Com. v. Stephenson, D. (memorandum)

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J-A09036-17 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA Appellant v. DANNIE LEE STEPHENSON Appellee : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1482 MDA 2016 Appeal from the Order Entered August 16, 2016 In the Court of Common Pleas of Adams County Criminal Division at No(s): CP-01-CR-0000430-2016 BEFORE: GANTMAN, P.J., SHOGAN, J., and OTT, J. MEMORANDUM BY GANTMAN, P.J.: FILED MAY 01, 2017 Appellant, the Commonwealth of Pennsylvania, appeals from the order entered in the Adams County Court of Common Pleas, which granted the pretrial suppression motion of Appellee, Dannie Lee Stephenson, and suppressed the results of his blood alcohol test.1 We affirm. In its opinion, the trial court fully and correctly set forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them. ____________________________________________ 1 Pursuant to Pa.R.A.P. 311(d), the Commonwealth has certified in its notice of appeal that the trial court’s suppression order substantially handicapped or terminated the prosecution of the Commonwealth’s case. Accordingly, this appeal is properly before us for review. See Commonwealth v. Cosnek, 575 Pa. 411, 421 836 A.2d 871, 877 (2003) (stating Rule 311(d) applies to pretrial ruling that results in suppression, preclusion or exclusion of Commonwealth’s evidence). J-A09036-17 The Commonwealth raises two issues for our review: [WHETHER] THE [TRIAL] COURT ERRED IN APPLYING THE EXCLUSIONARY RULES OF BOTH THE U.S. CONSTITUTION AND THE PENNSYLVANIA CONSTITUTION WHEN A GOOD FAITH EXCEPTION SHOULD HAVE BEEN APPLIED[?] [WHETHER] THE [TRIAL] COURT ERRED WHEN IT FAILED TO RULE THAT VALID CONSENT TO A BLOOD DRAW WAS OBTAINED PRIOR TO ANY IMPLICATION OF IMPLIED CONSENT LAW AND WHEN THE COMMONWEALTH WAS NOT GIVEN THE OPPORTUNITY TO DEVELOP THE RECORD ON THAT ISSUE[?] (Commonwealth’s Brief at 6 and 15, respectively).2 When the Commonwealth appeals from a suppression order, the relevant scope and standard of review are: [We] 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. As long as there is some evidence to support them, we are bound by the suppression court’s findings of fact. Most importantly, we are not at liberty to reject a finding of fact which is based on credibility. Commonwealth v. Goldsborough, 31 A.3d 299, 305 (Pa.Super. 2011), appeal denied, 616 Pa. 651, 49 A.3d 442 (2012) (internal citation omitted). “The suppression court’s conclusions of law, however, are not binding on an ____________________________________________ 2 The Commonwealth’s appellate brief is missing a statement of questions involved, as well as a statement of jurisdiction, the order in question, a statement of the relevant scope of review and standard of review, and a statement of the case. See Pa.R.A.P. 2111. These omissions are significant. Nevertheless, we decline to waive the Commonwealth’s issues on these grounds. -2- J-A09036-17 appellate court, whose duty is to determine if the suppression court properly applied the law to the facts.” Id. (quoting Commonwealth v. Keller, 823 A.2d 1004, 1008 (Pa.Super. 2003), appeal denied, 574 Pa. 765, 832 A.2d 435 (2003)). After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Thomas R. Campbell, we conclude the Commonwealth’s issues merit no relief. The trial court opinion comprehensively discusses and properly disposes of the questions presented. (See Trial Court Opinion, filed August 16, 2016, at 412) (finding: Trooper Frazer properly complied with Pennsylvania’s thenvalid implied consent statute pursuant to 75 Pa.C.S.A. § 1547(b) when she took Appellee to hospital for blood draw; nevertheless, under Birchfield v. North Dakota, ___ U.S. ___, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016), police can no longer conduct warrantless blood test based on implied consent; Birchfield held criminal penalties imposed by implied consent laws vitiate consent to blood draw; good faith exception to exclusionary rule is inapplicable here due to significant privacy rights involved in conducting blood draw; good faith exception fails to further aims of Article I, Section 8 of Pennsylvania Constitution under these circumstances; Commonwealth presented no evidence of exigent circumstances; Appellee claimed that threat of enhanced criminal penalties coerced his consent to blood draw; Appellee was in custody when he signed DL-26 form; inherently coercive -3- J-A09036-17 atmosphere of custodial arrest leaned against finding of voluntary consent; police did not inform Appellee that he could refuse blood draw; conversely, DL-26 form explained that if Appellee refused, he would receive harsher penalties; under objective standard, reasonable person in Appellee’s position would consent to blood draw because refusal would automatically mean harsher criminal punishment; Commonwealth suggested Appellee’s statement prior to arrest, “just take me,” was valid consent for blood draw; this limited statement hardly demonstrated Appellee intentionally relinquished or abandoned known right or privilege; under totality of circumstances, Appellee did not provide knowing and voluntary consent for blood draw).3 Accordingly, we affirm. Order affirmed. ____________________________________________ 3 The Commonwealth also argues the court should have allowed the Commonwealth to present evidence of Appellee’s prior DUI arrest to support its argument that Appellee voluntarily consented to the blood draw because evidence of Appellee’s prior DUI would have shown Appellee knew it was standard procedure to have blood drawn following a DUI arrest. Therefore, Appellee knew Trooper Frazer was about to take him to the hospital for a blood draw, and Appellee consented when he said, “Just take me.” We reject this contention. Even if Appellee knew it was routine to have blood drawn following a DUI arrest, this fact does not make Appellee’s consent voluntary. Appellee’s past experience with DUI arrest was irrelevant to the matter before the court. The court properly excluded evidence of Appellee’s prior DUI. -4- J-A09036-17 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 5/1/2017 -5- Circulated 04/13/2017 12:16 PM

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