Com. v. Antill, C. ( 2020 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
CHRISTOPHER ANTILL, : No. 886 EDA 2018
:
Appellant :
Appeal from the Order March 19, 2018,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. MC-51-CR-0043141-2014
BEFORE: PANELLA, P.J., OLSON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 04, 2020
Christopher Antill appeals from the March 19, 2018 order entered by the
Court of Common Pleas of Philadelphia County (“Court of Common Pleas”)
denying his petition for a writ of certiorari following review of his convictions
in the Municipal Court of Philadelphia County (“Municipal Court”) of the
following driving under the influence (“DUI”) offenses: general impairment,
highest rate of alcohol; driving under the influence of a controlled substance
or combination of controlled substances; and driving under the influence of
alcohol and a controlled substance or combination of controlled substances.1
After careful review, we reverse the March 19, 2018 order of the Court of
Common Pleas denying appellant’s writ of certiorari, vacate appellant’s
1 75 Pa.C.S.A. §§ 3802(a)(1), (c), (d)(2), and (d)(3), respectively.
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judgment of sentence, and remand for further proceedings consistent with
this memorandum.
The Court of Common Pleas provided the following factual and
procedural history:
On December 24, 2014, Officer Chavez responded to
a call for a vehicle accident near the 4000 block of
Cottman Avenue in Philadelphia. Upon his arrival, he
saw an ambulance and the two cars involved in the
accident. First, he responded to the car that was
stricken, because it contained a child passenger.
Then, Officer Chavez examined appellant’s car[,]
noted the vehicle’s airbags had not deployed and the
vehicle’s front end had severe damage.
Officer Chavez approached the vehicle where
appellant was alone and settled in the driver’s seat.
Officer Chavez asked appellant if he was okay, and
appellant responded in a slurred and unintelligible
manner. Appellant could not provide Officer Chavez
with his identification or any other documents.
Officer Chavez directed appellant to step out of the
vehicle. Appellant needed assistance from the officer
to open the door and he stumbled while exiting the
vehicle. Officer Chavez testified he placed appellant
under arrest, because he thought appellant could not
safely operate a vehicle. While being placed in
handcuffs, appellant tried to regain his bearing, but
fell instead and lost consciousness. Officer Chavez
called for rescue, which transported appellant to the
hospital via ambulance with officers following behind
the transport.
At the hospital, Officer Chavez asked if appellant
would consent to the blood draw and read him the
O’Connell[2] warnings. These warnings contained a
provision that refusal to submit to testing alone would
result in enhanced criminal penalties. In between
2See Commonwealth, Dept. of Transp., Bureau of Traffic Safety v.
O’Connell, 555 A.2d 873 (Pa. 1989).
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bouts of sleep, appellant agreed to submit to the blood
testing verbally, but refused to sign the document.
This matter’s procedural history is as follows.
Appellant filed a motion to suppress the following: the
observations made by the officer; the statements
made to the officer; and appellant’s consent to draw
his blood.
On September 30, 2015, the [Municipal C]ourt heard
and denied appellant’s motion, holding the officers
had probable cause to arrest him and finding that
appellant’s consent to draw his blood was voluntary.
On November 15, 2015, appellant was found guilty of
driving under the influence under subsections
75 Pa.C.S.[A.] § 3802(a)(1) general impairment;
(c) highest rate of alcohol; (d)(2) under the influence
of a controlled substance or combination of controlled
substances; and (d)(3) under the combined influence
of alcohol and a controlled substance or combination
of controlled substances.
On January 19, 2016, appellant was sentenced to
three days to six months[’] incarceration with a
concurrent period of probation.
On April 15, 2016, the Court of Common Pleas granted
appellant’s [petition for] writ of certiorari in part and
denied in part, finding [] appellant’s arrest was
supported by probable cause and that appellant’s
blood [test results] should be suppressed. The
Commonwealth appealed the finding to [the] Superior
Court.
Court of Common Pleas opinion, 10/2/18 at 1-3 (extraneous capitalization and
citations to the record omitted; formatting modified).
Preliminarily, we note that this case involves an appellate procedure
unique to Philadelphia County:
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When the Municipal Court (1) denies a motion to
suppress, (2) finds the defendant guilty of a crime,
and (3) imposes sentence, the defendant has the right
to either request a trial de novo or to file a petition
for a writ of certiorari in the Court of Common Pleas
of Philadelphia County. Pa.R.Crim.P. 1006(1)(a). If
the defendant files a certiorari petition challenging
the denial of a suppression motion, the Court of
Common Pleas of Philadelphia County sits as an
appellate court and reviews the record of the
suppression hearing in the Municipal Court.
Commonwealth v. Coleman, 19 A.3d 1111, 1118-
1119 (Pa.Super. 2011); Commonwealth v.
Menezes, 871 A.2d 204, 207 n.2 (Pa.Super. 2005).
Importantly, when performing this appellate review,
the Court of Common Pleas of Philadelphia County
applies precisely the same standard that the Superior
Court applies in appeals from common pleas court
orders denying motions to suppress.
