Com. v. Kirk, L.

J-A19029-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LEE KIRK, :
:
Appellant. : No. 3547 EDA 2018
Appeal from the Judgment of Sentence Entered, November 26, 2013,
in the Court of Common Pleas of Monroe County,
Criminal Division at No(s): CP-45-CR-0002857-2016.
BEFORE: PANELLA, P.J., KUNSELMAN, J., and STEVENS*, P.J.E.
MEMORANDUM BY KUNSELMAN, J.: FILED OCTOBER 21, 2019
Lee Kirk appeals from the judgment of sentence imposed following his
conviction of driving under the influence, highest rate of alcohol, fourth
offense.1 We affirm.
The trial court set forth the relevant facts as follows:
Corporal Steven Mertz of the Pocono Mountain Regional Police
Department was parked at the intersection of Routes 940 and 611
at 3:30 a.m. on September 6, 2016[,] while he was on patrol in
the Borough of Mt. Pocono. He was watching traffic approach the
intersection on Route 940 eastbound. There was a traffic light
there with a large “No turn on Red” sign facing eastbound traffic.
A car driven by [Kirk] approached the red light, came to a stop
and then turned right on red. Corporal Mertz activated his flashing
lights, crossed the intersection and sought to pull [Kirk] over.
[Kirk] pulled over after driving for a block with the patrol car
behind him. [Kirk] emerged from the car and began to walk back
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1 75 Pa.C.S.A. § 3802(c).
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* Former Justice specially assigned to the Superior Court.
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to the patrol car. Corporal Mertz directed him to remain at the
rear of [his] vehicle. He noticed that [Kirk] was bleeding from
wounds to his head and arm. A female passenger was in his
vehicle. [Kirk] told Corporal Mertz that he has suffered his injuries
in an earlier ATV collision, and was on his way to drop his
passenger off at the bus stop and was then going to return home.
Corporal Mertz noticed that [Kirk] had a strong odor of alcohol
about his person and was very unsteady on his feet.
Officer Carmine Saprona arrived at the scene and conducted field
sobriety tests, which [Kirk] failed. [The female passenger] was
allowed to leave the scene to get her bus to work. Corporal Mertz
drove [Kirk] to the DUI Processing Center at the Monroe County
Correctional Facility, where he gave a sample of his blood.
Corporal Mertz then drove [Kirk] to his home.
Trial Court Opinion, 1/23/19, at 1-2.
Kirk filed a motion to suppress the blood test results, which the
suppression court denied. The matter proceeded to a non-jury trial, after
which the court found Kirk guilty of the above-described DUI charge. On
November 26, 2018, the trial court sentenced him to a prison term of one to
five years, in addition to a $2,500 fine, surcharge, fees and costs. This timely
appeal followed.2
Kirk raises two issues for our review:
1. Did the trial court make an error of law when it found
[Kirk] had agreed to the blood test knowingly,
intelligently and voluntarily despite [his] testimony to
the contrary, the lack of [his] signature on the form,
the officer’s statement that the form was not given to
[Kirk], and the absence of any mention of the
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2 Both the trial court and Kirk complied with Pa.R.A.P. 1925.
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acceptance or reading of the form on all police
documents?
2. Did the suppression court make an error of law when
it held that the O'Connell[3] waiver form provided
sufficient information for anyone to understand the
rights being waived knowingly, intelligently and
voluntarily when the form does not indicate the
possible penalties that would be attached to a
decision?
Kirk’s Brief at 5 (footnote added).
In both of Kirk’s issues, he contends that the trial court erred in denying
his motion to suppress. When we review the ruling of a suppression court:
we must determine whether the factual findings are supported by
the record. When it is a defendant who has appealed, we must
consider only the evidence of the prosecution and so much of the
evidence for the defense as, fairly read in the context of the record
as a whole, remains uncontradicted. Assuming that there is
support in the record, we are bound by the facts as are found and
we may reverse the suppression court only if the legal conclusions
drawn from those facts are in error.
Commonwealth v. Hicks, 208 A.3d 916, 925 (Pa. 2019). “[A]ppellate courts
are limited to reviewing only the evidence presented at the suppression
hearing when examining a ruling on a pretrial motion to suppress.”
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3 The phrase, “O’Connell warning,” is a shorthand expression for the duty
imposed upon a police officer to inform a motorist, who has been asked to
submit to chemical testing, that the Miranda rights are inapplicable to a
request for chemical testing under the Implied Consent Law.
Commonwealth, Dep’t. of Transportation v. O’Connell, 555 A.2d 873(Pa. 1989). The O'Connell warning must specifically inform a motorist (1)
that his driving privileges will be suspended for one year if he refuses chemical
testing; and (2) that his Miranda rights do not apply to chemical testing.
DOT, Bureau of Driver Licensing v. Ingram, 648 A.2d 285 (Pa. 1994).
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Commonwealth v. Bush, 166 A.3d 1278, 1281-82 (Pa. Super. 2017)
(citation omitted).
