J-A15019-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ROBIN DWAYNE SMITH 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1927 MDA 2017

Appeal from the Judgment of Sentence November 15, 2017

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

No(s): CP-28-CR-0001098-2016

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

MEMORANDUM BY MURRAY, J.: FILED AUGUST 29, 2018

Robin Dwayne Smith (Appellant) appeals from the judgment of sentence 

imposed following his convictions of driving under the influence of alcohol 

(DUI) – general impairment and DUI – high rate of alcohol.1 We affirm.

The trial court detailed the factual and procedural history of this case as 

follows:

The credible testimony established that on March 12, 2016, 

Officer [Matthew] Lynch [(Officer Lynch)] was on routine patrol in 

the borough of Chambersburg in the area of the intersection of 

Stouffer Avenue and Wayne Avenue, near the Giant grocery store. 

Notes of Testimony, December 8, 2016 at 5. He observed a 

vehicle turn right from Stouffer Avenue onto Wayne Avenue 

heading west toward the Borough of Chambersburg and then 

accelerate quickly. N.T. at 6. The vehicle crossed the center line. 

Id. He attempted to pace the vehicle to get an idea of how fast it 

was going, but the vehicle kept getting further away. Id. He 

attempted to maintain the same distance between his patrol 

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1

 75 Pa.C.S.A. § 3802(a)(1), (b).
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vehicle and the suspect vehicle. In doing so, Officer Lynch had to 

drive his patrol vehicle at speeds in excess of 60 mph. Id. When 

it appeared the patrol vehicle and the suspect vehicle were 

traveling at the same pace, Officer Lynch noted that he was 

traveling at 63 mph. N.T. at 7. Officer Lynch explained that he 

followed the vehicle from the 900 block of Wayne Avenue to the 

400 block of Wayne Avenue before initiating a traffic stop. N.T. 

at 6. The speed limit on the area of roadway in question is 35 

mph. N.T. at 7.

Officer Lynch admitted that he did not pace the suspect vehicle 

for three-tenth[s] of a mile and the speedometer in his patrol 

vehicle had not been recently calibrated to ensure accuracy. N.T. 

at 21, 22. When asked how he c[ould] be positive that the vehicle 

was going the speed that he alleged, Officer Lynch explained,

Based on my training and experience. I drive those 

roads every single day. We clock vehicles using speed 

timing devices, which are calibrated, and so it’s pretty

easy to differentiate between a vehicle going 35 and 

a vehicle going almost 65.

N.T. at 22.

Officer Lynch stopped the suspect vehicle for failing to obey 

traffic control devices; specifically, the speed limit signs posted in 

the area. N.T. at 7. Traveling in excess of the posted speed limit 

is particularly dangerous in this residential stretch of Wayne 

Avenue because of the many driveways, intersecting roadways, 

and some businesses along the roadway. Id.

Officer Lynch approached the suspect vehicle and identified 

himself. . . . [Appellant] produced only his license, not his 

registration and insurance card, causing the officer to need to 

clarify what he had requested and needed. N.T. at 13, 14. 

[Appellant] had difficulty locating these items. When asked by 

Officer Lynch why he was “going so fast,” [Appellant] responded 

that “his house was just up the road.” N.T. at 12. Officer Lynch 

observed [Appellant]’s speech to be raspy, low and “thick” and his 

eyes to be bloodshot and glassy. Id. There was a strong odor of 

cigarette smoke masking other odors coming from [Appellant]’s

vehicle. N.T. at 12. When asked, [Appellant] admitted to the 

officer that he had two drinks while working as a DJ at Pappy’s (a 

bar in Waynesboro). N.T. at 12-13. Officer Lynch observed a
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large amount of DJ equipment in the back of [Appellant]’s vehicle. 

N.T. at 12.

While [Appellant] was still in his vehicle, Officer Lynch 

attempted to gauge [Appellant]’s sobriety by looking up his 

nostrils and in his mouth; [Appellant] appeared lethargic. N.T. at 

14. Officer Lynch requested that he recite the alphabet starting 

with letter D through letter R; however, [Appellant] recited D 

through S and then uttered an expletive, realizing his error. N.T.

at 15. Officer Lynch requested the assistance of another officer 

for backup pursuant to department policy. N.T. at 15.

Officer Lynch asked [Appellant] to exit the vehicle to conduct 

standardized field sobriety testing. Upon attempting to administer 

the horizontal gaze nystagmus test, Officer Lynch determined that 

the results were inconclusive, as [Appellant] had significant 

difficulty just following the instructions. N.T. at 16. He also 

attempted to administer the walk-and-turn test; however, as 

[Appellant] was unable to maintain his balance to proceed past 

the instruction phase, the test was not finished. N.T. at 17.

