Commonwealth of Pa. v. Schuebel

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COMMONWEALTH OF PENNSYLVANIA Appellant v. KENNETH M. SCHUEBEL

No. 2323 EDA 2022

No. J-A24033-23

Superior Court of Pennsylvania

March 15, 2024

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Order Entered August 16, 2022 In the Court of Common Pleas of Northampton County Criminal Division at No(s) CP-48-CR-0001578-2021

BEFORE: STABILE, J., DUBOW, J., and SULLIVAN, J.

MEMORANDUM

SULLIVAN, J.:

The Commonwealth appeals from the order granting Kenneth Schuebel's ("Schuebel") motion to suppress evidence.^[1] After careful review, we affirm.

On June 20, 2020, Schuebel fatally struck a woman with his SUV. He gave a blood sample which disclosed the presence of amphetamine, methamphetamine, and a metabolite of marijuana in his system at the time of the fatal collision. Police charged Schuebel with homicide by vehicle while DUI and related offenses. Following a preliminary hearing, Schuebel filed a motion to suppress the results of the blood sample.

The court conducted a hearing on Schuebel's suppression motion. Hellertown Police Officer Dominick Fragano ("Officer Fragano"), the only witness at the hearing, testified that, sometime after 3:00 p.m. on June 20, 2020, he and his partner, Officer Kevin McCartney ("Officer McCartney") (collectively, "the officers") were called to the area of Linden and Main Streets, the scene of the fatal collision. See N.T., 3/16/22, at 6-9. The officers were in uniform in a marked patrol car and arrived quickly at the scene. See id. at 8, 12. When Officer Fragano asked who was involved in the accident, people at the scene identified Schuebel and the white GMC Envoy he drove. See id. at 9, 16.

Officer Fragano found the victim, seventy-four-year-old Frances Miller ("Ms. Miller"), lying against the curb on Main Street, unresponsive, and breathing shallowly; her leg was lacerated and body tissue and blood lay on the ground beside her. See id. at 10-12. Schuebel had struck her in the crosswalk. See id. at 17. Officer Fragano approached Schuebel and asked if he was involved in the collision; Schuebel said he hit Ms. Miller with his SUV. See id. at 15. Officer Fragano asked for Schuebel's "credentials" and having received them told Schuebel he would be back to talk to him. Id. After checking on Ms. Miller, Officer Fragano returned and told Schuebel Ms. Miller was badly injured and would likely die.^[2] Officer Fragano testified Schuebel was "shaken up," which he demonstrated at the suppression hearing by imitating trembling hands. Id. at 15-16, 30, 54-55. Schuebel did not smell of alcohol or display any indicia of intoxication. See id. at 58-59. Officer Fragano did not believe Schuebel had been drinking but asked him if he would be willing to give a blood sample to show there was "nothing in his system." See id. at 16, 18. Schuebel replied, "Yeah, okay." See id. at 19.^[3] The officer did not administer field sobriety tests because he saw Schuebel shaking and believed he would fail the tests. See id. at 17.

Schuebel, who was uninjured, agreed to give a blood sample and to be taken to St. Luke's Hospital. Schuebel walked to the patrol car and rode, unrestrained, in the back seat^[4] to the hospital ten to twenty minutes away. He remained nervous. See id. at 19-21, 51.

Officer Fragano testified that before they entered the hospital, he read Schuebel a police consent form "basically verbatim" from his computer screen. See id. at 22-25.^[5] Schuebel said he had not been drinking. Officer Fragano told him the blood sample would show he had nothing in his system and "help him down the road with the accident." See id. at 28. The officer told Schuebel again there was a good chance Ms. Miller would not survive. See id. at 30. The officer did not discuss a possible criminal investigation at that time, nor did he threaten a license suspension or other consequence if Schuebel refused consent. See id. at 31-32, 62. Schuebel entered the hospital with Officer Fragano to have his blood drawn. See id. at 22-25.

Officer Fragano testified that before Schuebel signed the form, a hospital employee directed the officer to check a box on a hospital form next to language that stated:

As a law enforcement officer, I ask that a physician or other authorized person at St. Luke's [] take a blood sample . . ..

The individual has been lawfully arrested or I have made a determination that there is probable cause that the individual has been operating a motor vehicle under the influence of alcohol or a controlled substance . . ..

