Com. v. Kuzma, J. ( 2018 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JUSTIN DANIEL KUZMA, :
:
Appellant : No. 39 MDA 2018
Appeal from the Judgment of Sentence December 19, 2017
in the Court of Common Pleas of Cumberland County
Criminal Division at No(s): CP-21-CR-0003819-2016
BEFORE: BOWES, MCLAUGHLIN, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 05, 2018
Justin Daniel Kuzma (Appellant) appeals from the December 1, 2017
judgment of sentence of 30 days to six months of incarceration following his
nonjury convictions for, inter alia, a second offense of driving under the
influence (DUI) – high rate of alcohol. Specifically, Appellant challenges the
denial of his pre-trial suppression motion, which alleged that the warrantless
blood draw was obtained in violation of Birchfield v. North Dakota, __
U.S. __, 136 S.Ct. 2160 (2016). Upon review, we affirm.
On September 27, 2016, Trooper Ryan Ivancik conducted a traffic stop
in Carlisle, Cumberland County, for a turn signal violation. When Trooper
Ivancik approached Appellant in his vehicle, he immediately detected the
odor of an alcoholic beverage from the interior of the vehicle.
*Retired Senior Judge assigned to the Superior Court.
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Trooper Ivancik requested that [Appellant] provide him
with his license and vehicle documentation, which [Appellant]
struggled to do. While conversing with [Appellant], Trooper
Ivancik noticed that [Appellant] had slurred speech, and glassy,
bloodshot eyes. [Appellant] told the trooper that he had left the
Gingerbread Man, where he had consumed two beers. After
having him perform standard field sobriety tests and take a
preliminary breath test, Trooper Ivancik arrested [Appellant] and
transported him to Carlisle Regional Medical Center.
Upon arrival at the Carlisle Regional Medical Center,
Trooper Ivancik read the “new” DL-26 [(DL-26B)] form to
[Appellant]; this new form omits any language regarding
increased criminal penalties for the refusal to provide a blood
sample. [Appellant] signed the form and provided a sample of
his blood, with a result of .132.
Trial Court Opinion, 9/5/2017, at 1-2 (unnecessary capitalization removed).
Prior to trial, Appellant filed a motion to suppress, claiming that his
consent to the blood draw was not voluntary because, notwithstanding
Birchfield, enhanced criminal penalties still existed at 75 Pa.C.S. § 3804(c),
and Trooper Ivancik violated the mandates of 75 Pa.C.S. § 1547(b)(2)(ii)1
by failing to warn Appellant of subsection 3804(c)’s enhanced criminal
penalties. Omnibus Pre-Trial Motion, 5/16/2017, at ¶¶ 13-17. A hearing
was held where the aforementioned facts were developed. The trial court
denied the motion, finding that the revised DL-26B form complied with the
1 At the time of the traffic stop, this subsection provided that “[i]t shall be
the duty of the police officer to inform the person that… if the person refuses
to submit to chemical testing… the person will be subject to the penalties
provided in [sub]section 3804(c)[.]” 75 Pa.C.S. § 1547(b)(2)(ii) (effective
May 25, 2016 to July 19, 2017).
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mandates of Birchfield, subsection 1547(b)(2) was not implicated, and
Appellant’s consent was voluntary. Trial Court Opinion, 9/5/2017, at 4-5.
Thereafter, Appellant was convicted following a nonjury trial and
sentenced as indicated above. Appellant timely filed a notice of appeal.2
Appellant presents two issues for this Court’s consideration: (1) whether the
trial court erred in denying Appellant’s motion to suppress in violation of
Birchfield and 75 Pa.C.S. § 1547(b)(2); and (2) whether the trial court
erred in denying Appellant’s motion to suppress because his consent was not
voluntary. Appellant’s Brief at 6.
We consider Appellant’s claims mindful of the following.
Our standard of review in addressing a challenge to the denial of
a suppression motion is limited to determining whether the
suppression court’s factual findings are supported by the record
and whether the legal conclusions drawn from those facts are
correct. Because the Commonwealth prevailed before the
suppression court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the defense as
remains uncontradicted when read in the context of the record
as a whole. Where the suppression court’s factual findings are
supported by the record, we are bound by these findings and
may reverse only if the court’s legal conclusions are erroneous.
Where ... the appeal of the determination of the suppression
court turns on allegations of legal error, the suppression court’s
legal conclusions are not binding on an appellate court, whose
duty it is to determine if the suppression court properly applied
the law to the facts. Thus, the conclusions of law of the court[]
below are subject to our plenary review.
2Appellant complied with Pa.R.A.P. 1925(b). The trial court complied with
Pa.R.A.P. 1925(a) by filing an order directing this Court to its September 5,
2017 opinion and order denying Appellant’s motion to suppress.
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Commonwealth v. Perel, 107 A.3d 185, 188 (Pa. Super. 2014) (quoting
Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010)).
