Com. v. Hill, M.

J-A06010-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL S. HILL :
:
Appellant : No. 1359 MDA 2018
Appeal from the Judgment of Sentence Entered July 19, 2018
In the Court of Common Pleas of Mifflin County
Criminal Division at No(s): CP-44-CR-0000709-2017
BEFORE: OTT, J., NICHOLS, J., and PELLEGRINI, J.
MEMORANDUM BY OTT, J.: FILED AUGUST 15, 2019
Michael S. Hill appeals from the judgment of sentence imposed July 19,
2018, in the Mifflin County Court of Common Pleas. Prior to sentencing, the
court, sitting as fact-finder, convicted Hill of driving under the influence of
alcohol (“DUI”) (general impairment/incapable of driving safely; second
offense) and DUI (highest rate of alcohol).1 The court sentenced Hill to a term
of 90 days to five years’ incarceration. On appeal, Hill claims the court erred
in failing to grant his motion to suppress his blood test results based on lack
of consent. See Sanders’ Brief at 4. For the reasons below, we affirm the
judgment of sentence.
____________________________________________
 Retired Senior Judge assigned to the Superior Court.
1 See 75 Pa.C.S. §§ 3802(a)(1) and (c), respectively.
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The trial court set forth the factual history as follows:
On September 9, 2017, at approximately 8:55 p.m., the
Mifflin County Dispatch received a 911 call from Margaret Moore.
Moore did not communicate with Mifflin County Dispatch during
this call but the 911 Operator was able to record a conversation
between Moore and another individual later identified as the
Defendant, Michael Hill. From the substance of the conversation,
Dispatch concluded that [Hill] was driving while under the
influence of alcohol.
After the call was terminated, Dispatch placed a return call
to Moore who indicated that she and [Hill] had arrived at their
residence located at 13 Chapel Drive Lewistown, PA 17044. Moore
further indicated that she and [Hill] were currently engaged in a
verbal argument and Dispatch could discern [Hill] in the
background acting belligerently and yelling profanities. When
asked by Dispatch if a police response was required, Moore
responded that “Either way it doesn’t matter. He always tells
them his side and they listen to him, so whatever, I don’t care”.
In response, officers were dispatched to the residence.
At approximately 9:12 p.m., Officer Dustin Maxwell and
Patrolman [Steven] Busch arrived at 13 Chapel Drive and
observed [Hill] standing in his garage. Officer Maxwell
approached [Hill] who appeared agitated at the presence of police
at his home. Officer Maxwell observed that [Hill]’s eyes were
blood shot, his speech slurred, that an odor of alcohol emanated
from his person, and that he had apparently defecated himself.
[Hill] indicated to Officer Maxwell that he had been home for
approximately two hours. However, upon touching the hood of
[Hill]’s car, Officer Maxwell observed the hood was warm to the
touch. Moreover, per Patrolman Busch’s discussion with Moore,
she and [Hill] had been home for less than ten minutes before the
officers arrived. Moore further confirmed that [Hill] had driven
her home from Dave’s Bottle Shop, severely intoxicated, after
having been there since 7:30 a.m.
The responding officers asked [Hill] if he would submit to
Field Sobriety Tests. [Hill] indicated he would not submit to any
tests. [Hill] was placed under arrest and transported to Geisinger-
Lewistown Hospital where he was read the chemical testing
warnings from the Penn-Dot DL-26B form. [Hill] then agreed to a
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blood draw. Said blood draw later indicated [Hill]’s blood alcohol
concentration to be .332%.
Trial Court Opinion, 4/23/2018, at unnumbered 1-2.
Hill was subsequently charged with two counts of DUI and one count of
careless driving. On March 14, 2018, Hill filed several omnibus pre-trial
motions to suppress. The court held a hearing on the motions on April 12,
2018. Five days later, the court issued an order and contemporaneous
opinion, denying Hill’s various motions.2 On May 24, 2018, a stipulated non-
jury trial was held, at the conclusion of which the court found Hill guilty of the
DUI crimes and not guilty of careless driving. On July 19, 2018, the court
sentenced Hill to a term of 90 days to five years’ incarceration, in addition to
a fine of $1,500.00. This appeal followed.3
In his sole issue on appeal, Hill contends that his “purported consent to
the blood draw at issue was not rendered knowingly, intelligently, or
voluntary, and was the product of duress and coercion on the part of law
enforcement such that all blood alcohol evidence must be suppressed from
evidence at [t]rial.” Hill’s Brief at 14. Hill raises a plethora of allegations with
____________________________________________
2 The order and opinion were dated April 17, 2018, but were not timestamped
and docketed until April 23, 2018.
