Commonwealth v. Veasy

245 A.3d 1116 (Table)

COMMONWEALTH of Pennsylvania v. Jermaine VEASY, Appellant

No. 1100 EDA 2019

Superior Court of Pennsylvania.

Filed: December 30, 2020

Appellant Jermaine Veasy appeals from the judgment of sentence imposed following his conviction for driving under the influence (DUI)—highest rate of alcohol and related offenses at a non-jury trial. Appellant argues that the trial court erred by denying his pre-trial motion to suppress. ¹ For the reasons that follow, we vacate the judgment of sentence, reverse the order denying suppression, and remand for a new trial.

The trial court set forth its factual findings regarding the suppression hearing as follows:

On November 5, 2017, at approximately 1:40 a.m., [Appellant] was observed traveling west on 10th Street in Marcus Hook Borough, Delaware County, Pennsylvania by Officer Daniel Barnett and Officer Daniel Pasley. The officers, while sitting in their patrol cars in a parking lot at the intersection of 10th Street and Church Street, noticed [Appellant's] white Mercedes-Benz was audibly operating at a high rate of speed. As they continued to observe [Appellant's] vehicle, the Officers noticed [Appellant's] vehicle did not have headlights on in conditions that were dark and rainy. After pulling behind [Appellant], Officer Barnett witnessed as [Appellant's] vehicle came up on another vehicle at a high rate of speed and then went around a median on the road to travel into the oncoming traffic lane. Officer Barnett immediately attempted to pull [Appellant] over following these observations. [Appellant] stopped his vehicle two blocks later at around 10th Street and Blueball Avenue.

Officer Barnett noticed a strong odor of alcoholic beverages coming from the vehicle immediately upon making contact with [Appellant]. [Appellant] informed Officer Barnett of his license to carry a Smith & Wesson M&P firearm, located in the glove compartment. After checking [Appellant's] credentials, Officer Barnett returned to the vehicle and asked [Appellant] to step out. Officer Barnett then asked [Appellant] whether or not he had been drinking that evening, to which [Appellant] responded by asking, "What time is it?" [Appellant] had slurred speech and difficulty speaking throughout the encounter. Officer Barnett then requested [Appellant] undergo a series of three field sobriety tests. [Appellant] was compliant with the Officer but failed each of the three field sobriety tests administered. Officer Barnett then asked [Appellant] to submit to a Preliminary Breath Test (PBT) but was unable to get a proper readout from the device.

Following [Appellant's] failure to complete the field sobriety tests, Officer Barnett placed him under arrest for suspicion of driving while intoxicated. [Appellant] was placed in the back of Officer Pasley's patrol car in handcuffs. Officer Barnett then requested [Appellant] submit to a chemical test of his blood, warning [Appellant] that his refusal "could" lead to the suspension of his license for "approximately 12 months." [Appellant] gave verbal consent to Officer Barnett's request. [Appellant] was transported by Officer Pasley to Crozer-Chester Medical Center. During the ride, Officer Pasley and [Appellant] made no conversation besides [Appellant's] request for his handcuffs to be loosened. At the hospital, [Appellant] was brought into an examination room and uncuffed by Officer Pasley, who warned him, "not to do anything stupid". A nurse extracted two vials of blood from [Appellant]. Later testing of the blood revealed a BAC of 0.239%.

Trial Ct. Op., 8/2/19, at 2-3 (record citations omitted). We add that Officer Barnett testified that he did not read the DL-26B Form, which contains implied consent warnings, to Appellant immediately before the extraction of Appellant's blood because Appellant had already given his verbal consent to the blood draw. N.T. Suppress Hr'g, 9/20/18, at 40-41. Officer Barnett testified that it was his understanding that the DL-26B Form is only used when a motorist is going to refuse the blood test. Id.

Appellant was later charged with DUI—general impairment, DUI—highest rate of alcohol, failing to use required lighting, driving at an unsafe speed, careless driving, reckless driving, and disregarding traffic lanes. ² See Criminal Compl., 11/5/17; see also Criminal Information, 2/28/18. On March 29, 2018, Appellant filed an omnibus pretrial motion, which included a motion to suppress. Therein, Appellant argued that pursuant to Birchfield v. North Dakota , ––– U.S. ––––, 136 S. Ct. 2160 (2016), the trial court should suppress evidence of the blood test results, because the Commonwealth conducted an illegal, warrantless blood draw, and Appellant did not provide knowing, voluntary, or intelligent consent to the blood draw. See Omnibus Pretrial Mot., 3/29/18, at 1-4.