Preliminarily, we review the legal and administrative developments
regarding Pennsylvania’s DUI laws over the past few years. In June of 2016,
the Supreme Court of the United States in Birchfield v. North Dakota, 136
S. Ct. 2160 (2016), held that criminal penalties imposed on individuals who
refuse to submit to a warrantless blood test violate the Fourth Amendment,
as incorporated into the Fourteenth Amendment. Birchfield, 136 S. Ct. at
2185-86. This Court subsequently held that the imposition of enhanced
criminal penalties for failure to consent to a blood test constituted an illegal
sentence under Birchfield. See Commonwealth v. Giron, 155 A.3d 635,
639 (Pa. Super. 2017). Within one week of the Birchfield decision, PennDOT
revised the DL-26 form to remove the warnings mandated by 75 Pa.C.S.A.
§ 3804(c) that informed individuals suspected of DUI that they would face
enhanced criminal penalties if they refused to submit to a blood test. This
revised DL-26 form, which does not include warnings regarding enhanced
criminal penalties, complies with Birchfield.
On July 20, 2017, Governor Thomas W. Wolf signed into law Act 30 of
2017, which amended 75 Pa.C.S.A. § 3804 to comport with Birchfield.
Specifically, Act 30 provides for enhanced criminal penalties for individuals
who refuse to submit to blood tests only when police have obtained a search
warrant for the suspect’s blood. See 75 Pa.C.S.A. § 3804(c). Hence, from
July 20, 2017, and thereafter, the DL-26 form conforms to statutory law.
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In his first issue, Kirk contends that the Commonwealth failed to meet
its burden of showing that he submitted to the blood test knowingly,
intelligently and voluntarily. Kirk points to his testimony at the suppression
hearing that he was not read the DL-26 form. He claims that the affidavit of
probable cause and the incident report do not indicate that the DL-26 form
was read or shown to him. He also argues that the absence of his signature
on the DL-26 form supports his position that the form was not shown or read
to him. While Kirk concedes that Corporal Mertz testified at the suppression
hearing that he read the DL-26 form to Kirk; he nevertheless argues that his
consent was invalidated because Corporal Mertz did not show the form to Kirk.
The suppression court determined that Kirk’s first issue lacks merit. It
explained its reasoning as follows:
In the present case, Corporal Mertz credibly testified he read the
DL-26 form verbatim to [Kirk] at the DUI processing Center.
Thereafter, [Kirk] consented to a blood test. [Kirk] did not sign
the form; however, Corporal Mertz also testified that he has DUI
defendants sign the form only if there is a refusal. Corporal Mertz
further affirmed, under questioning by the Court, he did not
mention anything about criminal penalties to [Kirk] either before
or after reading [Kirk] the DL-26 form. Therefore, despite [Kirk’s]
contention to the contrary, we find [Kirk] was provided the
warnings indicated on the DL-26 form and was properly advised
of his rights prior to the blood test.
Suppression Court Opinion, 12/22/17, at 5 (unnumbered).
The suppression court’s findings are supported by the record.
Accordingly, we are bound by those facts. See Hicks, supra. Moreover, as
the suppression court correctly observed, “once a police officer provides the
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implied consent warnings to a motorist, the officer has done all that is legally
required to ensure the motorist is fully advised of the consequences of failure
to submit to chemical testing.” Suppression Court Opinion, 12/22/17, at 4
(citing Department of Transportation, Bureau of Driver Licensing v.
Scott, 684 A.2d 539, 546 (Pa. 1996)). As we discern no error in the legal
conclusions drawn from the suppression court’s findings of fact, Kirk’s first
issue warrants no relief.
In his second issue, Kirk contends that, even if the DL-26 form was read
to him, the warnings included in the form were insufficient. Specifically, he
claims the form does not indicate the possible criminal penalties for refusal of
a blood draw. He asserts that, because the DL-26 form only discloses the civil
consequences of refusing to consent to a blood draw, his consent was not
knowing, intelligent, or voluntary.
The suppression court determined that Kirk’s second issue lacks merit.
It explained its reasoning as follows:
[Kirk] next contends that the current DL-26 form violates
Pennsylvania statutory requirements because it does not contain
the enhanced criminal penalties language required by 75 Pa.
C.S.A. Section 1547(b)(2)(ii). This argument is made of whole
cloth. The obvious reason the new form does not include the
enhanced criminal penalties language is because of the holding in
Birchfield and appellate cases in Pennsylvania which have held
that “in the absence of a warrant or exigent circumstances
justifying a search, a defendant who refuses to provide a blood
sample when requested by police is not subject to the enhanced
penalties provided in 75 Pa.C.S.A. §§ 3803-3804.” Giron, 155
A.3d at 640.
Suppression Court Opinion, 12/22/17, at 4.
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Notably, Kirk does not contend that his consent was involuntary for any
reason other than that he was not advised of the criminal penalties of
subsection 3804(c) which were deemed unconstitutional by Birchfield. Based
on our review of the record, we agree with the suppression court’s
determination that the language contained in the DL-26 form was a correct
statement of the law in accordance with Birchfield when Corporal Metz read
the form to Kirk. Accordingly, Kirk’s second issue merits no relief.
Having concluded that the suppression court did not err in denying Kirk’s
motion to suppress the results of his BAC test, we affirm his judgment of
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/21/19
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