Com. v. Malinowski, S. ( 2018 )

J-A26038-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
SCOT DOUGLAS MALINOWSKI :
: No. 401 MDA 2017
Appellant
Appeal from the Judgment of Sentence February 27, 2017
In the Court of Common Pleas of Adams County Criminal Division at
No(s): CP-01-CR-0000896-2016
BEFORE: BOWES, J., OLSON, J., and RANSOM, J.
MEMORANDUM BY RANSOM, J.: FILED JANUARY 17, 2018
Appellant, Scot Douglas Malinowski, appeals from the judgment of
sentence of sixty (60) months of intermediate punishment, including ninety
(90) days in a restrictive setting and restorative monetary sanctions, imposed
February 27, 2017, following a bench trial resulting in his conviction for driving
under the influence (DUI) – controlled substance (Schedule I), DUI –
controlled substance (metabolite), and DUI – controlled substance, general
impairment.1 We affirm.
The following facts were established at a pre-trial suppression hearing.
Officer Joshua Rosenburger observed a vehicle traveling on Mummasburg
Road. Notes of Testimony (N.T.), 10/20/2016, at 5. The Officer observed the
vehicle turn left into a development and accelerate at a high rate of speed.
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1 See 75 Pa.C.S. §§ 3802(d)(1)(i), 3802(d)(1)(iii), and 3802(d)(2).
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Id. at 5-6. The Officer continued to follow the vehicle until he observed the
vehicle stop. Id. at 6. Appellant, the operator of the vehicle, got out of the
vehicle, and he opened up the hood of the car. Id. at 6. Appellant also put
the four-ways on. Id.
Believing that Appellant was having some sort of vehicle trouble, the
Officer stopped his patrol vehicle to ask if everything was okay. Id. Appellant
indicated that he had vehicle problems, such as low engine oil or something
along those lines. Id. As the Officer approached Appellant, he noticed that
Appellant appeared extremely nervous. Id. at 7. The Officer asked Appellant
about drug use. At first, Appellant responded that he had smoked marijuana
weeks prior; later, Appellant admitted to smoking two days prior. Id. at 7-8.
The Officer commenced field sobriety testing and observed clues of
impairment. Id. He testified that Appellant had “a thick substance on his
tongue, which is an indicator of marijuana use, as well as a marked running
of his conjunctiva, which [exists when] you pull the eyelid down [to reveal]
extremely pronounced reddening at the bottom of the eye.” Id. at 8. The
Officer performed other tests, but not all tests indicated signs of impairment.
Id. at 9. Thereafter, Appellant was placed under arrest for DUI.
Appellant was advised by the Officer that he would be taken to
Gettysburg Hospital where the Officer would request Appellant to take a blood
test. Id. at 9-10. Appellant was handcuffed and placed into the back of the
Officer’s patrol vehicle. Id. at 10. Appellant indicated his willingness to take
the test because he believed that the test would reveal that he had no drugs
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in his system. Id. at 10. There was no further discussion between the Officer
and Appellant regarding the blood draw. After the Officer filled out some
paperwork, Appellant extended his arm for the blood draw and two vials of
blood were removed by a lab technician at 3:30 p.m. Id. at 10-11. The
Officer testified that he was trained that it was not necessary to read a DL-26
form containing implied consent warnings, where the arrestee gives no
indication of his intent to refuse to comply with the test. Id. at 11. The test
results were returned to the officer. Id. at 12. The results showed that
Appellant’s blood contained Delta 9 Carboxy THC and Delta 9 THC (tested
positive for marijuana). Trial Ct. Op. (TCO), 10/31/2016, at 3.
At the suppression hearing, Appellant testified that he “didn’t
necessarily want the blood draw” because he already had a prior DUI. N.T. at
18. He testified that he was informed on the prior DUI that he could spend a
few days in jail if he failed to do the blood draw. Id. In the instant case, he
claimed that he complied with the officer “to get it done and over with as fast
as [he] could at that point in time out of frustration.” Id. at 19.
The suppression court found Appellant’s testimony self-serving and not
credible and denied Appellant’s motion to suppress blood test results. Id. at
28. Following a bench trial, where the blood test results were admitted,
Appellant was found guilty. On February 27, 2017, Appellant was sentenced
as described above.
Appellant timely appealed and filed a court-ordered 1925(b) statement.
The court issued a responsive opinion.
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On appeal, Appellant raises only one issue for review:
Whether the lower court erred when it did not suppress the results
of a blood draw in a DUI investigation where verbal warnings of
criminal penalties for refusal of a blood draw were not made, but
Malinowski had presumptive knowledge of the law indicating that
a refusal of the request for a blood draw could trigger enhanced
criminal penalties.
