J-S79034-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

LESLEY DIANE SHOEMAKER,

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 891 MDA 2018

Appeal from the Judgment of Sentence May 29, 2018

in the Court of Common Pleas of Fulton County

Criminal Division at No(s): CP-29-CR-0000043-2017

BEFORE: SHOGAN, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED MAY 16, 2019

Lesley Diane Shoemaker (“Shoemaker”) appeals from the judgment of 

sentence imposed following her convictions of driving under the influence of 

alcohol (“DUI”) – general impairment, DUI – highest rate of alcohol, and 

careless driving.1 We affirm in part, and vacate in part.

The trial court set forth the relevant facts as follows:

[Shoemaker] is a unionized employee of the Pennsylvania 

Turnpike [Commission (“the Commission”)]. On December 27, 

2016, Assistant Foreman Ricky Lauthers [(“Lauthers”)] was 

approached by another employee[,] who suggested that Lauthers 

“take a look at” [Shoemaker]. Lauthers approached [Shoemaker] 

just outside of the female locker room to discuss the day’s 

assignments. During the conversation, Lauthers observed that

[Shoemaker] was staggering and slurring her speech. Upon 

Lauthers instructing [Shoemaker] on her work assignment, [i.e., 

to wash trucks and patrol later in the day,] [Shoemaker] stated “I 

know I’m not the best, but I will do my best for you.” Not 

understanding [Shoemaker’s] statement and smelling alcohol on 

____________________________________________

1 75 Pa.C.S.A. §§ 3802(a)(1), 3802(c), 3714(a).
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her breath, Lauthers further questioned [Shoemaker]. Lauthers 

directly asked [Shoemaker] if she was drinking[,] and 

[Shoemaker] denied she had anything to drink and she questioned 

Lauthers about whether “this was what we are going to do, 

really?” [Assuming that Shoemaker was going to wash trucks as 

assigned,] Lauthers proceeded into his office to talk with Dale Hall 

[(“Hall”)], Director of Maintenance, and inform him of Lauthers’[s] 

observations and suspicions. [] Hall subsequently called Patrick 

Caro [(“Caro”)], Manager of Labor Relations, and it was 

determined to bring [Shoemaker] into the office.

When Lauthers went to retrieve [Shoemaker] from her 

assigned area, he was informed that [Shoemaker] was on the 

Turnpike in a [] Commission pickup truck. After several attempts 

to reach [Shoemaker] by cell[]phone, Lauthers was able to make 

contact [with Shoemaker] and told her to pull over and wait for 

them. Lauthers and Hall proceeded west on the Turnpike towards 

the Fort Littleton interchange, and upon arrival[,] spotted 

[Shoemaker] ... speaking to another motorist. As Lauthers and 

Hall approached, [Shoemaker] ... started driving away. Hall 

honked his horn and shouted at [Shoemaker] to get her to stop 

her vehicle, at which point she made a [U]-turn, driving in the 

wrong direction into the opposing traffic lane, and pulled in behind 

their vehicle.

Lauthers and Hall told [Shoemaker] that they were taking 

her to the Fulton County Medical Center (FCMC) for a breath 

test.[2] [Shoemaker] immediately requested vacation leave, 

which was denied[,] and then requested sick leave, which was also 

denied. Lauthers and Hall told [Shoemaker] that if she refused to 

accompany them to FCMC, the police would be notified. [E]n route 

to the FCMC, after being informed again that [Shoemaker] was 

going to be tested for alcohol, [Shoemaker] informed Lauthers 

____________________________________________

2 Relevant to this appeal, as a unionized employee, Shoemaker was subject 

to a Collective Bargaining Agreement (“the Agreement”), including the “Drug 

Testing Language Proposal between the Pennsylvania Turnpike Commission 

and Teamsters Local 77 & 250,” which was entered into evidence at the 

suppression hearing. The Agreement provides for breath alcohol testing based 

on probable suspicion, which is defined in the Agreement as “an employee’s 

specific observable appearance, behavior, speech or body odor that clearly 

indicates the need for probable suspicion alcohol testing.” Commonwealth’s 

Suppression Exhibit 1 (Agreement), at 16.
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and Hall that “if that’s what you’re doing[,] then I’m fucked.” At 

[] FCMC, [Shoemaker] was unable to provide a sufficient volume 

of breath for the breath sample during three (3) separate 

attempts. As a result, Hall contacted Caro, who instructed Hall to 

request a blood sample from [Shoemaker]. [Shoemaker] agreed 

to submit to a blood sample[,] and the results indicated a Blood 

Alcohol Content [(“BAC”)] of .234%. Subsequently, [Shoemaker] 

was instructed to leave the workplace and was removed from the 

work schedule pending further administrative processing.

