Commonwealth v. Moser

188 A.3d 478

COMMONWEALTH of Pennsylvania, Appellant

v.Joshua R. MOSER

No. 1225 WDA 2017

Superior Court of Pennsylvania.

Argued February 28, 2018

Filed May 18, 2018

Allen P. Powanda, Assistant District Attorney, Greensburg, for Commonwealth, appellant.

Paul R. Gettleman, Portersville, for appellee.

BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER^* , J.

OPINION BY SHOGAN, J.:

The Commonwealth appeals¹ from the order granting the motion to suppress filed by Appellee, Joshua R. Moser ("Moser"). After careful consideration, we reverse and remand.

The trial court summarized the factual history of this case as follows:

On May 26, 2013, Tim Allen Frye (hereinafter "Frye") was at his residence at 58 Beeno Road, New Stanton, Pennsylvania. At approximately 1:00 a.m., Frye heard a sound that resembled a car hitting a bank. Approximately twenty (20) to thirty (30) minutes later, Frye saw an ambulance and police with their lights activated on Route 136. Frye estimated that the scene was approximately two-hundred (200) feet away from his residence.

Nicholas D'Orazio, Jr. (hereinafter "Mr. D'Orazio"), owner of the 2000 Dodge Stratus automobile, testified that the vehicle was normally operated by his son, Nicholas A. D'Orazio (hereinafter "D'Orazio"). Mr. D'Orazio testified that, on May 26, 2013, the vehicle was parked at his son's residence. Mr. D'Orazio did not give [Moser] permission to use his vehicle.

D'Orazio testified that, on May 25, 2013, he traveled to Lake Erie for the weekend and left his vehicle, the 2000 Dodge Stratus, at 2065 Main Street, Arona, Pennsylvania. [Moser] called D'Orazio in the middle of the night and then again in the morning. D'Orazio spoke to [Moser] during the morning phone call, and before that conversation, [Moser] left a voicemail that stated, "Nick, I stole your car, I completely totaled it, and I killed my friend." D'Orazio stated that [Moser] was hysterical during the phone call. D'Orazio then called his father to inform him of what had happened. D'Orazio stated that, between May 25th and May 26th of 2013, he never gave [Moser] permission to use his vehicle.

Jacob Vranish (hereinafter "Vranish") and his then girlfriend Alyssa Grushecky (hereinafter "Grushecky") were travelling on State Route 136 in the early morning hours of May 26, 2013. While traveling down into the valley, Vranish noticed debris on the road along with a vehicle. Vranish stated that the vehicle was on the bank and a little on the hillside. Vranish did not see anyone at the scene when a group of young women in a vehicle stopped and told him that they saw someone running away from the scene. Vranish then called 911. Between the time Vranish called 911 and the firefighter arrived, [Moser] arrived on the scene. [Moser] asked if anyone was in the car, and then he and Vranish proceeded to walk along the hillside, when Vranish noticed someone lying on the hillside. At this point, [Moser] knelt by the Victim, picked him up, yelled "Josh!" tried to give the victim CPR, and then realized the victim had passed away. [Moser] told Vranish he was not driving. Vranish heard [Moser] make a phone call and said, "Josh was dead." [Moser] kept telling Vranish and Grushecky that he was sorry.

Trooper Joshua B. Johnson (hereinafter "Officer Johnson") and Trooper Paul Ton[o]ni (hereinafter "Officer Ton[o]ni") were dispatched to a one motor vehicle crash on State Route 136 at approximately 1:00 a.m. Trooper Johnson indicated that the vehicle had struck a stump that was off the road. Trooper Johnson indicated that [Moser] appeared to be under the influence of alcohol since [Moser] was emitting an odor of alcoholic beverage, his eyes were bloodshot and glassy, and his speech was slurred. [Moser] told Trooper Johnson that he had been at a friend's house drinking, and that he went to a few places in Hermin[i]e. [Moser] remembered flashes of driving fast. [Moser] also remembered being in the driver's seat after the crash, and that he had to force the driver's door of the vehicle open. [Moser] stated that, after the crash, he walked down the roadway to call his friends. [Moser] admitted that, after he returned to the crash, he attempted to do CPR on the other occupant of the vehicle. [Moser] explained that he drives on Route 136 often and knows the speed limit to be between 35 and 45 miles an hour. [Moser] stated that the vehicle belonged to his roommate who was in Erie, and that he did not have a Pennsylvania Driver's License. [Moser] further told Trooper Johnson that he was unable to drive because he did not have a Pennsylvania driver's license. Trooper Ton[o]ni testified that [Moser] was adamant that he wasn't the driver of the vehicle. In Trooper Johnson's report, it provided that [Moser] made a statement that he did not know if there was anybody else in the vehicle with him. [Moser] provided the name of "Josh" to Trooper Johnson regarding the fatality involved in the crash.

