Com. v. Laureano, R. (memorandum)
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J-A21032-13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellant v. ROBERTO R. LAUREANO, Appellee : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 2714 EDA 2012 Appeal from the Order Entered August 31, 2012, In the Court of Common Pleas of Bucks County, Criminal Division, at No. CP-09-CR-0000087-2012. BEFORE: SHOGAN, WECHT and COLVILLE,* JJ. MEMORANDUM BY SHOGAN, J.: FILED JULY 22, 2014 The Commonwealth appeals from the order of the trial court, which granted the post-trial motion for extraordinary relief filed by Appellee, from our Supreme Court for further consideration in light of its opinion in Commonwealth v. Smith, 77 A.3d 562 (Pa. 2013). After careful review, we reverse the order of the trial court, reinstate the conviction, and remand for sentencing. The trial court summarized the history of this case as follows: The instant case arises from a motor vehicle accident on October 20, 2011. The accident happened in the area of 2200 __________________ *Judge Colville did not participate in the consideration or decision of this case. J-A21032-13 Street Road, Bensalem, PA. N.T. 05/15/2012, 10. It is a four lane highway with a center turning lane as well. N.T. 05/12/2012, 10-11. It was in the middle of a block with no traffic light or pedestrian crossing. N.T. 05/12/2012, 11. When police arrived on [the] scene it was obvious a pedestrian in a motorized wheelchair had been struck by a vehicle and [was] seriously injured and/or probably dying. N.T. 05/12/2012, 12. [Appellee] identified himself to police as the person driving the vehicle that had struck the pedestrian. N.T. 05/12/2012, 13. [Appellee] was standing next to the unconscious pedestrian. Id. Off first officer to arrive at the scene testified that she asked [Appellee] to stay on the sidewalk and not move. N.T. 05/12/2012, 37. However, she did say [Appellee] was not in custody. N.T. 05/12/2012, 18-19. Officer Stahl asked insurance information. N.T. 05/12/2012, 33. Further, she returned the registration and insurance information but kept possession of the license. Id. Officer Stahl did not observe any indications of intoxication. N.T. 05/12/2012, 21. Officer Stahl did not suspect [Appellee] of any motor vehicle code violations. N.T. 05/12/2012, 31-32. The videotape of the dashboard scene was to preserve the scene and arrange for emergency medical care of the dying pedestrian. Corporal Bri Police, who also arrive[d] at the scene and assisted in the investigation, testified it is standard Police Department procedure to request a blood draw in every case involving a fatality or near-fatality. N.T. 05/12/2012, 67. The reason for the blood draw is to further any possible criminal investigation. N.T. 05/12/2012, 68. Cpl. Oliverio further testified that part of the standard procedure is to inform the suspect that there is no reason for them to ask for a blood test and to tell them it could be used in a criminal investigation. N.T. 05/12/2012, 69-71. He further indicated that it is also procedure to get the suspect to sign a voluntary consent form before [the] test is administered. N.T. 05/12/2012, 21. -2- J-A21032-13 Officer Stahl explained to [Appellee] that due to the severity of the accident they would like him to take a blood test. N.T. 05/12/2012, 22. [Appellee] was told this is standard procedure. N.T. 05/12/2012, 23. Officer Stahl asked [Appellee] if he would consent to a blood draw. N.T. 05/12/2012, 22. [Appellee] agreed to give blood. N.T. 05/12/2012, 29. However, the consent form was not read or shown to him and he was not asked to sign a consent form. N.T. 05/12/2012, 22, 39. Nor was [Appellee] informed that the results of any test could be used against him in a criminal proceeding. N.T. 05/12/2012, 3031. [Appellee] was later placed in a police car and taken to the hospital for a blood draw. [Appellee] was not handcuffed while in the police car. N.T. 05/12/2012, 52. Trial Court Opinion, 11/2/12, at 1-2. marijuana. On February 2, 2012, Appellee was charged with DUI. as denied on May 12, 2012. A stipulated waiver trial followed the denial of the suppression motion. At the conclusion of the trial, Appellee was convicted of DUI. Prior to sentencing, Appellee filed a post-trial motion requesting, among other things, reconsideration of the motion to suppress the blood test results. The trial court held a hearing on August 27, 2012. Subsequently, the motion to suppress, granted the motion to suppress, and vacated 1 1 Under Pa.R.A.P. 311(d), in criminal cases the Commonwealth has a right to appeal interlocutory orders if the Commonwealth certifies that the orders will -3- J-A21032-13 On September 17, 2013, this Court affirmed the order of the trial court in an unpublished memorandum decision. 