J-S55008-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

MICHAEL R. BARNA

Appellee No. 2668 EDA 2015

Appeal from the Order August 6, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): MC-51-CR-0021676-2012

BEFORE: LAZARUS, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY LAZARUS, J.: FILED AUGUST 09, 2016

The Commonwealth of Pennsylvania appeals from the order of the 

Court of Common Pleas of Philadelphia County that granted a writ of 

certiorari from a judgment of sentence imposed by the Philadelphia 

Municipal Court following Michael R. Barna’s convictions for DUI (impaired 

ability)1and DUI (controlled substance).2 After careful review, we affirm 

based on the opinion of the Honorable Michael E. Erdos.

On May 25, 2012, at 5:25 a.m., Barna was involved in a motor vehicle 

accident. When an EMT arrived on the scene he saw needles, syringes and 

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 75 Pa.C.S. § 3802(d)(2).

2 75 Pa.C.S. § 3802(d)(1).
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pills scattered around the vehicle. Believing that Barna was suffering from 

an opiate overdose, the EMT administered Narcan, which reverses the 

effects of opiates. 

Barna was arrested for DUI and was transported to Hahnemann 

Hospital. At 6:10 a.m., Philadelphia Police Officer William Lackman arrived 

at the hospital where medical personnel were stabilizing Barna, who was 

unconscious and intubated. At Officer Lackman’s request, a nurse drew 

blood from Barna for chemical testing. Officer Lackman did not obtain a 

warrant before the blood draw.

Barna filed a motion to suppress the blood test results, which the 

Municipal Court denied on February 24, 2014. Following a non-jury trial, 

Barna was convicted of the above-referenced offenses and on June 23, 

2014, the court sentenced him to 90 to 180 days’ incarceration and 18 

months’ probation.

On October 31, 2014, the Municipal Court granted Barna’s request to 

file a petition for writ of certiorari nunc pro tunc. Barna then filed a petition 

asserting that the seizure of his blood was unlawful.

On August 6, 2015, the trial court granted the writ of certiorari, thus 

reversing Barna’s conviction and vacating his sentence.
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The Commonwealth filed this timely appeal,3in which it raises the 

following issue for our review:

Where police had probable cause to believe that [Barna] had 

been driving under the influence of a controlled substance, and 

where [Barna] was unconscious following a car accident, did the 

lower court err in suppressing drug results based on his failure to 

express consent notwithstanding the implied consent statute?

Appellant’s Brief, at 4.

“A lower court’s decision on the issuance of a writ of certiorari will not

be disturbed absent an abuse of discretion. Certiorari provides a narrow 

scope of review in a summary criminal matter and allows review solely for 

questions of law.” Commonwealth v. Elisco, 666 A.2d 739, 740 (Pa. 

Super. 1995) (citations omitted). Because we are reviewing a question of 

law, our standard of review is de novo and our scope of review is plenary. 

Bastian v. Sullivan, 117 A.3d 338, 342 (Pa. Super. 2015).

In his Pa.R.A.P. 1925(a) opinion, Judge Erdos explains that in 

Commonwealth v. Myers, 118 A.3d 1122 (Pa. Super. 2015), this Court 

held that in the absence of exigent circumstances, police may not obtain a 

____________________________________________

3

In its statement of jurisdiction, the Commonwealth notes that it has 

certified that the order on appeal will terminate or substantially handicap the 

prosecution of the case. See Pa.R.A.P. 311(d). However, Rule 311(d) is 

inapposite because the case has already been prosecuted. While it is 

possible that the judgment of sentence imposed by the Municipal Court may 

eventually be affirmed, any further prosecution would violate double 

jeopardy principles.
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blood sample under the implied consent law without a warrant. Accordingly, 

the writ of certiorari was granted. 

On February 3, 2016, our Supreme Court granted allowance of appeal 

in Myers.

4

 Nevertheless, as the Commonwealth recognizes, this Court’s 

decision in Myers “is controlling.” Appellant’s Brief, at 5. 

We affirm the order granting a writ of certiorari based on the opinion 

of Judge Erdos. We direct the parties to attach a copy of that decision in the 

event of further proceedings in this matter.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/9/2016

____________________________________________

4 The Supreme Court has docketed the appeal at 7 EAP 2016.
1 

N.T. I/14/14 at 5. Officer Yost looked inside the vehicle and observed needles, syringes, and 

Notes of Testimony (N.T.) 1/14/l 4 at 5, 9. Paramedic Officer Yost was dispatched to the scene. 

On May 25, 2012 at around 5:25 a.rn., Appellee was involved in an automobile collision. 

