Com. v. Wright, R.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
RANDY D. WRIGHT, :
:
Appellant : No. 149 MDA 2017
Appeal from the Judgment of Sentence January 9, 2017
in the Court of Common Pleas of Adams County,
Criminal Division, No(s): CP-01-CR-0001302-2015
BEFORE: GANTMAN, P.J., LAZARUS and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 31, 2017
Randy D. Wright (“Wright”) appeals from the judgment of sentence
entered following his conviction of three counts of driving under the
influence (“DUI”),1 one count of accident involving damage to attended
vehicle or property; and the summary offenses of failure to stop and give
information or render aid, traffic control signals, driving without a license,
passing zones, and reckless driving.2 We affirm.
As found by the suppression court, during his 7:00 a.m. to 5:00 p.m.
shift on November 25, 2015, Cumberland Township Police Sergeant Matthew
Trostle (“Sergeant Trostle”) responded to a report of a “hit and run” accident
involving multiple vehicles. At the scene, Sergeant Trostle was informed
1
Specifically, Wright was convicted of DUI-controlled substances, DUI-
controlled substance (metabolites), and DUI-controlled substance (impaired
ability). See 75 Pa.C.S.A. § 3802(d)(1)(i), (iii), (2).
2
75 Pa.C.S.A. §§ 3743(a), 3744(a), 3112(a)(3)(i), 3307(b), 3736.
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that a black SUV, with damage matching the description of the vehicle
involved in the accident, had pulled into the parking lot of the Aspire Motel.
Sergeant Trostle proceeded to the motel, where he found Wright in the
motel lobby. Sergeant Trostle ordered Wright to put his hands up and get
down on the ground. Wright complied, at which time Sergeant Trostle
placed Wright under arrest.
Sergeant Trostle immediately informed Wright of his Miranda3 rights.
During a search incident to arrest, Sergeant Trostle found a large amount of
cash in Wright’s possession. Other officers arrived at the scene, at which
time Wright told the officers that his vehicle hit the other vehicles because
they were chasing him. The officers asked Wright to submit to field sobriety
tests. Wright responded that he could not physically perform the tests
because of injuries to his knees and feet. However, Wright also told the
officers that he had a cup of urine in his vehicle, in case the officers needed
to test it. Wright additionally asked officers to take him to the hospital for a
blood test. “At no time was the Implied Consent Law discussed with or read
to [Wright].” Suppression Court Opinion, 9/9/16, at 3. Subsequently,
Wright’s blood tested positive for controlled substances.
Prior to trial, Wright filed a Motion to Suppress the results of his blood
test. In his Motion, Wright asserted that he was coerced into submitting to
the blood test under the threat of enhanced penalties, in violation of the
3
See Miranda v. Arizona, 384 U.S. 436 (1966).
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United States Supreme Court’s decision in Birchfield v. North Dakota, ___
U.S. ___, 136 S. Ct. 2160, 195 L. Ed. 2d 560 (2016). See Motion to
Suppress, ¶ 4. Wright also challenged the withdrawal of his blood without a
search warrant. Id., ¶ 5. In his Memorandum of Law in support of his
Motion, Wright argued that “a lack of information is no better than
misinformation concerning an arrestee’s rights when submitting to a search,
and does not support a finding of knowing consent.” Memorandum of Law in
support of Motion to Suppress, at 18 (emphasis omitted). Wright argued
that “failure to inform [the arrestee] of the right to refuse is a factor
weighing against voluntary consent.” Id. (emphasis omitted).
On September 9, 2016, the suppression court denied Wright’s Motion.
Following a bench trial, the trial court found Wright guilty of the above-
described charges. The trial court subsequently sentenced Wright to an
aggregate 60 months of intermediate punishment (with 12 months on
restrictive sanctions and the remainder on restorative sanctions).
Thereafter, Wright filed the instant timely appeal, followed by a court-
ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of on
appeal.
Wright presents the following claim for our review:
Did the [suppression] court err in finding knowing, specific, and
voluntary consent where the record plainly demonstrates that
[Wright] was in custody, was neither “lucid” nor “rational” at the
time of the supposed consent, and was never advised of the
nature of the arrest, the purpose of the blood test, or the right
to refuse the blood test?