3 On August 14, 2018, the trial court ordered Hill to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Hill filed a
concise statement on August 28, 2018. The following day, the trial court
issued a statement pursuant to Pa.R.A.P. 1925(a), indicating that it was
relying on its April 23, 2018, opinion.
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respect to his voluntariness argument, which we will attempt to summarize.
First, Hill claims he “was in custody at the time he purportedly consented to
the blood draw at issue, which [is a] factor [that] weighs against
voluntariness.” Id. at 16. Second, he states there were numerous coercive
tactics employed by Officer Maxwell and Patrolman Busch, which “strongly
suggest that [Hill]’s eventual consent to the blood draw at issue was not
voluntary:”4 (1) two police officers drove up his 50-foot driveway and entered
his garage at night without his invitation or permission;5 (2) the officers asked
questions that were “clearly tailored to elicit incriminating evidence, including
if [Hill] had been drinking and driving that day,”6 and one officer put his hand
on Hill’s vehicle without any permission or consent; (3) after Hill indicated that
he would not submit to any tests, Patrolman Busch attempted to persuade Hill
to change his mind and threatened to take him to jail if he refused a blood
draw;7 and (4) Officer Maxwell read the DL-26B form to Hill while he was still
in handcuffs and did not allow Hill to review the form or sign the document. 8
Third, Hill asserts “the fact that [he] knew of his right to refuse the warrantless
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4 Hill’s Brief at 16.
5 See id.
6 Id. at 17.
7 See id. at 18-21.
8 See id. at 21-22.
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blood draw actually weighs against voluntariness under these specific
circumstances.” Id. at 22 (emphasis removed). Fourth, Hill argues because
the record “does not contain any evidence or testimony relative to [his]
education and intelligence,” this factor would be neutral. Id. at 23. Fifth, Hill
states that “[b]ased on the degree and extent of [Hill]’s level of intoxication,
common sense suggests that there can be no credible dispute that [Hill] (or
anyone) would believe that no incriminating evidence would be found in his
blood,” and therefore, this factor weighs against voluntariness. Id. at 23-24.
Lastly, Hill contends “the record supports a finding that [he] was agitated by
the police entering h[is] property without his permission, and that he had no
intention of voluntarily cooperating with law enforcement with respect to the
DUI investigation at issue,” and such a factor “weighs against the
voluntariness of the consent at issue.” Id. at 24.
Our standard of review regarding suppression challenges is well-settled:
Our standard of review in addressing a challenge to the denial of
a suppression motion is limited to determining whether the
suppression court’s factual findings are supported by the record
and whether the legal conclusions drawn from those facts are
correct. Because the Commonwealth prevailed before the
suppression court, we may consider only the evidence of the
Commonwealth 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 suppression court’s factual findings are
supported by the record, we are bound by these findings and may
reverse only if the court’s legal conclusions are erroneous. The
suppression court’s legal conclusions are not binding on an
appellate court, whose duty it is to determine if the suppression
court properly applied the law to the facts. Thus, the [trial court’s]
conclusions of law [] are subject to our plenary review.
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Moreover, appellate courts are limited to reviewing only the
evidence presented at the suppression hearing when examining a
ruling on a pre-trial motion to suppress.
Commonwealth v. Shreffler, 201 A.3d 757, 763 (Pa. Super. 2018) (internal
citation omitted).
Moreover, we are guided by the following: Both the “Fourth Amendment
to the [United States] Constitution and Article I, Section 8 of [the
Pennsylvania] Constitution protect citizens from unreasonable searches and
seizures.” Commonwealth v. Evans, 153 A.3d 323, 327 (Pa. Super. 2016),
quoting Commonwealth v. McAdoo, 46 A.3d 781, 784 (Pa. Super. 2012),
appeal denied, 65 A.3d 413 (Pa. 2013). “The administration of a blood test,
performed by an agent of, or at the direction of the government, constitutes
a search under both the United States and Pennsylvania Constitutions.”
