Com. v. Eyrich, S. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
Appellant :
:
:
v. :
:
:
SEAN MICHAEL EYRICH : No. 1323 MDA 2019
Appeal from the Order Entered July 19, 2019
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0003586-2015
BEFORE: PANELLA, P.J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY PANELLA, P.J.: FILED AUGUST 14, 2020
The Commonwealth of Pennsylvania appeals from the order of the Court
of Common Pleas of Berks County granting Sean Eyrich’s motion to suppress
his blood test results on the basis that Eyrich’s consent to be tested was not
knowing and voluntary.
We begin by noting that the Commonwealth does not take issue with
any of the suppression court’s factual findings. The sole issue on this appeal
concerns the legal consequences of a police officer’s failure to read Eyrich the
Pennsylvania Department of Transportation’s DL-26 “Chemical Test Warnings
and Report of Refusal to Submit to a Blood Test as Authorized by Section 1547
of the Vehicle Code” form (“DL-26 consent form”) before gaining Eyrich’s
consent to test his blood. We conclude that the Commonwealth failed to
properly preserve this issue, and therefore affirm.
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On December 17, 2015, Eyrich pled guilty to one count each of homicide
by vehicle while driving under the influence (“DUI”) and aggravated assault
by vehicle while DUI as a result of an accident that occurred on June 7, 2015.
He was sentenced to a term of imprisonment of 54 months to 20 years and
did not file a direct appeal.
On November 30, 2016, Eyrich filed a pro se petition pursuant to the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, which the
PCRA court dismissed. On appeal, however, this Court reversed and remanded
for a new trial, concluding that Eyrich’s plea was not knowingly entered due
to counsel’s failure to inform him that he would be liable for restitution. See
Commonwealth v. Eyrich, No. 1061 MDA 2017 (Pa. Super., filed February
1, 2018) (unpublished memorandum).
Prior to that trial, Eyrich filed a motion to suppress the results from a
blood test that he had consented to after the accident. Eyrich essentially
maintained in his motion that suppression was warranted under Birchfield v.
North Dakota, 136 S.Ct. 2160 (2016), which “held, among other things, that
consent to a warrantless blood draw is vitiated when such assent follows the
administration by police of a warning of enhanced criminal penalties upon
refusal of the testing.” Commonwealth v. Wolfel, -- A.3d --, 2020 WL
4134888 at *1 (Pa. 2020). In the motion, Eyrich argued that his consent to
the blood test was unlawful under Birchfield because the police had failed to
advise him that he would not face increased criminal penalties if he refused to
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consent to the test even though the Vehicle Code provided for such penalties
at the time of his arrest. However, he did note that the record was not clear
as to whether the DL-26 form had been read to Eyrich prior to obtaining his
blood. The Commonwealth did not file a response to Eyrich’s motion.
The trial court held a suppression hearing on May 3, 2019. At the
hearing, the Commonwealth submitted the testimony previously given by
Sergeant Brian Strand of the Bern Township Police Department at Eyrich’s
preliminary hearing. Sergeant Strand testified at the preliminary hearing that
he responded to a report of a fatal vehicle accident on Grange Road in Bern
Township. Upon his arrival at the scene, Sergeant Strand saw an SUV on an
embankment, with a motorcycle and one person trapped underneath the SUV.
Another person, who had no pulse, was lying in front of the SUV.
Sergeant Strand spoke to Eyrich, the driver of the SUV, and noticed that
Eyrich appeared lethargic and had watery eyes. He also detected a faint odor
of alcohol on Eyrich’s breath. Sergeant Strand testified that he believed Eyrich
was under the influence of alcohol but that he did not conduct any field
sobriety tests because Eyrich had been placed in an ambulance for transport
to Reading Hospital for medical treatment. The EMT on that ambulance, whose
testimony from Eyrich’s preliminary hearing had also been submitted into
evidence by the Commonwealth at the suppression hearing, also stated that
she smelled alcohol on Eyrich’s breath and relayed that information to police.
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Officer Edwin Noll of the Bern Township Police Department testified at
the suppression hearing. He explained that, although he was off duty on June
7, 2015, he received a call from Sergeant Strand asking him to go to Reading
Hospital to obtain a blood test from Eyrich. Officer Noll went to the hospital
and met with Eyrich in an emergency hospital room. He identified himself as
a police officer to Eyrich and asked Eyrich if he would consent to a blood draw.
Officer Noll testified that he did so without explaining to Eyrich why he was
asking for his blood and without reading Eyrich the warnings from the DL-26
consent form. Officer Noll admitted that he did not have a DL-26 consent form
with him. He also testified that he did not otherwise inform Eyrich of his right
to refuse the blood draw or the corresponding penalties for doing so.