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Brief for Appellant at 4.
In appeals from suppression orders,
[a]n appellate court may consider only the Commonwealth’s
evidence and so much of the evidence for the defense as
remains uncontradicted when read in the context of the record
as a whole. Where the record supports the factual findings of
the trial court, the appellate court is bound by those facts and
may reverse only if the legal conclusions drawn therefrom are in
error. However, it is also well settled that an appellate court is
not bound by the suppression court’s conclusions of law.
Commonwealth v. Caple, 121 A.3d 511, 516-17 (Pa. Super. 2015)
(citations omitted).
With respect to factual findings, we are mindful that it is the sole
province of the suppression court to weigh the credibility of the
witnesses. Further, the suppression court judge is entitled to
believe all, part or none of the evidence presented. However,
where the factual determinations made by the suppression court
are not supported by the evidence, we may reject those findings.
Only factual findings which are supported by the record are
binding upon this Court.
Id. (citation omitted). “In addition, we are aware that questions of the
admission and exclusion of evidence are within the sound discretion of the
trial court and will not be reversed on appeal absent an abuse of discretion.”
Id.Wright first claims that the suppression court improperly found that he
had consented to the blood alcohol test, where the evidence showed that he
was under arrest, not “lucid” or “rational,” and where no information was
provided to him about blood testing. Brief for Appellant at 9. Wright argues
that, considering the totality of the circumstances, his custodial detention
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invalidated his consent. Id. at 11. According to Wright, his “consent” was
obtained while he was in custody, “involving at least three police officers
questioning him[.]” Id. at 12. Wright contends that the coercive nature of
his custodial detention militates against finding consent. Id.
Wright further contends that the trial court improperly ignored his
“deranged mental state in its totality of the circumstances analysis.” Id. at
13. Wright argues that, unlike cases in which the defendant had clear
understanding of blood testing, the record in this case is silent as to his
education, whether he was told of the reason for his arrest, and whether he
was informed about the purpose of blood testing. Id. at 14. Wright takes
issue with the officers’ decision “not to take the (very simple) precautions of
explaining the basis for the arrest, the purpose of the blood testing, the right
to refuse, and the consequences of the testing or refusal, nor did they
simply ask if he understood what was happening.” Id. at 15. Wright directs
our attention to evidence of his deranged state of mind. Id. at 15-16.
Wright contends that the suppression court’s failure to consider his mental
state constituted “harmful error,” as such evidence is necessary to
considering the totality of the circumstances. Id. at 17.
Wright also argues that the failure to inform a driver of the right to
refuse to consent to blood testing is a factor weighing against finding
voluntary consent. Id. According to Wright, “[w]hen appellate courts have
found voluntary consent by subjects not informed of their right to refuse,
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they have only done so when the subject was under arrest.” Id. at 18.
Again, Wright directs our attention to the officers’ failure to explain to Wright
the reason for his arrest, the purpose of the blood test, his right to refuse
the blood test, and the potentiality that the blood test results could be used
against him. Id. at 20.
The Fourth Amendment to the United States Constitution provides
[t]he right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons
or things to be seized.
U.S. CONST. AMEND. IV. “[T]he text of the Fourth Amendment does not
specify when a search warrant must be obtained.” Kentucky v. King, 563
U.S. 452, 459 (2011).
“No matter the substance suspected of affecting a particular DUI
arrestee, Birchfield requires that a blood test be authorized either by a
warrant (or case-specific exigency) or by individual consent not based on the
pain of criminal consequences.” Commonwealth v. Ennels, 2017 PA
Super 217 (filed July 11, 2017), *11. Thus, the question before us is
whether Wright’s consent was voluntary, under the totality of the
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circumstances.4
As our Pennsylvania Supreme Court has explained,
[i]n determining the validity of a given consent, the
Commonwealth bears the burden of establishing that a consent
is the product of an essentially free and unconstrained choice—
not the result of duress or coercion, express or implied, or a will
overborne—under the totality of the circumstances. The
standard for measuring the scope of a person’s consent is based
on an objective evaluation of what a reasonable person would
have understood by the exchange between the officer and the
person who gave the consent. Such evaluation includes an
objective examination of the maturity, sophistication and mental
or emotional state of the defendant. Gauging the scope of a
defendant’s consent is an inherent and necessary part of the
process of determining, on the totality of the circumstances
presented, whether the consent is objectively valid, or instead
the product of coercion, deceit, or misrepresentation.