The next day, the Pennsylvania State Police were contacted 

to initiate an investigation. On January 24, 2017, Trooper [Tyler]

Brough [(“Trooper Brough”)] obtained a search warrant for the 

blood sample results from FCMC[, based on information he 

received from Lauthers and Hall,] and on January 31, 2017, [] 

Trooper [Brough] charged [Shoemaker] with two counts of [DUI]

and careless driving.

Trial Court Opinion, 7/10/18, at 3-5 (footnote added; citations to the record 

omitted).

On June 8, 2017, Shoemaker filed an Omnibus Pre-Trial Motion, 

including, inter alia, a Motion to suppress her blood test results. Citing the 

United States Supreme Court’s decision in Birchfield v. North Dakota,

3

Shoemaker asserted that the seizure of blood may not be compelled without 

consent or a warrant, and that neither the Pennsylvania nor the United States 

Constitutions created an exception for seizures by government employers. 

____________________________________________

3 Birchfield v. North Dakota, 136 S. Ct. 2160 (2016). The Birchfield Court 

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. See id. at 2185. Relevant to the 

instant appeal, the Birchfield Court held that implied consent laws that 

impose criminal penalties for refusing to consent to a blood test are 

unconstitutional, because “motorists cannot be deemed to have consented to 

submit to a blood test on pain of committing a criminal offense.” Id. at 2185-

86.
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Shoemaker argued that the Agreement only provides for breath or urine 

testing. Additionally, Shoemaker claimed that she had not been informed that 

the test results could be used for the purpose of procuring criminal charges. 

The Commonwealth filed an Answer, pointing out that the holding in 

Birchfield applies to blood draws by police following arrests for suspicion of 

DUI, and that Shoemaker was subjected to a blood test by her employer. The 

suppression court conducted a hearing, after which it directed the parties to 

submit briefs on the issue.4 On November 7, 2017, the suppression court 

issued an Opinion and Order denying Shoemaker’s Motion.

On November 27, 2017, Shoemaker filed a Motion to Reconsider, along 

with her untimely brief in support of her Omnibus Pre-Trial Motion. The trial 

court denied Shoemaker’s Motion to Reconsider the same day.

Following a bench trial, Shoemaker was found guilty of the abovementioned offenses.5

 For her conviction of DUI – highest rate,6the trial court 

sentenced Shoemaker to a term of 6 months of intermediate punishment, the 

first 72 hours of which was to be served in Bedford County Jail, in addition to 

a $1,000 fine and other costs. For her conviction of careless driving, the trial 

court imposed a $25 fine and other costs. Shoemaker filed a timely Notice of 

____________________________________________

4 Shoemaker did not timely comply with the trial court’s directive.

5 The parties stipulated that the blood test indicated a BAC of 0.234%. 

Commonwealth’s Trial Exhibit 1 (Stipulation of Facts), ¶ 2. However, by 

stipulation, Shoemaker specifically reserved her right to challenge pre-trial 

rulings through post-sentence motions and on direct appeal. Id., ¶ 5.

6 Shoemaker’s DUI convictions merged for sentencing purposes.
J-S79034-18

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Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of errors 

complained of on appeal.

On appeal, Shoemaker raises the following issues for our review:

1. Did the trial court err when it found that [Shoemaker’s] consent 

to give blood under the threat of disciplinary action by a 

government employer should not be suppressed when the 

government employee was not advised that the results of the 

blood test could be used against her in a criminal proceeding?

2. In the absence of the blood results, was there insufficient 

evidence to support [Shoemaker’s] conviction for DUI – general 

impairment in violation of Section 3802(a)(1) of the Vehicle Code?

3. Was there insufficient evidence to support [Shoemaker’s] 

conviction for careless driving in violation of Section 3714(a) of 

the Vehicle Code?

Brief for Appellant at 5 (some capitalization omitted).

In her first claim, Shoemaker argues that the suppression court erred 

by failing to suppress the results of her blood alcohol test, because her consent 

was coerced by threat of non-compliance with the Agreement, and she had

not been advised that the results of the blood test could be used against her 

in subsequent criminal proceedings. See Brief for Appellant at 13-26. 

Shoemaker offers two separate arguments in support of her claim.

First, Shoemaker claims that the warrantless blood draw was an illegal 

search by the Commission, which is a government entity. See id. at 13-25. 

According to Shoemaker, the fact that the government was not acting in a law 

enforcement capacity is irrelevant, because the Fourth Amendment’s 

protections extend beyond the sphere of criminal investigations. Id. at 17. 
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Shoemaker cites to the United States Supreme Court’s decision in Garrity v.

