Com. v. Cubilete, O.

J-S56035-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
OSVALDO GARCIA CUBILETE :
:
Appellant : No. 1248 EDA 2020
Appeal from the Judgment of Sentence Entered March 4, 2020
In the Court of Common Pleas of Lehigh County Criminal Division at
No(s): CP-39-CR-0002560-2019
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: DECEMBER 31, 2020
The Lehigh County Court of Common Pleas (trial court) found Osvaldo
Garcia Cubilete (Cubilete) guilty of driving under the influence (DUI) of a
Schedule I controlled substance (75 Pa.C.S. § 3802(d)(1)(i)); possession of a
small amount of marijuana (35 P.S. § 780-113(a)(31)(i)); driving with a
suspended license (75 Pa.C.S. § 1543(a)); and driving with improper rear
lighting equipment (75 Pa.C.S. § 4303(b)).1
Cubilete appeals the trial court’s judgment of sentence challenging the
sufficiency of the evidence on the suspended license count and the application
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*
Retired Senior Judge assigned to the Superior Court.
1
He was acquitted of one count of driving under the influence – impaired
ability (75 Pa.C.S. § 3802(d)(2)).
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of a sentence enhancement on the DUI count. He further maintains that the
trial court erred in denying his motion to suppress the results of a blood test,
asserting that his consent to the testing was involuntary. For the reasons that
follow, we vacate the conviction of driving with a suspended license and
remand the case as to the DUI count for a resentencing. The judgment of
sentence is otherwise affirmed.
I.
In the early morning hours of March 14, 2019, patrol officers pulled
Cubilete over due to inoperable rear lights on his vehicle. During the stop,
the officer smelled the odor of marijuana coming from inside Cubilete’s vehicle
and his person. Cubilete, then aged 22, admitted that he had ingested
marijuana three to four hours earlier and that he was in possession of a small
amount of the substance. After running Cubilete’s plates, the police learned
that there was an outstanding warrant for his arrest and that his driver’s
license had been suspended.
The officers reported that Cubilete appeared to have glassy, bloodshot
eyes, and that his overall demeanor suggested some level of impairment from
a controlled substance. The officers noted that Cubilete seemed “nervous”
but they also described him as fully cooperative and forthright at all times.
Cubilete was arrested and transported to a nearby police department,
where he was given a series of field sobriety tests. These exercises were not
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performed to the officers’ satisfaction so they sought to do further testing to
gauge whether Cubilete was impaired.
At a booking center, Cubilete was presented with an “Implied Consent
Form” authorizing a blood draw. Lehigh County’s version of the form reads:
According to the provisions of section 1547 of the Vehicle Code of
the Commonwealth of Pennsylvania which deals with implied
consent, any person who drives, or is in actual physical control of
the movement of a vehicle in the Commonwealth, and who is
placed under arrest for driving under the influence of alcohol
and/or a controlled substance, is required to submit to one or
more chemical tests of their blood for the purpose of determining
the alcohol/controlled substance concentration, if they are
requested to do so by a police officer.
If you refuse to submit to a blood test when requested, notification
will be sent to the department of transportation, and your
operating privileges will be suspended for a period of at least one
year.
Any warnings previously given to you concerning your right to
remain silent and your right to consult with an attorney do not
apply to the taking of this chemical testing, and do not give you
the right to refuse this test. You have no legal right to consult
with an attorney, physician, or anyone else, nor have anyone
present for the purpose of this testing. Any request to speak with
an attorney or anyone else after being provided with these
warnings will constitute a refusal.
A refusal to submit to chemical testing will result in a suspension
of your operating privilege, and you will be subject to a license
restoration fee of up to $2000.00.
With this in mind, I am asking you to submit to a blood test to
determine your alcohol/controlled substance concentration. Will
you submit to this test, providing adequate samples of blood as
requested?
1. I have been advised that I have been arrested for driving under
the influence of alcohol and/or a controlled substance.
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2. I have been requested to submit to a blood test to determine
my alcohol/controlled substance concentration.
