J-A15030-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

PHILIP GEORGE LETENDRE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 85 MDA 2018

Appeal from the Judgment of Sentence December 14, 2017

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

No(s): CP-01-CR-0000033-2017

BEFORE: PANELLA, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MURRAY, J.: FILED JULY 02, 2018

Philip George Letendre (Appellant) appeals from the judgment of 

sentence imposed following his convictions of driving under the influence of 

alcohol (DUI) – general impairment, DUI – highest rate of alcohol,1 and a 

related summary offense. We affirm.

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

1. Trooper Matthew Geiman has been a police officer with the 

Pennsylvania State Police for approximately two years. He has 

received specialized training in DUI cases, including signs of 

alcohol and drug intoxication.

2. On September 24, 2016, Trooper Geiman was working the 

3-11 p.m. shift, in full uniform and a marked police vehicle.

3. Trooper Geiman was dispatched to Route 97 and Heritage 

Drive, Mount Joy Township, Adams County, Pennsylvania, for a 

two vehicle accident.

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1 75 Pa.C.S.A. § 3802(a)(1), (c).
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4. Trooper Geiman approached and made contact with 

[Appellant], one of the drivers involved in the accident. Trooper 

Geiman observed [that Appellant] had bloodshot, glassy eyes, and 

his pupils were dilated. He also noticed [Appellant] was lethargic 

and careful how he walked.

5. [Appellant] performed the requested field sobriety tests 

(SFST’s), but refused the portable breath test (PBT).

6. Trooper Geiman placed [Appellant] under arrest and 

transported him to Gettysburg Hospital for a blood draw.

7. While en route to the hospital, Trooper Geiman explained to 

[Appellant] why they were going to the hospital and requested he 

submit to a blood draw.

8. Trooper Geiman removed [Appellant]’s handcuffs prior to 

walking into the hospital.

9. While at the hospital, Trooper Geiman read [Appellant] the 

revised DL-26[B] form[,] which does not reference enhanced 

criminal penalties for a refusal to submit to a blood draw.1

10. [Appellant] reviewed the revised DL-26[B] form provided to 

him. [Appellant] ultimately signed the revised DL-26[B] form and 

consented to the blood draw.

11. Trooper Geiman did not threaten or force [Appellant] to 

consent to the blood draw. At no point did Trooper Geiman 

reference enhanced criminal penalties if [Appellant] refused to 

consent to the blood draw.

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1 Trooper Geiman testified that the DL-26[B] form he read to 

[Appellant] was revised by PennDOT in the summer of 2016. The 

revised DL-26[B] form references a driver’s license suspension 

upon refusal to “submit to a chemical test of the blood” but does 

not reference criminal penalties. See Pennsylvania Department 

of Transportation, Chemical Testing Warnings and Report of 

Refusal to Submit to a Blood Test as Authorized by Section 1547 

of the Vehicle Code in Violation Section 3802 (relating to driving 

under the influence of Alcohol or Controlled Substance) (DL-26B) 

(6-16).
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12. [Appellant] has been a licensed Maryland attorney for seven 

years. He does not practice in the area of criminal law.

13. [Appellant] did not ask Trooper Geiman any questions about 

possible enhanced criminal penalties if he refused the blood test.

14. Trooper Geiman testified [Appellant] was lethargic, took 

several seconds to think and provided slow, delayed responses 

that night.

15. [Appellant]’s BAC was .336.

Suppression Court Opinion, 4/25/17, at 1-3.

On March 1, 2017, Appellant filed a pre-trial motion to suppress the 

evidence recovered from his blood draw, relying on the United States Supreme 

Court’s decision in Birchfield v. North Dakota, 136 S. Ct. 2160 (2016), 

which held that “motorists cannot be deemed to have consented to submit to 

a blood test on pain of committing a criminal offense.” Id. at 2186. Appellant 

argued that he was improperly coerced into consenting to the blood draw 

because he had independent knowledge of the criminal penalties associated 

with the refusal to submit to a blood draw under Section 3804(c) of the Vehicle 

Code, which was still in effect at the time of his arrest. See 75 Pa.C.S.A. § 

3804. On March 27, 2017, the trial court held a hearing on Appellant’s 

suppression motion, which the court denied on April 25, 2017.

