Com. v. Snyder, C.

J-A26025-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
COLBY MICHAEL SNYDER
Appellee No. 552 MDA 2017
Appeal from the Order Entered March 3, 2017
In the Court of Common Pleas of Cumberland County
Criminal Division at No(s): CP-21-CR-0002727-2016
BEFORE: BOWES, OLSON AND RANSOM, JJ.
MEMORANDUM BY OLSON, J.: FILED DECEMBER 29, 2017
The Commonwealth of Pennsylvania appeals from the March 3, 2017
order granting Colby Michael Snyder’s (“Appellee’s”) suppression motion. We
affirm.
The factual background of this case is as follows. At approximately 9:25
p.m. on June 11, 2016, Pennsylvania State Police Trooper Michael Rosewarne
noticed Appellee’s vehicle traveling at a high rate of speed, changing lanes
without a turn signal, and weaving on Interstate 81. Trooper Rosewarne
initiated a traffic stop at which time he noticed an odor of alcohol emanating
from Appellee. When Appellee exited the vehicle he was staggering and had
trouble locating his license, registration, and insurance card. Appellee failed
multiple field sobriety tests. A portable breathalyzer test showed a blood
alcohol concentration (“BAC”) of .121.
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Appellee was transported to a local booking center where he was read
the then-current DL-26 warnings. Those warnings informed Appellee that he
would be subjected to increased criminal penalties if he refused to submit to
a blood draw. After being read the DL-26 warnings, Appellee submitted to a
blood draw. That blood draw indicated that Appellee had a BAC of .213.
The procedural history of this case is as follows. On November 14, 2016,
the Commonwealth charged Appellee via criminal information with driving
under the influence (“DUI”) – general impairment,1 DUI – highest rate,2 and
three summary traffic offenses. On December 16, 2016, Appellant filed a
motion to suppress the blood draw evidence in light of the Supreme Court of
the United States’ decision in Birchfield v. North Dakota, 136 S.Ct. 2160(2016). In Birchfield, the Supreme Court of the United States held that
police can compel a driver to give a breath sample without a warrant;
however, police cannot compel a driver to provide a blood sample without first
obtaining a search warrant except in certain limited circumstances. At the
conclusion of a suppression hearing on March 3, 2017, the trial court
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1 75 Pa.C.S.A. § 3802(a)(1).
2 75 Pa.C.S.A. § 3802(c).
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suppressed the blood draw evidence. This timely interlocutory appeal as of
right followed.3 See Pa.R.A.P. 311(d).
The Commonwealth presents two issues for our review:
1. Did the [t]rial [c]ourt improperly apply the exclusionary rule
where there was established probable cause and the police were
properly following established [] precedent?
2. Did the [t]rial [c]ourt improperly suppress the results of
[Appellee]’s blood draw when [Appellee] provided actual valid
consent for the blood draw as demonstrated by his cooperative
behavior and admittance that he had consumed too much alcohol?
Commonwealth’s Brief at 4.
Both of the Commonwealth’s issues challenge the trial court’s
suppression of the blood draw evidence. “Once a motion to suppress evidence
has been filed, it is the Commonwealth’s burden to prove, by a preponderance
of the evidence, that the challenged evidence was not obtained in violation of
the defendant’s rights.” Commonwealth v. Evans, 153 A.3d 323, 327 (Pa.
Super. 2016) (citation omitted). Our standard of review in addressing a
challenge to a trial court’s order granting a suppression motion is whether the
factual findings are supported by the record and whether the legal conclusions
drawn from those facts are correct. See Commonwealth v. Champney,
161 A.3d 265, 271 (Pa. Super. 2017) (en banc) (citation omitted). “[O]ur
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3 On March 30, 2017, the trial court ordered the Commonwealth to file a
concise statement of errors complained of on appeal (“concise statement”).
See Pa.R.A.P. 1925(b). On April 12, the Commonwealth filed its concise
statement. On April 19, 2017, the trial court issued its Rule 1925(a) opinion.
Both of the Commonwealth’s issues were included in its concise statement.
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scope of review is limited to the factual findings and legal conclusions of the
[trial] court.” In re L.J., 79 A.3d 1073, 1080 (Pa. 2013) (citation omitted).
“When the Commonwealth appeals from a suppression order, we . . . 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.” Commonwealth v. Young, 162 A.3d 524, 527 (Pa. Super.
2017) (citation omitted). “Where the [trial] court’s factual findings are
supported by the record, we are bound by these findings and may reverse
only if the [trial] court’s legal conclusions are erroneous.” Commonwealth
v. Palmer, 145 A.3d 170, 173 (Pa. Super. 2016) (citation omitted).
First, the Commonwealth argues that the good-faith exception to the
exclusionary rule, as set forth in Davis v. United States, 564 U.S. 229(2011) and Illinois v. Krull, 480 U.S. 340 (1987), applies in this case. After
this case was fully briefed, this Court held that the Davis/Krull rule does not
apply to claims brought pursuant to Article I, Section 8 of the Pennsylvania
Constitution. Commonwealth v. Carper, 172 A.3d 613, 618-620 (Pa.
