J - A08017 - 17

NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENN SYLVANIA 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 suppress ion order will “terminate or substantially handicap the prosecution.” See Pa.R.A.P. 311(d).J - A08017 - 17

- 2 -

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’Connell 3 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, Depa rtment 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 kno wing 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).J - A08017 - 17

- 3 -

Pena filed a motion to suppress the blood test results. Following a hearing, the s uppression 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
– 1 048 (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 prosecut ion 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 o n 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 whet her the record supports the suppression court’s factual findings; however, we maintain de novo r eview over the suppression court’s legal conclusions.” Commonwealth v. Brown , 996 A.2d 473, 476 (Pa. 2010) (citation omitted).J - A08017 - 17

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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 tha t “[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, an d 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 al

so 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 d irected 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.J - A08017 - 17

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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 7/21/2017driveway of the property. N.T. 8 / 13 / 15 at 11. Once the officer approached the vehicle he

residentialproperty, a n d up to the car Appe ll ee was in
. The car was positioned sideways in the a car. N.T. 8/13 / 15 at 8-9. He saw ti re tracks leading from Napfle Ave. acro s s the lawn of a H ardy arrived. N. T
. 8 / 13/15 at 8
. Officer Hardy observed Appellee sitting in the driver's seat of Testimo n y (N.T.) 8/13/15 at 7. The fire department and medic unit were on site when Officer an automobi l e accident at 1102 Napfle Ave. in the C i ty and County of Phi l ade l phia. Notes of On May 2, 20 1 5 at aro u nd 7:50 a.m., Officer Lorenz Hardy r esponded to a radio cal l for 

### F A CTS Appellee ' s motion to suppress. This Commonwealth appeal followed
. 20, 20 1 6, this Court iss u ed an O r der denying Appellant ' s Writ of Certiorari, thereby affirming On February 1 8, 2016, Appellant fi l ed a Writ o f Certiorari to Common Pleas Court. On April the H onorab l e Gerard Kosinski of the Mu n icipal Court g r anted Appellee's moti on to suppress. D riving Under the I nfluence ("DU I ") pursuant t o 75 Pa.C.S. § 3802(a ) (l)
. On August 13, 2015, On May 2, 2015, Elmo P ena (hereinafter " Appe l lee") was arrested and c h arged with E RDO S, J . OPINIO N EL MO PENA M C-M-CR -00 1 359 3-2015 C omm . v . P ena. E l mo O pin ion 

# FILED OCT 2 5 2016



## - · Crimin?~ AppeaJs 

## Unit .·,rst Jud1c1al District



## of PA 

# II II I II 

# II 1111111111111111 7516834821 1 45 2 E D A 201 6 v. MC -5 1 - CR-00135

93 -2015 COMMO

N W E AL TH OF PE

NNS YL VAN I A TH E COURT OF COM

MON P LEA S O F PHIL A D E LPHI A CO UN TY 

### F IR S T JUDI C IAL DI S TRI CT CRJMIN A L TRI A L DIVI S IO N 0015_Opinion Circulated 05/23/2017 04:07 PM2

observe d Appe 11 ee b l ee di ng fr o m hi s h ea d. N. T. 8 / 1 3/15 at 1 6. H e then as k ed Appe ll ee for his dri ver's l ice ns e and registrati on . N.T. 8 / 1 3 / 1 5 at 9. Appe ll ee's speech was slurre d , his pupils
w er e constricted, an d hi s b r eath s m e ll ed strongly o f alcoho l. N. T
. 8 / 1 3/15 at 1 1. Med i cal personnel eval u ate d A pp ellee for i n juri es an d assisted him wi th exiting the car. N
. T. 8 /1 3/15 at 1 8
. Appellee was place d i n a neck b race an d taken away on a gurney . N
. T
. 8 / 1 3 / 15 at 18
. Medical p erso nn e l th en t ook Appellee to A ri a T orresdale H ospital to be treated for a possible
conc u ssion. N. T. 8 / 13/15 at 3 0
. AID O ffi c er S head firs t cam e i nto contac t w i th Ap p ellee at Ari a T orresdale H ospita l around 9:23 a .m. N. T. 8 /13/1 5 at 34
. Th e of fi cer foun d h im l ayi n g on a h ospital bed in a nec k br ace . N. T. 8/13 / 1 5 at 38. O ffi cer Shea d and i n fo rmed Ap p ellee he h ad b een arr este d for D U I
an d as k ed h im t o su bmi t to a c hemical t est. 