[Appellant] reported that he just wasn’t coordinated. Id. A

preliminary breath test was administered which was positive for 

alcohol. N.T. at 17. In addition, away from the heavy cigarette 

odor of the vehicle’s interior, Officer Lynch detected the odor of

alcoholic beverages coming from the [Appellant’s] breath. Id.

Officer Lynch subsequently placed [Appellant] under arrest for 

suspicion of driving under the influence, placed him in handcuffs, 

and transported him to the Chambersburg Hospital. N.T. at 18, 

25. He told [Appellant] they were going to the hospital to get a 

blood sample. N.T. at 25. Two blood samples were drawn by the 

phlebotomist; one to test for the presence of alcohol, one to test 

for the presence of controlled substances. N.T. at 18. The blood 

alcohol concentration was determined to be .113 percent. No 

controlled substances were present in [Appellant]’s blood.

Prior to the blood draw, Officer Lynch did not advise [Appellant]

of the . . . warnings in the DL-26 form; instead, Officer Lynch “just 

told him that he was under arrest for a DUI and [the officer] was 

requesting a blood test from him at the hospital.” N.T. at 18-19. 

[Appellant] was not advised that if he refused a blood test he could 

be subject to an enhanced criminal penalty upon conviction for 

DUI. N.T. at 19. In fact, Officer Lynch explained that it was 
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typically the procedure of the Chambersburg Police Department to 

discuss the penalty for refusal

[...] only if the subject begins questioning about 

whether or not they have to give a blood test. Once 

somebody begins questioning me about that, at that 

point in time, I would read them the DL-26 at the 

hospital, just to clarify their rights. However, absent 

[Appellant] asking me any questions about whether or 

not he had to give his blood or any of the 

repercussions, that protocol was not initiated. 

Therefore, we d[id] not read the DL-26.

Trial Court Opinion, 2/3/17, at 2-5 (footnotes omitted).

Appellant was charged with one count each of (DUI) – general 

impairment and DUI – high rate of alcohol. On August 22, 2016, Appellant 

filed a pre-trial motion to suppress in which he challenged the constitutionality 

of his vehicle stop. On October 14, 2016, with the trial court’s permission, 

Appellant filed an amended motion to suppress, which added a challenge to 

the constitutionality of his blood draw under Birchfield v. North Dakota, 

136 S. Ct. 2160 (2016). On December 8, 2016, the trial court held a hearing 

on Appellant’s suppression motion where Officer Lynch, as the sole witness,

testified for the Commonwealth. On February 3, 2017, the trial court denied 

the motion.

On October 2, 2017, the trial court held a stipulated bench trial, after

which it found Appellant guilty of the aforementioned crimes. On November 

15, 2017, the trial court sentenced Appellant to 30 days to 6 months of 

incarceration. This timely appeal followed. Both Appellant and the trial court 
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have complied with Rule 1925 of the Pennsylvania Rules of Appellate 

Procedure.

On appeal, Appellant presents the following issues for review:

I. Did [t]he [t]rial [c]ourt err in finding probable cause for a 

vehicle stop?

II. Did [t]he [t]rial [c]ourt err in finding [Appellant]’s lack of 

objection to a blood draw is the equivalent to consenting to the 

blood draw?

Appellant’s Brief at 4.

Both of Appellant’s issues challenge the trial court’s decision to deny his 

suppression motion. 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)). “It is 

within the suppression court’s sole province as factfinder to pass on the 
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credibility of witnesses and the weight to be given their testimony.” 

Commonwealth v. Clemens, 66 A.3d 373, 378 (Pa. Super. 2013).

First, Appellant argues that Officer Lynch lacked the probable cause 

necessary to conduct a vehicle stop. Specifically, Appellant asserts that Officer 

Lynch lacked probable cause to stop him for a speeding violation because 

Officer Lynch did not clock Appellant’s speed, did not pace Appellant’s vehicle 

for the required three tenths of a mile, and had not recently calibrated his 

speedometer. Appellant thus maintains that there is no accurate evidence 

indicating his speed at the time of the vehicle stop. Additionally, Appellant 

contends that is no other evidence indicating that he violated any other traffic 

law.