Trooper Johnson instructed [Moser] to perform field sobriety tests, which [Moser] failed. Trooper Johnson formed the opinion that [Moser] was under the influence of alcohol to such an extent that he could not safely drive. Trooper Tononi also witnessed [Moser] perform the field sobriety tests, and concluded that [Moser] was impaired. [Moser] was then handcuffed, placed under arrest, and put into the back of a patrol vehicle. Trooper Tononi confirmed that [Moser] was taken into custody and then transported to Westmoreland County Hospital. As Trooper Johnson and Trooper Ton[o]ni were taking [Moser] to the hospital, they informed him as to why they were going, and requested that [Moser] submit to a blood test to determine his BAC, and [Moser] agreed. [Moser] was taken to the Westmoreland Hospital in Greensburg, Pennsylvania. Trooper Johnson advised [Moser] of the implied consent form and the O'Connell Warnings,^[2] and [Moser] indicated that he understood. Trooper Johnson read [Moser] the DL–26 form.^[3][Moser] did not sign the DL–26 form, but held out his arm instead. Trooper Johnson never asked for a search warrant for [Moser's] blood sample. [Moser] agreed to submit to a blood sample, and [Moser's] sample was collected at 2:50 a.m. at the hospital. The victim was identified as Joshua Michael Jordan.

Trial Court Opinion, 9/26/17, at 1–3 (internal citations omitted; footnotes omitted).

Moser was charged with homicide by vehicle while under the influence of alcohol or controlled substance ("DUI"), three counts of DUI, homicide by vehicle, exceeding maximum speed limit by thirty miles per hour, driving at an unsafe speed, unauthorized use of automobile, accident involving death or personal injury while not properly licensed, and driving without a license.⁴ On March 17, 2017, Moser filed a motion to suppress the results of the blood test. Moser argued that the warrantless blood draw was a violation of the United States Supreme Court's holding in Birchfield v. North Dakota , ––– U.S. ––––, 136 S.Ct. 1535, 194 L.Ed.2d 601 (2016).⁵ On August 1, 2017, the trial court entered an order granting Moser's motion to suppress the blood test results. The Commonwealth filed an appeal on August 21, 2017. The trial court entered an order on September 22, 2017, continuing the case pending the decision by this Court. The trial court issued an opinion in compliance with Pa.R.A.P. 1925.

The Commonwealth presents the following issues for our review:

1. The Suppression Court erred in suppressing the blood test results. The Commonwealth contends that [Moser] had voluntarily consented to the blood draw before the Trooper read the implied consent warnings from the DL–26 form to him. Thus, his consent was not tainted by the warnings. Commonwealth v. Haines , 168 A.3d 231, 236 (Pa. Super. 2017).

2. Because the warrantless blood draw was conducted pursuant to well-established statutory and case law, and the request was supported by probable cause, the Commonwealth contends that suppression of the results is not warranted. A narrow good faith exception to the exclusionary rule should apply to pre– Birchfield cases where the law enforcement officers followed long-established procedures.

Commonwealth's Brief at 8.

In its first issue, the Commonwealth argues that the trial court erred in granting Moser's motion to suppress the results of his blood test. Commonwealth's Brief at 8. The Commonwealth maintains that Moser voluntarily consented to the blood draw before the trooper read to Moser the implied consent warnings from form DL–26, which threatened additional criminal penalties if Moser refused the blood test. Id. at 8, 13. The Commonwealth posits that because the officer read form DL–26 to Moser after Moser consented to the blood draw, Moser was not "coerced" by language in the form regarding heightened penalties. Id. at 13.

When the Commonwealth appeals from a suppression order:

we follow a clearly defined standard of review and consider only the evidence from the defendant's witnesses together with the evidence of the prosecution that, when read in the context of the entire record, remains uncontradicted. The suppression court's findings of fact bind an appellate court if the record supports those findings. The suppression court's conclusions of law, however, are not binding on an appellate court, whose duty is to determine if the suppression court properly applied the law to the facts.

Commonwealth v. Miller , 56 A.3d 1276, 1278–1279 (Pa. Super. 2012) (citations omitted). We may consider only evidence presented at the suppression hearing. In re L.J. , 622 Pa. 126, 79 A.3d 1073, 1085–1087 (2013).

This Court has summarized the holding in Birchfield and its application to Pennsylvania's implied consent statutes as follows:

In Birchfield , the United States Supreme Court recognized 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." Birchfield , 136 S.Ct. at 2185. Of particular significance, Birchfield held that "motorists

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