Appellant first claims that the trial court erred in denying his motion to
suppress because even though Birchfield determined that consent could not
be based on the fear of enhanced criminal penalties for refusing to submit to
a warrantless blood draw, 75 Pa.C.S. § 3804(c) still contained such a
provision at the time of Appellant’s arrest. Therefore, Appellant argues that
Trooper Ivancik was required to notify Appellant of these enhanced criminal
penalties pursuant to 75 Pa.C.S. § 1547(b)(2), and his failure to do so
subjected Appellant to an illegal search. Appellant’s Brief at 17.
Appellant’s argument is based on a flawed understanding of
Pennsylvania’s DUI jurisprudence, and so we begin with an overview of
Birchfield, its effect on our DUI laws, and forms DL-26 and DL-26B as they
relate to the facts of Appellant’s arrest.
In Birchfield, the Supreme Court of the United States
held that criminal penalties imposed on individuals who refuse to
submit to a warrantless blood test violate the Fourth Amendment
(as incorporated into the Fourteenth Amendment). Within one
week of that decision, PennDOT revised the DL–26 form to
remove the warnings mandated by 75 Pa.C.S.[] § 3804 that
theretofore informed individuals suspected of DUI that they
would face enhanced criminal penalties if they refused to submit
to a blood test [in order to comply with Birchfield]. It was this
revised form, known as Form DL–26B (which did not include
warnings regarding enhanced criminal penalties), that the
[trooper] read to Appell[ant].
***
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This Court subsequently held that imposing enhanced criminal
penalties for failure to consent to a blood draw constituted an
illegal sentence because of Birchfield. [See] Commonwealth
v. Giron, 155 A.3d 635, 639 (Pa. Super. 2017).
On July 20, 2017, Governor Thomas W. Wolf signed into
law Act 30 of 2017 which amended 75 Pa.C.S.[] § 3804 to
comport with Birchfield. Specifically, Act 30 provides for
enhanced criminal penalties for individuals who refuse to submit
to blood tests only when police have obtained a search warrant
for the suspect’s blood. See 75 Pa.C.S.[] § 3804(c). Hence, from
July 20, 2017 onwards the DL–26B form conforms to [the
revised] statutory law. For approximately the previous 13
months, including at the time[] of Appell[ant’s] arrest[], the DL–
26B form warnings were consistent with the law as interpreted
by the Supreme Court of the United States and this Court, but
inconsistent with the (unconstitutional) provisions of Title 75.
Commonwealth v. Robertson, 186 A.3d 440, 444-45 (Pa. Super. 2018)
(some citations omitted).
Appellant contends that this inconsistency between the DL-26B form
and the provisions of our DUI statute that were rendered unconstitutional by
Birchfield, but not statutorily amended until Act 30, required suppression of
his blood draw. Specifically, Appellant posits that
[i]n its denial of the suppression motion, the suppression court
stated that the DL-26[B] form “eliminated all mention of
increased criminal penalties as a result of a refusal” and that the
form is “in compliance with the mandates of Birchfield, as it
eliminated any mention of increased criminal penalties.” [Trial
Court Opinion, 9/5/2017,] at 4. This is exactly the issue. The
DL-26B form eliminated the language required under the law by
[subsection] 1547(b)(2) of the Motor Vehicle Code.
Appellant’s Brief at 17. In other words, Appellant argues that because
Trooper Ivancik did not warn Appellant that he would be subjected to
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subsection 3804(c)’s enhanced criminal penalties, which were rendered
unconstitutional by Birchfield, the blood draw violated Birchfield. We find
this argument unsound.
We recently rejected Appellant’s flawed argument and held that
PennDOT had the authority to amend the DL-26 form to comport with
Birchfield prior to the enactment of Act 30. Robertson, 186 A.3d at 446.
In doing so, we adopted the following well-reasoned analysis of the
Commonwealth Court.
It is true, as Licensee argues, that the language contained in
[subs]ection 1547(b)(2)(ii) was mandatory at the time Trooper
requested that Licensee submit to a blood test. However, while
[subs]ection 1547(b)(2)(ii) then commanded that a warning
about enhanced criminal penalties be given, the purpose behind
that provision is to make a licensee aware of the consequences
of a refusal to take the test so that he [or she] can make a
knowing and conscious choice.
