Com. v. Blom, W.

J-S23028-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLIAM BLOM :
:
Appellant : No. 2756 EDA 2017
Appeal from the PCRA Order August 1, 2017
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0004792-2015
BEFORE: SHOGAN, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY NICHOLS, J.: FILED JUNE 12, 2018
Appellant William Blom appeals from the order dismissing his first timely
petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§
9541-9546. Appellant asserts that the PCRA court erred in dismissing his
petition without a hearing where he raised a claim that trial counsel was
ineffective for failing to file a motion to suppress the chemical test results of
a blood draw conducted based upon a stop for driving under the influence
(DUI). We affirm.
The trial court summarized the relevant facts of this matter as follows:
[On May 2, 2015,] Officer [Dominic] Micciolo witnessed Appellant
drive past a stop sign and observed outdated inspection stickers
on Appellant’s vehicle. The Officer told Appellant to pull over as
he was turning the police cruiser around. Appellant exited his
vehicle. Appellant refused to get back in the vehicle. As the
Officer was cuffing Appellant, he smelled alcohol[,] and prior to a
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* Former Justice specially assigned to the Superior Court.
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body search[,] Appellant informed the Officer of a hypodermic
needle in his pocket. Appellant told the Officer he was drinking
and using heroin earlier that evening. [Appellant was transported
to police headquarters where blood samples were obtained.1] The
toxicology report revealed a [blood alcohol content (BAC)] of .128
and [that Appellant] tested positive for opiates and morphine. The
hypodermic needle tested positive for heroin.
PCRA Ct. Op., 11/21/17, at 1 (citations omitted).
Appellant was charged by a criminal complaint filed on June 4, 2015.
On September 29, 2015, Appellant filed an omnibus pre-trial motion seeking,
inter alia, suppression of the test results based on an unlawful arrest and the
arresting officer’s failure to advise him of his right to refuse chemical testing.
On October 7, 2015, before the trial court ruled on Appellant’s
suppression motion, Appellant pled guilty to DUI-combination alcohol/drugs2
and possession of drug paraphernalia3 based upon the foregoing facts. The
trial court sentenced Appellant to six to twenty-four months of incarceration,
followed by three years of probation. Appellant did not file any post-sentence
motions or a direct appeal.
On September 23, 2016, Appellant filed a pro se PCRA petition. Court-
appointed counsel filed an amended PCRA petition on June 15, 2017. The
PCRA court dismissed the amended PCRA petition without a hearing on August
2, 2017. Appellant filed a timely notice of appeal and concise statement of
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1The record does not indicate whether Appellant was given the DL-26
warnings.
2 75 Pa.C.S. § 3802(d)(3).
3 35 P.S. § 780-113(a)(32).
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errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). The PCRA
court complied with Pa.R.A.P. 1925(a).
Appellant raises the following question for our review: “Did the [PCRA]
court err in denying [A]ppellant’s post-conviction relief act petition without a
hearing where trial counsel was ineffective for failing to file a motion to
suppress the chemical test results, as Appellant did not knowingly, voluntarily,
and intelligently consent to the blood draw?” Appellant’s Brief at 4 (full
capitalization omitted).
Appellant argues that “counsel had an obligation to file a motion
challenging the validity of the Appellant’s consent based upon a long line of
Fourth Amendment cases in the [c]ourts of Pennsylvania and the United
States. Trial counsel’s failure to address the issue was ineffective assistance
of counsel.” Id. at 13.
The applicable standards of review regarding the dismissal of a PCRA
petition and ineffectiveness claims are as follows:
We must examine whether the record supports the PCRA court’s
determination, and whether the PCRA court’s determination is free
of legal error. The PCRA court’s findings will not be disturbed
unless there is no support for the findings in the certified record.
***
It is well-established that counsel is presumed to have provided
effective representation unless the PCRA petitioner pleads and
proves all of the following: (1) the underlying legal claim is of
arguable merit; (2) counsel’s action or inaction lacked any
objectively reasonable basis designed to effectuate his client’s
interest; and (3) prejudice, to the effect that there was a
reasonable probability of a different outcome if not for counsel’s
error.
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Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010) (citations
and formatting omitted). Additionally,
[t]he right to an evidentiary hearing on a post-conviction petition
is not absolute. It is within the PCRA court’s discretion to decline
to hold a hearing if the petitioner’s claim is patently frivolous and
has no support either in the record or other evidence. It is the
responsibility of the reviewing court on appeal to examine each
issue raised in the PCRA petition in light of the record certified
before it in order to determine if the PCRA court erred in its
determination that there were no genuine issues of material fact
in controversy and in denying relief without conducting an
evidentiary hearing.
Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012) (citations and
formatting omitted).
As an initial matter, we note that Appellant asserts that trial counsel
should have filed a motion to suppress the results of his blood test. However,
the record reveals that trial counsel did file such a motion, but that Appellant
pled guilty before the trial court considered the motion. See Omnibus Pre-
Trial Mot., 9/29/15.
In any event, it is apparent that Appellant is arguing that he was entitled
to have the results of the blood test suppressed under Birchfield v. North
Dakota, 136 S. Ct. 2160 (2016).4 See Appellant’s Brief at 13. However, in
Commonwealth v. Wilcox, 174 A.3d 670 (Pa. Super. 2017), this Court
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4 In Birchfield, the United States Supreme Court held that the Fourth
Amendment does not permit warrantless blood tests incident to arrests for
drunk driving. Birchfield, 136 S. Ct. at 2185. By way of background, the
United States Supreme Court granted writs of certiorari on December 11,
2015, in the cases examined in Birchfield, and the Court issued its decision
on June 23, 2016.
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noted that “[n]either the United States Supreme Court nor our Supreme Court
has held that Birchfield is to be applied retroactively to cases like the one
herein where the judgment of sentence had become final prior to its
disposition.” Id. at 672. Here, Appellant’s conviction became final well before
Birchfield was decided and approximately one month before the United
States Supreme Court granted writs of certiorari to consider the issue raised
by the former implied consent statutes. Accordingly, Appellant is not entitled
to relief.
Because Appellant has not established a genuine issue of fact requiring
a further evidentiary hearing, we discern no merit to his further claim that he
was entitled to an evidentiary hearing. See Commonwealth v. Smith, 121
A.3d 1049, 1052 (Pa. Super. 2015) (“the PCRA court can decline to hold a
hearing if there is no genuine issue concerning any material fact and the
petitioner is not entitled to post-conviction collateral relief, and no purpose
would be served by any further proceedings.” (citation omitted)).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/12/18
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