Com. v. Bunton, A. ( 2018 )

J. S12039/18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. : No. 1196 MDA 2017
:
ANTHONY M. BUNTON :
Appeal from the Order Entered June 30, 2017,
in the Court of Common Pleas of Centre County
Criminal Division at No. CP-14-CR-0000507-2017
BEFORE: LAZARUS, J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 25, 2018
The Commonwealth appeals from the June 30, 2017 order entered by
the Court of Common Pleas of Centre County granting Anthony M. Bunton’s
(hereinafter, “appellee”) omnibus pre-trial motion to suppress. After careful
review, we reverse and remand for further proceedings consistent with this
memorandum.
The suppression court provided the following factual history:
[Appellee] was arrested on December 18, 2016 by
Pennsylvania State Trooper Timothy Nicklas.
Trooper Nicklas had probable cause to arrest
[appellee] and request a blood draw. [Appellee]
asked Trooper Nicklas if he was allowed to refuse the
test and was told Trooper Nicklas would “read that
once [they got to the hospital.”] Within the required
two hour time period, [appellee] was taken to
Mount Nittany Medical Center for the blood draw.
[Appellee] signed the DL-26B form after it was read
J. S12039/18
to him. Trooper Nicklas did not threaten or coerce
[appellee] to sign the DL-26B form.
[Appellee] has two prior convictions for driving under
the influence (“DUI”) in Texas and Tennessee. At
the time of [appellee’s] arrest, [appellee] would
testify to knowing a blood test refusal would qualify
him for a DUI charge at the highest rate.
[Appellee’s] knowledge was based on information
from two friends who had been arrested for DUI in
Pennsylvania and from [appellee’s] own previous
DUI charges. From [appellee’s] discussions with
these friends, he believed he would “get the book
thrown” at him if he refused a blood test.
Suppression court order and opinion, 6/30/17 at 1-2 (some brackets in
original).
Appellee filed an omnibus pre-trial motion to suppress evidence on
May 23, 2017. The suppression court granted appellee’s motion on June 30,
2017, following a hearing held on June 1, 2017. On July 28, 2017, the
Commonwealth filed notice of appeal to this court. Pursuant to Pennsylvania
Rule of Appellate Procedure 311(d), the Commonwealth certified that the
June 30, 2017 order would either terminate or substantially handicap the
prosecution. See Pa.R.A.P. 311(d) (permitting the Commonwealth to appeal
from an interlocutory order if it certifies that the order will terminate or
substantially handicap the prosecution). The suppression court ordered the
Commonwealth to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b), and the Commonwealth timely complied.
The suppression court filed an opinion pursuant to Pa.R.A.P. 1925(a) on
-2-
J. S12039/18
August 22, 2017, in which it incorporated its June 30, 2017 opinion and
order.
The Commonwealth raises the following issue for our review:
Did the [suppression] court err in granting Appellee’s
Motion to Suppress because, based on the totality of
the circumstances, Appellee voluntarily consented to
the blood draw because, inter alia, he was not told
he would face harsher criminal penalties for refusing
to submit to a blood test?
Commonwealth’s brief at 4.
We are held to the following standard when reviewing the
Commonwealth’s appeal of an order granting a suppression motion:
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).
In the instant appeal, the relevant facts are not in dispute. (See
stipulation docketed 6/1/17.) In its order and opinion, the suppression court
reached the following legal conclusion:
[A defendant] is expected and assumed to know the
laws of this Commonwealth, including the criminal
-3-
J. S12039/18
penalties if he refused to consent to a blood draw.
See in re Kearney, 7 A.2d 159, 161 (Pa.Super.
1939) (Ignorance of the law excuses no one,
according to the ancient maxim, everyone being
presumed to know the law.) [Appellee] was not
made aware of his rights to refuse against a
warrantless search, because he was not informed
that the enhanced criminal penalties of 75 Pa.C.S.
