision, he does 

not have the right to speak with counsel, or anyone else, before 

submitting to chemical testing, and further, if the motorist 

exercises his right to remain silent as a basis for refusing to 

submit to testing, it will be considered a refusal and he will suffer 

the loss of his driving privileges[. T]he duty of the officer to 

provide the O'Connell warnings as described herein is triggered 

by the officer's request that the motorist submit to chemical 

sobriety testing, whether or not the motorist has first been 

advised of his Miranda rights.

Commonwealth, Dep't of Transp., Bureau of Driver Licensing v. 

Scott, 546 Pa. 241, 684 A.2d 539, 545 (1996).
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Pena filed a motion to suppress the blood test results. Following a 

hearing, the suppression court granted Pena’s motion. The Commonwealth 

appeal, and presents one issue for our review: 

Did the suppression court err by granting [Pena’s] motion to 

suppress where he knowingly consented to a blood draw? 

Appellant’s Brief, at 4.

When a motion to suppress evidence has been filed, it is the 

Commonwealth’s burden to prove, by a preponderance of the evidence, that 

the challenged evidence was not obtained in violation of the defendant’s 

rights. Commonwealth v. Wallace, 42 A.3d 1040, 1047–1048 (Pa. 2012). 

see also Pa.R.Crim.P. 581(H). 

When the Commonwealth appeals from a suppression order, we 

follow a clearly defined standard of review and consider only the 

evidence from the defendant’s witnesses together with the 

evidence of the prosecution that, when read in the context of the 

entire record, remains uncontradicted. The suppression court’s 

findings of fact bind an appellate court if the record supports 

those findings. The suppression court’s conclusions of law, 

however, are not binding on an appellate court, whose duty is to 

determine if the suppression court properly applied the law to 

the facts.

Commonwealth v. Miller, 56 A.3d 1276, 1278–79 (Pa. Super. 2012) 

(citations omitted). “Our standard of review is restricted to establishing 

whether the record supports the suppression court’s factual findings; 

however, we maintain de novo review over the suppression court’s legal 

conclusions.” Commonwealth v. Brown, 996 A.2d 473, 476 (Pa. 2010) 

(citation omitted).
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At the suppression hearing, Officer Shead testified that he read Pena 

the O’Connell warnings, however, Pena neither reviewed them nor verbally 

responded that he understood them. N.T. Suppression Hearing, 8/13/15, at 

41-42. Officer Shead acknowledged that “[Pena] just signed.” Id. at 42. 

“He moved slightly. He wasn’t up and about. Like I said, he was laying on a 

gurney. . . . I physically had to hold the forms in front of him so he could 

sign them.” Id. Pena remained in the hospital for two days, and his 

discharge papers indicated he had suffered a concussion. Id. at 46. The 

suppression court found that Pena’s head trauma and related injuries 

impaired his ability to understand, and, therefore, consent. 

Based on our review of the parties’ briefs, the record, and the relevant 

law, we agree with the suppression court’s determination that the 

Commonwealth did not establish by a preponderance of the evidence that 

Pena gave either implied or actual consent to the blood draw. See Wallace, 

supra; see also Commonwealth v. Eisenhart, 611 A.2d 681, 684 (Pa. 

1992) (conscious driver has explicit right under section 1547(b) to refuse 

blood draw). We, therefore, affirm the order granting suppression based on 

Judge Michael E. Erdos’ opinion. The parties are directed to attach a copy of 

that opinion in the event of further proceedings.

Order affirmed. 

Judge Panella joins the Memorandum.

President Judge Emeritus Stevens files a Dissenting Memorandum.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/21/2017
driveway of the property. N.T. 8/13/15 at 11. Once the officer approached the vehicle he 

residentialproperty, and up to the car Appellee was in. The car was positioned sideways in the 

a car. N.T. 8/13/15 at 8-9. He saw tire tracks leading from Napfle Ave. across the lawn of a 

Hardy arrived. N.T. 8/13/15 at 8. Officer Hardy observed Appellee sitting in the driver's seat of 

Testimony (N.T.) 8/13/15 at 7. The fire department and medic unit were on site when Officer 

an automobile accident at 1102 Napfle Ave. in the City and County of Philadelphia. Notes of 

On May 2, 2015 at around 7:50 a.m., Officer Lorenz Hardy responded to a radio call for 

FACTS 

Appellee's motion to suppress. This Commonwealth appeal followed. 

20, 2016, this Court issued an Order denying Appellant's Writ of Certiorari, thereby affirming 

On February 18, 2016, Appellant filed a Writ of Certiorari to Common Pleas Court. On April 

the Honorable Gerard Kosinski of the Municipal Court granted Appellee's motion to suppress. 

Driving Under the Influence ("DUI") pursuant to 75 Pa.C.S. § 3802(a)(l). On August 13, 2015, 

On May 2, 2015, Elmo Pena (hereinafter "Appellee") was arrested and charged with 

ERDOS,J. 