2714 EDA 2012, 87 A.3d 384 (Pa. Commonwealth v. Laureano, Super. 2013) (unpublished memorandum). The Commonwealth filed with our Supreme Court a petition for allowance of appeal. On April 29, 2014, our Supreme Court granted the this Court for reconsideration in light of Smith. Commonwealth v. Laureano, ___ A.3d ___, 1045 MAL 2013 (Pa. 2014).2 Because our terminate or substantially handicap the prosecution. Commonwealth v. Flamer, 53 A.3d 82, 86 n.2 (Pa. Super. 2012). Specifically, Rule 311(d) provides as follows: In a criminal case, under the circumstances provided by law, the Commonwealth may take an appeal as of right from an order that does not end the entire case where the Commonwealth certifies in the notice of appeal that the order will terminate or substantially handicap the prosecution. Pa.R.A.P. 311(d). Here, the record reflects that the Commonwealth has filed a certification pursuant to Pa.R.A.P. 311 order prohibiting the introduction of evidence will substantially handicap the prosecution of the case. Notice of Appeal, 9/21/12. Therefore, pursuant to Pa.R.A.P. 311(d), this Court has jurisdiction to hear this appeal from the trial prosecution. 2 AND NOW, this 29th day of April, 2014, the petition for Allowance of Appeal is GR and the matter is REMANDED for reconsideration in light of Commonwealth v. Smith, 77 A.3d 562 (Pa. 2013). Supreme Court Order, 1045 MAL 2013, 4/29/14, at 1. -4- J-A21032-13 of our decision in light of Smith, we confine our discussion to that issue. Our standard of review is as follows: When the Commonwealth appeals from a suppression order, we together with the evidence of the prosecution that, when read in the context of the entire record, remains uncontradicted. The court if the record supports those findings. The on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts. Commonwealth v. Nester, 709 A.2d 879, 880-881 (Pa. 1998) (internal citations omitted) (emphasis added). The issue of voluntariness is a question of law. Id. at 881. Initially, we keep in mind several principles. The withdrawal of blood is a search subject to the protections of the Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution. Commonwealth v. Kohl, 615 A.2d 308, 312, 315 (Pa. 1992). To require a person to undergo a blood test, police must generally have probable cause to believe the person has been driving under the influence of a controlled substance. Id. at 313, 315-316; Commonwealth v. Thur, 906 A.2d 552, 567 (Pa. Super. 2006). However, it has long been established that absent probable cause, the withdrawal of blood may be justified by showing the consent of the person in question. See Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) (reiterating th -5- J-A21032-13 specifically established exceptions to the requirements of both a warrant and In Commonwealth v. Smith, 77 A.3d 562 (Pa. 2013), our Supreme Court reversed a decision of this Court that vacated multiple convictions related to a fatal motor vehicle accident, including several counts of DUI and one count of homicide by vehicle. Our Supreme Court observed that this re to inform [Smith] of the criminal consequences of the blood test had the effect of misleading or coercing Id. at 567. Supreme Court stated the following: no one fact or circumstance can be talismanic in the evaluation of the validity of a . Accordingly, to the extent the Superior Court held that police officers must explicitly inform drivers consenting to blood testing that the results of the test may be used against them in criminal prosecutions in order for the Id. at 572 (emphasis added). In Smith, our Supreme Court went on to explain the validity of consent to a blood test following an accident as follows: In determining the validity of a given consent, the Commonwealth bears the burden of establishing that a consent is the product of an essentially free and unconstrained choice not the result of duress or coercion, express or implied, or a will overborne - under the totality of the circumstances. The based on an objective evaluation of what a reasonable -6- J-A21032-13 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 