The Commonwealth’s argument against suppression was less than clear.
The Commonwealth appeared to argue that Birchfield had not been violated
because Officer Noll never affirmatively told Eyrich that he would face
enhanced criminal penalties if he refused the blood test. In support of its
contention, the Commonwealth pointed to the fact that Officer Noll had not
read Eyrich the warnings from the DL-26 consent form, which prior to
Birchfield threatened additional criminal penalties if a driver refused to
consent to a blood test. Since Eyrich was never explicitly threatened with
enhanced penalties for refusing his consent, the Commonwealth seemed to
maintain, the only question was whether Eyrich’s consent had been voluntary
under the totality of the circumstances. The Commonwealth did not argue that
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Eyrich was not under arrest at the time he gave his consent to the blood test.
See, e.g., N.T. 5/3/2019, at 30-31 (Prosecutor stating “it’s purely an issue of
is his consent voluntarily given.”)
Following the suppression hearing, the trial court granted Eyrich’s
motion to suppress. The court concluded that suppression was compelled by
this Court’s recent decision in Commonwealth v. Krenzel, 209 A.3d 1024(Pa. Super. 2019), allocatur denied, 222 A.3d 370 (Pa. December 17, 2019),
which held that a driver’s consent to draw blood is not valid as a matter of law
if the police fail to read the driver the DL-26 consent form or otherwise inform
him of his right to refuse consent and the corresponding penalties for such
refusal. In its findings of fact and conclusions of law, the trial court specifically
stated that “because the facts in the instant case are identical to those in
Krenzel, we are constrained to reach the same conclusion [as that reached
by Krenzel].” Findings of Fact and Conclusions of Law in Disposition of
Defendant’s Omnibus PreTrial Motion, 7/18/2019, at 7.
The Commonwealth filed an immediate appeal pursuant to Pa.R.A.P.
311(d). The trial court directed the Commonwealth to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). In that
statement, the Commonwealth raised the following issue:
The trial court respectfully erred in suppressing evidence flowing
from a lawful blood draw, where the consent to the blood draw
was knowing, voluntary and intelligent, even though the police
officer did not use PennDOT form DL-26. The Commonwealth is
aware of the recent decision in Commonwealth v. Krenzel, 209
A.3d 1024 (Pa. Super. 2019), alloc. pending[,] 432 MAL 2019.
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This appeal is filed to preserve this issue while the Krenzel
petition for allocatur is pending.
Commonwealth’s Concise Statement of Errors Complained of on Appeal,
8/22/19.
In response, the trial court issued its Pa.R.A.P. 1925(a) opinion
reiterating its determination that Krenzel compelled the suppression of
Eyrich’s blood test results and attaching its findings of fact and conclusions of
law in support of that determination. The Commonwealth’s appeal is now
before this Court.
This Court’s standard of review regarding the Commonwealth’s appeal
from the ruling of a suppression court is well-established and has been
summarized as follows:
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. Korn, 139 A.3 249, 252-53 (Pa. Super. 2016) (citation
omitted).
Here, the trial court relied exclusively on Krenzel as its basis for
granting Eyrich’s suppression motion. In Krenzel, the appellant argued that
her consent to a blood draw had not been voluntary because the police had
not read the warnings from a DL-26 form or otherwise informed her of her
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right to refuse the blood draw. This Court agreed. In doing so, the Court first
considered 75 Pa. C.S.A. §1547 (“Section 1547”) of the Vehicle Code,
commonly referred to as Pennsylvania’s Implied Consent Law, which provides
in relevant part:
(a) General rule.-- Any person who drives, operates or is in
actual physical control of the movement of a vehicle in this
Commonwealth shall be deemed to have given consent to one or
more chemical tests of breath or blood for the purpose of
determining the alcoholic content of blood or the presence of a
controlled substance if a police officer has reasonable grounds to
believe the person to have been driving, operating or in actual
physical control of the movement of a vehicle in violation of section
[...] 3802 (relating to driving under influence of alcohol or
controlled substance) [.]
(b) Civil Penalties for refusal.--
(1) If any person placed under arrest for a violation of section
3802 is requested to submit to chemical testing and refuses to
do so, the testing shall not be conducted but upon notice by the
police officer, the department shall suspend the operating
privilege of the person[.]
***
(2) It shall be the duty of the police officer to inform the person
that:
(i) the person’s operating privilege will be suspended upon
refusal to submit to chemical testing and the person will be
subject to a restoration fee of up to $2000[.]