OPINION 

ELMO PENA 

MC-M-CR-0013593-2015 Comm. v. Pena. Elmo 

Opinion 

FILED 

OCT 2 5 2016 

-· Crimin?~ AppeaJs Unit II II I II II 1111111111111111 .·,rst Jud1c1al District of PA 

7516834821 1452 EDA 2016 

v. 

COMMONWEAL TH OF PENNSYLVANIA MC-51-CR-0013593-2015 

THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY 

FIRST JUDICIAL DISTRICT 

CRJMINAL TRIAL DIVISION 

0015_Opinion

Circulated 05/23/2017 04:07 PM
2 

observed Appe11ee bleeding from his head. N. T. 8/13/15 at 16. He then asked Appellee for his 

driver's license and registration. N.T. 8/13/15 at 9. Appellee's speech was slurred, his pupils 

were constricted, and his breath smelled strongly of alcohol. N. T. 8/13/15 at 11. Medical 

personnel evaluated Appellee for injuries and assisted him with exiting the car. N.T. 8/13/15 at 

18. Appellee was placed in a neck brace and taken away on a gurney. N.T. 8/13/15 at 18. 

Medical personnel then took Appellee to Aria Torresdale Hospital to be treated for a possible 

concussion. N.T. 8/13/15 at 30. 

AID Officer Shead first came into contact with Appellee at Aria Torresdale Hospital 

around 9:23 a.m. N.T. 8/13/15 at 34. The officer found him laying on a hospital bed in a neck 

brace. N.T. 8/13/15 at 38. Officer Shead and informed Appellee he had been arrested for DUI 

and asked him to submit to a chemical test. N.T. 8/13/15 at 35. Officer Shead then read Appellee 

the O'Connell Warnings and the 75-439 Report for Chemical Testing consent form. N.T. 8/13/15 

at 35-36. 

Appellee did not review the consent forms or respond to Officer Shead. N.T. 8/13/15 at 

42. Officer Shead physically held the consent forms in front of Appellee for him to sign. N.T. 

8/13/15 at 42. Appellee made a marking on the O'Connell Warnings and signed his initials on 

the date line of the 75-439 form. N.T. 8/13/15 at 27. 

At 9:39 a.m., Officer Shead asked a nurse to draw blood from Appellee's left arm. N.T. 

8/13/15 at 40. Neither Officer Hardy nor Officer Shead secured a warrant for the blood. N.T. 

8/13/15 at 39. Two days later Appellee was discharged from Aria Torresdale Hospital. N.T. 

8/13/15 at 46-47. Appellee's discharge paperwork stated he suffered a "concussion." N.T. 

8/13/15 at 46. 

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I. Issue Raised 

The Commonwealth raises the following issue on appeal: Did the lower court, sitting as 

an appellate court, err in affirming the suppression ruling of the Municipal Court on the ground 

that a warrant was required to obtain blood for a chemical test notwithstanding the implied 

consent statute, where the police had probable cause to believe the defendant was driving under 

the influence of alcohol or a controlled substance and he did not withdraw consent? 

II. Standard of Review 

At the outset, we examine the pertinent standard of review. While the appeJlate court 

defers to the suppression court's findings of fact, the suppression court's conclusions of law are 

not binding on an appellate court, whose duty is to determine if the suppression court properly 

applied the law to the facts. Commonwealth v. Hudson, 92 A.3d 1235, 1241 (Pa. Super. 2014). 

III. Analysis 

The taking of blood constitutes a search subject to the provisions of the Fourth 

Amendment of the U.S. Constitution and Article I, Section 8 of the Pennsylvania Constitution. 

Schmerber v. California, 384 U.S. 757 (1966); Commonwealth v. Davenport, 308 A.2d 85, 87 

(Pa. 1973). The Pennsylvania Supreme Court has held that exceptions to the warrant 

requirement exist to negate the necessity of obtaining a warrant before conducting a search. 

Commonwealth v. Riedel, 651 A.2d 135, 139 (Pa. 1994). Exceptions to the warrant requirement 

include actual consent, implied consent, and exigent circumstances. Id. 

Consent must be voluntary and knowing for it to operate as a valid waiver of the right to 

remain free from warrantless searches. Commonwealth v. Walsh, 460 A.2d 767, 771-72 (Pa. 

Super. 1983). Whether consent to a search was voluntary is a question of fact to be determined 

DISCUSSION 

____ ;._. 
4 

Dakota, 136 S.Ct. 2160 (2016). Although, because of his physical condition, Appellee in the 

consent to a blood draw is unconstitutionally coercive and vitiates consent. Birchfield v. North 

provision from North Dakota, finding that leveraging criminal penalties to induce a driver to 

1 The Supreme Court of the United States recently struck down a similar implied consent 

convicted he faces increased criminal penalties. 75 Pa.C.S.A. § 3804(1).1 

person .... " 75 Pa.C.S.A. § 1547(b)(l). In addition, if the refusing individual is subsequently 

but upon notice by the police officer, the department shall suspend the operating privilege of the 

requested to submit to chemical testing and refuses to do so, the testing shall not be conducted 

75 Pa.C.S.A. § 1547(a)(2). "If any person placed under arrest for a violation of Section 3802 is 

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: (a)(2) which was involved in an accident in 

which the operator or passenger of any vehicle involved or a pedestrian 

required treatment at a medical facility or was killed. 

due to the implied consent statute. Pennsylvania's implied consent statute provides that: 

The Commonwealth argues that a warrant was not required to draw blood from Appellee 

460 A.2d at 772. 

invalidated if the consenting person did not understand what it was he was consenting to. Walsh, 

be examined to determine if the consent was coerced. Id. at 229. In addition, consent can be 

Circumstances including the subjectively vulnerable state of the person whom consents should 

from the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973). 