Super. 2017).4 This Court explained that “the fact that police acted in good-
faith reliance on appellate precedent was irrelevant when determining if the
blood draw evidence was admissible at trial.” Id. at 620. Therefore, the trial
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4 The District Attorney of Cumberland County upheld the highest ideals of the
legal profession by filing an application for post-submission communication
which noted that Carper may control the first issue presented in this case.
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court correctly held that the blood draw evidence was not admissible pursuant
to the good-faith exception to the exclusionary rule as set forth in Davis and
Krull.
In its second issue, the Commonwealth argues that, notwithstanding the
partially inaccurate DL-26 warnings, Appellee’s consent was voluntary.
Appellee argues that we cannot reach this question because it is a factual
question “outside the plenary review of pure questions of law.” Appellee’s
Brief at 7. This argument confuses this Court’s standard of review with our
power to review trial court decisions. As noted above, we may reverse a trial
court’s factual findings when they are unsupported by the record.
Champney, 161 A.3d at 271. Thus, we have both the power and obligation
to review the trial court’s factual findings to determine if they are supported
by the record.
When a defendant is given partially inaccurate DL-26 warnings, the trial
court must evaluate his or her “consent based on the totality of all the
circumstances and given the partial inaccuracy of the officer’s advisory.”
Evans, 153 A.3d at 331 (internal ellipses and alterations omitted), quoting
Birchfield, 136 S.Ct. at 2186. Our Supreme Court has explained that:
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.
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Commonwealth v. Gillespie, 821 A.2d 1221, 1225 (Pa. 2003) (Eakin, J.,
opinion announcing the judgment of the court) (internal quotation marks
omitted), citing Commonwealth v. Cleckley, 738 A.2d 427, 433 n.7 (Pa.
1999).
In this case, we conclude that the trial court’s factual finding that the
Commonwealth failed to prove by a preponderance of the evidence that
Appellee’s consent was voluntary is supported by the record. Contrary to the
Commonwealth’s argument, Appellee was clearly in custody. He was placed
in handcuffs and transported in the back of a police cruiser to the local booking
center. The fact that other people were present during the blood draw fails to
indicate Appellee was not in custody. Thus, the first Cleckley factor weighed
against a finding of consent.
Second, the Commonwealth used coercive tactics, i.e., Trooper
Rosewarne read Appellee the partially incorrect DL-26 warnings. We
acknowledge that Trooper Rosewarne acted in good-faith reliance on then-
binding appellate precedent when reading the partially incorrect DL-26
warnings. Nonetheless, Trooper Rosewarne reading the partially incorrect DL-
26 warnings was coercive. Thus, the second Cleckley factor weighed against
a finding of consent.
The Commonwealth argues that Appellee knew he had a right to refuse
a blood draw because the DL-26 warnings informed him of this right.
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Moreover, the Commonwealth contends that the license suspension that
follows from refusing a blood draw was akin to the increased criminal
penalties. This Court has previously rejected similar arguments. In
Commonwealth v. Ennels, 167 A.3d 716 (Pa. Super. 2017), the defendant
was facing the same criminal penalties whether he consented to a blood draw
or not. This Court held that this fact was “irrelevant to the voluntary-consent
analysis.” Id. at 724. Instead, this Court held that the fact that the DL-26
warnings incorrectly informed the defendant that he faced increased criminal,
i.e., not civil, penalties if he refused a blood test was the relevant factor.
Therefore, the third Cleckley factor weighed against a finding of consent.
Next, the Commonwealth contends that Appellee’s prior DUI arrests
evidence his education regarding the DUI arrest process. We agree with this
assertion; however, we disagree with the inference the Commonwealth draws
from this assertion. These prior arrests for DUI indicate that Appellee was not
aware of his right to refuse a blood draw. As noted above, the partially
inaccurate DL-26 warnings informed Appellee, although he could refuse a
blood draw, he would face increased criminal penalties if he did so. This was
not the first time that Appellee was read these warnings. He was read the
warnings during his prior DUI arrests. Therefore, he was informed on multiple
occasions, by separate law enforcement officers, that refusing to consent to a
blood draw would result in stiffer penalties. Thus, the fourth Cleckley factor
weighed against a finding of consent.
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Finally, the Commonwealth argues that Appellee’s cooperation in
performing field sobriety tests and taking a portable breathalyzer test
indicates his cooperation with law enforcement. We agree that this factor
weighs in favor of a finding of consent. There were no signs that Appellee
stopped cooperating with law enforcement. Even his refusal to perform one
field sobriety test was done in order to speed the process along.
Although the trial court did not cite Cleckley, it carefully weighed these
factors and found that Appellee’s consent was involuntary. See Trial Court
Opinion, 4/19/17, at 3-4. As an appellate court, we may not reweigh these
factors. See Commonwealth v. Baker, 24 A.3d 1006, 1020 (Pa. Super.
2011), aff’d, 78 A.3d 1044 (Pa. 2013). Accordingly, we conclude that the
record supports the trial court’s factual finding and affirm the order granting
Appellee’s suppression motion.
Application to file a post-submission communication granted. Order
affirmed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/29/17
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