nt 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. See Commonwealth v. Cleckley, 5 knowledge of his or her right to refuse consent remains a factor Smith, 77 A.3d at 573 (some internal citations and quotation marks omitted) (emphasis added). The Court in Smith reviewed the totality of the circumstances of the case and ultimately concluded that Smith had consented to the blood testing; it provided the following analysis: Objectively considering the totality of the circumstances, we find that the trial court correctly found that Officer Agostino did not use deceit, misrepresentation, or coercion in seeking invalidating the blood draw or the results therefrom on those bases. Here, the facts reveal that [Smith] was a college graduate, was not injured, and was explicitly informed of his right to refuse the test. [Smith] further understood that the test was to rule out the possibility that alcohol or drugs were factors in the accident. With all of these understandings in mind and his faculties fully about him, [Smith] willingly went to the hospital and participated in the blood draw. On the basis of the totality of the evidence, when viewed this blood draw would have contemplated the potentiality of the results being used for criminal, investigative, or prosecutorial purposes. Thus, Officer Agostino validly obtained from [Smith] his consent for the blood alcohol test. Smith, 77 A.3d at 573-574 (footnotes omitted) (emphasis added). -7- J-A21032-13 Our review of the record reflects that the trial court specifically found eing said to 3 Likewise, our review of the facts presented to the trial court leads to the same conclusion. It is undeniable that Appellee knew that the police were present 3 At the conclusion of the suppression hearing, the trial court found the following: the police officers in a if not friendly very business-like, noncoercive way. He was treated as a witness, albeit a special witness in that he was the driver of one of the vehicles. I find [Appellee] fully understood what was going on, what was being said to him, and what was being asked of him. ng the fact that at the scene [Appellee] was afraid to move around the scene, he was clearly indicate - - it was clearly indicated to him that he was free to leave from the hospital once he had volunteered or had agreed to go to the hospital or be taken to the hospital. any delay in dealing with [Appellee] was solely because they were involved in handling all the other aspects of this serious accident. grant the motion to suppress evidence. While it may have been a better situation if the officer had advised the defendant of his right to that despite the fact that he was not advised of that, he did voluntarily go to agree to give the blood and voluntarily went with the officer to the hospital. N.T., 5/15/12, at 132-133 (emphasis added). -8- J-A21032-13 at the accident on scene in order to investigate a vehicle crash with serious injuries to a pedestrian, and Appellee was the operator of the motor vehicle involved in the accident. N.T. 5/15/12, at 13-22. Police questioned Appellee at the scene as to the cause of the accident. Id. at 18. Although Appellee did appear nervous, the police did not observe any indication that Appellee suffered impairment due to being under the influence of alcohol or drugs. Id. at 18, 21. Further, the police asked Appellee if he would consent to having his blood drawn due to the severity of the accident and the nature of the injuries suffered by the pedestrian. Id. at 22-23. In addition, prior to asking Appellee whether he was willing to consent to the blood draw, the police inquired whether he had taken any drugs or drank any alcohol. Id. at 23. Accordingly, we are constrained to conclude that under the totality of the circumstances, Appellee possessed the minimal awareness necessary that consent to blood testing could have some relatedness to a criminal investigation. As the Court concluded in Smith totality of the evidence, when viewed objectively, we conclude that a potentiality of the results being used for criminal, investigative, or Smith, 77 A.3d at 573. Hence, we reverse the order of the trial court, reinstate the conviction, and remand for sentencing. -9- J-A21032-13 Order reversed. Conviction reinstated. sentencing. Jurisdiction relinquished. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/22/2014 -10- Case remanded for
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