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5 

instant matter could not understand what the officers told him concerning consent, it is arguable 

that the entire implied consent statute in Pennsylvania is invalid under Birchfield. 

The Pennsylvania Superior Court recently addressed this issue and Section 1547 in 

Commonwealth v. Myers. 118 A.3d 1122 (Pa. Super. 2015). In Myers, the defendant was 

rendered unconscious after taking antipsychotic medication a few minutes before the AID 

Officer arrived. Id. at 1124. The officer attempted to make contact with the defendant by 

speaking his name and tapping him on the shoulder, but there was no response. Id. at 1130. The 

officer proceeded to give the defendant the informed consent warnings but still received no 

response. Id. The blood draw was conducted anyway. Id. 

The defendant in Myers contended that he was deprived of his statutory right to refuse a 

blood draw and police could not then use his inability to verbally refuse as the basis to 

involuntarily take his blood. Id. at 1129. The court in Myers agreed, finding that although 

Pennsylvania's implied consent law penalizes the refusal to consent to a blood draw, it does not 

permit the involuntary seizure of a blood sample. Id. Under Myers, then, the blood draw here 

cannot be justified under Section 154 7. 

Nor did Appellee provide actual consent. In Commonwealth v. Smith, the Pennsylvania 

Supreme Court found a DUI suspect's consent knowing and voluntary because he had full use of 

his faculties when he gave consent to submit to chemical testing. 77 A.3d 562 (Pa. 2013). The 

suspect hit a car and seriously injured its occupants one morning after drinking the night before. 

Police arrived on scene and asked the driver if he would agree to submit to a chemical test. Id. at 

223. The driver agreed and upon receiving the results, the police arrested and charged him with 

DUL Id. On appeal, the driver argued that the police did not obtain informed and actual consent. 

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Id. The court based its holding on the education level of the driver, his physical health, his 

knowledge of the right to refuse, and his understanding that the test was to rule out the possibility 

of alcohol or drngs. Id. The court found, given the totality of the circumstances, that the driver's 

consent was knowing and voluntary. 

The case at bar differs from Myers with respect to the defendants' levels of 

consciousness. Appellee was awake and responsive during his interaction with Officer Shead, 

unlike the defendant in Myers. However, Appellee suffered visible head trauma from the car 

crash. During his meeting with Officer Shead, the record demonstrates Appellee, like Myers, 

was unable to understand the standard informed consent warnings or give a knowing and 

voluntary consent. N.T. 9/30/15 at 27. Therefore, Appellee did not legally consent to the taking 

of his blood. 

The circumstances the court relied on in Smith are not present in this case. Appellee's 

health was drastically affected by the car accident. Due to bis incapacity, he did not have the 

requisite knowledge of the right to refuse nor the understanding that the chemical test was to 

examine his blood for the presence of alcohol. The medical evidence accepted by the 

suppression court is dispositive. That court found that Appellee suffered head trauma from the 

crash. The police officers and medical personnel testified that he had lacerations on his head and 

visibly constricted pupils. N.T. 8/13/15 at 29-30. Appellee was unable to sit up or review the 

consent forms, which Officer Shead had to hold in front of Appellee's face. His disoriented state 

is further demonstrated by his inability to correctly sign the implied consent forms. He initialed 

one consent form on the date line and made a marking on the second form. He did not respond 

to Officer Shead when read his rights. N.T. 9/30/15 at 27-28. 

• 

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2 Again, even had Appellee given consent, it would have been vitiated under Birchfield. 

'"" s DATE: October .._ , 2016 

MICHAEL E. ERDOS, J. 

BY THE COURT: 

affirmed. 

affirming the Municipal Court suppression ruling. Accordingly, this Court's decision should be 

In light of the applicable statutes, testimony, and case law, this Court did not err in 

CONCLUSION 

warrantless seizure of Appellee's blood permissible.? 

v. McNeely, 133 S.Ct. 1552, 1568 (2013). Therefore, there is no exception to render the 

circumstance in a drunk-driving investigation to render a warrantless search valid. See Missouri 

Court has held the natural dissipation of alcohol in the bloodstream does not present an exigent 

secure a valid warrant during traditional business hours. In addition, the United States Supreme 

not have obtained a warrant before drawing Appellee's blood. There was ample time for them to 

voluntarily submit to a chemical test. Furthermore, there is no indication that the officers could 

ability to comprehend the risks involved with a chemical test. Appellee did not knowingly and 

Given these facts, it is apparent Appellee's head trauma and related injuries impaired his 

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