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

COMMONWEALTH OF PENNSYLVANIA

Appellant

v.

KORY PAUL DURFEY : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 689 WDA 2018 Appeal from the Order April 9, 2018 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP

- 25

- CR

- 0001844

- 2017

BEFORE: PANELLA, J., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY SHOGAN, J.: FILED MAY 30, 2019
The Commonwealth appeals from the order of the trial court granting
the motion filed by Appellee, Kory Paul Durfey, in which he sought to suppress

the results of his blood test. We affirm.
The trial court presented its f indings of fact in this case as follows:
The Commonwealth presented the testimony of one witness: City of Erie Police Officer Jason Weismiller. The uncontroverted testimony of Officer Weismiller established the following:

1. O n March 11, 2017, Officer W eismiller was dispatched at 11:10 a.m. to the 1220 block of East 38 th Stree t , Erie, Pennsylvania, on the report of a two

- vehicle motor vehicle accident involving injuries. When the officer arrived at the scene approximately three minutes later, he observe d two damaged vehicles in a westbound lane of East 38 th Street: one vehicle was a Toyota and the ot h er was a mini

- van style Oldsmobile. It was apparent the Oldsmobile crossed the center li ne and struck the Toyota. Emergency medical personnel were adminis tering ai d to both drivers. The officer determined the Oldsmobil e was operated by [Appellee]. Th e officer did not speak with either driver at theJ

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scene. Officer Weismiller prepared the p olice “Crash Receipt” admitted in evidence as Commonwealth Ex. “A.”
2. Officer Weismiller testified he went through the glove box of [Appellee’s] vehicle to obtain insurance and registration information. At the scene, Sergeant “Bob” McDonald drew the officer’s attention to the driver’s seat of [Appellee’s] vehicle, whe reupon Officer Weismiller observed a syringe and a container with a white powdery substance in the driver’s seat. Sergeant McDonald retrieved these items and handed them over to Officer Weismiller. 3. Having learned the operators of the vehicles were be ing transported to Hamot Medical Center, Officer Weismiller left the scene at approximately noon or shortly thereafter and went to Hamot to speak with the drivers. At the hospital, Officer Weismiller went to [Appellee’s] treatment bay, however, [Appellee] had already been remove d for diagnostic test ing. While in [Appellee’s] medical bay, the officer engaged in conversation with hospital staff. The hospital staff asked the officer questions about the accident. The officer provided information about [Appe llee’s] involvement in the accident. During this conversation, Officer Weismiller obtained two (2) vials of [Appellee’s] blood from a nurse after informing the staff he intended to pursue charges against [Appellee] due to the nature of the crash. The rec ord is devoid as to when the blood that was given to the police was drawn.
4. The Court finds Officer Weismiller did not speak with [Appellee] at the hospital. He did not talk with [Appellee] or read to him the O’Connell warnings [ 1 ] at the scene or at the hospital. He did not obtain [Appellee’s] consent to a blood draw. [Appellee] did not have the opportunity to consent or refuse a blood draw. The officer did not obtain a search warrant for [Appellee’s] blood. Officer Weismiller d id not place [Appellee] under arrest at scene or at the hospital. The record is devoid of evidence [Appellee] was unconscious at any time.

_________________ __________ ______ ____ _______

1 “ O’Connell warnings are the standard advisement of the requirements of Pennsylvania’ s implied consent law and the consequences of refusal to submit to a requested chemical test.” Commonwealth v. Myers , 164 A.3d 1162 n.3 (Pa. 2017) (citing Commonwealth, Department o f Transportation, Bureau of Traffic Safety v. O'Connell , 555 A.2d 873 (Pa. 1989))

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- 5. Officer Weismiller felt it was not necessary to obtain a search warrant for [Appellee’s] blood. When asked by d efense counsel if there was a reason why Officer Weismiller did not obtain a search warrant, the officer testified: “No reason

– didn’t feel it was immediately necessary at the time.” 6. Officer Weismiller left [Appellee’s] medical bay with the vials of [Appellee’s] blood and went to the Erie Police station where the vials of blood were tagged in as evidence. The vials of blood were then sent to the state police lab for chemical analysis. The test results revealed the presence of ethyl alcohol and metha mphetamines in [Appellee’s] blood. The charges were based on the results of the blood testing performed by the state police. The officer was not informed of the results of any testing of [Appellee’s] blood which may have been performed by the hospital.
Trial Court Opinion and Order, 4/9/18, at 3

- 5. Appellee was charged with driving under the influence of a schedule I,

II , or III controlled substance in his blood, aggravated assault by vehicle while driving under the influence, and accidents involving dea th or personal injury
while not properly licensed. 2 On September 29, 2017, Appellee filed an
omnibus pretrial motion seeking suppression of the results of the chemical
testing of his blood. A hearing on the suppression motion was held on
November 1, 2017 . The parties subsequently filed written briefs. On April 9, 2018, the suppression court granted Appellee’s suppression motion and filed
findings of fact and conclusions of law. The Commonwealth filed this timely

_________________ __________ ______ ____ _______

2 75 Pa.C.S. §§ 3802(d)(1), 3735.1(a) , and 3742.1 (a), respectively

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appeal and a contemporaneous Pa.R.A.P. 1 925(b) statement. 3 Thereafter,
the suppression court complied with Pa.R.A.P. 1925(a). The Commonwealth presents the following issue for our consideration:

Whether the lower court erred as a matter of law or abused its discretion by finding that the Appel lee’s constitutional rights were violated through the testing of his blood for alcohol or controlled substances?