### N.T. 8 / 13/15 at 35. Office r S h ea d then rea d Appellee th e O ' Connell Warnin gs an d the 75

- 439 R eport for Ch emica l T esti n g consent form. N.T. 8 / 13 / 15 at 35

- 36. Ap p ellee d id n ot r eview the consent forms o r respond to O fficer Shead
. 

### N
. T
. 8/13 / 15 at 42. O ffic e r S h ea d ph ys i cally h eld the consent fo rms i n front of Appellee for hi m to sign. 

### N.T
. 8 / 13 /15 at 42. A p pe l lee made a marki ng on the O ' Connell Warnings and signed his initials on th e d ate line of the 75

- 439 form. N. T
. 8 /13/15 at 2 7
. At 9:39 a. m. , O ffice r S h ead ask ed a nurse t o draw b lood from Ap p e ll ee ' s l eft arm . N. T
. 8 / 1 3 / 15 at 40. Ne i th er O fficer H ardy nor Officer Shead sec ur ed a warrant for the blood. N.T. 8 / 13 / 1 5 at 39. T wo days l ater A pp e ll ee was di s charged from Ari a Torre s dal e Hospita l. N.T. 8 / 13/15 at 4 6

- 47. A p pe l lee's disc h ar ge paperwork stated he suffere d a " conc u ssio n. " N. T
. 8 /1 3/ 1 5 at 4 6. 

### --·-·- ·-· - ·· · · - ---- - ~ .. 

### - .. -· - · · -- · ··· · . . · . , .,. ,~,.,- • ·•..-.•-· ., - • -r· · - -- • r- •-·------~· - · - ·· -- · • - ··~ .. " · - -.,. • · · -----·- · __ - !3 

### I
. Iss u e R a i sed The Commonwealth raises the following i s sue on appeal: Did the l ow e r court , sitting as an appe ll ate court, err in affirming the suppression ruli n g of the Municipal Court on the ground that a warrant was required to obtai n blood for a chemical test notwithstanding the implied consent statute , where the police had probable cause to believe the defendant was driving under the i n fl uence of alcohol or a contro ll ed su b stance and he did not withdraw consent? II
. St a nda r d o f R eview At th e outse t , we exami n e the pertinent standard of review. While the appeJlate court defers to the s u ppression court's findings of fac t , the s u ppres s i on court ' s conclu s ions o f law are not binding on a n appellate court , whose duty is to determine if the suppression court properly applie d the law to the facts. Commonwealth v . Hu ds on , 92 A.3d 1235 , 1241 (Pa. Supe r. 20 1 4). 

### III
. An al

ys i s The taking of b l ood constitutes a search subject to the prov i sions of the Fourth Amendment of the U.S
. Cons ti tution and Article I , Section 8 of the Penn s y l vania Cons titution
. Schmerber v . California, 384 U.S. 757 ( 1 966); Commonwealth v. Davenport, 308 A.2d 85, 87 (Pa. 1973). T h e Pennsylvania Supreme Court has held that exceptions to the warrant requirement ex i st to n egate the necessity o f obtaining a warrant before conducti ng a search
. Commonwealth v. Riedel, 651 A
. 2d 135, 139 (Pa. 1994)
. Exceptions to the warrant requirement i nclude actual consent, imp l ie d consent, and exigent circumstances. Id
. Consent must be voluntary and knowing for it to operate as a valid waiver o f the ri ght to
r emain free from warrantless searches. Common w ealth v. Wa ls h, 460 A
. 2d 767 , 771-72 (Pa. Super. 1 983). W h ether consen t to a search was voluntary is a question of fact to be determined DI SCUSS I ON ___ _ ....;.... ._.4

Dakot a , 136 S.C t. 2 1 60 (2016)
. A lthough , because of his p hysica l condition, Appe ll ee in the conse n t to a blood draw is unconstitu tio n ally coerci v e and v i tiates conse n t. Birc hfield v . N or t h provis i on from N orth D akota , fin d i ng that l e v eraging crimi n al pena ltie s to i nduce a driver to

