Commonwealth v. Torres , 176 A.3d 292 ( 2017 )

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2017 PA Super 381COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
NELSON R. TORRES, :
:
Appellee : No. 3737 EDA 2016
Appeal from the Order Entered October 31, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0005731-2016
BEFORE: PANELLA, J., DUBOW, J., and FITZGERALD, J.*
OPINION BY DUBOW, J.: FILED DECEMBER 08, 2017
The Commonwealth appeals from the trial court’s October 31, 2016
Order entered by the Philadelphia County Court of Common Pleas granting
Appellee Nelson Torres’ Motion to Suppress the results of a warrantless
blood test obtained following his DUI arrest pursuant to Birchfield v. North
Dakota, ___ U.S. ___, 136 S.Ct. 2160, 195 L.Ed. 2d 560 (June 23, 2016).
After careful review, we affirm.
In its Pa.R.A.P. 1925(a) Opinion, the trial court relied on the following
findings of fact from the Motion to Suppress:
On March 23, 2015, Officer Robertson observed that [Appellee]
made a left turn on North 5th Street but failed to signal a left
turn. [Appellee’s] car had tinted windows. Officer Robertson
pulled [Appellee] over. When he got to the car, Officer
Robertson could smell marijuana and observed [that Appellee’s]
eyes were bloodshot and he had slurred speech.
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* Former Justice specially assigned to the Superior Court.
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Officer Robertson never pulled a gun on [Appellee], nor did he
ever threaten him that he would go to jail for pulling him over.
He did not say anything to [Appellee] about getting his blood
drawn for a chemical test, nor about any consequences for not
consenting to such a chemical test.
[Appellee] was taken to the basement of the police department
headquarters and brought to AID Officer Shead . . . who was
responsible for administering the chemical tests [that] are
designed to confirm blood alcohol levels [] or the presence of
chemical substances. Officer Shead has conducted over 500 of
these tests in the past few years. When Officer Shead
conducted the DUI test, he had [Appellee] complete paperwork,
which include[d] what is known as the O’Connell[1] warnings.
The text of the O’Connell warnings [in the DL-26 Form] includes
the following language[:]
If you refuse to submit to a chemical test and you are
convicted of, or plead to, or are an adjudicated delinquent
with respect to violating Section 3802A [sic] of the
Pennsylvania Vehicle Code, you will be subject to more
severe penalties set forth in Section 3804C [sic] of the
Pennsylvania Vehicle Code, which will include one of the
following: for a first offender, a minimum of [72] hours in
jail and a minimum fine of [$]1,000. For a second
offender, a minimum of 90 days in jail and a minimum fine
of $1,500. For a third subsequent offender, a minimum of
one [] year in jail and a minimum fine of $2,500.
[Officer] Shead read the warning to [Appellee] and asked him to
sign the form before administering the test. There was no
evidence suggesting that he used any coercive tactics to
persuade [Appellee] to sign the form. It was apparent to Officer
Shead that [Appellee] understood the meaning of the form.
Officer Shead testified [that] the police department has revised
the language of the O’Connell warnings form in late June 2016.
This change post-dated the Supreme Court’s decision in
Birchfield v. North Dakota, which established a categorical
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1 Commonwealth, Dep’t of Transp., Bureau of Traffic Safety v.
O’Connell, 555 A.2d 873 (Pa. 1989).
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rule that, absent exigent circumstances or voluntary consent,
that it was unconstitutional to conduct a warrantless blood draw
and that implied consent laws [that] imposed criminal penalties
were unenforceable.
Trial Court Opinion, 1/27/17, at 4-5 (paragraph breaks altered).
The Commonwealth charged Appellee with three counts of Driving
Under the Influence (“DUI”) (general impairment, controlled
substance/metabolite, and controlled substance-impaired ability).2 Appellee
filed a Motion to Suppress physical evidence and his statements to police,
which the suppression court denied. Appellee did not challenge the
voluntariness of his consent on the ground that he was threatened with
criminal penalties.
Appellee was convicted of two counts of DUI (controlled
substance/metabolite, and controlled substance-impaired ability) following a
bench trial in Municipal Court, and he was sentenced to 72 hours’ to six
months’ incarceration. On June 15, 2016, Appellee filed an appeal for a trial
de novo in the Court of Common Pleas.