Commonwealth’s Brief at 3.
The Commonwealth argues that the suppression court erred in granting the motion to suppress. Commonwealth’s Brief at 7

- 8. The Commonwealth
contends that Officer Weismiller was not required to obtain a search warrant
to accept the vials of blood from the hospital personnel, which were drawn for
independent medical purposes, because there was no government action

_________________ __________ ______ ____ _______
3 Under Pa.R.A.P. 311(d), in criminal cases the Commonwealth has a right to appeal interlocutory orders if the Commonwealth certifies that the orders will terminate or substantially handicap the prosecution. Commonwealth v. Flamer , 53 A.3d 82, 86 n.2 (Pa. S uper. 2012). Specifically, Rule 311(d) provides as follows:
In a criminal case, under the circumstances provided by law, the Commonwealth may take an appeal as of right from an order that does not end the entire case where the Commonwealth certifies in t he notice of appeal that the order will terminate or substantially handicap the prosecution.
Pa.R.A.P. 311(d). Here, the record reflects that the Commonwealth has certified that, pursuant to Pa.R.A.P. 311(d), the order prohibiting the introduction of evi dence terminates or substantially handicaps the prosecution of the case. Notice of Appeal, 5/9/18. Therefore, pursuant to Pa.R.A.P. 311(d), this Court has jurisdiction to hear this appeal from the interlocutory order, even though the order did not termin ate the prosecution.J

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amou nting to a seizure. Id . at 7. The Commonwealth further asserts that
the blood samples were properly tested pursuant to the implied consent

statute. Id . at 7

- 8. Before addressing the merits of the Commonwealth’s issue, we must

determine whether the issue is properly before us. The trial court has asserted that the issue raised in the Commonwealth’s Pa.R.A.P. 1925(b) statement is
waived as too vague for the trial court to address. We agree.
A concise statement of errors complained of on appeal must be sp ecific
enough for the trial court to identify and address the issues the appellant
wishes to raise on appeal. Commonwealth v. Reeves , 907 A.2d 1, 2 (Pa.
Super. 2006) (quoting Lineberger v. Wyeth , 894 A.2d 141, 148 (Pa. Super.
2006)). Pennsylvania Rule of Appellate Procedure 1925 provides that a Rule 1925(b) statement “shall concisely identify each ruling or error that the
appellant intends to challenge with sufficient detail to identify all pertinent issues for the judge.” Pa.R.A.P. 1925(b)(4)(ii). “Iss ues not included in the
Statement and/or not raised in accordance with the provisions of this paragraph (b)(4) are waived.” Pa.R.A.P. 1925(b)(4)(vii). See also
Commonwealth v. Lopata , 754 A.2d 685, 689 (Pa. Super. 2000) (stating
that “[a] claim which has not been raised before the trial court cannot be raised for the first time on appeal”).
This Court has considered the question of what constitutes a sufficient
Pa.R.A.P. 1925(b) statement on numerous occasions and has established thatJ

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“[an] appellant’s co ncise statement must properly specify the error to be addressed on appeal.” Commonwealth v. Hansley , 24 A.3d 410, 415 (Pa. Super. 2011). “[T]he Rule 1925(b) statement must be specific enough for the
trial court to identify and address the issue an appell ant wishes to raise on appeal.” Id . (brackets, internal quotation marks, and citation omitted). The compulsory requirement of adhering to Pa.R.A.P. 1925 is captured
in the following excerpt from Kanter v. Epstein , 866 A.2d 394 (Pa. Super.
2004):

In Common wealth v. Lord , 553 Pa. 415, 719 A.2d 306 (Pa. 1999), the Pennsylvania Supreme Court specifically held that “from this date forward, in order to preserve their claims for appellate review, [a]ppellants must comply whenever the trial court orders them to fi le a Statement of Matters Complained of on Appeal pursuant to [Pennsylvania Rule of Appellate Procedure] 1925.” Lord , 719 A.2d at 309. “Any issues not raised in a 1925(b) statement will be deemed waived.” Id . This Court explained in Riley v. Foley , 783 A.2d 807, 813 (Pa. Super. 2001), that Rule 1925 is a crucial component of the appellate process because it allows the trial court to identify and focus on those issues the parties plan to raise on appeal. This Court has further explained that “a Concise Statement which is too vague to allow the court to identify the issues raised on appeal is the functional equivalent to no Concise Statement at all.” Commonwealth v. Dowling , 778 A.2d 683, 686

- [6]87 (Pa. Super. 2001). “Even if the trial court correctly g uesses the issues Appellants raise[] on appeal and writes an opinion pursuant to that supposition the issues [are] still waived.” Commonwealth v. Heggins , 809 A.2d 908, 911 (Pa. Super. 2002).

