J-A23028-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA 

Appellant

v.

KAREN ANN HOYLE

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 99 WDA 2018

Appeal from the Order December 19, 2017

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

No(s): CP-30-CR-0000175-2017

BEFORE: BOWES, J., SHOGAN, J., and STABILE, J.

MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 6, 2019

The Commonwealth appeals from the order granting the pretrial motion 

to suppress evidence filed by Appellee, Karen Ann Hoyle. We affirm.

On the night of September 1, 2016, Pennsylvania State Trooper John 

Pash pulled over Appellee when he observed that one-half of her tail light and 

one-half of her brake light were not functioning. Upon approaching Appellee’s 

vehicle, the trooper noticed a strong odor of alcohol coming from Appellee’s 

breath and that her eyes were bloodshot. The officer conducted a portable 

breath test and, based on the results, (1) the trooper arrested Appellee, (2) 

transported her to the hospital, and (3) asked her to submit to a blood test. 

The trooper alleged that, at the hospital, he read Appellee her implied consent 
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warnings from Pennsylvania Department of Transportation form DL-26.1 

However, neither Trooper Pash nor Appellee signed a DL-26 form, and 

Appellee has testified that she did not receive such warnings. The results of 

the blood test indicated that Appellee had a blood alcohol content (“BAC”) of 

0.184%. Appellee was charged with two counts of driving under the influence 

(“DUI”) and one count of reckless driving.2

On September 25, 2017, Appellee filed a motion to suppress the results 

of the blood test. which challenged the validity of the blood draw. The trial 

court held a suppression hearing on December 4, 2017. On December 19, 

2017, the trial court entered an order determining that the seizure of 

Appellee’s blood was not voluntary or consensual and ordered that the results 

of the blood test be suppressed pursuant to Birchfield v. North Dakota, 136 

S.Ct. 2160 (2016).3 The Commonwealth filed this timely appeal. Pursuant to 

Pa.R.A.P. 311(d), the Commonwealth certified in its notice of appeal that the 

order appealed from substantially handicapped or terminated the prosecution 

____________________________________________

1 Form DL-26 is issued by Pennsylvania’s Department of Transportation

describing Pennsylvania’s implied consent law, 75 Pa.C.S. § 1547.

2 75 Pa.C.S. §§ 3802(c), 3802(a)(1), and 3712(a).

3 Birchfield held that the Fourth Amendment to the United States Constitution

does not permit warrantless blood tests incident to arrests for drunk driving

and that a state may not criminalize a motorist’s refusal to comply with a

demand to submit to blood testing. Birchfield, 136 S. Ct. at 2185-2186.
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of Appellee. Both the Commonwealth and the trial court have complied with 

Pa.R.A.P. 1925.

The Commonwealth presents the following issue for our review:

DID THE COURT ERR IN DELCARING THE APPELLEE’S CONSENT 

TO A BLOOD DRAW INVOLUNTARY AND SUPPRESSING THE 

EVIDENCE OBTAINED AS A RESULT?

Commonwealth’s Brief at 9.

In its sole issue, the Commonwealth argues that the trial court erred in 

granting Appellee’s motion to suppress. Commonwealth’s Brief at 14-18. The 

Commonwealth contends that the decision in Birchfield did not hold that an 

individual has a Constitutional right to refuse a warrantless blood draw. 

Rather, the Commonwealth posits that Birchfield forbids the imposition of 

criminal penalties for non-compliance with implied consent laws. The 

Commonwealth claims that the trial court, in determining whether Appellee’s 

consent was voluntary, erred in considering whether Appellee was expressly 

informed of her right to refuse the blood draw. The Commonwealth asserts 

that, because Appellee was never warned of enhanced criminal penalties for 

refusing a blood draw, there was no reason to declare her consent to be 

involuntary.

The standard of review an appellate court applies when considering an 

order granting a suppression motion is well established and has been 

summarized as follows:

We begin by noting that where a motion to suppress 

has been filed, the burden is on the Commonwealth to 
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establish by a preponderance of the evidence that the 

challenged evidence is admissible. In reviewing the 

ruling of a suppression court, our task is to determine 

whether the factual findings are supported by the 

record. If so, we are bound by those findings. Where, 

as here, it is the Commonwealth who is appealing the 

decision of the suppression court, we must consider 

only the evidence of the defendant’s witnesses and so 

much of the evidence for the prosecution as read in 

the context of the record . . . remains uncontradicted.

Moreover, if the evidence when so viewed supports the factual 

findings of the suppression court, this Court will reverse only if 

there is an error in the legal conclusions drawn from those 

findings.

Commonwealth v. Lindblom, 854 A.2d 604, 605 (Pa. Super. 2004) 

(citations omitted). In addition, our scope of review from a suppression ruling 

is limited to the evidentiary record that was created at the suppression 

hearing. In re L.J., 79 A.3d 1073, 1087 (Pa. 2013).