See N.T., 3/16/22, at 64. Officer Fragano testified he did not read that language before checking the box. He testified that he checked the box before Schuebel signed the form, see id. at 64-66, but later testified he did not check the box. See id. at 68-69, 70, 74-75, 85.^[6]

Schuebel read and signed the hospital form before giving the blood sample. See id. at 26-27. When the blood was drawn and packaged at approximately 5:15 p.m., Officer Fragano took it and Schuebel back to police headquarters and placed the blood in a locked refrigerator. See id. at 32-33.

Schuebel remained at the police station, unhandcuffed and in an unlocked room, for one and one-half to two hours. Officer Fragano read Schuebel Miranda warnings because, as he told Schuebel, he was going to ask, "guilt seeking questions." Officer Fragano also told Schuebel his blood would be tested for alcohol or narcotics. Id. at 33-34, 39-40. During the interview, Schuebel, a carpenter, said he was not under the influence of narcotics, and signed a police consent form consenting to the taking of his blood which had already occurred. See id. at 36-38, 41. Schuebel also wrote and signed a document stating he had offered to have his blood drawn and added, "Done Voluntary [sic]." See id. at 37.^[7]

The suppression court held the matter under advisement at the conclusion of the hearing. Following subsequent briefing, in August 2022, the court granted suppression of the blood test results. The Commonwealth filed a timely notice of appeal. Both the Commonwealth and the suppression court complied with Pa.R.A.P. 1925.

The Commonwealth submits the following issue for this Court's review:

Did the suppression court err in finding that [Schuebel] did not voluntarily consent to a blood draw?

Commonwealth's Brief at 4.

The Commonwealth's issue implicates the grant of a defendant's motion to suppress. When the Commonwealth appeals a suppression order, this Court considers only the evidence from the defense witnesses together with the evidence of the prosecution that when read in the context of the entire record remains uncontradicted. See Commonwealth v. Dales, 820 A.2d 807, 812 (Pa. Super. 2003). A reviewing court is bound by the lower court's findings of fact if they are supported in the record but conducts plenary review to determine if the court properly applied the law to the facts. See Commonwealth v. Dunkins, 263 A.3d 247, 252 (Pa. 2021); Dales, 820 A.2d at 812. The credibility of witnesses and the weight to be accorded their testimony is solely within the province of the suppression court. See Commonwealth v. Dutrieville, 932 A.2d 240, 242 (Pa. Super. 2007). If the facts support the suppression court's findings, those findings are binding, and this Court may only reverse if the suppression court drew erroneous legal conclusions from the evidence. See id.

The Commonwealth bears the burden at a suppression hearing to establish the challenged evidence was not obtained in violation of the accused's rights. See Pa.R.Crim.P. 581(H). The taking of blood is a search subject to the protections of the Fourth Amendment of the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution. See Commonwealth v. Smith, 77 A.3d 562, 566 (Pa. 2013). Warrantless searches are generally presumed to be unreasonable and therefore unconstitutional. See Commonwealth v. Boyd, 296 A.3d 1270, 1274 (Pa. Super. 2023). Voluntarily given consent constitutes an exception to the warrant requirement. See Commonwealth v. Evans, 153 A.3d 323, 327-28 (Pa. Super. 2016).

Consensual searches are examined objectively under a totality of the circumstances test to determine if the consent was the product of "an essentially free and unconstrained choice." Smith, 77 A.3d at 569 (citation omitted). "[N]o one fact, circumstance, or element of the examination of a person's consent has talismanic significance." Id. (citation omitted). An evaluation of the circumstances relating to consent considers "the maturity, sophistication and mental or emotional state of the [consenting party]." Smith, 77 A.3d at 573 (citation omitted). Other factors courts consider in determining the validity of consent include:

1) the presence or absence of police excesses; 2) whether there was physical contact; 3) whether police directed the citizen's movements; 4) police demeanor and manner of expression; 5) the location of the interdiction; 6) the content of the questions and statements; 7) the existence and character of the initial investigative detention, including the degree of coerciveness; 8) whether the person has been told that he is free to leave; and 9) whether the citizen has been informed that he is not required to consent to the search.

Commonwealth v. Benitez, 218 A.3d 460, 480 (Pa Super. 2019) (citation omitted). Consent for a search "may not be gained through stealth, deceit or misrepresentation, and . . . if such exists, this is tantamount to implied coercion." Smith, 77 A.3d at 573 (citation omitted); accord Commonwealth v. Haines, 168 A.3d 231, 235 (Pa. Super. 2017) (stating determining the scope of consent is necessary to distinguish between valid consent and consent resulting from coercion, deceit, or misrepresentation). ...