Evans, 153 A.3d at 327-328, quoting Commonwealth v. Kohl, 615 A.2d
308, 315 (Pa. 1992). “A search conducted without a warrant is deemed to be
unreasonable and therefore constitutionally impermissible, unless an
established exception applies.” Commonwealth v. Strickler, 757 A.2d 884,
888 (Pa. 2000). “One such exception is consent, voluntarily given.” Id. at
888-889 (citation omitted).
[A panel of this Court] set forth fundamental law with regard to
warrantless blood draws and consent as follows:
In Birchfield [v. North Dakota, U.S. , 136 S.Ct. 2160(2016)], the Supreme Court of the United States 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
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Amendment). Within one week of that decision, [the
Pennsylvania Department of Transportation] revised the
[standard consent form used by police, known as the] DL-
26 form[,] to remove the warnings mandated by 75
Pa.C.S.A. § 3804 that theretofore informed individuals
suspected of DUI that they would face enhanced criminal
penalties if they refused to submit to a blood test in order
to comply with Birchfield. [The] revised form [is] known
as Form DL-26B[.]
***
This Court subsequently held that [] enhanced criminal
penalties [imposed] for failure to consent to a blood draw
constituted an illegal sentence because of Birchfield. See
Commonwealth v. Giron, 2017 PA Super 23, 155 A.3d
635, 639 (Pa. Super. 2017).
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 onwards the DL-26B
form conforms to the revised statutory law.
Commonwealth v. Venable, 2018 PA Super 329, 200 A.3d 490,
495 (Pa. Super. 2018) (original brackets omitted).
Commonwealth v. Krenzel, __ A.3 __, __, 2019 PA Super 159, *6-7 (Pa.
Super. May 20, 2019).9
In analyzing whether consent is voluntary, we note:
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9 We note that in the present matter, the updated DL-26 form (“Form DL-
26B”) was used and as explained supra, Officer Maxwell did not inform Hill
that he would face enhanced penalties if he refused to submit. See Trial Court
Opinion, 4/23/2018, at unnumbered 8-9. Accordingly, the dictates of
Birchfield were complied with and Hill does not raise a Birchfield claim in
his appeal.
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In 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.
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.
Commonwealth v. Venable, 200 A.3d 490, 497 (Pa. Super. 2018).
Furthermore, 75 Pa.C.S. § 1547 is relevant to our analysis, which states,
in pertinent part:
(a) General rule.--Any person who drives, operates or is in
actual physical control of the movement of a vehicle in this
Commonwealth shall be deemed to have given consent to one or
more chemical tests of breath or blood for the purpose of
determining the alcoholic content of blood or the presence of a
controlled substance if a police officer has reasonable grounds to
believe the person to have been driving, operating or in actual
physical control of the movement of a vehicle in violation of
section [...] (relating to driving under influence of alcohol or
controlled substance)[.]
(b) Civil penalties for refusal.
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(1) If 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 but upon
notice by the police officer, the department shall suspend
the operating privilege of the person[.]
***
(2) It shall be the duty of the police officer to inform the
person that:
(i) the person’s operating privilege will be suspended
upon refusal to submit to chemical testing and the
person will be subject to a restoration fee of up to
$2,000; and
(ii) if the person refuses to submit to chemical breath
testing, upon conviction or plea for violating section
3802(a)(1), the person will be subject to the penalties
provided in section 3804(c) (relating to penalties).
75 Pa.C.S. § 1547 (emphasis in original). Moreover,
[o]ur Supreme Court examined Section 1547 in Commonwealth
v. Myers, 640 Pa. 653, 164 A.3d 1162 (Pa. 2017), a case wherein
the defendant who was arrested on suspected DUI charges was
unconscious in the hospital when a police officer read him consent
forms and then directed hospital personnel to conduct a blood
draw. The Myers Court determined:
[O]nce a police officer establishes reasonable grounds to
suspect that a motorist has committed a DUI offense, that
motorist “shall be deemed to have given consent to one or
more chemical tests of breath or blood for the purpose of
determining the alcoholic content of blood or the presence
of a controlled substance.” 75 Pa.C.S.A. § 1547(a).
Notwithstanding this provision, Subsection 1547(b)(1)
confers upon all individuals under arrest for DUI an explicit
statutory right to refuse chemical testing, the invocation of
which triggers specified consequences. See 75 Pa.C.S.A. §
1547(b)(1) (“If any person placed under arrest for DUI is
requested to submit to chemical testing and refuses to do
so, the testing shall not be conducted[.]”).