3. I have been advised that if I refuse to provide blood sample(s)
as requested, my operating privileges will be suspended for a
period of at least one year.
4. I have been advised that my right to remain silent and to
consult with an attorney do not apply to the taking of the blood
sample.
Commonwealth’s Trial Exhibit C-4.
Cubilete was given the chance to read the form himself before it was
read to him by the police. After telling the officers that he understood it and
had no questions, he then signed the form. His blood was drawn and lab
testing revealed it to contain trace amounts of tetrahydrocannabinol (thc) and
marijuana metabolites.
Cubilete moved to suppress the blood test results from the evidence at
trial, arguing that the blood draw was involuntary, making the testing the fruit
of an illegal search. In his motion, Cubilete asserted that the language in the
implied consent form given to him by the police had misled him into believing
he had no right to refuse blood testing. Finding that there were no unduly
coercive circumstances that could have rendered Cubilete’s consent
involuntary, the trial court denied the motion.
At the following bench trial, one of the central factual disputes was
whether Cubilete had notice that his driving privileges had been suspended –
a necessary element of the offense of driving with a suspended license. To
prove that Cubilete had notice of the suspension at the time he was stopped,
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the Commonwealth introduced into evidence a certified copy of Cubilete’s
driver history taken from PennDOT’s2 information system.
This document was produced on October 30, 2019, months after the
events in question occurred, but it reflected that notice of a license suspension
had been mailed on June 21, 2018. This suspension period was “3 month(s)
effective Jul[y] 26, 2018.” See Commonwealth’s Trial Exhibit C-3. Cubilete’s
driving privileges were not restored until August 20, 2019, months after the
subject traffic stop took place.3 There is no indication on the document that
the notice was returned as undeliverable. See id.
At the conclusion of the trial, Cubilete was found guilty of the offenses
enumerated above. As to the DUI count, he was sentenced to 48 months of
intermediate punishment (house arrest), with 135 days of electronic
monitoring, and this term exceeded the maximum sentence for a first-time
DUI offender. Cubilete had no prior convictions for DUI, but he was sentenced
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2
The Pennsylvania Department of Transportation.
3
Even though the suspension period elapsed three months after it went into
effect, Cubilete could be found guilty of driving with a suspended license
beyond that period by operating a motor vehicle before his driving privileges
had been restored. See 75 Pa.C.S. § 1543(a).
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as a second-time offender because of his acceptance of Accelerated
Rehabilitated Disposition (ARD)4 in an earlier DUI case.5
It should be noted that the trial court imposed sentence on the DUI
count with reluctance, having described the amount of marijuana in Cubilete’s
system as “not that much” and too little to have impaired his ability to drive.
See Trial Transcript, 3/4/2020, at pp. 90-92. Yet the trial court reasoned that
since the DUI statute criminalizes even trace amounts of marijuana or its
metabolites in a motorist’s system, Cubilete’s blood test had proven his guilt
beyond a reasonable doubt. See id.
Cubilete timely filed a post-sentence motion on March 6, 2020, and then
an amended version on May 22, 2020. The amended motion was denied by
the trial court in an order and written opinion. See Order and Opinion,
5/22/2020. Cubilete filed a timely appeal and both Cubilete and the trial court
complied with Pa.R.A.P. 1925. In his brief, Cubilete now raises three issues
for our consideration:
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4
ARD is a pretrial disposition that is not equivalent to a criminal conviction.
See generally Commonwealth v. Lutz, 495 A.2d 928, 931-32 (Pa. 1985);
75 Pa.C.S. § 1552. The purpose of ARD is to allow a defendant to complete a
rehabilitation program in exchange for the dismissal of pending charges. See
id.
5
The maximum sentence for a first-time DUI offender is six months. See 42
75 Pa.C.S. § 3803(b)(2); Pa.C.S. § 9754(a) (the maximum length of a
probationary sentence may not exceed the maximum prison term for a given
offense).