The analysis of the quantum of cause required for a traffic stop begins 

with Section 6308(b) of the Motor Vehicle Code, which provides:

(b) Authority of police officer.--Whenever a police 

officer is engaged in a systematic program of checking 

vehicles or drivers or has reasonable suspicion that a 

violation of this title is occurring or has occurred, he 

may stop a vehicle, upon request or signal, for the 

purpose of checking the vehicle’s registration, proof of 

financial responsibility, vehicle identification number 

or engine number or the driver’s license, or to secure 

such other information as the officer may reasonably 

believe to be necessary to enforce the provisions of 

this title.

75 Pa.C.S.A. § 6308(b).

Section 6308(b) requires only reasonable suspicion in support of a 

vehicle stop for gathering information necessary to enforce the Vehicle Code. 
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However, a police officer must have probable cause to support a vehicle stop 

where the officer’s investigation following the stop serves no “investigatory 

purpose relevant to the suspected [Motor Vehicle Code] violation.” 

Commonwealth v. Feczko, 10 A.3d 1285, 1291 (Pa. Super. 2010) (en 

banc), appeal denied, 25 A.3d 397 (Pa. 2011). Our Supreme Court has 

explained:

Indeed, the language of § 6308 reflects this very 

intent. Stops based on reasonable suspicion are 

allowed for a stated investigatory purpose: “to secure 

such other information as the officer may reasonably 

believe to be necessary to enforce the provisions of 

this title.” 75 Pa.C.S. § 6308(b). This is conceptually 

equivalent to the purpose of a Terry[

2] stop. It does 

not allow all stops to be based on the lower quantum—

it merely allows this for investigatory stops, consistent 

with the requirements of both federal and state 

constitutions. We interpret the legislature’s 

modification of § 6308 as merely eliminating the 

statutory requirement of a greater level of information 

for a stop under the Vehicle Code than is 

constitutionally required for all other stops.

Commonwealth v. Chase, 960 A.2d 108, 116 (Pa. 2008). “[I]f the officer 

has a legitimate expectation of investigatory results, the existence of 

reasonable suspicion will allow the stop – if the officer has no such 

expectations of learning additional relevant information concerning the 

suspected criminal activity, the stop cannot be constitutionally permitted on 

the basis of mere suspicion.” Id. at 115.

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2 Terry v. Ohio, 392 U.S. 1 (1968). 
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Probable cause exists “where the facts and circumstances within the 

officers’ knowledge are sufficient to warrant a person of reasonable caution in 

the belief that an offense has been or is being committed.” Commonwealth

v. Stultz, 114 A.3d 865, 883 (Pa. Super. 2015) (quotations and citations 

omitted). “We evaluate probable cause by considering all relevant facts under 

a totality of circumstances analysis.” Commonwealth v. Hernandez, 935 

A.2d 1275, 1284 (Pa. 2007). “[P]robable cause does not require certainty, 

but rather exists when criminality is one reasonable inference, not necessarily 

even the most likely inference.” Commonwealth v. Salter, 121 A.3d 987, 

994 (Pa. Super. 2015) (quotations and citations omitted).

Officer Lynch stopped Appellant’s vehicle for violating Section 3111 of 

the Motor Vehicle Code, “Obedience to traffic-control devices,” which provides, 

in pertinent part:

(a) General rule.--Unless otherwise directed by a uniformed 

police officer or any appropriately attired person authorized to 

direct, control or regulate traffic, the driver of any vehicle shall 

obey the instructions of any applicable official traffic-control 

device placed or held in accordance with the provisions of this title, 

subject to the privileges granted the driver of an emergency 

vehicle in this title.

75 Pa.C.S.A. § 3111(a).

We conclude that Officer Lynch possessed the probable cause necessary 

to stop Appellant’s vehicle. At the suppression hearing, Officer Lynch testified 

that when he initially encountered Appellant’s vehicle, he noticed that it was 

accelerating rapidly in an area that was heavily residential. N.T., 12/8/16, at 
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6-7. As Officer Lynch pursued the vehicle, he attempted to determine 

Appellant’s speed by pacing his vehicle. Id. Although he did not pace the 

vehicle for three-tenths of a mile, he did notice that in order to keep up with 

Appellant, he had to travel 63 miles per hour in a 35 mile per hour zone. Id.

at 7. Officer Lynch explained that, consequently, he decided to stop 

Appellant’s vehicle for failing to obey traffic control devices, in particular, the 

speed limit signs posted along road. Id. Officer Lynch, however, did not stop 

Appellant’s vehicle merely for speeding, but rather, he testified that driving in 

that area significantly in excess of the speed limit is particularly dangerous 

because it is a heavily residential area with several driveways, intersections, 

and some businesses. Id. He explained:

In that area, about five years prior, we had a speeding vehicle 

leave the roadway and four people were ejected and killed and a 

fifth person was seriously injured. And so the speed is a concern 

in this area. But that was part of the context for the stop.