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Under this statutory scheme, a motorist placed under arrest
for DUI has a critical decision to make. The arrestee may
submit to a chemical test and provide the police with
evidence that may be used in a subsequent criminal
prosecution, or the arrestee may invoke the statutory right
to refuse testing, which: (i) results in a mandatory driver’s
license suspension under 75 Pa.C.S.A. § 1547(b)(1); (ii)
renders the fact of refusal admissible as evidence in a
subsequent DUI prosecution pursuant to 75 Pa.C.S.A. §
1547(e); and (iii) authorizes heightened criminal penalties
under 75 Pa.C.S.A. § 3804(c) if the arrestee later is
convicted of DUI. In very certain terms, [the Supreme]
Court has held that, in requesting a chemical test, the police
officer must inform the arrestee of the consequences of
refusal and notify the arrestee that there is no right to
consult with an attorney before making a decision. See
[Com., Dept. of Transp., Bureau of Traffic Safety v.]
O’Connell, 521 Pa. 242, 555 A.2d [873,] 877-878 (Pa.
1989). “An arrestee is entitled to this information so that
his choice to take a chemical test can be knowing and
conscious.” Id. at 878. The choice belongs to the arrestee,
not the police officer.
Myers, 164 A.3d at 1170-1171 (some case citations, original
brackets, and footnote omitted) (emphasis added). The Myers
Court further noted that 75 Pa.C.S.A. § 1547 expressly “states
that, ‘[i]t shall be the duty of the police officer’ to inform the
arrestee of the consequences of refusal.” Id. at 1175 n.12, citing
75 Pa.C.S.A. § 1547(b)(2). Our Supreme Court held that “[t]his
unambiguous statutory command leaves no doubt regarding the
obligations of the police officer requesting the arrestee’s
submission to a chemical test.” Id. (citation omitted).
Krenzel, __ A.3 __, __, 2019 PA Super 159, *11-13.
Here, the trial court found the following, in pertinent part:
In this Court’s opinion, Officers Maxwell and Busch had
probable cause to warrant the belief that the offense of driving
under the influence had been committed by [Hill]. Officers
Maxwell and Busch arrived at [Hill]’s residence within minutes of
receiving a radio call from Mifflin County Dispatch indicating [Hill]
had been driving while under the influence of alcohol. Shortly
after arriving at [Hill]’s residence, Officer Maxwell observed that
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the hood of [Hill]’s car was warm to the touch and that the vehicle
had recently been driven. Moore subsequently confirmed to
Patrolman Busch that she and [Hill] had arrived at their residence
less than ten minutes before the appearance of the officers.
Finally, Officer Maxwell’s testimony indicated that [Hill] was
exhibiting clear signs of alcohol intoxication. Therefore, given the
totality of the circumstances, the officers had probable cause to
believe [Hill] had been driving under the influence.
Moreover, it is this Court’s opinion that exigency existed to
justify the warrantless entry of Officers Maxwell and Busch into
[Hill]’s garage. First, [p]robable cause existed to warrant the
belief that [Hill] had in fact committed the offense of driving under
the influence. Second, given the potential danger driving under
the influence poses to other motorists and pedestrians this Court
considers the gravity of such an offense to be high. Third, it was
clear to the responding officers that [Hill] was inside the premises
as he was standing in his garage with the door open. Fourth, the
officers peaceably made entry by first consulting with Moore
outside the residence and then entering the garage. Finally, given
that the evidence necessary to establish a defendant’s guilt in a
DUI related offense is a blood alcohol content test, there is a high
likelihood that the evidence of [Hill]’s offense would have been
destroyed in the time that it would have taken for Officers Maxwell
and Busch to obtain a warrant.
In addition to the probable cause to warrant the belief that
[Hill] had driven while under the influence, probable cause also
existed to believe a potential domestic dispute was occurring.
During the 911 calls to Mifflin County Dispatch, statements were
made by Moore to indicate [Hill] was acting belligerently towards
her. Further, on the Mifflin County Dispatch recording, [Hill] could
be heard in the background of the call behaving aggressively and
shouting profanities at Moore. When asked by Mifflin County
Dispatch if a police response was necessary, Moore did not
specifically refuse the offer, indicating only that it didn’t matter.