FACTS 

conviction. This Commonwealth appeal followed. 

Appellee's Writ of Certiorari, thereby vacating Appellee's sentence and reversing Appellee's 

Certiorari to Common Pleas Court. On August 6, 2015, this Court issued an Order granting 

180 days confinement and 18 months of probation. On July 18, 2014, Appellee filed a Writ of 

Kosinski found Appellee guilty. On June 23, 2014, Judge Kosinski sentenced Appellee to 90- 

Carr Deni. Subsequently, after a non-jury trial on March 12, 2014, the Honorable Gerard A. 

Article I,§ 8 of the Pennsylvania Constitution. This motion was denied by the Honorable Teresa 

suppress his drug test results under the Fourth Amendment of United States Constitution and 

the Influence pursuant to 75 Pa.C.S. § 3802. On, January 14, 2014, Appellee argued a motion to 

ERDOS,J. 

On May 25, 2012, Appellee Michael Barna was arrested and charged with Driving Under 

OPINION 

1111111111111111111111111 

7359100461 

F!LED 

OCT 2 0 2015 

Criminal Appeals Unit 

First Judicial District of PA 

~1C-51-CR-C021676·2012 Corr,m. v. Bama, IAlchael R. 

Cpln!on 

MICHAEL BARNA 2668 EDA 2015 

v. 

COMMON WEALTH OF PENNSYLVANIA 

IN THE COURT OF COM1\!ION PLEAS 

FIRST JUDICIAL DISTIUCT OF PENNSYLVANIA 

CIUMINAL TIUAL DIVISION 

MC-51-CR-0021676-2012 

.. 

Circulated 06/24/2016 01:18 PM
2 

Any person who drives, operates or is in actual physical control of the movement of a 

vehicle in this Commonwealth shall be deemed to have given consent to one or more 

Pennsyl vania' s implied consent statute provides: 

the implied consent statute? 

drug test results based on the unconscious defendant's failure to express consent notwithstanding 

Appellant raises the following claim on appeal: Did the lower court err in suppressing 

DISCUSSION 

20. Nor did he orally agree to a blood draw. N.T. 1114/14 at 20. 

19. Appellee was neither shown nor signed any forms by Officer Lack.man N.T. 1/14/14 at 19- 

for a warrant for the blood test, as he did not believe a warrant was required. N.T. 1/14/14 18- 

later that afternoon. N.T. 1/14/14 at 18-19. Officer Lackman did not call a magistrate or a judge 

1/14/14 at 17. He was unconscious during the entire process and remained unconscious until 

test from Appellee. N.T. 1/14/14 at 16. The nurse drew Appellee's blood at 6:20 a.m. N.T. 

intubated. N.T. 1/14/14 at 16. Officer Lackman told the trauma nurse that he needed a blood 

Appellee was being stabilized by four nurses and a doctor; he was already unconscious and 

directed to Appellee, who was located in the trauma bay. N.T. 1/14/14 at 16. At this time, 

test. N.T. 1114/14 at 15-16: He arrived at Hahnemann Hospital around 6: 10 a.m. and was 

Investigation District was dispatched at that time to Hahnemann Hospital to conduct a chemical 

transport to the hospital. N.T. 1/14/14 at 7, 9. Officer William Lackman of the Accident 

was not able to cooperate with or answer questions from paramedics at the scene or during his 

and transported to Hahnemann University. N.T. 1/14/14 at 6-8, 16. Due to his injuries, Appellee 

indicative of an opiate overdose. N.T. 1/14/14 at 8. Appellee was subsequently arrested for DUI 

pills scattered around. N.T. 1114/14 at 6. He also observed that Appellee's pupils were pinpoint, 
3 

The Philadelphia Municipal Court suppressed test results from the warrantless blood draw and 

Myers was subsequently charged with DUI under 75 Pa.C.S. §3802(a). Id at 1123. 

blood draw, which was performed at 5:01 p.111. Id. 

officers did not request a warrant before the bloo<l draw; rather, they requested a warrantless 

consent warnings, to which Myers did not respon<l due to his unconscious state. Id at 1124. 'foe 

attempted to speak with Myers at the hospital and proceeded to read him the standard informed 

unresponsive upon the arrival of police officers around 4:45 p.m. Id. at 1123-24. An officer 

influence sometime around 3 :30 p.m., transported to the hospital, and was unconscious and 

(Pa. Super. 2015), reargument denied (Aug. 7, 2015). Myers was arrested for driving under the 

backdrop of Pennsylvania's implied consent law. See Commonwealth v. Myers, 118 A.3d 1122 