The other part was the fact that there are signs erected 

dictating to people what speed they must go. If they don’t follow 

those lawfully posted signs, then that would be my interpretation 

of a violation of obedience to traffic control devices.

Id. at 30.

Therefore, the facts and circumstances were sufficient to warrant Officer 

Lynch’s reasonable belief that Appellant was operating his vehicle in violation 

of Section 3111. See Stultz, 114 A.3d at 883. The record reveals that not 

only was Appellant travelling nearly 30 miles per hour in excess of the speed 

limit, but he was doing so in a heavily residential area containing several 
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driveways, intersections, and businesses. Accordingly, the trial court did not 

abuse its discretion in determining that Officer Lynch possessed the probable 

cause necessary to stop Appellant’s vehicle for failing to obey traffic control 

devices.

3

Appellant next argues that the trial court erred in determining that he 

consented to his blood draw. Appellant asserts that his lack of an objection 

to a blood draw did not amount to consent and that Officer Lynch never 

afforded him an opportunity to refuse the blood draw.

“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 

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 

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3 We note that Officer Lynch also had probable cause to stop Appellant’s 

vehicle for violating Section 3301 of the Motor Vehicle Code, “Driving on right 

side of roadway.” Officer Lynch specifically testified that he observed 

Appellant’s vehicle cross “over the center line.” N.T., 12/6/18, at 6. This 

Court has held that such vehicular movement establishes probable cause to 

conduct a vehicle stop. See Commonwealth v. Enick, 70 A.3d 843, 846 

(Pa. Super. 2013) (finding a police officer has probable cause to conduct a 

vehicle stop for violating 75 Pa.C.S.A. § 3301 after observing the vehicle cross 

the double yellow line a single time).
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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.

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 

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. 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 
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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).

Our Supreme Court has explained that we evaluate the voluntariness of 

consent objectively, based on the totality of the circumstances:

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)). Importantly, our Supreme Court 

has held that an arrestee need not be informed of the right to refuse a 

chemical test in order for the consent to be voluntary under Article I, Section 

8 of the Pennsylvania Constitution. Cleckley, 738 A.2d at 428.

Appellant is correct that certain factors weigh against a finding of 

voluntariness, as Officer Lynch did not advise Appellant of his right to refuse 

consent and he was under arrest at the time of the blood draw. N.T., 

12/8/16/, at 18-19. There are, however, several other factors that support a 

finding of voluntariness. Officer Lynch testified that when he took Appellant 

to the hospital for the blood test, Appellant was completely cooperative and 

did not provide any indication that he wanted to refuse the test. Id. at 19. 
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Officer Lynch further testified that Appellant was not handcuffed during the 

blood test or physically restrained in any way. Id. at 26.

Moreover, there is no evidence of record that Appellant was under 

duress during the blood draw or that Officer Lynch used any coercive tactics 

to get Appellant to consent to the blood draw. The record reflects that Officer 

Lynch did not threaten Appellant with enhanced criminal penalties prior to the 

blood test. Instead, Officer Lynch plainly informed Appellant that he was 

placing him under arrest for suspicion of DUI and that he was taking him to 

the hospital for a blood test. Id. at 18, 26. Officer Lynch apprised Appellant 

of how long the test would take, informed him that he was not going to jail,

and told him he would likely be released within an hour. Id. at 26.

Therefore, we conclude, based on the totality of the circumstances, that 

the record supports the trial court’s determination that Appellant consented 

to the blood draw and that his consent was “the product of an essentially free 

and unconstrained choice.” Strickler, 757 A.2d at 901. As this Court has 

stated, “Appellant consented to the blood test and it is patently illogical to 

suggest that [he] would have refused had he known that by doing so, he would 

have been subject to additional penalties. Appellant was not prejudiced in any 

way.” Commonwealth v. McCoy, 895 A.2d 18, 27 (2006), aff’d, 975 A.2d 

586 (Pa. 2009). Accordingly, the trial court did not err in denying Appellant’s 

suppression motion.

Judgment of sentence affirmed.
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Judge Panella joins the memorandum. 

 P.J.E. Ford Elliott files a dissenting Memorandum Statement. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 08/29/2018