Com. v. Gump, N. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
NICHOLAS BRANDON GUMP : No. 524 WDA 2020
Appeal from the Order Entered March 26, 2020
In the Court of Common Pleas of Greene County Criminal Division at
No(s): CP-30-CR-0000170-2019
BEFORE: OLSON, J., MURRAY, J., and McCAFFERY, J.
DISSENTING MEMORANDUM BY OLSON, J.: FILED: April 16, 2021
Respectfully, I dissent. Based chiefly on its conclusion that Nicholas
Brandon Gump (Gump) was not subject to arrest, the learned Majority holds
that Gump was not entitled to DL-26B warnings and that he validly consented
to chemical testing. Notwithstanding, a prior panel of this Court held, in a
published decision addressing very similar facts, that a defendant detained for
investigation of driving under the influence was entitled to DL-26B warnings
and that consent was not voluntarily given where the warnings were not
issued. See Commonwealth v. Krentzel, 209 A.3d 1024 (Pa. Super. 2019),
appeal denied, 222 A.3d 370 (Pa. 2019). I see no compelling factual or legal
grounds for distinguishing our prior decision in Krentzel and I note that petite
panels of this Court are bound by its prior published decisions unless they
have been overruled by an en banc panel or our Supreme Court. See
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Commonwealth v. Crowley, 605 A.2d 1256, 1257 (Pa. Super. 1992). For
these reasons and others I set forth below, I am unable to join the Majority.
To recap, the Majority vacates a suppression order, and remands for
further proceedings, after finding that the trial court misapplied this Court’s
prior decision in Krentzel. The Majority points out that Gump was not subject
to arrest (either at the scene or at any time during the incident, see Majority
Memorandum at 12) and that DL-26B warnings need not be given to DUI
suspects, in contrast with arrestees. See id. at 13. Distinguishing Krentzel,
the Majority notes that Gump signed a consent to search form, even though
it was not well adapted for blood draws. See id. at 12. In addition, the
Majority declines to read Krentzel as requiring DL-26B warnings in suspected
DUI cases regardless of arrest status, as such an interpretation would be
inconsistent with the express terms of the DL-26B form. See id. at
13. Accordingly, the memo concludes that there was no reason for the officer
to read the DL-26B warnings to Gump because he was not under arrest.
While the Majority’s memorandum is premised largely on the finding
that “Gump was not under arrest and, in fact, he was not arrested that
night,” see id. at 12, several factors militate against giving that assessment
overmastering effect. As a preliminary matter, the assertion stands in
contrast to the precise factual recitation adopted by the trial court, which
found that “Gump was not in custody until he was placed into the police car
for transport to Uniontown Hospital[.]” Id. at 2. This statement by the trial
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court strongly suggests that Gump was placed in custody when he was
transferred to the medical facility in a police vehicle. In addition, during the
interaction with police at the scene of the traffic accident, the trial court found
that Gump admitted to consuming prescription drugs, displayed a nervous and
jittery demeanor, and had abnormally contracted pupils. See id. In view of
these findings, it is reasonable to infer that Gump, like the defendant in
Krentzel, “was most likely driving under the influence, was about to be
arrested regardless of whether [he] consented to the blood draw, and, in fact,
was placed under arrest as soon as [he was to be transported to a medical
facility for chemical testing].” Id. at 12. Because the facts in this case are
largely indistinguishable from those that came before this Court in Krentzel,1
I believe the same result should obtain in both cases. See id. at 12
(discussing Krentzel and noting that where the foregoing circumstances
where present and civil penalties could be imposed following a refusal of
consent, a defendant is entitled to DL-26B warnings).
In reaching its conclusion, the Majority relies heavily upon our Supreme
Court’s decision in Commonwealth v. Myers, 164 A.3d 1162 (Pa. 2017).
See Majority Memorandum at 11 (noting that warnings mandated by 75
Pa.C.S.A. § 1547 are triggered by arrest), citing Myers, 164 A.3d at 1175
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1The Majority is correct that Gump, unlike the defendant in Krentzel, signed
a written consent form. As even the Majority concedes, however, that form
was not well-suited to blood draws and did not inform Gump of the
consequences of refusal.
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n.12. Although Myers stated that, under § 1547, all arrestees were entitled
to DL-26B warnings, the Myers Court had no occasion to address the rights
of DUI suspects in anything more than the most general terms (i.e., that
their consent must be voluntary to comport with constitutional
requirements). Myers, due to extreme intoxication, was subject to immediate
arrest, so there was no real call to consider the circumstances present in
Krentzel or this case, where conscious and responsive DUI suspects were
later arrested. Myers didn’t consider the precise circumstances here and did
not foreclosure the extension of DL-26B warnings to DUI suspects. Whether
valid consent may be obtained from DUI suspects (later arrested) in the
absence of DL-26B warnings remains, I submit, unresolved under Myers. And
while Myers does not squarely address this issue, a plurality of the Myers
Court, in Part II(C) of the opinion (holding that implied consent no longer
served as an independent exception to the warrant requirement), discussed
with approval cases from our sister states which said that consent must always
remain revocable to be considered voluntary. See Myers, 164 A.3d at
1173-1174. While this view did not garner a majority, it suggests at least
some support for the position that DUI suspects, who are later arrested, may
be entitled to DL-26B warnings. If, as Myers suggests, consent must remain
revocable, a consenting suspect may be entitled to receive DL-26B warnings
where an arrest occurs shortly after agreement to chemical testing.
