J-S23028-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

WILLIAM BLOM 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2756 EDA 2017

Appeal from the PCRA Order August 1, 2017

In the Court of Common Pleas of Bucks County Criminal Division at 

No(s): CP-09-CR-0004792-2015

BEFORE: SHOGAN, J., NICHOLS, J., and STEVENS, P.J.E.*

MEMORANDUM BY NICHOLS, J.: FILED JUNE 12, 2018

Appellant William Blom appeals from the order dismissing his first timely 

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 

9541-9546. Appellant asserts that the PCRA court erred in dismissing his 

petition without a hearing where he raised a claim that trial counsel was 

ineffective for failing to file a motion to suppress the chemical test results of 

a blood draw conducted based upon a stop for driving under the influence 

(DUI). We affirm.

The trial court summarized the relevant facts of this matter as follows:

[On May 2, 2015,] Officer [Dominic] Micciolo witnessed Appellant 

drive past a stop sign and observed outdated inspection stickers 

on Appellant’s vehicle. The Officer told Appellant to pull over as 

he was turning the police cruiser around. Appellant exited his 

vehicle. Appellant refused to get back in the vehicle. As the 

Officer was cuffing Appellant, he smelled alcohol[,] and prior to a 

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* Former Justice specially assigned to the Superior Court.
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body search[,] Appellant informed the Officer of a hypodermic 

needle in his pocket. Appellant told the Officer he was drinking 

and using heroin earlier that evening. [Appellant was transported 

to police headquarters where blood samples were obtained.1] The 

toxicology report revealed a [blood alcohol content (BAC)] of .128 

and [that Appellant] tested positive for opiates and morphine. The 

hypodermic needle tested positive for heroin.

PCRA Ct. Op., 11/21/17, at 1 (citations omitted).

Appellant was charged by a criminal complaint filed on June 4, 2015. 

On September 29, 2015, Appellant filed an omnibus pre-trial motion seeking, 

inter alia, suppression of the test results based on an unlawful arrest and the 

arresting officer’s failure to advise him of his right to refuse chemical testing. 

On October 7, 2015, before the trial court ruled on Appellant’s 

suppression motion, Appellant pled guilty to DUI-combination alcohol/drugs2

and possession of drug paraphernalia3 based upon the foregoing facts. The 

trial court sentenced Appellant to six to twenty-four months of incarceration,

followed by three years of probation. Appellant did not file any post-sentence 

motions or a direct appeal.

On September 23, 2016, Appellant filed a pro se PCRA petition. Courtappointed counsel filed an amended PCRA petition on June 15, 2017. The 

PCRA court dismissed the amended PCRA petition without a hearing on August 

2, 2017. Appellant filed a timely notice of appeal and concise statement of 

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1 The record does not indicate whether Appellant was given the DL-26 

warnings. 

2 75 Pa.C.S. § 3802(d)(3).

3 35 P.S. § 780-113(a)(32).
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errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). The PCRA

court complied with Pa.R.A.P. 1925(a).

Appellant raises the following question for our review: “Did the [PCRA] 

court err in denying [A]ppellant’s post-conviction relief act petition without a 

hearing where trial counsel was ineffective for failing to file a motion to 

suppress the chemical test results, as Appellant did not knowingly, voluntarily, 

and intelligently consent to the blood draw?” Appellant’s Brief at 4 (full 

capitalization omitted).

Appellant argues that “counsel had an obligation to file a motion 

challenging the validity of the Appellant’s consent based upon a long line of 

Fourth Amendment cases in the [c]ourts of Pennsylvania and the United 

States. Trial counsel’s failure to address the issue was ineffective assistance 

of counsel.” Id. at 13.

The applicable standards of review regarding the dismissal of a PCRA 

petition and ineffectiveness claims are as follows: 

We must examine whether the record supports the PCRA court’s 

determination, and whether the PCRA court’s determination is free 

of legal error. The PCRA court’s findings will not be disturbed 

unless there is no support for the findings in the certified record.

***

It is well-established that counsel is presumed to have provided 

effective representation unless the PCRA petitioner pleads and 

proves all of the following: (1) the underlying legal claim is of 

arguable merit; (2) counsel’s action or inaction lacked any 

objectively reasonable basis designed to effectuate his client’s 

interest; and (3) prejudice, to the effect that there was a 

reasonable probability of a different outcome if not for counsel’s 

error.
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Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010) (citations 

and formatting omitted). Additionally, 

[t]he right to an evidentiary hearing on a post-conviction petition 

is not absolute. It is within the PCRA court’s discretion to decline 

to hold a hearing if the petitioner’s claim is patently frivolous and 

has no support either in the record or other evidence. It is the 

responsibility of the reviewing court on appeal to examine each 

issue raised in the PCRA petition in light of the record certified 

before it in order to determine if the PCRA court erred in its 

determination that there were no genuine issues of material fact 

in controversy and in denying relief without conducting an 

evidentiary hearing.

Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012) (citations and 

formatting omitted).

As an initial matter, we note that Appellant asserts that trial counsel 

should have filed a motion to suppress the results of his blood test. However, 

the record reveals that trial counsel did file such a motion, but that Appellant 

pled guilty before the trial court considered the motion. See Omnibus PreTrial Mot., 9/29/15.

In any event, it is apparent that Appellant is arguing that he was entitled 

to have the results of the blood test suppressed under Birchfield v. North 

Dakota, 136 S. Ct. 2160 (2016).4 See Appellant’s Brief at 13. However, in 

Commonwealth v. Wilcox, 174 A.3d 670 (Pa. Super. 2017), this Court 

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In Birchfield, the United States Supreme Court held that the Fourth 

Amendment does not permit warrantless blood tests incident to arrests for 

drunk driving. Birchfield, 136 S. Ct. at 2185. By way of background, the 

United States Supreme Court granted writs of certiorari on December 11, 

2015, in the cases examined in Birchfield, and the Court issued its decision 

on June 23, 2016. 
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noted that “[n]either the United States Supreme Court nor our Supreme Court 

has held that Birchfield is to be applied retroactively to cases like the one 

herein where the judgment of sentence had become final prior to its 

disposition.” Id. at 672. Here, Appellant’s conviction became final well before 

Birchfield was decided and approximately one month before the United 

States Supreme Court granted writs of certiorari to consider the issue raised 

by the former implied consent statutes. Accordingly, Appellant is not entitled 

to relief.

Because Appellant has not established a genuine issue of fact requiring 

a further evidentiary hearing, we discern no merit to his further claim that he 

was entitled to an evidentiary hearing. See Commonwealth v. Smith, 121 

A.3d 1049, 1052 (Pa. Super. 2015) (“the PCRA court can decline to hold a 

hearing if there is no genuine issue concerning any material fact and the 

petitioner is not entitled to post-conviction collateral relief, and no purpose 

would be served by any further proceedings.” (citation omitted)). 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/12/18
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