New Jersey,

7 and contends that Hall’s testimony at the suppression hearing 

indicated that he had threatened potential criminal charges arising out of the 

incident. Id. at 18-19 (citing N.T., 6/27/17, at 27 (wherein Hall testified that 

after Shoemaker requested vacation and sick leave, he responded, “Lesley, 

we are not debating this. You are going to be tested. If you don’t want to go 

with us, we are going to call [the] State Police.”)). Shoemaker also points out

that the request for a police investigation was communicated to Trooper 

Brough the day after the incident. Id. at 19-20.

Shoemaker argues that she was protected by the Agreement, but that 

the Commission disregarded the terms of the Agreement by failing to provide 

Shoemaker with a union shop steward prior to requesting a breath or blood 

sample. Id. at 20-22. Shoemaker also argues that the Commission 

disregarded the Agreement’s stated procedures regarding an individual’s 

inability to produce a sufficient breath sample, and instead demanded a blood 

test. Id. at 22. Additionally, Shoemaker claims that because she was not 

____________________________________________

7 Garrity v. New Jersey, 385 U.S. 493 (1967). In Garrity, the Supreme

Court considered state-conducted investigations of police officers for allegedly 

fixing traffic tickets. Id. at 494. Prior to being questioned, each appellant 

was informed that if he refused to answer, he would be subject to removal 

from office. Id. The Garrity Court considered the question of whether “the 

accused was deprived of his free choice to admit, to deny, or to refuse to 

answer[,]” id. at 496 (citation omitted), and held that “the protection of the 

individual of the Fourteenth Amendment against coerced statements prohibits 

use in subsequent criminal proceedings of statements obtained under threat 

of removal from office....” Id. at 500.
J-S79034-18

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individually a signatory to the Agreement, she could not consent to a method 

of alcohol testing that was not provided for in the Agreement. Id. at 22-23.

Further, Shoemaker claims that because she was informed that refusal 

to submit to alcohol testing would result in termination of her employment, 

her consent was not the result of a free and unconstrained choice. Id. at 24-

25.

Second, Shoemaker contends that the search warrant obtained by 

Trooper Brough to seize the blood test results from FCMC did not cleanse the 

search of the illegality. Id. at 25-26. Shoemaker argues that, in order to be 

admissible, her blood test results had to be obtained by an independent 

source. Id. at 25.

We adhere to the following standard of review:

An appellate court’s 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, the appellate court is bound by those 

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 courts below are subject to plenary review.
J-S79034-18

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Commonwealth v. Jones, 121 A.3d 524, 526-27 (Pa. Super. 2015) (citation, 

brackets and ellipses omitted).

Here, the parties agree that Shoemaker was a unionized employee 

subject to the Agreement. Brief for Appellant at 6, 20-23, 24; 

Commonwealth’s Brief at 4, 8. Regarding “probable suspicion” alcohol testing, 

the Agreement provides, in relevant part, as follows:

Article 35

Section 4. Alcohol Testing

The parties agree that in the event of further federal legislation or 

[Department of Transportation (“DOT”)] regulations providing for 

revised methodologies or requirements, those revision[s] shall, to 

the extent they impact this Agreement, unless mandated, be 

subject to mutual agreement by the parties.

* * * 

B. Alcohol Testing Procedure

All alcohol testing under this section will be conducted in 

accordance with applicable DOT/[Federal Motor Carrier Safety 

Administration] regulations. All equipment used for alcohol 

testing must be on the [National Highway Traffic Safety 

Administration] Conforming Products List and be used and 

maintained in compliance with DOT requirements. Breath 

samples will be collected by a Breath Alcohol Technician (BAT) 

who has successfully completed the necessary training course that 

is the equivalent of the DOT model course and who is 

knowledgeable of the alcohol testing procedures set forth in 49 

C[.]F[.]R[.] Part 40 and any current DOT Guidance. ...

1. Screening Test

The initial screening test uses an Evidential Breath Testing 

(EBT) device, unless other testing methodologies or devices 
J-S79034-18

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are mandated or agreed upon, to determine levels of 

alcohol. ...

Breath Alcohol Levels:

Less than 0.02% BAC – Negative

0.02% BAC and above – Positive (Requires 

Confirmation Test)

2. Confirmatory Test

All samples identified as positive in the initial screening test, 

indicating an alcohol concentration of 0.02% BAC or higher, 

shall be confirmed using an EBT device that is capable of 

providing a printed result in triplicate; is capable of assigning 

a unique number to each test; and is capable of printing out, 

on each copy of the printed test result, the manufacturer’s 

name for the device, the device’s serial number and the time 

of the test unless other testing methodologies are mandate[d] 

or mutually agreed upon.