One week later, the U.S. Supreme Court decided Birchfield.3
Appellee filed a supplemental Motion to Suppress invoking Birchfield,
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2 75 Pa.C.S. § 3802(a)(1); 75 Pa.C.S. § 3802(d)(1), and 75 Pa.C.S. §
3802(d)(2), respectively.
3In Birchfield, the United States Supreme Court held that blood tests taken
pursuant to implied consent laws are an unconstitutional invasion of privacy.
Id. at 2186. The Supreme Court stated that “motorists cannot be deemed
(Footnote Continued Next Page)
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arguing that his consent was coerced. The Commonwealth argued that
Appellee had waived his claim, that his Supplemental Motion was
procedurally improper since he had already litigated a Motion to Suppress in
Municipal Court, and argued that Birchfield did not apply or render his
consent involuntary.
Following a hearing, the trial court granted Appellee’s Supplemental
Motion to Suppress because (1) Birchfield constituted an “intervening
change in the law” such that it could entertain a new motion under the
Pennsylvania and local rules of criminal procedure; and (2) since Appellee
was threatened with criminal penalties for his refusal to consent to the
warrantless blood test, the totality of circumstances showed that his consent
was involuntary pursuant to Birchfield. The Commonwealth filed an
interlocutory appeal pursuant to Pa.R.A.P. 311(d).4
The Commonwealth presents two issues for our review:
I. Did the lower court [err] where, on [Appellee’s] appeal for trial
de novo, it suppressed evidence on the basis of a claim not
raised in Municipal Court?
(Footnote Continued) _______________________
to have consented to submit to a blood test on pain of committing a criminal
offense[,]” and concluded that Birchfield could not be convicted of refusing a
warrantless blood draw following his DUI arrest. In contrast, the Court held
that the Fourth Amendment permits warrantless breath tests incident to
arrests for drunk driving. Id. at 2184.
4 Pa.R.A.P. 311(d) provides that “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.”
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II. Did the lower court err in holding that [Appellee’s] consent to
a blood test was involuntary as a matter of law regardless of the
totality of the circumstances?
Commonwealth’s Brief at 4.
Waiver
The Commonwealth first claims that Appellee has waived this claim
because he failed to argue his consent was invalid during his original Motion
to Suppress litigated in Municipal Court. Commonwealth’s Brief at 11. The
Commonwealth avers that the trial court erred in permitting Appellee to
litigate a suppression motion during his trial de novo because he did not
meet either of the exceptions to the general rule that a defendant generally
cannot relitigate issues or litigate issues that could have been raised at the
Municipal Court suppression hearing. Id.
This issue raises a question of law about the proper interpretation of
the Pennsylvania Rules of Criminal Procedure and Philadelphia local court
rules. Our standard of review is de novo and our scope of review is plenary.
Commonwealth v. Hann, 81 A.3d 57, 65 (Pa. 2013).
A defendant convicted in Philadelphia’s Municipal Court has two
mutually exclusive appellate options. Commonwealth v. Johnson, 146
A.3d 1271, 1273 (Pa. Super. 2016). “Pennsylvania Rule of Criminal
Procedure 1006(1)(a) provides that a defendant convicted in Philadelphia
Municipal Court has the right to request either a trial de novo or file a
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petition for a writ of certiorari with the Philadelphia Court of Common Pleas.”
Id.Here, Appellee requested a trial de novo. “A trial de novo gives the
defendant a new trial without reference to the Municipal Court record[.]” Id.(emphasis omitted). “A trial de novo is generally limited to a relitigation of
guilt or innocence only, and a defendant is not entitled to relitigate pre-trial
motions[, including issues raised, or that could have been raised, at a
Municipal Court suppression hearing.]” Id.This bar on relitigation of pre-trial suppression motions at trials de
novo is codified in local Philadelphia Court Criminal Division Rule 630(G),
which provides: “Unless specially allowed in accordance with subsection (d)
of this Rule, the trial de novo shall not include relitigation of the application
to suppress.” Phila. Co. Crim. Div. Rule 630(G).
Nevertheless, a defendant may raise a suppression issue at a trial de
novo in certain limited circumstances pursuant to Pa.R.Crim.P. 581(B)
where: (1) “the opportunity did not previously exist, or [(2)] the interests of
justice otherwise require[.]” Pa.R.Crim.P. 581(B). Philadelphia Court
Criminal Division Rule 630 similarly and specifically provides that a
defendant may raise a suppression issue at a trial de novo when “the
interests of justice otherwise require[.]” Phila. Co. Crim. Div. Rule 630(C).