Given the serious threat domestic violence incidents pose, and the
potential risk of harm to Moore’s safety and well-being, it is this
Court’s opinion that Officers Maxwell and Busch had probable
cause to believe a potential domestic dispute was occurring and
that exigent circumstances existed to ensure the safety of
Margaret Moore.
…
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[Hill] argues that due to his elevated blood alcohol
concentration, he was unable to give knowing, intelligent, and
voluntary consent to the blood draw at Geisinger-Lewistown
Hospital. However, pursuant to the Pennsylvania Crimes Code, a
[d]efendant’s voluntary intoxication or voluntary drugged
condition is not a defense to a criminal charge. 18 Pa.C.S. § 308.
Moreover, Pennsylvania Courts have held that “a driver arrested
for driving under the influence of intoxicating liquor may not avoid
the consequences of his refusal to submit to a breathalyzer test
by claiming that he was incapable of making a knowing and
conscious refusal by reason of his intoxication.” Commonwealth
v. Walthour, 7 Phila. 467, 1982 Phila. Cty. Rptr. LEXIS 82 (Pa.
C.P., 1982). The Court in Walthour opined that to hold otherwise
would lead to the absurd result wherein the greater the degree of
intoxication of a driver, the lesser his degree of accountability. Id.
at 474.
This Court finds this rationale used in Walthour compelling
and applicable to the facts of the current case. Here, Officer
Maxwell read the warnings contained in the DL-26B form to [Hill]
fully and in an appropriate manner and [Hill] subsequently
consented to the blood draw. To allow [Hill] to claim that his
intoxication precluded his consent being made knowingly,
voluntarily, and intelligently would go against the legislative
purpose of 75 Pa.C.S. § 1547.
Further, [Hill]’s testimony indicated a lucid and coherent
recollection of the remainder of his interactions with Officers
Maxwell and Busch on the night in question. [Hill] was able to
recall the entirety of his interactions with the officers in his garage
including his questions to the officers, his refusal of field sobriety
tests, and the alleged coercive statements made by the officers.
Thus, [Hill] would have this Court believe that his intoxication
substantially affected him only during the short window of time
during which Officer Maxwell read him the chemical testing
warnings from the DL-26B form at Geisinger-Lewistown Hospital.
Given [Hill]’s cogent testimony as to the remainder of the night,
this Court finds such a contention difficult to accept.
…
This Court must conclude that [Hill] was aware of his right
to refuse the chemical test as he was read the warnings on the
DL-26B form prior to consenting to the blood draw. Thus [Hill]
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had been explicitly informed of his right to refuse. Moreover, [Hill]
refused to submit to field sobriety tests earlier in the evening
which indicates to this Court an awareness of his right to refuse
the officers’ tests. Finally, the only evidence presented to
substantiate [Hill]’s claim that his consent was involuntary was his
testimony that coercive statements were made by the arresting
officers in his garage. Therefore, this Court can only weigh the
credibility of [Hill]’s testimony against the testimony of Officer
Maxwell. Given [Hill]’s own statements as to his degree of
intoxication, this Court finds his testimony to be less credible than
the uncontroverted testimony of Officer Maxwell who denied
making any coercive statements to [Hill] and denied having
knowledge of any coercive statements made by Patrolman Busch
to [Hill]. Therefore, this Court cannot accept that [Hill]’s decision
to consent to the blood draw at Geisinger-Lewistown Hospital was
accomplished through duress or coercion.
…
[T]his Court is not persuaded by [Hill]’s argument relating to the
involuntariness of his consent based on Officer Maxwell’s reading
of the Penn-Dot DL-26B form and his lack of signature on said
form. On June 23, 2016, the United States Supreme Court
decided Birchfield v. North Dakota, 136 S. Ct. 2160 (2016),
which held that “a state may not impose criminal penalties on the
refusal to submit to [a warrantless blood] test...”
Commonwealth v. Evans, 153 A.3d 323, 331 (Pa. Super. 2016).
Prior to the Birchfield ruling, the PennDOT Form DL-26 advised
motorists that if they failed to consent to a blood draw, they would
be subject to enhanced penalties under 75 Pa.C.S.A. §3804(c).
The Evans Court found that the old form DL-26 warning was
partially inaccurate, as it threatened enhanced penalties that
were, in light of Birchfield, no longer appropriate. Therefore, in
response to the Birchfield decision, Pennsylvania immediately
amended the PennDOT Form DL-26B to state, inter alia, the
following:
1. You are under arrest for driving under the influence of
alcohol or a controlled substance in violation of Section 3802
of the Vehicle Code.