Appellant's Br. at 5.
Appellant contends that the trial court erred in denying his motion to
suppress. According to Appellant, his consent to a blood draw must be
deemed involuntary. Appellant's Br. at 10 (citing, inter alia, Birchfield v.
North Dakota, 136 S. Ct. 2160 (2016)).
Our standard of review is as follows:
Once a motion to suppress evidence has been filed, it is the
Commonwealth's burden to prove, by a preponderance of the
evidence, that the challenged evidence was not obtained in
violation of the defendant's rights. With respect to an appeal from
the denial of a motion to suppress, our Supreme Court has
declared: Our standard of review in addressing a challenge to a
trial court's denial of a suppression motion is whether the factual
findings are supported by the record and whether the legal
conclusions drawn from those facts are correct. When reviewing
[such a ruling by the] suppression court, we must consider only
the evidence of the prosecution and so much of the evidence of
the defense as remains uncontradicted when read in the context
of the record. ... Where the record supports the findings of the
suppression court, we are bound by those facts and may reverse
only if the legal conclusions drawn therefrom are in error.
Moreover, appellate courts are limited to reviewing only the
evidence presented at the suppression hearing when examining a
ruling on a pre-trial motion to suppress.
Commonwealth v. Evans, 153 A.3d 323, 327 (Pa. Super. 2016) (internal
citations and quotation marks omitted).
“The Fourth Amendment to the [United States] Constitution
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and Article I, Section 8 of [the Pennsylvania] Constitution protect
citizens from unreasonable searches and
seizures.” Commonwealth v. McAdoo, 46 A.3d 781, 784 (Pa.
Super. 2012). “A search conducted without a warrant is deemed
to be unreasonable and therefore constitutionally impermissible,
unless an established exception applies.” Commonwealth v.
Strickler, 757 A.2d 884, 888 (Pa. 2000). “Exceptions to the
warrant requirement include the consent exception, the plain view
exception, the inventory search exception, the exigent
circumstances exception, the automobile exception ..., the stop
and frisk exception, and the search incident to arrest
exception.” Commonwealth v. Dunnavant, 63 A.3d 1252, 1257
n.3 (Pa. Super. 2013).
The “administration of a blood test ... performed by an agent
of, or at the direction of the government” constitutes a search
under both the United States and Pennsylvania
Constitutions. Commonwealth v. Kohl, 615 A.2d 308, 315 (Pa.
1992); Schmerber[, 384 U.S. at 770]. Since the blood test in
the case at bar was performed without a warrant, the search is
presumptively unreasonable “and therefore constitutionally
impermissible, unless an established exception
applies.” Strickler, 757 A.2d at 888.
Evans, 153 A.3d at 327-28. “One such exception is consent, voluntarily
given.” Strickler, 757 A.2d at 888-889 (citing Schneckloth v. Bustmonte,
412 U.S. 218, 219 (1973)). Under the Fourth Amendment, where an
encounter between law enforcement is lawful, voluntariness of consent to a
search becomes the exclusive focus. See id.
In Birchfield, the Supreme Court of the United States held “motorists
cannot be deemed to have consented to submit to a blood test on pain of
committing a criminal offense.” Birchfield, 136 S. Ct. at 2185-86. At the
time of Appellant’s arrest, Pennsylvania’s implied consent scheme
“undoubtedly impose[d] criminal penalties on the refusal to submit to a blood
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test.” Evans, 153 A.3d at 331 (quoting Birchfield, 136 S. Ct. at 2185-86).
Appellant contends that his consent was involuntary because it was
made “with presumptive knowledge of the danger of enhanced criminal
penalties for refusal.” Appellant's Br. at 10. According to Appellant, he was
potentially subject to criminal penalties for refusal – “the same coercive
measure fatal to searches in Birchfield and Evans.” Appellant's Br. at 15
(also referring to “an umbrella threat of increased criminal penalties for
refusing a blood draw”). In support of this argument, Appellant directs our
attention to the ancient maxim that everyone is presumed to know the law
and ignorance of the law excuses no one. See id. In conclusion, Appellant
boldly suggests that “all consent to warrantless blood draws in the time of
post-Birchfield [sic] … [should] be per se invalid.” Id. at 16. Appellant’s
argument is without merit.
At the time of Appellant’s arrest, the law was that the police must inform
an arrestee of the consequences of refusal. Pa. Dep’t of Transport. v.
O’Connell, 555 A.2d 873, 877 (Pa. 1989) (citing Everhart v.