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i. Did the trial court err by not suppressing the warrantless,
nonconsensual blood draw obtained in violation of Mr. Cubilete’s
rights under the Fourth and Fourteenth Amendments of the United
States Constitution; Article I, Section 8 of the Pennsylvania
Constitution; and/or 75 Pa.C.S. § 1547?
ii. Was the evidence adduced at trial insufficient to prove beyond
a reasonable doubt that Mr. Cubilete had actual notice of his
license suspension and, therefore, was insufficient to sustain his
conviction for [d]riving while operating privilege is suspended or
revoked, in violation of 75 Pa.C.S. § 1543(a)?
iii. Did the trial court err in enhancing Mr. Cubilete’s sentence in
Count 1, driving under the influence of alcohol or a controlled
substance (Controlled substances, Schedule I), based on his prior
acceptance of Accelerated Rehabilitative Disposition (“ARD”), in
violation of Mr. Cubilete’s rights under the Due Process Clause?
Cubilete’s Brief at 6 (questions renumbered, answers omitted).
II.
Cubilete’s first ground on appeal is that the police illegally searched him
by coercing his consent to a blood draw, making the blood test inadmissible
and requiring a new trial on the DUI count to remedy the violation. His central
challenge is that his consent was involuntary because Lehigh County’s Implied
Consent Form (the Form) misadvised him that he was “required” to submit to
testing, suggesting that had no right to refuse. The Commonwealth responds
that Cubilete’s consent was valid because the Form made refusal and
avoidance of blood testing a clear option.
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On review,6 we find that the trial court did not err in denying Cubilete’s
suppression motion because, when taken as a whole, the Form reasonably
conveyed that testing could be refused and thereby avoided.
A.
The Fourth Amendment to the United States Constitution and Article I,
Section 8 of the Pennsylvania Constitution prohibit warrantless searches
unless it can be shown that a recognized exception applies, including voluntary
consent to the search. See Commonwealth v. Strickler, 757 A.2d 884, 888
(Pa. 2000). In Pennsylvania, blood draws are considered to be searches, and
all motorists are deemed to have consented to them under certain conditions.
See 75 Pa.C.S. § 1547(a); Commonwealth v. Kohl, 615 A.2d 308, 315 (Pa.
1992).7
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6
The “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.” Commonwealth v. Krenzel, 209 A.3d
1024, 1027 (Pa. Super. 2019) (quoting Commonwealth v. Shreffler, 201
A.3d 757, 763 (Pa. Super. 2018)).
7
The implied consent statute provides as follows:
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
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To justify a demand for a blood draw, an officer must have “reasonable
grounds to believe the person to have been driving, operating or in actual
physical control of the movement of a vehicle” while committing an
enumerated offense, including driving with a suspended license and driving
while under the influence of a controlled substance. 75 Pa.C.S. § 1547(a).
Although a motorist’s consent to the requested testing is presumed, the
“testing shall not be conducted” if implied consent is expressly withdrawn:
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[.]
Id. at § 1547(b)(1) (emphasis added).
The Commonwealth has the burden of proving that consent to a blood
draw has been voluntarily given. Commonwealth v. Smith, 77 A.3d 562,
573 (Pa. 2013). Implied consent, which exists by operation of law, is not
equivalent to proof of voluntary consent. Before a motorist’s consent to a
blood draw can be knowing and voluntary, the police must inform him of his
above-mentioned right to refuse testing, and that a refusal results in
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section 1543(b)(1.1) (relating to driving while operating privilege
is suspended or revoked), 3802 (relating to driving under
influence of alcohol or controlled substance) or 3808(a)(2)
(relating to illegally operating a motor vehicle not equipped with
ignition interlock).
75 Pa.C.S. § 1547(a).
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penalties. See 75 Pa.C.S. § 1547(b.1)(2) (imposing on police the duty to
inform a detained motorist that they may refuse testing and the penalties for
refusal); see also Commonwealth v. Myers, 164 A.3d 1162, 1181-82 (Pa.
2017) (holding that blood draw from an unconscious motorist was involuntary
because police never gave him the chance to exercise his right to refuse).
