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*Former Justice specially assigned to the Superior Court NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

SEAN JOSEPH KURTZ :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1285 EDA 2017

Appeal from the Decision March 22, 2017 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP

- 09

- CR

- 0005500

- 2016

BEFORE: PANELLA and OLSON, J J. and STEVENS

, * P.J.E.

JUDGMENT ORDER BY OLSON, J.: FILED FEBRUARY 27, 2018

The Commonwealth of Pennsylvania appeals from the March 22, 2017

order granting Sean Joseph Kurtz’s (“Appellee’s”) motion in limine . We

reverse.

The factual background and procedural history of this case are as

follows. Early in the morning on May 1, 2016, Appellee was involved in a

motor vehicle accident. Appellee fled the scene . The driver of the other

vehicle recognized Appellee and informed police of his identity. Appellee was

stopped a short time later. Police requested that he undergo a blood test to

determine if he were under the influence of alcohol and/or drugs but he

refused to consent to such testing.J

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On September 14, 2016, the Commonwealth charged Appellee via

criminal information with driving under the influence

- general impairment 1

and fleeting the scene of an accident. 2 Thereafter, Appellee filed a motion in

limine seeking to prohibit the Commonwealth from introducing evidence that

he refused a blood test . On March 22, 2017, the trial court granted Appellee’s

motion in limine . This timely interlocutory appeal as of right followed. 3 See

Pa.R.A.P. 311(d) (Commonwealth may appeal as of right from an order that

does not end the entire case where the Commonwealth certifies that the order

will terminate or substantially handicap the prosecution.)

.

The Commonwealth presents two issues for our review:

1. Did the trial court err and/or abuse its discretion in granting Appellee ’s [m] otion in [ l ] imine to preclude evidence of Appellee’s refusal of blood testing and circumstances surrounding same,
where the trial court b ased its ruling on an erroneous interpretation o f Birchfield v. North Dakota

, [136 S.Ct. 2160 (2016)] . . . ?

2. Did the trial court err and/or abuse its discretion in granting Appellee ’s [m] otion in [ l ] imine to preclude ev idence of Appellee’ s refusal of blood testing . . . when it determined that the probative value of the refusal evidence was outweighed by its prejudicial impact . . . ?

Commonwealth’s Brief at 4.

1 75 Pa.C.S.A. § 3802(a)(1).

2 75 Pa.C.S.A. § 3744(a).

3 On May 2, 2017, the trial court ordered the Commonwealth to file a concise statement of errors complained of on appeal (“concise statement”). See Pa.R.A.P. 1925(b). On May 12, 2017, the Commonwealth filed its concise statement. On June 15, 2017, the tr ial court issued its Rule 1925(a) opinion. Both of the Commonwealth’s issues were included in its concise statement.J

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Both of the Commonwealth’s issues challenge the trial court’s order

granting Appellee’s motion in limine to exclude evidence relating to his refusal

to submit to a blood test. “We review a trial court’ s decision to grant a motion

in limine for an abuse of discretion. ” Commonwealth v. Ribot , 169 A.3d 64,

67 (Pa. Super. 2017) (citation omitted).

While this appeal was p ending, a three

- judge panel of this Court decided

Commonwealth v. Bell , 167 A.3d 744 (Pa. Super. 2017). In Bell , this Court

held that evidence of a motorist’s refusal to submit to a blood test is admissible

post

- Birchfield

. Id. at 749

- 750. Appellee’s counsel conceded at oral

argument that the outcome of this appeal is controlled by Bell

. We agree. 4

Under Bell

, admission of evidence that Appellee refused to submit to a blood

test does not violate his constitutional rights and the probative value of t he

refusal evidence outweighs its prejudicial effect . Accordingly, we reverse the

trial court’s order granting Appellee’s motion in limine and remand for further

proceedings consistent with this judgment order.

Order reversed. Case remanded. Jurisdiction relinquished.

4 Although some members of this panel disagree with Bell , as a three

- judge panel we are bound by that decision. See Commonwealth v. Johnson , 125 A.3d 822, 826 n.2 (Pa. Super. 2015) (citation omitted).J

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/27/18