With respect to factual findings, we are mindful that it is the 

sole province of the suppression court to weigh the credibility of 

the witnesses. Further, the suppression court judge is entitled to 

believe all, part or none of the evidence presented. However, 

where the factual determinations made by the suppression court 

are not supported by the evidence, we may reject those findings. 

Only factual findings which are supported by the record are 

binding upon this court.

Commonwealth v. Benton, 655 A.2d 1030, 1032 (Pa. Super. 1995) 

(citations omitted). Moreover, questions of the admission and exclusion of 

evidence are within the sound discretion of the trial court and will not be 

reversed on appeal absent an abuse of discretion. Commonwealth v. Freidl, 

834 A.2d 638, 641 (Pa. Super. 2003).
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Further, Pennsylvania Rule of Criminal Procedure 581, which addresses 

the suppression of evidence provides, in relevant part, as follows:

(H) The Commonwealth shall have the burden . . . of establishing 

that the challenged evidence was not obtained in violation of the 

defendant’s rights.

Pa.R.Crim.P. 581(H).

Both the United States and Pennsylvania Constitutions prohibit 

“unreasonable searches and seizures.” U.S. Const. amend. IV; Pa. Const. art. 

1, § 8. As we have explained:

“[a] search conducted without a warrant is deemed to be 

unreasonable and therefore constitutionally impermissible, unless 

an established exception applies.” Commonwealth v. Strickler, 

563 Pa. 47, 757 A.2d 884, 888 (2000). “Exceptions to the warrant 

requirement include the consent exception, the plain view 

exception, the inventory search exception, the exigent 

circumstances exception, the automobile exception . . ., the stop 

and frisk exception, and the search incident to arrest exception.” 

Commonwealth v. Dunnavant, 63 A.3d 1252, 1257 n.3 (Pa. 

Super. 2013).

The “administration of a blood test . . . performed 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, 532 Pa. 152, 615 A.2d 308, 315 

(1992); Schmerber v. California, 384 U.S. 757, 770, 86 S.Ct. 

1826, 16 L.Ed.2d 908 (1966). Since the blood test in the case at 

bar was performed without a warrant, the search is presumptively 

unreasonable “and therefore constitutionally impermissible, 

unless an established exception applies.” Strickler, 757 A.2d at 

888.

Commonwealth v. Evans, 153 A.3d 323, 327-328 (Pa. Super. 2016). “One 

such exception is consent, voluntarily given.” Strickler, 757 A.2d 888 

(citation omitted). Under the Fourth Amendment, where an encounter with
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law enforcement is lawful, voluntariness of consent to a search becomes the 

exclusive focus. Id.

Our Supreme Court has applied the following standard to determine 

whether an individual has validly consented to a chemical test:

In determining the validity of a given consent, the Commonwealth 

bears the burden of establishing that a consent is the product of 

an essentially free and unconstrained choice—not the result of 

duress or coercion, express or implied, or a will overborne—under 

the totality of the circumstances. The standard for measuring the 

scope of a person’s consent is based on an objective evaluation of 

what a reasonable person would have understood by the exchange 

between the officer and the person who gave the consent. Such 

evaluation includes an objective examination of the maturity, 

sophistication and mental or emotional state of the defendant. 

Gauging the scope of a defendant’s consent is an inherent and 

necessary part of the process of determining, on the totality of the 

circumstances presented, whether the consent is objectively valid, 

or instead the product of coercion, deceit, or misrepresentation. 

Commonwealth v. Smith, 77 A.3d 562, 573 (Pa. 2013) (internal citations 

and quotation marks omitted).

The trial court offered the following analysis in reviewing the testimony 

presented at the suppression hearing and determining that the results of the 

blood draw must be suppressed:

The [c]ourt notes that there was no refusal in the instant 

case and that blood was drawn which revealed a blood alcohol 

rating of 0.184 % this, however, was drawn without a search 

warrant. In light of Birchfield, a motorist’s implied consent to a 

blood draw, is no longer an exception to the Fourth Amendment 

[w]arrant requirement. Given the fact that no search warrant was 

issued for seizure of the blood, the [c]ourt must look to any 

exception, to the Fourth Amendment-particularly consent.
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The [c]ourt will note that O’Connell Warnings4 were not 

signed by [Appellee] or the arresting officer. The [c]ourt does not 

find this necessarily fatal to the Commonwealth’s case, as the 

O’Connell Warnings are generally related to the intent to inform 

the individual with regard to the right to remain silent and the 

right to counsel which do not attach under what remains of implied 

consent after Birchfield.

O’Connell Warnings are not designed to replace informed 

consent. The [c]ourt must look to the totality of the circumstances 

to determine whether the seizure of blood was consensual and 

therefore, an exception to the [w]arrant [r]equirement. The 

[c]ourt will note that [Appellee] was subject to field sobriety 

testing, was in police custody from the time that her vehicle was 

stopped, presumably was transported in the back of a patrol 

vehicle, handcuffed and taken directly to the Waynesburg 

Hospital, where blood was drawn.