Commonwealth v. Smith, 77 A.3d 562, 573 (Pa. 2013) (internal citations
and quotation marks omitted).
In its Opinion, the suppression court addressed Wright’s claim, in
relevant part, as follows:
[Wright] appears to assert that a [d]efendant cannot
provide knowing consent unless he is given the warnings
contained in the DL 26 [F]orm.[5] However, based upon a plain
4
Here, the police officers did not advise Wright of any increased or additional
penalties for refusal to submit to a blood test, prior to Wright consenting to
the test. Where a driver gives his consent to a blood test prior to being
given the warning of increased criminal penalties for refusing his consent,
Birchfield is not implicated, as his consent was not tainted by the warning.
Commonwealth v. Haines, 2017 Pa. Super. LEXIS 585, *10, 2017 PA
Super 252 (Pa. Super. 2017) (citing Birchfield, 136 S. Ct. at 2185-86).
5
The DL 26 Form provides that if a person refuses to consent to a blood
test, his or her license could be suspended for a least one year and the
defendant could face more severe penalties because of the refusal.
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reading of the statute, it does not appear [that] a police officer
must read the DL 26 [F]orm to a person arrested for a DUI
offense prior to asking the person to submit to a blood draw.[FN]
75 Pa.C.S.A. § 1547(b)(1) states [that] “[i]f 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….” (emphasis added). If the person consents
in response to an officer’s request for a blood draw, there is no
need to provide an explanation of the consequences of a refusal.
[The trial court] has found no case law suggesting a contrary
[FN]
reading of the statute. A license suspension and the enhanced
criminal penalties are only triggered when an individual refuses
to submit to the blood test; therefore, a person must be given
the warning before either of those penalties can be imposed.
See Commonwealth v. Xander, 14 A.3d 174, 179 (Pa. Super.
2011); Weems v. Commw., Dep’t of Transp., Bureau of
Driver Licensing, 990 A.2d 1208, 1211-12 (Commw. Ct.
2010).
The implied consent law “does not require that a motorist’s
consent to a chemical test be informed, but does require that a
motorist’s refusal be informed.” Commonwealth v. McCoy,
895 A.2d 18, 27 (Pa. Super. 2006) [(internal citation omitted)].
Therefore, in the current case, because [Wright] asked to give a
blood sample and consented to the blood draw, the fact [that]
he was never provided with the DL[F]26 Form will not invalidate
his consent.
Considering the above factors under the totality of the
circumstances, [the suppression] court finds that [Wright] did
provide knowing and voluntary consent to the blood draw.
Suppression Court Opinion, 9/9/16, at 7-8 (footnote 6 added). We agree
with the sound reasoning of the suppression court, as set forth above, and
affirm on this basis with regard to Wright’s claim. See id.To the extent that Wright claims that his mental condition negated the
voluntariness of his consent, we observe that he did not raise this claim
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before the suppression court. In his Motion to Suppress, Wright claimed
that “his consent was not without coercion. [Wright] was coerced into giving
his blood under threat of enhanced criminal penalties.” Motion to Suppress,
¶ 4. Wright cited Birchfield in support. Id. At the suppression hearing, his
counsel argued that the coercive nature of Wright’s arrest negated the
voluntariness of his consent. N.T., 8/25/16, at 17. Counsel additionally
argued that the officers had failed to make it clear to Wright the purpose of
the blood test, and how it could be used against him. Id. at 18. Counsel
cited no case law supporting a claim that the police must explain the
ramifications of providing a blood sample, after a driver offers his consent.
Our research likewise finds no case law supporting his claim.
Again, reviewing the totality of the circumstances, including the fact
that Wright was provided his Miranda warnings prior to offering his consent,
the record supports the suppression court’s findings and legal conclusions.
Accordingly, we affirm Wright’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/31/2017
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