1 T he S u pr eme Court of the U ni t ed Stat es recen t ly struck down a s imilar implied consent co n v i c t ed h e faces inc r eased cri m inal penalties. 75 P a . C
. S
. A. § 380 4 (1). 1 pe r so n ... . " 7 5 Pa.C .S.A
. § 1 5 4 7(b)( l ). I n a d dition, i f th e r efusing ind i vidua l is subsequently bu t u po n n o ti ce by the p o li ce officer , the d epartme nt s h all suspe n d the o p e ratin g p riv ilege of th e re q ueste d t o submi t to c h emica l tes ti n g and r efuses to do so, the testi n g shall not be conducted 75 P a.C. S .A. § 15 4 7(a)(2). "If any pe r so n placed u nder arrest for a violation of Secti on 3802 is

An y p erson w h o drive s , operat es o r is i n actual phys i cal control of th e mo vement of a ve hicl e in this Commonweal th shall b e deemed t o ha v e g i ve n consent t o o ne o r more chemica l tests of b r eath or blood for th e purpose of de t ermining th e alcoho l ic co n t e nt o f blood or the prese n ce of a contro ll ed s u bstance i f a po li ce officer h as r easonable groun d s to be li eve th e pe r so n to have been driving, operati ng or in actua l p hys i ca l con trol of th e m ovemen t of a vehicle: (a)(2) w h ic h was invo l ved in an accident in which the o p erato r o r passenger of any vehicle i nvol v ed or a pedestrian r eq u i re d treatmen t at a medical facility or was killed. due t o the impl ied consen t statute . P ennsylvania's imp li ed co n sent statu te prov i des that: T he Com m onwealth arg u es that a warran t was not required to draw blo od from Appellee 460 A.2d at 772
. in vali d ated if th e c o nsenting pe r so n d id no t un derstand w h at it was he was conse n ti ng to. Wals h, be exami ned to de t ermi ne i f the consen t was coerced. Id. at 229. I n a d dition, consent can be Circu m sta nc es incl u ding th e subjecti v e l y vulnerable stat e of the person w h om consents s hould from the to t ali ty of the c i rc u mstances . Schn ec kloth v . B u s t amonte , 412 U
. S. 2 1 8 , 227 (1973 )
. .. - - -- ··- ·· -·------- -- ·· · 

## - · - ··--- ~-~----- -- ·· ··· · ---- -------- - - - - · ··-- -------· -- -- - -··· · · ·- - - - -5

i n stant matte r co uld not unde r sta n d what the o f ficers told him co n ce rn ing consen t, it i s arguabl e that the enti re i mplied co n s e nt statute i n P enns y l vania is i nva lid un der Birchfield
. The Pennsylvania Superior Co u rt recentl y addres s ed thi s iss u e and S e ction 1 5 47 in Common we alth v . My e rs . 1 18 A.3d 1122 (Pa. Super
. 2015). In My e rs , th e defendant was
r ender e d unconsc i ous after taki n g a n tipsychoti c m e d icati on a few mi nutes before the AID O ffice r arri ved. Id. at 1124. T h e officer attempted to make contact with the defenda n t by speaking his name a n d tapping hi m o n the s h oulder , but there was no respon s e . Id
. at 1 130. T he office r proceeded to g i ve the d efen d an t the informed consent warnings bu t s till receive d no
r esponse. Id. T he blo od draw was conduc t ed anyway. Id. T h e d efen d an t i n Myers co n te nd ed that h e was d eprived of his statu t ory right to refu s e a b l oo d draw an d pol i ce could not the n use h is inabili ty t o verbally refuse as the basis t o i nvoluntaril y t ak e his bl oo d
. I d. at 11 29. Th e co u rt i n M y er s agreed , fin d ing that alth ough Pennsy l van i a's impl i e d consen t law p e nali z es the refusal to consen t to a blood draw , i t does not permi t the invo l untary se i z ure o f a blood sample. 

### Id. Unde r Myers, then, the blood draw here cannot be ju sti fi ed under Secti on 1 54 7. Nor d i d Appe ll ee provid e actu al co n sent. I n Commonw e alth v . Smith, th e Pennsylvan i a S upreme Cou rt found a D U I s u s p ect ' s co n sent knowi n g and vol u ntary becau se he had fu ll u se of hi s faculties w h en he gave consent t o s ub mit t o chemica l testi n g. 77 A.3d 562 (P a. 2013)
. Th e suspec t h i t a car an d serio us l y i n jure d its occupants one mo rni n g after dri nki ng th e night be for e . P olice arri ved o n scene an d aske d th e dri ver if h e wo ul d ag r ee to su bmit to a chemi cal tes t . Id. at 223. T h e dri ver agreed and u pon receiving the results , the police arrested a nd charged him with D UL Id
. O n ap p eal , the drive r argued th at the po l ice d i d not ob t ai n informed a n d actual consent. 