Kanter , 866 A.2d at 400.

Our law further makes clear that satisfaction of Pa.R.A.P. 1925 is not
simply a matter of filing any statement. Rather, the statement must be
concise and sufficiently specific and coherent as to allow the trial court toJ

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understand the specific allegation of error and offer a rebuttal. These
requirements are evident in the following language from Dowling : When a court has to guess what issues an appellant is appealing, that is not enough for meaningful review. When an appellant fails adequately to identif y in a concise manner the issues sought to be pursued on appeal, the trial court is impeded in its preparation of a legal analysis which is pertinent to those issues.

. . . While Lord and its progeny have generally involved situations where an appellant completely fails to mention an issue in his Concise Statement, for the reasons set forth above we conclude that Lord should also apply to Concise Statements which are so vague as to pre vent the court from identifying the issue to be raised on appeal. In the instant case, [a]ppellant’s Concise Statement was not specific enough for the trial court to identify and address the issue [a]ppellant wished to raise on appeal. As such, the court did not address it. Because [a]ppellant’s vague Concise Statement has hampered appellate review, it is waived.
Dowling , 778 A.2d at 686

- 687 (citations and quotation marks omitted).
Moreover, as we stated in Reeves : [t] here is a common sense obligation to give the trial court notice as to what the trial court should address in its Rule 1925(a) opinion. While there is a middle ground that [an appellant] must travel to avoid having a Rule 1925(b) statement so vague that the trial judge cannot ascertain wh at issues should be discussed in the Rule 1925(a) opinion or so verbose and lengthy that it frustrates the ability of the trial judge to hone in on the issues actually being presented to the appellate court, see Kanter v. Epstein , 866 A.2d 394 (Pa. Super. 2004), that is not an onerous burden to place on [an appellant]. It only requires using a little common sense.

Reeves , 907 A.2d at 2

- 3. In essence, the purpose of requiring a concise statement of matters
complained of on appeal under Pa.R.A.P. 1925(b) is to allow the trial court to
easily discern the issues an appellant intends to pursue on appeal and to allowJ

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the court to file an intelligent response to those issues in an opinion pursuant to Pa.R.A.P. 1925(a). The Commonwealth’s Pa.R.A.P. 1925(b) statem ent fails
in this regard. The trial court offered the following comments regarding the

Commonwealth’s Pa.R.A.P. 1925(b) statement, which compels our conclusion: [T]he appellate issue is waived as too vague for the [c]ourt to address. The claim, as stated, does not comport with the requirements of Pa.R.A.P. 1925(b). [The Commonwealth] must concisely identify each ruling or error with sufficient detail to identify all pertinent issues for the trial court to address. Pa.R.A.P. 1925(b)(4)(ii)

. * * *

In t his case, [the Commonwealth] fails to identify any ruling of law which allegedly was made in error, and fails to indicate how, when, or where the [c]ourt committed any abuse of discretion. Numerous legal and factual issues were addressed in the [c]ourt’s Findings of Fact and Conclusions of Law, yet [the Commonwealth] points to no legal or factual finding in support of the bald and sweeping appellate claim. This [c]ourt is simply unable to address the issue as presented in the concise statement. Hence, th e appellate claim is waived as too vague for the court to address.
Trial Court Opinion, 7/17/18, at 2. We are constrained to agree with the trial

court’s determination.

Our review of the certified record reflects that the Commonwealth’s
Pa.R.A.P. 1925(b) statement is nonspecific to the point that it fails to present
thoughtfully any legal issues. Specifically, the Commonwealth has offered the following: “1. The Court err ed as a matter of law and/or abused its discretion by granting [Appellee’s] Omnibus Pre

- Trial Motion.” Pa.R.A.P. 1925(b) Statement, 5/9/18, at 1. Due to the vague language in the Commonwealth’sJ

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Pa.R.A.P. 1925(b) statement, the trial court was compelled t o guess at the
legal issues that the Commonwealth sought to preserve and raise on appeal,

which the trial court declined to do. The ultimate result of the Commonwealth’s nebulous presentation is
that any issue the Commonwealth wished to raise in this appea l is lost in the

midst of its ambiguous Pa.R.A.P. 1925(b) statement. However, even if the
trial court correctly guessed the issues the Commonwealth wanted to raise,
and wrote its opinion pursuant to that supposition, the issues are waived.

Kanter , 866 A. 2d at 400. Given the foregoing, we conclude that the

Commonwealth’s challenge to the trial court’s order granting Appellee’s
motion to suppress is waived. Therefore, we affirm the order.

Order affirmed.
Judgment Entered.

Joseph D. Seletyn, Esq. Prot honotary

Date: 5/30/2019