The trial court held a suppression hearing on September 20, 2018. Officer Barnett, Officer Pasley, and Appellant testified at the hearing. At the end of hearing, the trial court held its decision under advisement. Additionally, the trial court ordered the parties to submit briefs containing their arguments, which they did. ³ In his brief, Appellant argued that Officer Barnett's verbal implied consent warning, including the use of the word "could" instead of "will" for a defendant's license suspension upon refusal, was inaccurate and therefore, Appellant did not voluntarily consent to the blood draw. Mem. of Law, 12/10/18, at 2, 7-11. On December 6, 2018, the trial court issued an order denying Appellant's motion to suppress. ⁴

On January 25, 2019, the Commonwealth withdrew the charge of reckless driving, and the case proceeded to a non-jury trial. The trial court held the verdict under advisement. On February 11, 2019, the trial court found Appellant guilty of DUI—general impairment, DUI—highest rate of alcohol, driving at an unsafe speed, and careless driving. The trial court found Appellant not guilty of the remaining charges.

On March 25, 2019, the trial court sentenced Appellant to twenty-three months' county intermediate punishment, of which 180 days were to consist of home confinement with electronic home monitoring, and a consecutive term of three years' probation. Appellant was also ordered to undergo a drug and alcohol evaluation and to pay $1,550 in fines, $300 in court costs, and a $134 lab fee.

On April 15, 2019, Appellant filed a timely notice of appeal. He filed an untimely court-ordered Pa.R.A.P. 1925(b) statement. ⁵ The trial court issued a Rule 1925(a) opinion addressing Appellant's claims.

Appellant raises two issues for our review:

1. Based on the totality of the circumstances relayed during the suppression hearing, did the trial court commit an error of law in denying Appellant's motion to suppress?

2. Did the trial court err in denying Appellant's suppression motion when the arresting officer did not provide Appellant with the required opportunity to cho[o]se between yielding consent to a warrantless chemical test or, alternatively, refusing to yield[?]

Appellant's Brief at 6-7 (unpaginated) (some capitalization omitted). ⁶

We summarize Appellant's arguments together as they are closely related. Appellant argues that the trial court erred in denying his motion to suppress because Appellant did not voluntarily consent to the blood draw. Id. at 13-23 (unpaginated). Appellant argues the trial court erred in not considering our Supreme Court's decision in Commonwealth v. Myers , 164 A.3d 1162 (Pa. 2017) (plurality). ⁷ Id. at 13 (unpaginated). More specifically, Appellant argues that the trial court erred in concluding that "because [Appellant] gave verbal consent immediately upon the request of [Officer Barnett], there was no need to read the DL-26B [F]orm .... [and] because [Appellant] consented to the blood test ... [Officer Barnett's] statements were not misleading and did not affect [Appellant']s decision." Id. at 15 (unpaginated) (quoting Trial Ct. Op. at 4 (some formatting altered)).

Appellant argues that the facts of this case are comparable to those of Commonwealth v. Krenzel , 209 A.3d 1024, 1032 (Pa. Super. 2019), appeal denied , 222 A.3d 370 (Pa. 2019). Id. at 19 (unpaginated). According to Appellant, in both Krenzel and this case, the defendants were pulled over and arrested for DUI after police administered field sobriety tests. Id. (citations omitted). Appellant states that neither he nor Krenzel were informed of their rights under 75 Pa.C.S. § 1547. Id. at 20 (unpaginated). Appellant argues that the police are "statutorily obligated" under 75 Pa.C.S. § 1547 to inform a suspect of the "right to refuse chemical testing and the consequences arising therefrom" and the failure to do so is grounds to suppress the blood draw. Id. (quoting Krenzel , 209 A.3d at 1032 ).

Appellant also argues that the trial court's and the Commonwealth's reliance on Commonwealth v. Gorbea-Lespier , 66 A.3d 382 (Pa. Super. 2013), to establish that he consented to the blood draw is in error. Id. at 20-22 (unpaginated). According to Appellant, in Gorbea-Lespier , the defendant was informed that a refusal to submit to the test would result in a minimum twelve month license suspension. Id. at 21 (unpaginated) (citing Gorbea-Lespier , 66 A.3d at 384 ). Here, Appellant contends that Officer Barnett informed him that a refusal to submit to the blood test "could" result in a license suspension of "up to twelve months" instead of informing him that refusal will result in a twelve month license suspension. Id. (citation omitted). Appellant additionally notes that in Gorbea-Lespier , the defendant was informed that he did not have a right to consult with anyone, including an attorney prior to testing, while here, Officer Barnett did not provide the statutorily required warning that Appellant did not have a right to consult anyone, including an attorney, before choosing to consent to the blood test. Id. at 21-22 (unpaginated) (citing Gorbea-Lespier , 66...