J-A31026-17

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

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 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, JJ. 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-A31026-17

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On September 14, 2016, the Commonwealth charged Appellee via 

criminal information with driving under the influence - general impairment1

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 based its ruling on an erroneous 

interpretation of 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 evidence 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 trial court issued its Rule 1925(a) opinion. 

Both of the Commonwealth’s issues were included in its concise statement.
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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 pending, 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 the 

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-A31026-17

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/27/18