### · - -- -- - ·-- - ·- - ·- - -- -~ .. .. , ..... _ ··-- - ·- ···- --· -·-- ---- ------- ·- · ~ · ---~-~---6

Id. The court based its ho l di n g on the education level of the driver, his ph y sical health, his knowledge of the ri ght to refuse , and his understanding that the test wa s to rule out the possib i lity
o f alcohol or drngs. Id. T h e co u rt found, given the totality of the circ u mstances , that the driver's
consen t was knowing an d voluntary. The case at bar d i ffers from Myers with r espect to the defendants ' levels of consciousness. Appe ll ee was awake and responsive during h i s i nterac tion with Officer Shead , unlike the defenda n t in Myers
. H owever, Appellee suffered visible h ead trauma from the car crash. Duri ng his meeti n g w i th Officer Shead, the record demonstrates Appellee, l ike Myers,
was unab le to unde r stand the stan d ard i n formed co n sent warnings or give a knowing and vol u n t ary conse n t. N.T. 9/30/ 15 at 27. T herefore, Appellee did not legally consent t o the t aking of hi s b l ood. The circ u mstances the court relied on in Smith are not present in this case. A ppellee's health was drastica ll y affecte d by the car accident. D ue to b is incapacity , he did not have the
re q uisite know l edge o f the right to r efuse no r the u n d ers t anding that the c h emical test was to
exam ine his b l ood for the presence of alcohol. The medica l evide n ce accepted by the suppress i on co urt i s d ispositive. That court found that Appellee s u ffere d head trauma from the crash. T h e police officers and med i cal personnel testified that he had lacerations on his head and visib l y constri c t ed pupi l s. N.T. 8/13/ 1 5 at 29

- 30. Appe ll ee was unable to sit u p or review the consent form s, which O fficer Shead h ad to hold i n front of Appe ll ee's face. His disoriented state is furthe r de m onstrated by hi s i nability to correctl y sign th e imp l ied consen t f orms. He initi aled
one c on se n t form on the date li n e and made a marki ng o n the second form . He d i d not respond to Officer Shead w h en read his rig h ts. N.T. 9 / 30/ 15 at 27-28. 

# • . . . ...1-~
. - .. · .... . ~ ...- -- ~ ·- - · - -· · - - -- --'--

- -- . . -- --- · - - · · --- · ,. ... _ .. _,, _7 2 Again, eve n had Appellee given consent, i t woul d have been vitiated under Birchfield
. 

## '"" s D A TE : Oc t o b e r .._ , 2016 

### MICHAEL E. E RD OS , 

### J. B Y TH E C O URT: affirmed. affirming the Mu nici pa l Court s u ppression ruli n g . Accor d ingly, th is Court's decision should be I n light o f the app li c able statut es, t esti mo n y, an d case l aw, this Court d i d no t e rr in CONCLUSION warra n tless seizure of Ap p e ll ee's bl o o d p ermi ssib l e.? v. McNeely, 133 S
. Ct. 155 2 , 1 5 68 (2013). Th erefore , there is no exception to re nd er the c i rc u mstanc e in a dru nk- driving i n vestigati on to re n de r a warrant l ess search val id
. See Mi s souri Court h as he l d the natu r al di ss ip ation of a lc o h o l i n th e bloo d stream does n ot present an exigent secu r e a val i d warr ant d urin g tra d itiona l bus i ness hours. In add i ti o n , the Uni t ed States Supre m e not have obtai ned a warran t befo r e drawing Ap p e ll ee's b l ood. There was ample time for the m to vo l untaril y submit to a c h emical t est. Furthe rmore, there i s n o ind ication that th e officers could ability to c o mprehend the ri sks invo l ved with a chemi cal test. Appellee did not knowingly and Given these fac t s, i t i s ap pare n t Appe ll ee's h ea d traum a and related i njuri es i mpa ir ed hi s lo · _, ,, .. ~ ----......., .. ~ ·. - . · ~ · - .. :.J· - - - · - · · · - · •• • . :- - - ~ - · · ·~ - • . 4 · -- · · - -- · -- '- .. -·-· ~ ., ·-·- - · ~ · --- - - --- . . - - - - - -- ·-· - · -- ·