On October 24, 2017, the trial court held a stipulated bench trial, after

which it found Appellant guilty of the aforementioned offenses. On December 

14, 2017, the trial court sentenced Appellant to 24 months of intermediate 

punishment with 90 days in a restrictive setting. This timely appeal followed.
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On appeal, Appellant presents the following issue for review:

Whether Appellant’s blood test results should have been 

suppressed as being coerced under the dictates of Birchfield

when, even though Appellant was read an amended DL-26[B]

form, the enhancement provisions of 75 Pa.C.S.[A.] § 3804 were 

still valid law, and Appellant had independent knowledge of the 

enhancement provisions of § 3804, and Appellant consented to a 

blood draw because of this independent knowledge.

Appellant’s Brief at 5.

The standard of review is as follows:

Our standard of review in addressing a challenge to a trial court’s 

denial of a suppression motion is limited to determining whether 

the factual findings are supported by the record and whether the 

legal conclusions drawn from those facts are correct. 

Commonwealth v. Woodard, [] 129 A.3d 480, 498 ([Pa.] 

2015). We are bound by the suppression court’s factual findings 

so long as they are supported by the record; our standard of 

review on questions of law is de novo. Commonwealth v. 

Galvin, [] 985 A.2d 783, 795 ([Pa.] 2009). Where, as here, the 

defendant is appealing the ruling of the suppression court, we may 

consider only the evidence of the Commonwealth and so much of 

the evidence for the defense as remains uncontradicted. 

Commonwealth v. Poplawski, [] 130 A.3d 697, 711 ([Pa.] 

2015). Our scope of review of suppression rulings includes only 

the suppression hearing record and excludes evidence elicited at 

trial. In the Interest of L.J., [] 79 A.3d 1073, 1085 ([Pa.] 

2013).

Commonwealth v. Smith, 177 A.3d 915, 918 (Pa. Super. 2017) (quoting 

Commonwealth v. Singleton, 169 A.3d 79, 82 (Pa. Super. 2017))

“The Fourth Amendment to the [United States] Constitution and Article 

I, Section 8 of [the Pennsylvania] Constitution protect citizens from 

unreasonable searches and seizures.” Commonwealth v. McAdoo, 46 A.3d 

781, 784 (Pa. Super. 2012). The “administration of a blood test ... performed 
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by an agent of, or at the direction of the government” constitutes a search 

under both the United States and Pennsylvania Constitutions. 

Commonwealth v. Kohl, 615 A.2d 308, 315 (Pa. 1992). “A search 

conducted without a warrant is deemed to be unreasonable and therefore 

constitutionally impermissible, unless an established exception applies.” 

Commonwealth v. Strickler, 757 A.2d 884, 888 (Pa. 2000). “One such 

exception is consent, voluntarily given.” Id. at 888-889.

Our Supreme Court explained:

While there is no hard and fast list of factors evincing 

voluntariness, some considerations include: 1) the defendant’s 

custodial status; 2) the use of duress or coercive tactics by law 

enforcement personnel; 3) the defendant’s knowledge of his right 

to refuse to consent; 4) the defendant’s education and

intelligence; 5) the defendant’s belief that no incriminating 

evidence will be found; and 6) the extent and level of the 

defendant's cooperation with the law enforcement personnel.

Commonwealth v. Gillespie, 821 A.2d 1221, 1225 (Pa. 2003) (Eakin, J., 

opinion announcing the judgment of the court) (citing Commonwealth v. 

Cleckley, 738 A.2d 427, 433 n.7 (1999)).

In Birchfield, the United States Supreme Court addressed the

constitutionality of warrantless blood draws. Although the Court concluded 

that warrantless blood draws are not permissible as searches incident to 

arrest, the Court determined that they are nonetheless permissible under the 

consent exception to the warrant requirement. Birchfield, 136 S. Ct. at

2185-2186. The Court explained that its “prior opinions have referred 

approvingly to the general concept of implied-consent laws that impose civil 
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penalties and evidentiary consequences on motorists who refuse to comply 

with BAC tests[.]” Id. at 2185.

The Court further stated, however, that it is “another matter ... for a 

State not only to insist upon an intrusive blood test, but also to impose 

criminal penalties on the refusal to submit to such a test.” Id. It reasoned

that “[t]here must be a limit to the consequences to which motorists may be 

deemed to have consented by virtue of a decision to drive on public roads.” 

Id. Thus, the Court concluded that “motorists cannot be deemed to have 

consented to submit to a blood test on pain of committing a criminal offense.” 

Id. at 2186.