When evaluating the validity of consent, courts apply an objective
standard of what a reasonable person would have understood from an
exchange with police, rejecting any subjective understanding a defendant may
have had. See Commonwealth v. Krenzel, 209 A.3d 1024, 1028-29 (Pa.
Super. 2019) (quoting Commonwealth v. Venable, 200 A.3d 490, 495 (Pa.
Super. 2018)). A non-exhaustive list of relevant factors for the voluntariness
of consent includes:
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. Gillespie, 821 A.2d 1221, 1225 (Pa. 2003) (quoting
Commonwealth v. Cleckley, 738 A.2d 427, 433 n.7 (Pa. 1999)).
B.
Here, no factors signaling involuntary consent are evident in the record.
A motorist must submit to testing when an officer suspects their impairment
and requests their compliance with the law. See 75 Pa.C.S. § 1547(a). It is
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up to the motorist whether to comply with the testing or face the
consequences. In this respect, the implied consent statute is like any other
law that presents the choice of compliance on the one hand and sanction for
non-compliance on the other. These penalties for refusal of a mandated action
indeed make blood testing “required” just as the Form states.8
The Form could only have been misleading, as Cubilete argues, if it did
not communicate to him that refusal was a possibility. It did, so it was not.
The Form provides that a person arrested on suspicion of DUI “is required to
submit” to testing “if they are requested to do so by a police officer.” See
Commonwealth’s Trial Exhibit C-4. While the Form lacks the statute’s
pronouncement that when testing is refused, no testing shall be conducted,
this did not deprive Cubilete of the ability to make an informed decision.
Repeatedly and in compliance with Section 1547, the Form refers to the
right to refuse testing and the penalties for refusing it. Cubilete’s contention
that the Form frames blood testing as absolutely mandatory is undermined by
these numerous occasions in which the Form makes “refusal” of the “request”
a viable alternative to blood testing:
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8
Consistent with our interpretation of the language in the Form and Section
1547, Black’s Law Dictionary defines a “requirement” primarily as “1.
Something that must be done because of a law or rule; something legally
imposed, called for, or demanded; an imperative command. 2. Something
that someone needs or asks for[.]” REQUIREMENT, Black’s Law Dictionary
(11th Ed. 2019).
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If you refuse to submit to a blood test when requested,
notification will be sent to the Department of Transportation, and
your operating privileges will be suspended for a period of at least
one year.
****
A refusal to submit to chemical testing will result in a
suspension of your operating privilege, and you will be subject to
a license restoration fee of up to $2000.00.
With this in mind, I am asking you to submit to a blood test to
determine your alcohol/controlled substance concentration. Will
you submit to this test, providing adequate samples of blood as
requested?
1. I have been advised that I have been arrested for driving under
the influence of alcohol and/or a controlled substance.
2. I have been requested to submit to a blood test to determine
my alcohol/controlled substance concentration.
3. I have been advised that if I refuse to provide blood sample(s)
as requested, my operating privileges will be suspended for a
period of at least one year.
4. I have been advised that my right to remain silent and to
consult with an attorney do not apply to the taking of the blood
sample.
Id. (emphases added).
Accordingly, the Form sufficiently conveys the right of refusal in a way
that is not coercive or misleading. By informing Cubilete of his rights through
verbatim recitation of the Form, the police abided by their duty to advise him
that he could refuse to be tested, along with what refusal would entail.
Nothing about the arresting officers’ conduct toward Cubilete was threatening
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or coercive beyond the necessary conditions incident to any lawful arrest. The
trial court’s denial of Cubilete’s suppression motion is affirmed. 9
III.
Cubilete next contends that his conviction for driving with a suspended
license cannot stand because the Commonwealth’s evidence of actual notice
of the suspension was legally insufficient.10 We find merit in this claim.
A.