* * *

H. Probable Suspicion Testing

Employees subject to DOT probable suspicion alcohol 

testing under this Section shall be tested in accordance 

with current, applicable DOT regulations.

For all purposes herein, the parties agree that the terms “probable 

suspicion” and “reasonable cause” shall be synonymous.

Probable suspicion is defined as an employee’s specific observable 

appearance, behavior, speech or body odor that clearly indicates 

the need for probable suspicion alcohol testing.

...

In cases where an employee has specific, observable, abnormal 

indicators regarding appearance, behavior, speech or body odor, 

and at least one (1) supervisor, two (2) if applicable, have 

probable suspicion to believe that the employee is under the 

influence of alcohol, the Employer may require the employee, in 
J-S79034-18

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the presence of a union shop steward or other employee 

requested by the employee under observation, to submit to a 

breath alcohol test. Suspicion is not probable and thus not a basis 

for testing if it is based solely on third party observation and 

reports.

The supervisor(s) must make a written statement of these 

observations within twenty-four (24) hours. A copy must be 

provided to the shop steward or other union official after the 

employee is discharged or suspended or taken out of 

service.

* * * 

J. Specimen Testing Procedures

All procedures for alcohol testing will comply with [DOT]

regulations.

No unauthorized personnel will be allowed in any area of the 

testing site. Only one alcohol testing procedure will be conducted 

by a BAT at the same time.

...

The employee shall provide an adequate amount of breath for the 

[EBT] device. If the individual is unable to provide a sufficient 

amount of breath, the BAT shall direct the individual to again 

attempt to provide a complete sample.

If an employee is unsuccessful in providing the requisite amount 

of breath, the Employer then must have the employee obtain, 

within five (5) days, an evaluation from a licensed physician 

selected by the Employer and the Local Union and who has the 

expertise in the medical issues concerning the employee’s inability 

to provide an adequate amount of breath. If the physician is 

unable to determine that a medical condition has, or with a high 

degree of probability could have, precluded the employee from 

providing an adequate amount of breath, the employee’s failure 

to provide an adequate amount of breath will be regarded 

as a refusal to take the test and subject the employee to 

discharge.
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Commonwealth’s Suppression Exhibit 1 (Agreement), at 1-2, 11-13, 15-17

(emphasis added).

The portion of the Agreement concerning alcohol testing refers only to 

testing for employment purposes, and identifies the adverse employment 

actions that may result from a positive result or a refusal to submit to testing. 

See generally Commonwealth’s Suppression Exhibit 1 (Agreement), at 15-

21. The Agreement does not contemplate informing law enforcement 

personnel of the results for the initiation of criminal proceedings. Therefore, 

Shoemaker was not on notice that the results of any probable suspicion

alcohol testing, provided for in the Agreement, could serve as the basis for a 

criminal investigation.

In addition, the Agreement8 only provides for breath alcohol testing,9

and in fact, the use of blood alcohol testing was unnecessary for employment 

purposes under these circumstances. The Agreement provides that “[i]f the 

[employee] is unable to provide a sufficient amount of breath, the BAT shall 

direct the [employee] to again attempt to provide a complete sample.” Id. at 

____________________________________________

8 We note that the “Drug Testing Language Proposal between the Pennsylvania 

Turnpike Commission and Teamsters Local 77 & 250” is the only portion of 

the Agreement contained in the certified record.

9 The Commonwealth argues that Shoemaker consented to the use of blood 

testing, pointing to language in the Agreement that provides for breath testing 

“unless other testing methodologies or devices are mandated or agreed upon.” 

Commonwealth’s Brief at 8 (citing Commonwealth’s Suppression Exhibit 1 

(Agreement), at 12, 13). However, the signatories to the Agreement are the 

Teamsters Local Unions 77 and 250, and the Commission. Thus, it is not clear 

that Shoemaker, as an individual, had the authority or ability to consent to an 

alternate testing method.
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17. If the employee is still unable to provide a sufficient amount of breath, 

the Employer must direct the employee to obtain an evaluation from a licensed 

physician within five days. Id. If the physician cannot determine that a 

medical condition could have prevented the employee from providing a 

sufficient amount of breath, “the employee’s failure to provide an adequate 

amount of breath will be regarded as a refusal to take the test and subject the 

employee to discharge.” Id. Thus, a refusal or inability to provide an 

adequate amount of breath (assuming a physician has not identified a relevant 

medical condition) results in the same disciplinary action as a positive test 

result at or above the applicable state DUI limit. Id.; see also id. at 17-18 

(providing that an employee’s first positive test result at or above the state 

DUI limit subjects that employee to discharge).