Shortly following Birchfield, PennDOT revised the DL–26 form to 

remove the warnings that individuals suspected of DUI would face enhanced 

criminal penalties if they refused to submit to a blood test. Commonwealth 

v. Robertson, ___ A.3d ___, 2018 WL 2057000 at *2 (Pa. Super. May 3, 

2018). Subsequently, this Court invalidated Section 3804(c), holding that 

Pennsylvania's implied-consent law unconstitutionally “impose[s] criminal 

penalties on the refusal to submit to” a blood test. Commonwealth v. 

Evans, 153 A.3d 323, 331 (Pa. Super. 2016). Thus, where a defendant 

consented to a blood draw after receiving Pennsylvania's pre-Birchfield

implied consent warnings, the blood draw was unconstitutional because 

consent was elicited following warnings relating to the now-invalidated 

increased, mandatory penalty for failing to consent. Id.
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In this case, although Appellant received the revised post-Birchfield

DL-26B warnings, which do not reference the enhanced criminal penalties for 

refusing consent in Section 3804(c), he argues that his consent to the blood 

draw was coerced because, as a licensed attorney, he had independent 

knowledge that Section 3804(c) imposed enhanced criminal penalties for 

refusing to consent to a blood draw. In support of this argument, Appellant 

relies on the legal maxim that everyone is presumed to know the law and, in 

this case, he indeed was aware of the law. Appellant contends that we must 

take into consideration his knowledge of the enhanced penalties associated 

with the refusal to consent to a blood draw at the time of his arrest.

Appellant’s argument is without merit. As this Court has explained, 

“Birchfield makes plain that the police may not threaten enhanced 

punishment for refusing a blood test in order to obtain consent, 136 S.Ct. at 

2186; whether that enhanced punishment is (or can be) ultimately imposed 

is irrelevant to the question whether the consent was valid.” Commonwealth 

v. Ennels, 167 A.3d 716, 724 (Pa. Super. 2017) (emphasis in original). Thus, 

pursuant to Ennels, the mere existence of a statutory provision that imposed 

enhanced criminal penalties for refusal, absent an actual threat, does not 

amount to coercion or invalidate consent. Id. Here, Appellant concedes that 

he was not threatened with enhanced criminal penalties prior to consenting to 

the blood test. See Appellant’s Brief at 12. Accordingly, we are not persuaded 
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by Appellant’s argument that his independent knowledge of the enhanced 

criminal penalties rendered his consent coerced.

Instead, we agree with the trial court’s determination that Appellant’s 

consent to the blood draw was knowing and voluntary:

Despite the fact [Appellant] was in custody at the time he 

consented, there are a number of factors leaning towards a finding 

of knowing and voluntary consent. While [Appellant] was 

technically under arrest, [he] was not handcuffed when he walked 

into the hospital with Trooper Geiman nor was he handcuffed 

when he submitted to the blood test. Additionally, in response to 

[Appellant]’s request, Trooper Geiman allowed [Appellant] to use 

the bathroom before [he] consented to the blood test. No 

evidence was presented to show [Appellant] was argumentative, 

belligerent, or uncooperative after his arrest. [Appellant]’s 

consent to the blood draw was not the product of duress, threats, 

or coercion on the part of law enforcement. Trooper Geiman did 

not use excessive police force nor did he promise [Appellant] 

anything in exchange for submitting to the blood draw. No 

testimony was presented that Trooper Geiman’s demeanor or 

expression was harsh or confrontational, or that he 

misrepresented the facts in an effort to get [Appellant] to consent 

to the blood draw. Trooper Geiman read [Appellant] the revised 

DL-26[B] form and allowed [him] to read the revised DL-26[B] 

form before he requested [his] consent to the blood draw. The

revised DL-26[B] warning clearly indicate[d] the blood draw was 

merely a request, to which [Appellant] was free to refuse.

Upon consideration of the totality of all the factors present in 

this case, this Court is of the opinion that the Commonwealth has 

met its burden of establishing that [Appellant]’s consent was the 

product of an essentially free and unconstrained choice, 

objectively valid and not the product of police coercion, deceit or 

misrepresentation.

Suppression Court Opinion, 4/25/17, at 9-11 (quotations and footnotes 

omitted); see also Cleckley, 738 A.2d at 433.
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Based on our review of the certified record, including the notes of 

testimony from the suppression hearing, we conclude that the record supports 

the trial court’s determination that Appellant’s consent to the blood draw was 

knowing and voluntary. See N.T., 3/27/17, at 2-17. Accordingly, the trial 

court did not err in denying Appellant’s suppression motion.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/2/18