§ 3804(c) would not be enforced. A citizen, like
[appellee], with knowledge of the criminal penalties
within the law would naturally expect them to be
enforced to the fullest extent possible. Silence by
the arresting officer is not synonymous with
communication of [appellee’s] rights, specifically that
he would not face enhanced criminal penalties for
refusal to consent to a search, without a warrant
when the law says otherwise. Thus, the
[suppression court] finds that [appellee] did not
intentionally relinquish a known right or privilege
when consenting to a blood draw as he was not
informed that the enhanced criminal penalties of
75 Pa.C.S. § 3804(c) were constitutional.
Suppression court order and opinion, 6/30/17 at 5-6.
While the instant appeal was pending before this court, we decided
Commonwealth v. Miller, A.3d , 2018 WL 2057002 (Pa.Super.
2018). In Miller, we were presented with a virtually identical scenario. The
defendant was arrested for suspicion of DUI after a motor vehicle accident.
Id. at *1. Immediately after his arrest, the police transported the defendant
to the hospital, where he was read the DL-26B form. Id. The DL-26B form
“informed [the defendant] that he would face possible civil penalties for
failing to submit to a blood test; however, the form did not include a warning
regarding enhanced criminal penalties for refusing a blood test.” Id. The
defendant’s argument in Miller, similar to appellee’s argument here, was
-4-
J. S12039/18
that “because of a prior DUI arrest in which he received warnings pursuant
to the prior DL-26 form, [the defendant] subjectively believed that the new
form threatened enhanced criminal punishment if he refused to consent to a
blood draw. Id. at *2.
The Miller court, citing a contemporaneous decision in
Commonwealth v. Robertson, A.3d , 2018 WL 2057000(Pa.Super. 2018), rejected the suppression court’s rationale for granting the
defendant’s suppression motion because “defendants are presumed to know
case law in addition to statutory law,” and the police do not have an
affirmative duty to “inform defendants that they do not face enhanced
criminal penalties if they refuse a blood test.” Miller, 2018 WL 2057002 at
*2, citing Robertson, 2018 WL 2057000 at *4-5. Accordingly, because the
police do not have an affirmative duty to inform defendants that they do not
face enhanced criminal penalties if they refuse a blood test and because
defendants are presumed to know case law, we find that the suppression
court erred as a matter of law when it granted appellee’s suppression
motion.
Just as the defendant in Miller, appellee advances alternative bases
for affirmance.1 The Miller court held as follows:
1 Both the defendant in Miller and appellee in the instant appeal are
represented by the same counsel, Brian Manchester, Esq. The briefs in the
two cases are virtually identical, as the same issues were raised in both
cases.
-5-
J. S12039/18
Under Commonwealth v. Evans, 153 A.3d 323(Pa.Super. 2016), a trial court must consider the
totality of the circumstances when determining if a
defendant’s consent to a blood draw was voluntary.
Id. at 328 (citation omitted). As our Supreme Court
explained:
While there is no hard and fast list of
factors evincing voluntariness, some
considerations include: 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
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. Gillespie, 821 A.2d 1221, 1225
(Pa. 2003) (Eakin, J., opinion announcing the
judgment of the court) (cleaned up), citing
Commonwealth v. Cleckley, 738 A.2d 427,
433 n.7 (Pa. 1999).
First, [the defendant] relies heavily on
Commonwealth v. Myers, 164 A.3d 1162 (Pa.
2017) in support of his contention that his consent
was not voluntary. This argument, however, is
based on a misunderstanding of the facts in Myers.
In Myers, the defendant was unconscious. Hence,
our Supreme Court held that the defendant was
pharmacologically incapable of consenting to a blood
draw. Id. at 1181. Myers does not implicate
consent by individuals who are conscious, like [the
defendant] in this case. Accordingly, [the
defendant’s] heavy reliance on Myers is misplaced.
Second, [the defendant] avers that he subjectively
believed he would face increased criminal penalties if
he refused a blood draw. [The defendant] avers that
the last time he was arrested for DUI, prior to the
-6-
J. S12039/18
Supreme Court of the United States’ decision in
Birchfield v. North Dakota, 136 S.Ct. 2160(2016), he was read the DL-26 form. As we
explained in Robertson, the DL-26 form included a
warning that failure to submit to a blood draw would
subject a defendant to enhanced criminal penalties.
See Robertson, 1493 MDA 2017 (slip op. at 2 n.1).