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Although Myers did not definitively resolve the precise issue before us,
treatment of this issue by our Supreme Court in subsequent cases may clarify
why current case law permits the extension of DL-26B warnings to DUI
suspects. In Commonwealth v. Jones-Williams, 237 A.3d 528 (Pa. Super.
2020), this Court discussed Commonwealth v. March, 154 A.3d 803 (Pa.
Super. 2017), vacated, 172 A.3d 582 (Pa. 2017), in which a similar issue
emerged. As we explained in Jones-Williams, March was unconscious and
nonresponsive, but not under arrest, at the time of a warrantless blood
draw. Eventually, he moved to suppress the results and the trial court granted
his motion. On appeal, this Court concluded, in view of Commonwealth v.
Riedel, 651 A.2d 135 (Pa. 1994), Commonwealth v. Eisenhart, 611 A.2d
681 (Pa. 1992), and the interplay of § 1547(a) and 75 Pa.C.S.A. § 3755(a)
(which allowed warrantless blood draws and the release of results), that
March’s warrantless blood draw was permissible because March was, among
other things, unconscious and not under arrest. As we pointed out in
Jones-Williams, however, the Supreme Court granted a petition for
allowance of appeal, vacated this Court’s decision in March, and remanded
the case for consideration in light of Myers. If Myers meant to suggest that
the absence of an arrest operated as an automatic disqualifier for DL-26B
warnings, I would infer there would have been no need to vacate the Superior
Court decision in March. Since March was vacated, however, there is some
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reason to believe that Myers contemplates the extension of DL-26B warnings
to DUI suspects.
I have been unable to uncover any subsequent history in March
following its remand from the Supreme Court. Nonetheless, my research has
uncovered Commonwealth v. Runyon, 240 A.3d 945 (Pa. Super. 2020), a
published opinion issued on September 18, 2020. The facts in Runyon were
undisputed. Runyon, a trucker, was driving north on Interstate 81 and
collided with a vehicle parked on the right-hand shoulder of the highway. A
state trooper who responded to the accident smelled alcohol on Runyon’s
person and observed a beer can on the floor of the driver’s side of Runyon’s
truck. The trooper transported Runyon to a medical facility for a blood draw.
Runyon remained cooperative and agreed to the procedure. The
Commonwealth stipulated that implied consent warnings were never
given. After charges were filed, Runyon moved to suppress the blood draw
results. The trial court convened a suppression hearing and, thereafter, held
its decision in abeyance until our Supreme Court disposed of a petition for
allowance of appeal filed in Krentzel. After the Supreme Court denied that
petition, the trial court granted Runyon’s suppression motion, citing
Krentzel. On appeal to this Court, the Commonwealth argued that Krentzel
wrongly adopted a bright line rule that required suppression whenever implied
consent warnings were not given, even in cases where no DUI arrest had been
made. The panel in Runyon rejected the Commonwealth’s contention, noting
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that the rule in Krentzel was binding unless reversed by an en banc Superior
Court panel or by the Supreme Court. Runyon thus holds that DL-26B
warnings must be given even in the absence of a DUI arrest, a reading of
Krentzel which the Majority rejects.
Through my research, I realize that this Court has not been entirely
consistent in its application of Myers when deciding whether the lack of
DL-26B warnings invalidates the consent given by a DUI suspect. In
Commonwealth v. Redman, 2018 WL 821878 (Pa. Super. 2018), a panel of
this Court, like the Majority, observed in an unpublished memorandum that
§ 1547 did not apply because Redman was not under arrest when his blood
draw was conducted. Redman, however, predated Krentzel and the panel
in Redman was not constrained by adverse precedent in reaching the
conclusion that it did.
My concern for clear and consistent application of our precedents in this
area is not an abstract or theoretical interest. Law enforcement personnel
charged with the duty of enforcing traffic laws need to know which procedures
will be countenanced by the courts and which will not. At least one Superior
Court judge, citing a related concern for overly technical assessments of valid
consent, has acknowledged the need for clarity and consistency in assessing
voluntariness when applying the totality of circumstances test in this
context. See Commonwealth v. Veasy, 2020 WL 7863828 (Pa. Super.
2020) (unpublished memorandum) (McCaffery, J. concurring) (noting need to
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apply totality of circumstances test in a clear and pragmatic manner given
that courts are examining actions taken by law enforcement in stressful
situations and often at night). If the need to administer DL-26B warnings
turns simply on the defendant’s status as either a suspect or an arrestee when
consent is requested (and regardless of any subsequent change in status),
then this issue will boil down to one of timing and become somewhat arbitrary
(e.g., an officer who makes an arrest before seeking consent must give
warnings but an officer who seeks consent then makes an arrest need not
recite warnings). Therefore, because Myers does not foreclose the extension
of DL-26B warnings to DUI suspects, because a growing body of appellate
case law suggests this approach is appropriate (including binding case law
disseminated by this Court), and because of the need for clarity and
consistency in this area, I would hold that the trial court correctly applied the
decision of this Court in Krentzel when it determined that Gump was entitled
to suppression. Accordingly, I dissent.
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