Commonwealth v. Lee

270 A.3d 1117 (Table)

COMMONWEALTH of Pennsylvania

v.David Lincoln LEE Appellant

No. 397 WDA 2021

Superior Court of Pennsylvania.

Filed: December 3, 2021

MEMORANDUM BY MURRAY, J.:

David Lincoln Lee (Appellant) appeals nunc pro tunc from the judgment of sentence imposed after a jury found him guilty of homicide by vehicle while driving under the influence, accidents involving death or personal injury, homicide by vehicle, driving at safe speed, careless driving, reckless driving, and two counts of driving under the influence of alcohol (DUI).¹ In his sole issue on appeal, Appellant challenges the denial of his pretrial motion to suppress the results of a warrantless blood alcohol content (BAC) test, arguing that the evidence was obtained in violation of Birchfield v. North Dakota , 136 S. Ct. 2160 (2016).² We affirm.

The facts adduced at the suppression hearing establish that shortly after midnight on October 29, 2016, Appellant fatally struck a pedestrian with his vehicle and fled the scene. See N.T., 7/5/17, at 8, 12, 41. Based on a description of the vehicle, Pennsylvania State Police (PSP) dispatched a radio bulletin for officers in the area to be on the lookout for a blue Ford pickup truck. Id. at 14. PSP troopers, while canvassing the area, saw a blue Ford pickup truck parked in front of a residence in Lemont Furnace, Fayette County. Id. at 15. The truck had damage to the front passenger side, headlight, and antennae, and there appeared to be blood and human tissue on the truck. Id. at 15, 32. The police ran the vehicle's registration and learned it was registered to Appellant. Id. at 16, 41. Shortly after 2:00 a.m., police knocked on the front door of the residence, and an occupant answered and allowed them to enter. Id. at 16-17. The police immediately saw Appellant asleep on a couch and noticed that he smelled of alcohol and had urinated in his pants. Id. at 17-18, 20. The police took Appellant into custody based on the condition of Appellant and the blue Ford truck. Id. at 18-20.

PSP Trooper Jared King (Trooper King) testified that at approximately 3:00 a.m., he transported Appellant from the Uniontown PSP barracks to Uniontown Hospital for a blood draw. Id. at 19, 23, 26. Before the blood draw, Trooper King read Appellant the chemical testing warnings from Pennsylvania Department of Transportation (PennDOT) form DL-26B.³ Id. at 23-24. Appellant read and signed the DL-26B form and consented to the blood draw , which occurred shortly after 4:00 a.m. Id. at 12, 24-25. The blood draw indicated a BAC of 0.172%. Id. at 10.

The Commonwealth charged Appellant with various violations of the Motor Vehicle Code. On May 3, 2017, Appellant filed an omnibus pretrial motion (OPT motion) seeking, inter alia , to suppress his blood test results under Birchfield . See , e.g. , OPT Motion, 5/3/17, at ¶ 25 ("based on the totality of the circumstances, [Appellant's] consent to the search and seizure of [his] blood was coerced and the evidence should be suppressed."). At the suppression hearing, four PSP troopers testified consistently with the facts recited above, and the DL-26B form was admitted into evidence as Commonwealth Exhibit 5. See N.T., 7/5/17, at 26.⁴ On September 5, 2017, the Commonwealth filed a memorandum of law in opposition to the OPT motion. See , e.g. , Memorandum of Law, 9/5/17, at 10 (unnumbered) ("the blood draw was based on the informed consent of [Appellant], memorialized by the DL-26B form."). That same date, the trial court denied the OPT motion.

The case proceeded to trial, after which the jury convicted Appellant of the abovementioned crimes. On October 20, 2017, the trial court sentenced Appellant to an aggregate 4 to 10 years in imprison. Appellant did not file post-sentence motions, but took a direct appeal. This Court affirmed the judgment of sentence, and the Pennsylvania Supreme Court denied allowance of appeal. Commonwealth v. Lee , 195 A.3d 1041 (Pa. Super. 2018) (unpublished memorandum), appeal denied , 201 A.3d 727 (Pa. 2019).

