J-S83020-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA 

Appellant

v.

KORY PAUL DURFEY

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 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 findings 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. On March 11, 2017, Officer Weismiller was dispatched at 

11:10 a.m. to the 1220 block of East 38th Street, 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 observed two damaged 

vehicles in a westbound lane of East 38th Street: one vehicle was 

a Toyota and the other was a mini-van style Oldsmobile. It was 

apparent the Oldsmobile crossed the center line and struck the 

Toyota. Emergency medical personnel were administering aid to 

both drivers. The officer determined the Oldsmobile was operated 

by [Appellee]. The officer did not speak with either driver at the 
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scene. Officer Weismiller prepared the police “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, 

whereupon 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 being 

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 removed for diagnostic testing. 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 

[Appellee’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 record 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 did not place [Appellee] under arrest at scene 

or at the hospital. The record is devoid of evidence [Appellee] 

was unconscious at any time.

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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 of 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 defense 

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 

methamphetamines 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 death 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 

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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. 1925(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 Appellee’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 

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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. Super. 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 the 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 evidence 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 terminate the prosecution.
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amounting 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 specific 

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). “Issues 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 that 
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“[an] appellant’s concise 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 appellant 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 Commonwealth 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 file 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 guesses 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 to 
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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 identify 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 prevent 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 what 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 allow 
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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) statement 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 this 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, the 

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 erred 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’s 
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Pa.R.A.P. 1925(b) statement, the trial court was compelled to 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 appeal 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.

Prothonotary

Date: 5/30/2019