Further, the Agreement specifically dictates that “[e]mployees subject 

to DOT probable suspicion alcohol testing ... shall be tested in accordance with 

current, applicable DOT regulations.” Id. at 15; see id. at 16 (indicating that 

alcohol testing procedures must comply with DOT regulations). This 

language—in addition to the numerous references to DOT regulations 

throughout the Agreement—indicates an intention between the parties to 

incorporate the provisions of 49 C.F.R., Part 40 (Procedures for Transportation 

Workplace Drug and Alcohol Testing Programs). The DOT regulations provide 

that “other types of alcohol tests (e.g., blood and urine) are not authorized 

for testing .... Only saliva or breath for screening tests and breath for 

confirmation tests using approved devices are permitted.” 49 C.F.R. 
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§ 40.277 (emphasis added). The Agreement is silent regarding the 

confidentiality of alcohol test results, with the exception of a brief directive 

that “[t]he Employer shall maintain records in a secure manner so that 

disclosure of information to unauthorized persons does not occur.” 

Commonwealth’s Suppression Exhibit 1 (Agreement), at 20. However, under 

DOT regulations, employers are generally prohibited from releasing an 

employee’s test results to third parties without the employee’s specific written 

consent. 49 C.F.R. § 40.321. The regulations also provide as follows,

concerning the release of information in legal proceedings:

§ 40.323 May program participants release drug or alcohol 

test information in connection with legal proceedings?

(a) As an employer, you may release information pertaining to an 

employee’s drug or alcohol test without the employee’s consent in 

certain legal proceedings.

* * *

(2) These proceedings also include a criminal or civil action 

resulting from an employee’s performance of safetysensitive duties, in which a court of competent 

jurisdiction determines that the drug and alcohol test 

information sought is relevant to the case and issues 

an order directing the employer to produce the 

information. ... The employer is authorized to respond to 

the court’s order to produce the records.

(b) In such a proceeding, you may release the information to 

the decisionmaker in the proceeding .... You may release the 

information only with a binding stipulation that the decisionmaker 

to whom it is released will make it available only to the parties to 

the proceeding.

Id. § 40.323 (emphasis added).
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 Here, Shoemaker failed to supply an adequate amount of breath to 

complete a breath alcohol test. Under the Agreement, the Commission should 

have directed Shoemaker to obtain an evaluation by a licensed physician 

within five days, at which time, assuming no medical conditions were 

identified, her inability to perform the test would be considered a refusal and 

result in her discharge. See Commonwealth’s Suppression Exhibit 1 

(Agreement), at 17; see also 49 C.F.R. § 40.265 (setting forth a similar 

procedure under the DOT regulations). Instead, Commission employees 

asked Shoemaker to consent to a blood alcohol test, a method that is not 

authorized by the Agreement, and which is specifically prohibited by DOT 

regulations. Therefore, the Commission’s decision to proceed with a blood 

alcohol test was improper under the Agreement.

Additionally, the Commission contacted the police the following day to 

initiate a criminal investigation into the incident. After receiving this 

information, Trooper Brough spoke with Caro, who told him that Shoemaker 

had been drunk at work, and had been driving a Commission vehicle while 

intoxicated. See N.T. (Trial, Amended), 5/9/18, at 28; see also Affidavit of 

Probable Cause, 1/31/17, at 1. Caro also provided contact information for 

Lauthers and Hall. See N.T. (Trial, Amended), 5/9/18, at 28. Trooper Brough 

spoke with both Lauthers and Hall on the phone within the following days, and 
J-S79034-18

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eventually received written statements from both of them.10 See id. at 29. 

It is not clear from the record exactly what information Lauthers and Hall 

provided to Trooper Brough, in either their phone conversations or written 

statements, concerning the results of the blood test. However, based on 

Trooper Brough’s decision to apply for a search warrant, it is apparent that 

even if neither Lauthers nor Hall provided Trooper Brough with the precise 

BAC measured, one or both of them at least alluded to the fact that the result 

was positive. We conclude that any reference to, or comment on, the results 

of Shoemaker’s blood alcohol test (which was improperly obtained under the 

Agreement), without her consent, violated Shoemaker’s right to confidentiality 

under applicable DOT regulations. See 49 C.F.R. § 40.321. 

Moreover, keeping Garrity in mind, the evidence supports Shoemaker’s 

assertion that she did not voluntarily consent to the blood test. “[A] trial court 

must consider the totality of the circumstances when determining if a 

defendant’s consent to a blood draw was voluntary.” Commonwealth v. 

Miller, 186 A.3d 448, 451 (Pa. Super. 2018). 

[T]he 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.... 

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....