Commonwealth, 420 A.2d 13 (1980) (“a precisely enunciated warning that
a driver’s license will be revoked is now an additional prerequisite to
suspension or revocation of driving privileges for refusal to consent,” id. at
15)). Absent a proper warning, there could be no consequences for refusal.
Id. Accordingly, even if we were to accept the premise of Appellant’s
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argument regarding “presumptive knowledge,” Appellant’s argument fails.2
Further, Appellant’s reliance on Birchfield is inapposite. “Birchfield
makes plain that the police may not threaten enhanced punishment for
refusing a blood test in order to obtain consent, 136 S. Ct. at 2186; whether
that enhanced punishment is (or can be) ultimately imposed is irrelevant to
the question whether the consent was valid.” Commonwealth v. Ennels,
167 A.3d 716, 724 (Pa. Super. 2017), reargument denied (Sept. 19, 2017).
Unlike in Evans and Ennels, Appellant concedes that he was not threatened
with enhanced criminal penalties prior to consenting to the blood test.
Compare Appellant's Br. at 10, with Evans, 153 A.3d at 325-326. Under
Ennels, supra, the mere existence of legislation that imposed criminal
penalties for refusal, absent an actual threat, does not amount to coercion or
invalidate the consent given.
In evaluating voluntariness of consent, Pennsylvania courts evaluate the
following factors objectively, based upon the totality of all the circumstances:
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
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2Indeed, if Appellant was subjected to criminal penalties for refusal, he would
have a viable claim based on the officer’s failure to comply with O’Connell.
The Pennsylvania Supreme Court has held that the implied consent statute
does not supplant the right of arrestees to make a knowing and conscious
choice with regard to whether to consent to a chemical test. See
Commonwealth v. Myers, 164 A.3d 1162, 1181 (Pa. 2017) (holding that an
unconscious arrestee was incapable of voluntarily consenting to a blood test
because his unconscious state deprived him of ability to make a knowing and
conscious choice under the totality of the circumstances).
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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. Cleckley, 738 A.2d 427, 433 (Pa. 1999) (“Cleckley
factors”) (citation omitted); see also Smith, 77 A.3d at 573. Under
Pennsylvania law, an arrestee need not be informed of the right to refuse a
chemical test in order for the consent to be voluntary under Article I, Section
8 of the Pennsylvania Constitution. Cleckley, 738 A.2d at 428.
In this case, the suppression court recognized that certain facts militated
against a finding of voluntariness. For example, Appellant was under arrest
and in custody at the time of blood draw, which created an “inherently coercive
atmosphere[.]” TCO at 7. Appellant also was not advised of his right to refuse
to consent. Id. However, the court correctly concluded that these facts were
not determinative of whether consent was voluntarily given. Id.; see
Cleckley, 738 A.2d at 432.
In finding the consent was voluntary, the court deemed the following
facts dispositive: (1) “[Appellant] knew he was consenting to the taking of his
blood by law enforcement”; (2) Appellant did not act under duress; (3) Officer
Rosenberger did not use coercive tactics; and (4) Appellant also indicated to
the officer his belief that no drugs would be found in his system. See TCO at
7-8. Based on Appellant’s belief that no incriminating evidence would be
found, his cooperation with Officer Rosenberger, his lack of objection to the
need for a blood test, lack of mental turmoil in agreeing to take the test, and
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willful extension of his right arm, the suppression court concluded that
Appellant provided knowing and voluntary consent to the blood draw under
the totality of the circumstances. Id. at 8-9.3
Moreover, the trial court succinctly summarized why this argument lacks
merit:
There is no evidence, even if [Appellant] was knowledgeable about
the implied consent refusal penalties, that the mere existence of
such a law was so coercive that [Appellant’s] free will was
overborne. [Appellant] neither expressed nor displayed any
sights of such intellectual turmoil to the police officer.
Trial Court Opinion (TCO), 10/31/2016, at 9.
Viewing the record objectively considering the totality of the
circumstances, the Commonwealth’s evidence was sufficient to establish that
his consent was “the product of an essentially free and unconstrained choice.”
Strickler, 757 A.2d at 901. As the court’s conclusions are supported by the
record, we discern no error. Smith, 77 A.3d at 573.
Judgment of sentence affirmed. Jurisdiction relinquished.
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3 Notably, Appellant waived any challenge to the court’s assessment of the
Cleckley factors by failure to preserve the issue and failure to develop a
meaningful argument in his brief. See Pa.R.A.P. 302; Pa.R.A.P. 2119.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/17/2018
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