Following Birchfield, and as the Superior Court concluded
thereafter, a licensee cannot be criminally punished for refusing
a police officer’s request to test his blood pursuant to the
Implied Consent Law. Although, at the time Trooper
requested that Licensee submit to a blood test,
[subs]ection 1547(b)(2)(ii) still required a warning that a
licensee would be subject to enhanced criminal penalties
under [subs]ection 3804(c) for refusing a test of his
blood, Licensee could not, as a matter of constitutional
law, be subject to such penalties. Stated simply, enhanced
criminal penalties were not a consequence of Licensee’s refusing
the requested blood test. Licensee’s argument is, in effect, that
because the General Assembly did not immediately amend
[subs]ection 1547(b)(2)(ii), [Penn]DOT and the police had to
continue to apply [subs]ection 1547(b)(2)(ii). However, the
effect of Birchfield and the Superior Court cases that followed
was to render the criminal penalties warned of in [subs]ection
1547(b)(2)(ii) as applied to blood testing unenforceable and to
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effectively sever that section from the rest of the [Motor] Vehicle
Code. See 1 Pa. C.S.[] § 1925.
Id. at 445-46, quoting Garlick v. Commonwealth, Dep't of Transp.,
Bureau of Driver Licensing, 176 A.3d 1030, 1036 (Pa. Cmwlth. 2018) (en
banc).
Moreover, “the presumption that an individual is aware of the law
includes not just statutory compilations but also judicial decisions.”
Robertson, 186 A.3d at 447. Therefore, on the day that Birchfield
became law, Appellant should have known that the enhanced penalties
codified in subsection 3804(c) were without legal effect, and that the trooper
was not obligated to notify Appellant of this unconstitutional subsection
because it was no longer applicable. See Commonwealth v. Johnson,
___ A.3d ___, 2018 WL 2295895, at *3 (Pa. Super. filed May 21, 2018).
Accordingly, we reject Appellant’s argument, and find that Appellant’s blood
draw did not violate Birchfield or subsection 1547(b)(2), but rather
complied entirely with the dictates of Birchfield.
Having determined that Birchfield does not require suppression of
Appellant’s blood draw, we now consider whether Appellant’s consent was
voluntary. In that regard, our Supreme Court has held 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 standard
for measuring the scope of a person’s consent is based on an
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objective evaluation of what a reasonable 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 the defendant. 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.
Commonwealth v. Evans, 153 A.3d 323, 328 (Pa. Super. 2016), quoting
Commonwealth v. Smith, 77 A.3d 562, 573 (Pa. 2013) (internal citations,
quotations, and corrections omitted).
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.
Robertson, 186 A.3d at 447 (citations omitted).
Appellant claims that his consent was “tainted by the direction and
authority” of the trooper. Appellant’s Brief at 21. Specifically, he alleges
that he did not have a choice whether or not to consent to the blood draw
because Trooper Ivancik informed him that “[t]he next step is, I’m
transporting you to the Carlisle Regional Medical Center, that’s where I read
you DL-26, which is designed through PennDOT, which is a consent to draw
blood from you. After we do that, we go from here straight to the
Cumberland County Prison….” Id. (citation to dashcam footage omitted).
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The trial court addressed Appellant’s argument when it denied his
motion to suppress.
[Appellant] wishes to further extend the protections of
Birchfield, and turn our law enforcement officers into lawyers
who advise defendants that their refusal to submit to a chemical
test may increase their probability of success on the underlying
charge. The law does not require such a step. The DL-26 form
requests consent, and advises defendants of the legal civil
penalty, i.e., driver’s license suspension, that will result from the
refusal to provide that consent. No more is required.
[Appellant] puts special emphasis on the fact that the
trooper told him that he would be transporting him to the
hospital to read him the DL-26[B], which ‘is a consent to draw
blood from you.’ Apparently, [Appellant] believes that the fact
that the trooper did not specifically say that the form was an
option to consent renders the entire result inadmissible;
however, this is inconsistent with Pennsylvania law. The reading
of the DL-26[B] form ensures voluntariness of consent, by
ensuring that an arrestee is informed that consent is not
required. Specifically, the form, as read to [Appellant], states “I
am requesting that you submit to a chemical test of [blood]. If
you refuse to submit to the chemical test…..” [Appellant] was
clearly informed that the chemical test was a ‘request,’ and that
he could refuse; however, [Appellant] was cooperative with
giving his blood, as he was cooperative throughout his entire
interaction with Trooper Ivancik. There is absolutely no evidence
that his consent was not knowingly, intelligently[,] and
voluntarily given.
Trial Court Opinion, 9/5/2017, at 4-5 (unnecessary capitalization omitted).
We agree with the trial court that Appellant misconstrues Trooper
Ivancik’s statement in an attempt to invalidate an otherwise clearly
voluntary consent. Moreover, we find the totality of the circumstances
reveal that Appellant’s consent was objectively valid. As in Johnson,
supra, here Trooper Ivancik “had no obligation to enlighten [Appellant] as
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to the full details of federal constitutional law; [Trooper Ivancik] only needed
to tell [Appellant] the current, legal consequences of refusing to consent to
the blood-draw. [He] did. Thus, [Appellant’s] consent was voluntary.” Id.
at *3-4 (citation omitted).
Accordingly, the trial court properly denied Appellant’s motion to
suppress, and we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/05/2018
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