____________________________________________

10 The written statements, which evidently served as the basis for obtaining 

the search warrant, see N.T. (Trial, Amended), 5/9/18, at 29, are not 

contained in the certified record.
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Commonwealth v. Kurtz, 172 A.3d 1153, 1160 (Pa. Super. 2017) (citation 

omitted).

Here, Shoemaker’s actions prior to and during the ride to FCMC

indicated her unwillingness to submit to alcohol testing. See N.T. (Trial, 

Amended), 5/9/8, at 23-24 (wherein Hall testified that after informing 

Shoemaker that he had reason to believe she had been drinking, Shoemaker 

requested both vacation time and sick leave), 24 (wherein Hall testified that 

Shoemaker began talking during the ride to FCMC, and after he told 

Shoemaker that she would be tested for alcohol, she replied, “I’m going to be 

fucked.”). When Lauthers and Hall spoke with Shoemaker on the Turnpike, 

Hall stated, “You will either go with [Lauthers] and I to the hospital to be 

tested[,] or I’m going to call the state police. They will pick you up and take 

you to the test. So it’s however you want to do it.” N.T. (Trial, Amended), 

5/9/18, at 24. Lauthers and Hall then drove Shoemaker to FCMC for testing. 

See id. at 10. The laboratory technician informed Lauthers that she had 

attempted to complete the breath alcohol test three times, but that 

Shoemaker had failed to provide an adequate amount of breath for analysis. 

See id. at 11. At that point, Hall conferred with Caro, who instructed Lauthers 

and Hall to ask Shoemaker if she would submit to a blood test. See id. at 25, 

34. According to Lauthers, Shoemaker agreed. See id. at 11-12, 18. 

Additionally, at the suppression hearing, Lauthers testified that he threatened

Shoemaker that if she declined to take the blood test, it would be considered 

a refusal to submit. See N.T. (Suppression), 6/27/17, at 18.
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Shoemaker did not have a choice to refuse alcohol testing, where her 

supervisors informed her that she could either come with them, or they would 

call the police. Additionally, after failing to adequately perform the breath 

test, Lauthers apprised Shoemaker that if she did not submit to a blood test, 

her actions would be considered a refusal under the Agreement. As a 

unionized employee subject to the Agreement, Shoemaker was reasonably on 

notice that a refusal would result in her discharge from employment. Thus, 

Shoemaker’s only “choice” was whether to submit to a blood alcohol test, or 

to refuse the test and subject herself to discharge. Because a reasonable 

person would not feel free to deny consent under the threat of losing his or 

her job, or the involvement of law enforcement, we conclude that Shoemaker’s 

consent to submit to a blood alcohol test was obtained through coercion, and

not voluntarily given. See Kurtz, supra; see also Commonwealth v. 

Kelly, 369 A.2d 438, 443 (Pa. Super. 1976) (stating that “statements made 

under threat of being discharged are the products of coercion and are 

therefore inadmissible at trial.”); Garrity, 385 U.S. at 497-98 (concluding that 

a choice between self-incrimination and losing one’s livelihood “is likely to 

exert such pressure upon an individual as to disable him from making a free 

and rational choice[,]” and concluding that statements made when presented 

with such a choice are “infected by [] coercion ... and cannot be sustained as 

voluntary....”). Accordingly, the suppression court erred by failing to suppress 
J-S79034-18

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the results of Shoemaker’s blood alcohol test.11 Without the results of the 

blood test to substantiate Shoemaker’s BAC, there is insufficient evidence to 

sustain Shoemaker’s conviction for DUI – highest rate of alcohol. See 75 

Pa.C.S.A. § 3802(c). Accordingly, we vacate Shoemaker’s judgment of 

sentence for DUI – highest rate of alcohol.

12

 

Shoemaker’s remaining claims challenge the sufficiency of the evidence 

presented at trial. When reviewing such challenges, we must ascertain

whether, viewing all the evidence admitted at trial in the light 

most favorable to the verdict winner, there is sufficient evidence 

to enable the fact-finder to find every element of the crime beyond 

a reasonable doubt. In applying the above test, we may not weigh 

the evidence and substitute our prior judgment for the fact-finder. 

In addition, we note that the facts and circumstances established 

by the Commonwealth need not preclude every possibility of 

innocence. Any doubts regarding a defendant’s guilt may be 

resolved by the fact-finder unless the evidence is so weak and 

inconclusive that as a matter of law no probability of fact may be 

drawn from the combined circumstances. The Commonwealth 

may sustain its burden of proving every element of the crime 

beyond a reasonable doubt by means of wholly circumstantial 

evidence. Moreover, in applying the above test, the entire record 

must be evaluated and all evidence actually received must be 

____________________________________________

11 We additionally note that Shoemaker’s blood test was not conducted 

following a motor vehicle accident involving injury, or for independent medical 

purposes. See 75 Pa.C.S.A. § 3755 (authorizing a warrantless chemical test 

if a motorist requires emergency room treatment following a motor vehicle 

accident, and the police officer has probable cause to believe the accident 

involved a violation of section 3802); Commonwealth v. Miller, 996 A.2d 

508, 513 (Pa. Super. 2010) (stating that “where a blood draw is conducted 

for medical purposes, and the results of the blood test are obtained after 

proper execution of a search warrant, the results of the blood draw are 

admissible in the prosecution of a DUI defendant.”).