On May 20, 2019, Appellant timely filed a first petition pursuant to the Post Conviction Relief Act (PCRA). See 42 Pa.C.S.A. §§ 9541 - 9546 in which he challenged the denial of his suppression motion. By agreement between the Commonwealth and Appellant, on March 19, 2021, the PCRA court reinstated Appellant's direct appeal rights nunc pro tunc solely for Appellant to raise a Birchfield claim in this appeal. Both Appellant and the trial court have complied with Pa.R.A.P. 1925.

Appellant presents a single question: "Whether Appellant's blood test should have been suppressed under Birchfield v. North Dakota ?" Appellant's Brief at 3.⁵

Our standard of review regarding challenges to the 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. 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 . 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. Our scope of review of suppression rulings includes only the suppression hearing record and excludes evidence elicited at trial.

Commonwealth v. Yandamuri , 159 A.3d 503, 516 (Pa. 2017) (citations omitted).

As explained above, "Birchfield applies to situations in which a defendant's consent is obtained based upon the threat of additional criminal penalties if the blood test is refused." Commonwealth v. Gaston , 239 A.3d 135, 141 (Pa. Super. 2020) ; Birchfield , 136 S. Ct. at 2185-86.⁶ Such is not the situation here, because the DL-26B form that Trooper King read to Appellant contained no reference to enhanced criminal penalties . See N.T., 7/5/17, at 24; Commonwealth Ex. 5 (DL-26B form); see also Commonwealth v. Smith , 177 A.3d 915, 921-22 (Pa. Super. 2017) (finding Birchfield inapplicable where DUI motorist was read the revised DL-26B form and therefore was not advised that she would be subject to enhanced criminal penalties if she refused to submit to a blood test).

Having determined that Birchfield does not require suppression of Appellant's blood test results, we consider whether his consent to the blood draw was voluntary. See Commonwealth v. Myers , 164 A.3d 1162, 1178 (Pa. 2017) (explaining that Birchfield ’s holding "supports the conclusion that ... an individual must give actual, voluntary consent at the time that testing is requested.").

Appellant argues he did not voluntarily consent to the blood test because he "was in police custody as a suspect in [a] hit and run murder case, and based on the totality of these circumstances Appellant would have assumed he had no option but to agree to the blood test." Appellant's Brief at 11; see also id. at 11-12 ("Appellant would have reasonably assumed that ... a refusal to consent to a blood test would be used against him at trial.").

It is well-settled that an established exception to the warrant requirement is "consent, voluntarily given." Commonwealth v. Strickler , 757 A.2d 884, 888 (Pa. 2000) ; see also id. at 888-89 (where, as here, "the underlying encounter is found to be lawful, voluntariness becomes the exclusive focus."). The Commonwealth has the burden of proving that consent to a blood draw was voluntarily given. Commonwealth v. Smith , 77 A.3d 562, 573 (Pa. 2013).

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. Evans , 153 A.3d 323, 328 (Pa. Super. 2016) (emphasis added; citation omitted).

A non-exhaustive list of relevant factors for the voluntariness of consent includes:

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) (citation omitted).

Instantly, the following exchange occurred between the prosecutor and Trooper King at the suppression hearing:

Q. And did you read [the DL-26B] form to [Appellant]?

A. Yes, I read it to him verbatim.

Q. Did he understand, or did he acknowledge that he understood what it said?

A. He did.

Q. And did he in fact sign the form?

A. Yes, he did.

* * *

Q. And did [Appellant] then consent to a blood draw?

A. Yes, he did.

* * *

Q. Did you in any way coerce [Appellant] to give a blood sample?

A. No, I did not.

Q. Did you in any way threaten him?

A. No, I did not.

Q. His consenting to a blood draw was completely voluntary?

A. Correct.

N.T., 7/5/17, at 24-25.

Upon review, an objective evaluation of the above exchange, and the totality of the circumstances, supports the conclusion that Appellant voluntarily consented to the blood draw. Further, the DL-26B form Appellant read and signed informed him that Trooper King was making a noncompulsory "request." See Commonwealth Ex. 5. Although Appellant was under arrest and handcuffed at the time, nothing in the record indicates that Trooper King used improper tactics to coerce Appellant to submit to blood testing. Thus, based on our independent review of the record, we discern no error...