75 Pa. C.S.A. §1547 (emphasis in original).
The Krenzel Court then looked to Commonwealth v. Myers, 164 A.3d
1162 (Pa. 2017), which examined Section 1547 in the context of a warrantless
blood draw taken from an unconscious individual. The Myers Court noted that
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Section 1547(b)(1) provides individuals with an explicit statutory right to
refuse chemical testing and Section 1547(b)(2) expressly requires a police
officer to inform an individual of the consequences of such a refusal. See id.
at 1170-1171, 1171 n.12. Accordingly, the Myers Court held that an
individual is entitled to this information, i.e., that he has a right to refuse a
blood test and the consequences for such a refusal, “so that his choice to take
a [chemical] test can be knowing and conscious.” Id. at 1171. Because the
unconscious individual had been deprived of the opportunity to choose
whether to exercise his right to refuse the blood test, the Myers Court held
that he had not voluntarily consented to the blood draw. See id. at 1181.
In applying Myers and Section 1547, the Krenzel Court held:
There is no dispute that the police asked [the] [a]ppellant to go
to the hospital for a chemical blood test and she complied without
receiving a recitation of her rights under DL-26B or Section 1547
or confirming her consent by signature. Because [the police
officer] was statutorily obligated to inform [the] [a]ppellant of her
right to refuse chemical testing and the consequences arising
therefrom and failed to effectuate those precautions, [the]
[a]ppellant did not make a knowing and conscious choice of
whether to submit to the blood draw.
Krenzel, 209 A.3d at 1032.
In light of this clear holding, the trial court below concluded that
Krenzel controlled the instant case. The court found that like the appellant in
Krenzel, Eyrich had not been read the DL-26 consent form or otherwise
informed of his right to refuse the blood draw or the penalties following such
a refusal before giving his consent to the blood draw.
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In an attempt to avoid this conclusion, however, the Commonwealth
argues for the first time in its appeal to this Court that Krenzel is not
applicable to the instant case. The Commonwealth now argues that Krenzel
is distinguishable from this case because the appellant in Krenzel was
arrested for DUI whereas Eyrich, according to the Commonwealth, had not
been placed under arrest when he was asked at the hospital for his consent
to have his blood drawn. The Commonwealth contends that the requirements
of Section 1547 are only triggered after a person has been arrested for DUI,
and because Eyrich had not been arrested at the time he gave his consent,
neither Section 1547 nor Krenzel apply to Eyrich’s case.
This is not what the Commonwealth argued in its 1925(b) statement.
There, the Commonwealth did not dispute the trial court’s unequivocal ruling
that the instant case was “identical” to, and therefore controlled by, Krenzel.
Instead, the Commonwealth indicated its acknowledgment that Krenzel
controlled the instant matter, but that it wanted to preserve the issue
regarding the voluntariness of Eyrich’s consent because a petition for
allowance of appeal in Krenzel had been filed but not yet ruled on by our
Supreme Court.1 As such, the trial court in the instant case was never
____________________________________________
1After the Commonwealth filed its 1925(b) statement on August 22, 2019,
and as the full cite to Krenzel discloses, see supra at 3, our Supreme Court
denied allocatur in Krenzel on December 17, 2019.
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presented with, and therefore did not specifically address, any argument by
the Commonwealth that Eyrich was not in custody at the time Officer Noll
asked him for his consent and that Krenzel was inapplicable for that reason.
Because the Commonwealth raises this argument for the first time in its
appeal, and did not raise such an argument in its 1925(b) statement, it is
waived. See Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (holding
that any issues not raised in a 1925(b) statement are waived). “Rule 1925 is
intended to aid trial judges in identifying and focusing upon those issues which
parties plan to raise on appeal” so that there can be a “meaningful and
effective appellate review” of those issues. Id. at 308. See also
Commonwealth v. Reeves, 907 A.2d 1, 2 (Pa. Super. 2006) (cautioning
that a Rule 1925(b) statement must be specific enough for the trial court to
identify and address the issue the appellant seeks to raise on appeal, and if it
is not, the issue will be deemed waived).
We recognize that Rule 1925(b) states that “each error identified in the
statement will be deemed to include every subsidiary issue that was raised in
the trial court.” Pa.R.A.P. 1925(b)(4)(v). As noted above, the Commonwealth
never argued to the trial court, either at the suppression hearing or in its
1925(b) statement, that Eyrich had not been arrested and was therefore not
subject to the requirements of Section 1547 or Krenzel. As a result, the trial
court did not address, much less focus on, the Commonwealth’s newfound
argument on appeal that Eyrich was not under arrest at the time he gave his
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consent because the Commonwealth did not present the issue to the trial
court. The Commonwealth’s argument fails for this reason.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/14/2020
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