Commonwealth v. Neal, 151 A.3d 1068, 1070 (Pa.Super. 2016).
Here, following the Commonwealth’s filing of a timely appeal, this court,
while relinquishing jurisdiction, remanded the case to the Court of Common
Pleas with instructions to remand to the Municipal Court for findings of fact
and conclusions of law for its denial of the motion to suppress and for the
Court of Common Pleas to reconsider appellant’s petition for writ of certiorari
following the Municipal Court’s findings of fact and conclusions of law. See
Commonwealth v. Antill, 175 A.3d 377 (Pa.Super. 2017) (unpublished
memorandum), citing Neal, 151 A.3d at 1071. The Municipal Court orally
entered its findings of fact and conclusions of law into the record on
October 26, 2017. The Municipal Court found the police officers’ testimony to
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be credible and concluded that appellant consented to a blood draw. (Notes
of testimony, 10/26/17 at 5.)
The Court of Common Pleas subsequently reconsidered appellant’s
petition for a writ of certiorari and denied the petition on March 19, 2018.
Appellant filed a timely notice of appeal to this court. The Court of Common
Pleas ordered appellant to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b), and appellant timely complied. The
Court of Common Pleas subsequently filed an opinion pursuant to
Pa.R.A.P. 1925(a).
Appellant raises the following issue for our review:
Did not the Philadelphia Court of Common Pleas err in
denying appellant’s petition for a writ of certiorari
after the Philadelphia Municipal Court improperly
denied appellant’s motion to suppress the results of
his warrantless blood draw, where appellant was
unable to make a knowing and conscious choice and
was threatened with criminal penalties for refusal, and
where there were no exigent circumstances?
Appellant’s brief at 3.
Our standard of review in addressing a challenge to a
[suppression] court’s denial of a suppression motion
is limited to determining whether the factual findings
are supported by the record and whether the legal
conclusions drawn from those facts are correct.
Commonwealth v. Woodard, [] 129 A.3d 480, 498
([Pa.] 2015). We are bound by the suppression
court’s factual findings so long as they are supported
by the record; our standard of review on questions of
law is de novo. Commonwealth v. Galvin, [] 985
A.2d 783, 795 ([Pa.] 2009). Where, as here, the
defendant is appealing the ruling of the suppression
court, we may consider only the evidence of the
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Commonwealth and so much of the evidence for the
defense as remains uncontradicted. Commonwealth
v. Poplawski, [] 130 A.3d 697, 711 ([Pa.] 2015).
Our scope of review of suppression rulings includes
only the suppression hearing record and excludes
evidence elicited at trial. In the Interest of L.J., []
79 A.3d 1073, 1085 ([Pa.] 2013).
Commonwealth v. Smith, 177 A.3d 915, 918 (Pa.Super. 2017), quoting
Commonwealth v. Yandamuri, 159 A.3d 503, 516 (Pa. 2017) (citation
omitted); see also Coleman, 19 A.3d at 1115 (applying same standard of
review to consideration of Court of Common Pleas’ denial of defendant’s writ
of certiorari following Municipal Court denial of suppression motion).
In his brief, appellant cites the Supreme Court of the United States’
decision in Birchfield v. North Dakota, 136 S.Ct. 2160, 2186 (2016), which
held that “motorists cannot be deemed to have consented to submit to a blood
test on pain of committing a criminal offense.” (See appellant’s brief at
15-16.)
We must first determine whether Birchfield applies retroactively to the
instant case. In Commonwealth v. Hays, 218 A.3d 1260 (Pa. 2019), our
supreme court held that in order for Birchfield to apply retroactively, an
appellant must preserve the issue in question “at all stages of adjudication up
to and including any direct appeal.” Id. at 1266-1267, quoting
Commonwealth v. Cabeza, 469 A.2d 146, 148 (Pa. 1983); see also
Commonwealth v. Sneed, 899 A.2d 1067, 1076 (Pa. 2006),
Commonwealth v. Tilley, 780 A.2d 649, 652 (Pa. 2001).
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Based on our review of the record, we find that appellant has preserved
the issue that his consent was not rendered voluntarily at all stages of
adjudication, up to and including direct appeal, in compliance with Hays. The
record reflects that on September 30, 2015, the Municipal Court held a hearing
on appellant’s oral motion to suppress in which appellant sought suppression
of the evidence stemming from the blood draw based on Missouri v.
McNeely, 569 U.S. 141 (2013), and Commonwealth v. Myers, 118 A.3d
1122 (Pa.Super. 2015). (See notes of testimony, 9/30/15 at 31, 38-39.)
Following his conviction by the Municipal Court, appellant filed a petition for a
writ of certiorari with the Court of Common Pleas on February 18, 2016, in
which he raised the same issues. (See appellant’s petition for writ of
certiorari, 2/18/16.) Following remand from this court and the Municipal
Court’s entry of its findings of fact and conclusions of law, the Court of
Common Pleas held a hearing to reconsider appellant’s writ of certiorari.
Therein, appellant continued to raise the argument that appellant’s consent to
a blood draw was neither knowing nor voluntary. (See notes of testimony,
3/19/18 at 7-9.) Accordingly, we find that Birchfield applies retroactively to
appellant’s case.