12 Because it appears that Shoemaker has completely served her sentence, 

we need not remand for resentencing. 
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considered. Finally, the finder of fact, while passing upon the 

credibility of witnesses and the weight of the evidence produced, 

is free to believe all, part or none of the evidence.

Commonwealth v. Furness, 153 A.3d 397, 401 (Pa. Super. 2016) (citation 

and brackets omitted).

In her second claim, Shoemaker asserts that, in the absence of blood 

test results, there was insufficient evidence to support her conviction of DUI 

– general impairment. Brief for Appellant at 26. Shoemaker does not dispute 

that she drove a Commission vehicle on the Pennsylvania Turnpike, but claims 

that there was “no evidence that she drove erratically or in an unsafe manner.” 

Id. Shoemaker also points out that no field sobriety tests were conducted by 

law enforcement. Id. at 27.13

Section 3802(a)(1) of the Motor Vehicle Codes provides that “[a]n 

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.” 75 Pa.C.S.A. 

§ 3802(a)(1). Section 3802(a)(1) is an “at the time of driving” offense, and 

the Commonwealth must prove that “the accused was driving, operating, or 

in actual physical control of the movement of a vehicle during the time when 

____________________________________________

13 We note that Shoemaker failed to include citation and discussion of relevant 

case law in support of her claim. See Pa.R.A.P. 2119(f) (providing that the 

argument shall include “such discussion and citation of authorities as are 

deemed pertinent.”). Nevertheless, we decline to deem this issue waived.
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he or she was rendered incapable of safely doing so due to the consumption 

of alcohol.” Commonwealth v. Segida, 985 A.2d 871, 879 (Pa. 2009).

The types of evidence that the Commonwealth may proffer 

in a subsection 3802(a)(1) prosecution include[,] but are not 

limited to, the following: the offender’s actions and behavior, 

including manner of driving and ability to pass field sobriety tests; 

demeanor, including toward the investigating officer; physical 

appearance, particularly bloodshot eyes and other physical signs 

of intoxication; odor of alcohol[;] and slurred speech. Blood 

alcohol level may be added to this list, although it is not 

necessary and the two hour time limit for measuring blood 

alcohol level does not apply. ... The weight to be assigned these 

various types of evidence presents a question for the fact-finder, 

who may rely on his or her experience, common sense, and/or 

expert testimony.

Id. (emphasis added). “[N]on-expert testimony is admissible to prove 

intoxication where such testimony is based upon the witness’[s] observation 

of the defendant’s acts and speech[,] and where the witness can opine as to 

whether the defendant was drunk.” Commonwealth v. Salter, 121 A.3d 

987, 996 (Pa. Super. 2015) (citation omitted). Additionally, “[e]vidence of 

erratic driving is not a necessary precursor to a finding of guilt under the 

relevant statute.” Commonwealth v. Mobley, 14 A.3d 887, 890 (Pa. Super. 

2011).

The trial court addressed this claim as follows:

Here, notwithstanding [Shoemaker’s BAC], ... the Commonwealth 

provided evidence as to deficiencies in [Shoemaker’s] ability to 

drive. Specifically, the Commonwealth provided evidence as to 

[Shoemaker’s] “actions and behavior, ... demeanor, ... physical 

appearance, ... odor of alcohol, and slurred speech.” Segida, 985 

A.2d at 879.
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At the bench trial, Lauthers testified that he was instructed 

by another employee to “take a look at” [Shoemaker]. Lauthers 

approached [Shoemaker] to discuss the daily tasks[,] and during 

this encounter[,] observed her staggering[,] and heard 

[Shoemaker] slurring her speech. [Shoemaker] also made a 

perplexing statement wherein she uttered “I know I’m not the 

best, but I will do my best for you[,]” and after being questioned 

regarding whether she consumed any alcohol, [Shoemaker] 

stated “this was what we are going to do, really?” Lauthers further 

testified that he smelled alcohol on [Shoemaker’s] breath. In 

addition, both Lauthers and Hall testified that they observed 

[Shoemaker] ma[k]e a [U]-turn by driving in the opposite lane 

[of] traffic on the Turnpike[,] despite repeated instructions for 

[Shoemaker] to stop [] driving. Moreover, [Shoemaker] indirectly 

admitted that she was under the influence of alcohol; when 

informed that she was heading to FCMC for an alcohol screening, 

[Shoemaker] responded “I’m fucked.” Given the related 

observations, the facts and circumstances, including 

[Shoemaker’s] statements, the Commonwealth has demonstrated 

that [Shoemaker] was under the influence of alcohol to such a

degree as to render [her] incapable of safe driving....