The Commonwealth has the burden of proving this offense by showing
that the defendant drove a motor vehicle on a public road while his operating
privileges were suspended or suspended and then not yet restored. See 75
Pa.C.S. § 1543(a). Moreover, in Commonwealth v. Kane, 333 A.2d 925,
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9
Cubilete’s sub-argument is that the Form is misleading because it confuses
the right to refuse testing with the separate warning that requesting counsel
is considered a refusal. See Commonwealth Dept. of Transportation v.
O'Connell, 555 A.2d 873, 878 (Pa. 1989). The Form states, “Any warnings
previously given to you concerning your right to remain silent and your right
to consult with an attorney do not apply to the taking of this chemical testing,
and do not give you the right to refuse this test.” We decline to find this
language misleading or coercive because it is an accurate description of a
motorist’s obligations under 75 Pa.C.S. § 1547. The right to counsel and the
freedom from self-incrimination do not nullify a motorist’s implied consent to
a blood draw or allow a motorist to avoid the penalties for refusal.
10
We review the sufficiency of the evidence under a de novo standard, viewing
the evidence admitted at trial in the light most favorable to the verdict winner.
See Commonwealth v. Harden, 103 A.3d 107, 111 (Pa. Super. 2014). The
Commonwealth may carry its burden of proving each element of a crime
beyond a reasonable doubt by wholly circumstantial evidence, and on appeal,
all reasonable inferences drawn from the evidence must be made in favor of
the verdict winner. See id.
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927 (Pa. 1975), our Supreme Court added the element of actual notice of the
suspension at the time of the vehicle’s improper operation. See also
Commonwealth v. Crockford, 660 A.2d 1326, 1329 (Pa. Super. 1995)
(explaining that actual notice is “a judicially created element, designed to
protect a defendant’s due process rights.”).
“Notice is a question of fact, and anything that proves knowledge or is
legal evidence showing knowledge exists can be sufficient.” Crockford, 660
A.2d at 1330. However, simply proving that notice was mailed is not alone
sufficient to prove that it was ever received. See Kane, 333 A.2d, at 927.
“Mailed letters do go astray for a variety of reasons. Criminal conviction
requires proof beyond a reasonable doubt and that standard is not satisfied
when one of the elements which must be proven is actual notice, and the only
evidence presented is that a notice was mailed.” Id.
In addition to evidence that notice of suspension was posted, a
factfinder’s conclusion that a defendant had actual notice must depend on
some other factor, including, but not limited to:
evidence that the defendant was verbally or in writing apprised of
the license suspension during the trial or a plea, statements by
the accused indicating knowledge that he or she was driving
during the period in which his or her license had been suspended,
evidence that PennDOT sent by mail the notice of the suspension
to appellant’s current address, evidence that PennDOT’s notice of
suspension was not returned as undeliverable, attempts by the
accused to avoid detection or a citation, and any other conduct
demonstrating circumstantially or directly appellant’s knowledge
of the suspension or awareness of guilt.
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Commonwealth v. Zimmick, 653 A.2d 1217, 1221 (Pa. 1995).11
B.
In this case, the Commonwealth sought to prove the actual notice
element of driving with a suspended license by introducing a certified driver
history reflecting that notice was mailed. As held in Kane, some additional
evidence of the element was needed to sustain a conviction for that offense.
The Commonwealth attempted to carry that burden of proof in two
ways. First, the Commonwealth argued that the trial court could infer that
Cubilete’s apparent nervousness during the traffic stop was caused by his
knowledge of the suspension. Second, the Commonwealth argued that the
trial court could infer that the mailed notice arrived because the certified driver
history did not reflect that it was returned to PennDOT as undeliverable. The
trial court erred as a matter of law in drawing both of those inferences.
1.
Under the circumstances of his detention, Cubilete seeming nervous had
no bearing on whether he had knowledge that his license was suspended. The
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11
In Commonwealth v. Crockford, 660 A.2d 1326 (Pa. Super. 1995), we
held that in order for a defendant to avail himself of the right to challenge the
sufficiency of a mailed notice of a license suspension, he must have presented
his driver’s license to the police within 15 days of the initial traffic stop. By
doing so, the defendant has offered proof that his license had not been
suspended. Here, Cubilete presented his license to the officer who stopped
him, thereby shifting the burden to the Commonwealth of introducing some
additional evidence of actual notice.