2. I am requesting that you submit to a chemical test of
blood.
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3. If you refuse to submit to the blood test, your operating
privilege will be suspended for at least 12 months. If you
previously refused a chemical test or were previously
convicted of driving under the influence, you will be
suspended for up to 18 months.
4. You have no right to speak with an attorney or anyone
else before deciding whether to submit to testing. If you
request to speak with an attorney or anyone else after being
provided these warnings or you remain silent when asked to
submit to a blood test, you will have refused the test.
The amended form eliminated any reference to the
enhanced criminal penalties imposed by Section 3804(c).
Instead, the amended DL-26B form warns motorists that a refusal
to submit to a blood test will result in a driver’s license suspension.
…
This Court finds the consequence of [Hill]’s refusal, which
entailed only the potential suspension of his operating privilege,
was expressly stated in the DL-26B form, and that [Hill] was
therefore capable of making a knowing and conscious decision.
After being read the warning by Officer Maxwell, [Hill] consented
to the blood draw. Moreover, at no time did Officer Maxwell
indicate to [Hill] that he would face enhanced criminal penalties
as outlined in 75 Pa.C.S.A. §3804(c) if the blood draw was
refused. The lack of [Hill]’s signature on the DL-26B form alone
does not persuade this Court that his consent was involuntarily
given. Therefore, there is no evidence to suggest that [Hill]’s
consent was the product of duress, coercion, or an overborn will.
Based on the totality of the circumstances, this Court finds [Hill]’s
consent to the requested blood draw was made knowingly,
intelligently, and voluntarily.
Trial Court Opinion, 4/23/2018, at 3-10. We agree with the Court’s analysis.
First, to the extent Hill argues the police conducted the blood draw while
he was in custody, we “consider custodial status, but it is not dispositive.”
Krenzel, __ A.3 __, __, 2019 PA Super 159, *9. Moreover, it bears reiterating
that the Pennsylvania Supreme Court has previously stated: “In very certain
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terms, this Court has held that, in requesting a chemical test, the police officer
must inform the arrestee of the consequences of refusal and notify the
arrestee that there is no right to consult with an attorney before making a
decision.” Myers, 164 A.3d at 1171. See also Commonwealth,
Department of Transportation, Bureau of Traffic Safety v. O'Connell,
555 A.2d 873 (Pa. 1989) (officer’s warnings are the duty to inform drivers
that they lack the right to speak with an attorney prior to deciding whether to
consent to chemical blood draw).
Second, with respect to Hill’s assertion that the police officers employed
coercive tactics which caused Hill’s consent to be involuntary, we note, as
provided above, the trial court found the police officers possessed probable
cause to believe Hill had been driving under the influence based on the totality
of the circumstances, including Moore’s statements to police and that Hill was
exhibiting signs of intoxication, as well as evidence of both exigent
circumstances necessitating a warrantless entry into the garage and a
domestic dispute involving Hill and Moore.10 See Trial Court Opinion,
4/23/2018, at unnumbered 3-4. Accordingly, the officers were lawfully
permitted to be on his property despite the fact that he did not invite them or
permit them to be there. See Commonwealth v. Dommel, 885 A.2d 998(Pa. Super. 2005) (combined circumstances created an exigency which
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10 It merits mention that on appeal, Hill does not raise a suppression
argument, challenging the court’s finding of probable cause.
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justified the warrantless entry into a residence to arrest a defendant suspected
of committing a DUI offense), appeal denied, 920 A.2d 831 (Pa. 2007);
Commonwealth v. Fickes, 969 A.2d 1251 (Pa. Super. 2009) (warrantless
entry into garage was permitted where police officer, who was in fresh pursuit,
possessed probable cause to believe defendant had been driving under the
influence, and blood alcohol content (“BAC”) evidence would likely be lost by
time a warrant was procured).