[The defendant], therefore, argues that the trial
court properly considered his subjective belief that
enhanced criminal consequences attached to the
refusal to consent to a blood draw.
[The defendant’s] argument fails in light of our
Supreme Court’s decision in Commonwealth v.
Strickler, 757 A.2d 884 (Pa. 2000). In Strickler,
our Supreme Court explained that, while a
defendant’s subjective belief regarding his or her
ability to refuse to consent to a search may be
considered as part of the totality of the
circumstances, it is the police officer’s express
warnings which are most important when evaluating
subjective belief. See id. at 901. In other words,
incorrect subjective beliefs that are contradicted by a
police officer’s actual statements to a defendant
diminishes the weight a trial court may place on the
defendant’s errant subjective belief.
Miller, 2018 WL 2057002 at *2.
Here, the parties stipulated that the police read appellee form DL 26B,
which includes the following warning: “If you refuse to submit to the blood
test, your operating privilege will be suspended for at least 12 months. If
you previously refused a chemical test or were previously convicted of
driving under the influence, you will be suspended for up to 18 months.”
(Stipulation docketed on 6/1/17.) Pursuant to our holding in Miller,
appellee’s reliance on his first-hand DUI experiences in Texas and
Tennessee, and the experiences of his friends in Pennsylvania “cannot weigh
-7-
J. S12039/18
heavily against finding voluntary consent. Instead, an incorrect subjective
belief based on failure to listen to explicit warnings from police officers is
entitled to little, if any, weight when evaluating the totality of the
circumstances surrounding a consent to search.” Miller, 2018 WL 2057002at *3.
The Miller court further states:
We also find instructive a decision in a related field.
As noted above, drivers face potential civil
consequences for refusing to consent to a blood draw
when police suspect they are driving under the
influence. One of those civil penalties is driver’s
license suspension. If a driver knowingly refuses to
submit to a blood draw, his or her driver’s license is
suspended for a specified period of time. In this
context, our Supreme Court held that a driver’s
subjective belief about the accuracy of implied
consent warnings is an insufficient basis to claim that
refusal to submit to a blood test was involuntary.
Nardone v. Commonwealth, Dep’t of Transp.,
Bureau of Driver Licensing, 130 A.3d 738, 751
(Pa. 2015) (citation omitted). In light of Birchfield,
the Commonwealth Court has held that Nardone is
still good law. Park v. Commonwealth, Dep’t of
Transp., Bureau of Driver Licensing, 178 A.3d
274, 281 (Pa.Cmwlth. 2018) (citation omitted). It
would be inconsistent to allow for an incorrect
subjective belief regarding the criminal consequences
of not consenting to a blood draw to be weighed
heavily against a finding of voluntariness while an
incorrect subjective belief regarding the
consequences of refusing a blood draw is not
dispositive in the civil context. Instead, Nardone
implies that an incorrect subjective belief regarding
the consequences of not consenting to a blood draw
is a minor factor when considering the totality of the
circumstances.
-8-
J. S12039/18
Repeat DUI offenders, owing to past legal
transgressions, are not entitled to a benefit that
would be unavailable to first-time DUI offenders.
Essentially, [the defendant] argues that repeat DUI
offenders should be held to a lower standard than
first-time DUI offenders. The absurdity of the
argument is self-evident. Individuals that repeatedly
endanger the lives of innocent civilians should be
held to a higher standard than those that make a
first-time mistake. Our General Assembly has
recognized this fact by providing harsher penalties
for repeat DUI offenders. See 75 Pa.C.S.A. § 3804.
We refuse to provide an incentive for repeat DUI
offenders by making it easier for them to suppress
blood draw evidence. Accordingly, we hold that [the
defendant’s] argument related to his subjective
belief of possible increased criminal penalties is
without merit.
Miller, 2018 WL 2057002 at *3.
In light of our holding in Miller, when considering the totality of the
circumstances, we find that appellee’s consent to a blood draw was
voluntary. Accordingly, we reverse the suppression court’s order granting
appellee’s omnibus pretrial motion to suppress and remand for further
proceedings consistent with this memorandum.
Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/25/18
-9-