See also Pa.R.Crim.P. 105(B); Commonwealth v. Johnson, 146 A.3d
1271, 1275 (Pa. Super. 2016) (explaining interaction of Pennsylvania rules
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and supplemental local Philadelphia rules), appeal denied, 158 A.3d 1242(Pa. 2016); Commonwealth v. Williams, 125 A.3d 425, 428 (Pa. Super.
2015) (repeating the general rule that, “although the local courts have broad
authority to promulgate local rules of procedure, local rules shall not be
inconsistent with any general rule of the Supreme Court or any Act of
Assembly.”).
The trial court concluded that the interests of justice required the court
to hear the Motion to Suppress. Id. at 9-11. The trial court opined that
Appellee previously did not have a genuine opportunity to challenge the
voluntariness of his consent pursuant to Birchfield because such an
argument, though available, would have been essentially frivolous, with little
to no hope of success based on case law at the time. Trial Court Opinion,
1/27/17, at 7-10. The trial court reasoned that doing so would promote
judicial economy. Id. at 13. As a result, the trial court addressed the
merits of Appellee’s claim.
After careful review, we discern no error of law or abuse of discretion
in the trial court’s sound reasoning regarding Appellee’s satisfaction of the
“the interests of justice” exception.5 See Trial Court Opinion, 1/27/17, at 7-
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5 The trial court noted a tension between Philadelphia’s local rule 630(G) and
the language of Pa.R.Crim.P. 581(B), and concluded that permitting the local
rule to prevent the normal operation of Pa.R.Crim.P. 581(B) would lead to an
absurd result. Trial Court Opinion, 1/27/17, at 11-13. Under the facts here,
we discern no conflict insofar as the interest of justice exception is present in
(Footnote Continued Next Page)
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13. Accordingly, we conclude that the trial court properly considered
Appellee’s Birchfield suppression issues at the trial de novo.
Birchfield
The Commonwealth next contends that the trial court erred in granting
Appellee’s Motion to Suppress because Appellee voluntarily consented to the
blood test under the totality of circumstances. Commonwealth’s Brief at 20.
The Commonwealth argues that Birchfield did not create a per se rule that
DUI warnings are inherently coercive and that the trial court placed undue
emphasis on “the single line in the implied consent warnings about the
enhanced criminal penalties[.]” Commonwealth’s Brief at 19-20.
“When reviewing the grant of a suppression motion, we must
determine whether the record supports the trial court’s factual findings and
whether the legal conclusions drawn from those facts are correct.”
Commonwealth v. Ennels, 167 A.3d 716, 718 (Pa. Super. 2017). “We
may only consider evidence presented at the suppression hearing.” Id.“In addition, because the defendant prevailed on this issue before the
suppression court, we consider only the defendant’s evidence and so much
of the Commonwealth’s evidence as remains uncontradicted when read in
(Footnote Continued) _______________________
both rules. Though the trial court focused its analysis on that exception
under Pa.R.Crim.P. 581, the analysis under the local rule is the same
because the language is identical. “To the extent our legal reasoning differs
from the trial court’s, we note that as an appellate court, we may affirm on
any legal basis supported by the certified record.” Commonwealth v.
Williams, 125 A.3d 425, 433 n.8 (Pa. Super. 2015).
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the context of the record as a whole.” Id. at 718-19. “We may reverse only
if the legal conclusions drawn from the facts are in error.” Id. at 719.
“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.” Id. at 723. “The standard for measuring the scope of a
person’s consent is based on an objective evaluation of what a reasonable
person would have understood by the exchange between the officer and the
person who gave the consent.” Id. “Gauging the scope of a defendant’s
consent 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.” Id.
This Court’s recent decision in Ennels, supra, is controlling. In
Ennels, as in the instant case, the police officer read the DL-26 Form to
Ennels, who had been arrested on suspicion of DUI; Ennels signed the form
and the officer conducted the warrantless blood draw. On appeal from the
trial court’s grant of Ennels’ suppression motion, this Court applied
Birchfield and concluded that the trial court did not err in finding Ennels’
consent invalid “because Ennels consented to the blood draw after being
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informed that he faced enhanced criminal penalties for failure to do so[.]”
Ennels, supra at 724.
As in Ennels, Appellee here consented to the blood draw only after
being informed that he faced enhanced criminal penalties for failure to do so.
The trial court did not err in finding that Appellee’s consent was invalid.
Accordingly, we affirm.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/8/2017
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