The Superior Court recently addressed the issue of an unconscious blood draw against the 

applied the law to the facts. Commonwealth v. Hudson, 92 A.3d 1235, 1241 (Pa. Super. 2014). 

not binding on an appellate court, whose duty is to determine if the suppression court properly 

defers to the suppression court's findings of fact, the suppression court's conclusions of law are 

. The standard for review for a suppression order is well-settled. While the appellate court 

privilege of the person .... " 75 Pa.C.S. § 1547(b)(l) . 

be conducted but upon notice by the police officer, the department shall suspend the operating 

section 3802 is requested to submit to chemical testing and refuses to do so, the testing shall not 

Moreover, § 1547(b )( 1) commands that "[i]f any person placed under arrest for a violation of 

chemical tests of breath, blood or urine for the purpose of determining the alcoholic 

content of bloo<l or the presence of a controlled substance if a police officer has 

reasonable grounds to believe the person to have been driving, operating or in actual 

physical control of the movement of a vehicle: (1) in violation of section ... 3802 (relating 

to driving under influence ofalcohol or controlled substance). 75 Pa.C.S. § 1547(a)(l). 
4 

the Philadelphia Court of Common Pleas denied relief from that order. Id The Superior Court 

affirmed. 

The Myers Court relied on Missouri v. Mcileely, 113 S.Ct. 1552(2013), in which the 

Supreme Court of the United States held that "in drunk-driving investigations, the natural 

dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient 

to justify conducting a blood test without a warrant." 113 S.Ct. at 1568. Further, the 1\tfcNeely 

Court found that "in those driving situations where police officers can reasonably obtain a 

warrant before a blood sample can be drawn without significantly undermining the efficacy of 

the search, the Fourth Amendment mandates that they do so." Id. at 1561. The High Court also 

stated that the totality of the circumstances must be considered when determining whether a 

warrantless blood draw is reasonable. Id. at 1563. 

The Myers Court concluded that the blood test results from the defendant had been 

properly suppressed because there was no exigency -- dissipation of alcohol in the bloodstream 

or otherwise -- justifying the warrantless blood draw. 118 A.3d at 1127. The Court 

acknowledged that Mcileely had not addressed the issue of Pennsylvania's implied consent 

statute but stressed that because Myers was unconscious at the time of the blood test, he did not 

have the opportunity to refuse the testing and thereby "claim the statutory protection of Section 

1547(b)(l).'' Id. at 1127-30. 

Here, similar to Myers, Appellee was arrested for DUI. And like Myers, Appellee was 

unconscious and unresponsive at the time of the blood draw. Thus, Appellee did not consent to 

the blood test, nor was he able to refuse his consent to the test under Pennsylvania's implied 

consent statute, 75 Pa.C.S. § 1547. Further, Officer Lackman did not obtain a warrant before 

requesting the blood draw. Appellee was arrested around 5:25 a.m. and his blood test was not 

I . • t 
5 

The Wulff Court also found instructive that the Supreme Court of the United States had 1) 

recently vacated a judgment of sentence in a separate case where the Texas Court of Appeals had 

found that the state's implied consent statute was an exception to the warrant requirement and 2) 

remanded the case "for further consideration in light oi Missouri v. McNeely." Id at 580-81 

(citing and quoting Aviles v. State, 134 S.Ct. 902 (2014)). The Wulff Court reasonably interpreted 

the vacation and remand as foreshadowing that the High Court will find that an implied consent 

statute does not override or satisfy the McNeely test. 

1 This Court also finds persuasive the opinion of the Idaho Supreme Court in State v. Wulff, 337 

P.3d 575 (Idaho 2014). That Wulff Court reasoned that allowing an implied consent statute to 

serve as a per se exception to the warrant requirement would render Mcileely hollow. Id at 579- 

82. Indeed, the Mcbleely dictate that there must be a true exigency in order for a warrantless, 

nonconsensual blood test to pass constitutional muster would not count for much if a state's 

implied consent law sufficed to fill the gap. 

MICHAELE. ERDOS J, 

~ 

·~,~;if;• 

tBY THE COURT: J. 

_ .... ,.,, ... 

Appellee's Writ of Certiorari, and its decision should be affirmed. 

Myers controls in the instant matter. Accordingly, this Court did not err in granting 

CONCLUSION: 

was improperly obtained by the Commonwealth.1 

warrantless blood draw. Thus, based on Myers and the facts presented here, Appellee's blood 

warrant. Finally, no exigency appears on the record in the instant case that would justify a 

performed until 6:20 a.m.; an hour had elapsed in which the officer could have obtained a 

I '