Trial Court Opinion, 7/10/18, at 10-11 (some citations omitted). We 

additionally note that Lauthers observed Shoemaker staggering and slurring 

her speech shortly before she drove a Commission vehicle on the Turnpike. 

See generally N.T. (Suppression), 6/27/17, at 6-8 (wherein Lauthers 

testified that he spoke with Shoemaker at approximately 3:15 p.m.; he then 

went to the office to talk to Hall; Hall called the human resources department 

and told him to “go get [Shoemaker]”; and when he returned to the wash bay, 

Shoemaker was gone). Upon review, we conclude that the evidence, viewed 

in the light most favorable to the Commonwealth as the verdict-winner, was 

sufficient to support Shoemaker’s conviction under 75 Pa.C.S.A. § 3802(a)(1). 

Therefore, Shoemaker is not entitled to relief on this claim. 
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In her third claim, Shoemaker argues that there was insufficient 

evidence to support her conviction of careless driving. Brief for Appellant at 

27. Shoemaker claims that although she made a U-turn on the Turnpike, her 

actions did not interfere with any other traffic. Id. Shoemaker asserts that 

“[i]n the absence of the blood results, there is no evidence [that] Shoemaker 

acted in willful or wanton conduct.” Id.

14

 

Section 3714 of the Motor Vehicle Code provides that “[a]ny person who 

drives a vehicle in careless disregard for the safety of persons or property is 

guilty of careless driving, a summary offense.” 75 Pa.C.S.A. § 3714. “The 

mens rea requirement applicable to [Section] 3714, careless disregard, 

implies less than willful or wanton conduct but more than ordinary negligence 

or the mere absence of care under the circumstances.” Commonwealth v. 

Ford, 141 A.3d 547, 556 (Pa. Super. 2016) (citation omitted).

Here, Lauthers and Hall saw Shoemaker make a U-turn, but did not 

otherwise witness Shoemaker driving the Commission’s vehicle. At trial, 

Lauthers testified that when they approached Shoemaker, the vehicle was 

parked on the side of the road, and Shoemaker was talking to a customer. 

See N.T. (Trial, Amended), 5/9/18, at 8-9; see also id. at 22 (wherein Hall

testified that Shoemaker was still in the vehicle while she was speaking to the 

customer). Lauthers testified that as he and Hall pulled up behind her, 

Shoemaker pulled away in the Commission vehicle. See id. a 9. Hall yelled 

____________________________________________

14 Shoemaker’s argument regarding her final claim is largely underdeveloped. 

See Pa.R.A.P. 2119(a).
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at Shoemaker to stop the vehicle, and Shoemaker “just made a [U]-turn [] 

inside the interchange.” Id. at 23; see also N.T. (Suppression), 6/27/17, at 

21 (wherein Hall testified that Shoemaker “basically did a 360 and parked the 

truck back in the parking area[.]”). Lauthers also testified that when 

Shoemaker “looped around,” “[t]here wasn’t anything coming.” N.T. (Trial, 

Amended), 5/9/18, at 9. 

Lauthers and Hall did not observe Shoemaker driving on the Turnpike. 

The only driving Lauthers and Hall personally witnessed was Shoemaker 

pulling out of the parking area, making a U-turn, and returning to the parking 

area behind their vehicle. Upon review, we conclude that this sole observation 

by Lauthers and Hall, without more, is insufficient to sustain Shoemaker’s 

conviction of careless driving. See generally Commonwealth v. Podrasky, 

678 A.2d 450, 452-53 (Pa. Super. 1977) (concluding that there was

insufficient evidence to support the appellant’s conviction, for making a U-turn 

on a highway, under a prior version of the reckless driving statute (defining 

reckless driving as driving any vehicle upon a highway “carelessly disregarding 

the rights or safety to others, or in a manner so as to endanger any person or 

property”) because “[n]o accident occurred, and no evidence was adduced 

that appellant’s turn nearly caused an accident or that it even interfered with 

the normal flow of oncoming traffic.”). We therefore vacate Shoemaker’s

judgment of sentence for careless driving.

Judgment of sentence affirmed in part, and vacated in part.

Judge Shogan joins the memorandum.
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Judge Olson concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 05/16/2019