Furthermore, with regard to Hill’s assertion that the officer threatened
to take him to jail if he refused the blood test, the trial court found Hill’s
testimony to be “less credible than the uncontroverted testimony of Officer
Maxwell who denied making any coercive statements to [Hill] and denied
having knowledge of any coercive statements made by Patrolman Busch” to
Hill. Trial Court Opinion, 4/23/2018, at unnumbered 7. We are bound by
these credibility determinations, which are supported by the record. See
Shreffler, 201 A.3d at 763.11
Additionally, to the extent Hill argues Officer Maxwell read the DL-26B
form to him while he was still in handcuffs and did not allow Hill to review the
form or sign the document, we note the following. The record does not
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11 Moreover, to the extent Hill alleges Patrolman Maxwell asked Hill questions
that were tailored to elicit incriminating evidence, including whether he had
been drinking, and put his hands on Hill’s car without permission to do so, we
find these arguments to be meritless as Hill has failed to persuade us
otherwise with these bald assertions.
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indicate whether Hill was handcuffed at the time his blood was drawn though
he did testify that after the officers arrested him, they placed his hands behind
his back and handcuffed him prior to transporting him to the lab. See N.T.,
4/12/2018, at 43. Nevertheless, without more information, we find it unlikely
that one’s blood could be drawn with his or her arms behind his or her back.
Moreover, based on the totality of the circumstances, we agree with the trial
court the “lack of [Hill]’s signature on the DL-26B form alone does not
persuade this Court that his consent was involuntarily given.” Trial Court
Opinion, 4/23/2018, at unnumbered 10. Officer Maxwell testified that
generally, he follows the same procedure every time when asking for an
individual’s consent to a blood draw test, and that after he reads the DL-26B
form to the individual and they consent, he does not “normally” get them to
sign. N.T., 4/12/2018, at 33. He also stated that if the individual refuses to
complete the test, he does have the person sign the form. Id. at 32. On the
the DL-26B form, Officer Maxwell signed the line indicating that he had done
the following: “I certify that I have READ the above warnings to the operator
regarding the suspension of his/her operating privilege and gave the operator
an opportunity to submit to blood test.” Commonwealth’s Trial Exhibit #2,
4/12/2018, DL-26B Form at Side 1. Accordingly, we conclude that the officers
did not utilize such tactics that were coercive and caused Hill’s consent to be
involuntary.
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Third, with regard to Hill’s complaint that he was aware of his right to
refuse the warrantless blood draw and this factor goes against an indication
of voluntariness, he points to the court’s statement that Hill “would not submit
to any tests.” Trial Court Opinion, 4/23/2018, at unnumbered 2. In reviewing
the statement of facts in toto, it is evident Hill misconstrues the court’s
recitation of the incident. The court was referring to the field sobriety tests
and stating that Hill would not submit to any field sobriety tests. See id.
Accordingly, Hill’s argument has no merit and furthermore, such an argument
regarding prior knowledge of the right to refuse does not demonstrate that his
consent was involuntary.
Fourth, Hill points out the record does not contain any evidence
pertaining to his education and intelligence. While we agree the record lacks
any information regarding this factor, a review reveals there was no evidence
suggesting Hill suffered any mental limitation or had a language barrier, which
would impair his comprehension of the language provided in the DL-26B form
rendering him incapable of providing voluntary consent to the blood draw.
Fifth, Hill alleges that based on his level of intoxication, he would believe
that no incriminating evidence would be found in his blood and therefore, his
consent was not voluntary. We agree with the trial court that voluntary
intoxication is not “a defense to a criminal charge[.]” 18 Pa.C.S. § 308. Any
subjective belief that no incriminating evidence would be found in one’s blood
due to voluntary intoxication does not weigh heavily against voluntariness.
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Furthermore, the trial court found Hill presented a “lucid and coherent
recollection” of the events in question, which weighs against his claim that he
was too drunk to consent. Trial Court Opinion, 4/23/2018, at unnumbered 8.
Lastly, Hill complains that his own agitation at the time of the incident
demonstrates he had no intention of voluntarily cooperating with the officers.
Other than a very bald assertion, Hill presents no case law to support his
contention. As such, we need not address this claim further.
Based on our review of the record in the present case, we conclude that
the totality of the circumstances, clearly weigh in favor of finding that Hill
provided knowing and voluntary consent to the blood draw. The only factor
that weighs against a finding of voluntariness is that Hill was in custody, but
there is no credible evidence that his consent to the blood draw was the
product of duress, threats, or coercion on the part of the police officers. Hill
agreed to submit to the test and underwent the blood draw. Therefore, we
conclude no reasonable fact-finder could determine Hill’s consent was
involuntary. Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judge Pellegrini joins this memorandum.
Judge Nichols concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/15/2019
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