The [c]ourt notes [Appellee’s] level of intoxication and also 

notes that the Commonwealth did not indicate (therefore failed to 

meet their burden of proof) that she had a right to refuse the draw 

of blood. The [c]ourt further notes that this failure to advise is 

not definitive, but is a factor to consider in the totality of the 

circumstances in determining consent. The right to refuse consent 

____________________________________________

4 Our Supreme Court has stated:

The phrase, “O'Connell warning”, is a shorthand expression for 

the duty imposed upon a police officer to inform a motorist, who 

has been asked to submit to chemical testing, that the Miranda

rights are inapplicable to a request for chemical testing under the 

Implied Consent Law. Commonwealth, Department of 

Transportation v. O’Connell, 521 Pa. 242, 555 A.2d 873 

(1989). The O’Connell warning must specifically inform a 

motorist (1) that his driving privileges will be suspended for one 

year if he refuses chemical testing; and (2) that his Miranda

rights do not apply to chemical testing. Commonwealth, 

Department of Transportation v. Ingram, 538 Pa. 236, 648 

A.2d 285 (1994).

Commonwealth, Dept. of Transp., Bureau of Driver Licensing v. 

Boucher, 691 A.2d 450, 452 (Pa. 1997) (referencing Miranda v. Arizona,

384 U.S. 436 (1966)).
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is more fully addressed in Com. v. Strickler, 563 Pa. 47, 757 

A.2d 884, 901 (Pa. 2000).

* * *

The [c]ourt further notes that [Appellee] indicated that she 

did not feel that the drawing of blood was a product of her free 

will. The Commonwealth’s reliance on the O’Connell Warnings to 

establish consent is misplaced. Under the circumstances as 

presented on the evening of September 1, 2016, a reasonable 

person similarly situated would not have believed that they had 

the right to refuse a blood draw.

Therefore, given the totality of the circumstances the 

[c]ourt finds that the seizure of blood was not voluntary or 

consensual and, therefore, not an exception to the warrant 

requirement.

Trial Court Order, 12/19/17, at 2-6.

In evaluating whether Appellee voluntarily consented to the blood draw 

in view of the totality of the circumstances, we conclude that the trial court 

properly held that her consent was not voluntary. The following testimony 

offered by Appellee on direct examination establishes that fact:

Q. When you got to Washington Health System Greene, do you 

remember Trooper Pash reading you any warnings?

A. Not really. The only thing I remember is country music on the 

radio. I do remember that. We talked about that. We had other 

conversations.

Q. Do you recall him telling you that you were under arrest for 

driving under the influence of alcohol or a controlled substance, in 

violation of Section 3802 of the Vehicle Code; that he is requesting 

that you submit to a chemical test of blood; that if you refused to 

submit to the blood test, your operating privilege will be 

suspended for at least twelve months; if you previously refused a 

chemical test or was previously convicted of driving under the 

influence, you will be suspended for up to eighteen months; and 

that you have no right to speak to an attorney or anyone else 
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before deciding whether to submit to testing; if you request to 

speak to an attorney or anyone else after being provided these 

warnings, or you remain silent when asked to submit to a blood 

test, you will have refused the test? Do you recall those warnings 

being read to you?

A. No.

Q. When you were taken into Washington Health System Greene, 

do you recall having blood drawn?

A. Yes.

Q. Were you asked whether or not you wanted to give a blood 

sample?

A. I don’t recall. But, I did do it.

Q. Did you feel like you had to give a blood sample?

A. Yeah.

Q. You felt like you had no other choice?

A. I mean, that’s just what we were supposed to do.

N.T., 12/4/17, at 17-19.

In addition, during cross-examination, Appellee elaborated as follows:

Q. Why did you feel like you had to give a blood sample?

A. I just -- when he said that’s what I needed to do, then 

that’s what I needed to do. I didn’t know that I could 

refuse. I didn’t know. I probably wouldn’t have anyhow.

Q. You said that you didn’t know that you [could] refuse?

A. Right.

Q. But you didn’t refuse?

A. I didn’t refuse.
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Q. Did Trooper Pash tell you that you had to give a blood 

sample? Do you remember him saying that?

A. Yes.

N.T., 12/4/17, at 19 (emphases added).

Consistent with the trial court’s determination, our review of the record 

supports the conclusion that the Commonwealth failed to establish by a 

preponderance of the evidence that the result of the blood test is admissible. 

Specifically, the Commonwealth failed to prove that Appellee’s consent to the 

blood draw was voluntarily given. Thus, the record supports the trial court’s 

findings of fact, and we discern no error in its application of the law. 

Accordingly, we affirm the order of the trial court granting Appellee’s motion 

to suppress.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/6/2019