Here, appellant specifically avers that he was unable to make a knowing
and conscious choice of whether to submit to a blood draw and was threatened
with criminal penalties for refusal to submit. (Appellant’s brief at 11.)
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Appellant further avers that there were no exigent circumstances justifying
the warrantless seizure of his blood for chemical testing. (Id.)
We first turn to Pennsylvania’s implied consent statute and whether
appellant was able to make a knowing and conscious choice to submit to a
blood draw. At the time of appellant’s arrest, upon conviction of DUI,
motorists were subject to enhanced criminal penalties for refusing to consent
to a blood draw. See 75 Pa.C.S.A. § 1547(b)(2)(ii) (repealed). In 2016, the
Supreme Court of the United States held that “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 2186. The High Court’s holding in
Birchfield rendered “Pennsylvania’s implied consent scheme []
unconstitutional insofar as it threatened to impose enhanced criminal
penalties for the refusal to submit to a blood test.” Commonwealth v. Kurtz,
172 A.3d 1153, 1157 (Pa.Super. 2017), citing Commonwealth v. Ennels,
167 A.3d 716, 724 (Pa.Super. 2017) (noting that “implied consent to a blood
test cannot lawfully be based on the threat of such enhanced penalties”);
Commonwealth v. Evans, 153 A.3d 323, 330-331 (Pa.Super. 2016). We
have held that the federal good-faith exception to the exclusionary rule does
not apply to cases where Birchfield is retroactively applied. Commonwealth
v. Carper, 172 A.3d 613, 620 (Pa.Super. 2017), appeal denied, 184 A.3d
540 (Pa. 2018), citing Commonwealth v. Frederick, 124 A.3d 748, 756
(Pa.Super. 2015), appeal denied, 138 A.3d 2 (Pa. 2016) (holding that the
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good-faith exception to the exclusionary rule does not exist under Article I,
Section 8 of the Pennsylvania Constitution) (citation omitted).
Here, the record reflects that the police administered the O’Connell
warnings to appellant, which included language relating to enhanced criminal
penalties for refusing to submit to a blood draw. (Notes of testimony, 9/30/15
at 27-28.) The municipal court found that appellant orally consented to a
blood draw, but he refused to sign the DL-26 form. (Notes of testimony,
10/26/17 at 5.) In light of Birchfield and its progeny, we find that appellant
cannot be deemed to have voluntarily and knowingly consented to the blood
draw, as he was under the threat of enhanced criminal penalties if he had
elected to decline the blood draw. See Ennels, 167 A.3d at 724.
We next turn to whether exigent circumstances justified the warrantless
blood draw. In its Rule 1925(a) opinion, the Court of Common Pleas stated
that the warrantless draw of appellant’s blood was subject to exigent
circumstances in this case due to the Court of Common Pleas’ “inference” of
issues arising such as the “availability of [police] officers” during a “busy
holiday weekend,” and the practical issues associated with obtaining a timely
search warrant for a blood draw. (Court of Common Pleas opinion, 10/2/18
at 6, citing Commonwealth v. Trahey, 183 A.3d 444 (Pa.Super. 2018),
appeal granted, 196 A.3d 603 (Pa. 2018).) Accordingly, the Court of
Common Pleas reached the following conclusion: “In order to deter the likely
ensuing loss of evidence related to the investigation of the vehicle accident,
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we hold the officer’s objective assessment in light of the facts and
circumstances established the requisite elements of the exigent circumstances
exception to the warrant requirement.” (Id. at 6-7.)
Based on our review of the record, there is no support for the Court of
Common Pleas’ “inferences” concerning the availability of police officers.
Indeed, the Commonwealth did not present any evidence pertaining to the
availability of police officers or the practical issues related to obtaining a
search warrant for a blood draw. Further, there was no evidence presented
concerning the possibility of losing evidence due to the dissipation of alcohol
in appellant’s blood stream. See McNeely, 569 U.S. at 156 (rejecting the
proposition that the natural dissipation of alcohol in a motorist’s bloodstream
creates a per se exigency to justify a warrantless blood draw); Birchfield,
136 S.Ct. at 2174 (reiterating that the Supreme Court “held that the natural
dissipation of alcohol from the bloodstream does not always constitute an
exigency justifying the warrantless taking of a blood sample”) (emphasis in
original); cf. Mitchell v. Wisconsin, 139 S.Ct. 2525, 2539 (2019) (holding
that the police may order a warrantless blood draw of an unconscious driver
whom the police have probable cause to believe that he or she has committed
a drunk-driving offense without violating the Fourth Amendment).
Accordingly, we find that the Court of Common Pleas erred when it
denied appellant’s writ of certiorari. Therefore, we reverse the Court of
Common Pleas’ order denying appellant’s petition for a writ of certiorari,
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vacate appellant’s judgment of sentence, and remand for further proceedings
consistent with this memorandum.
Order denying petition for writ of certiorari reversed. Judgment of
sentence vacated. Remanded for further proceedings. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/4/20
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