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arresting officers described Cubilete as being fully cooperative throughout
their encounter, and after turning over his driver’s license, he admitted to the
officers that he had possessed and ingested marijuana. He did not admit to
or discuss a license suspension.
Importantly, the officers also testified that it was normal for a motorist
to get nervous when stopped by police even for minor traffic violations, which
would include the initial basis for Cubilete’s stop – improper rear lighting on
his vehicle. See Trial Transcript, 3/4/2020, at p. 29. When they nevertheless
cited Cubilete’s nervousness as grounds for their suspicion, it concerned a
possible DUI, not a license suspension. See id. at p. 19.
In this situation, there is no logical connection between Cubilete’s
observed conduct and his knowledge of his driving status. A natural reaction
to (a) being pulled over by police for a traffic violation, (b) admitting to using
and possessing a controlled substance, (c) and facing imminent arrest by the
police, is not proof of an additional, unrelated offense of driving with a
suspended license.12
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12
Generally, evidence is only relevant as to a “fact of consequence” if it “has
any tendency to make [the] fact more or less probable than it would be
without the evidence.” Pa.R.E. 401(a). Appearing nervous during a traffic
stop and while confessing to controlled substance offense to police does not
have any tendency to make it more probable than not that Cubilete knew his
license was suspended. Thus, his evident nervousness was not evidence of
actual notice of the suspension.
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Cubilete never indicated by his conduct or his words that he knew of the
suspension, and even the arresting officers did not testify to that effect.
Inferring an awareness of a suspended license was speculative, and the trial
court, therefore, erred in ruling that Cubilete’s nervous demeanor was
relevant in consideration of the actual notice element. See Commonwealth
v. Reppert, 814 A.2d 1196, 1206 (Pa. Super. 2002) (“A police officer’s
observation of a citizen’s nervous demeanor and furtive movements, without
more, establishes nothing more than a “hunch,” employing speculation about
the citizen’s motive in the place of fact.”).
2.
Cubilete’s actual notice of a license suspension is also not proven by the
fact that his driver history lacked a notation indicating that the suspension
notice was undeliverable. For non-delivery of the suspension notice to raise
an inference that it arrived at Cubilete’s residence, it would need to be known
that PennDOT sent the notice to that location. See Kane, 333 A.2d at 927
(holding that mailed notice alone does not prove actual notice of a
suspension). We have no such evidence before us.
The driving history only provides that notice was mailed on June 21,
2018.13 Accordingly, the Commonwealth proved, at most, that PennDOT
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13
The address attributed to Cubilete on the certified driver history is 5325
Main Street, Whitehall, PA 18052. See Commonwealth’s Trial Exhibit C-3.
The toxicology report created days after Cubilete’s arrest, on March 17, 2019,
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posted a suspension notice to an unidentified location and never had it
returned back. Because the record contains no additional evidence that it was
sent, much less delivered, to where Cubilete lived at the time of mailing, our
Supreme Court’s decision in Kane compels us to vacate Cubilete’s conviction
of driving with a suspended license.
IV.
With respect to the enhancement claim, we remand the case for
resentencing. As the Commonwealth has conceded in its brief, see
Commonwealth’s Brief, at 17, our recent opinion in Commonwealth v.
Chichkin, 232 A.3d 959, 971-72 (Pa. Super. 2020), prohibits enhancement
of a sentence for DUI based solely on a motorist’s earlier acceptance of an
ARD. Accordingly, Cubilete must be resentenced as to that conviction as a
first-time DUI offender. With the exception of the driving with a suspended
license count, which is vacated, Cubilete’s convictions are affirmed.
Order reversed in part and affirmed in part. Case remanded for further
proceedings consisting with this memorandum. Jurisdiction relinquished.
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states that his address at that point was 1253 Olympic Circle South, Whitehall,
PA 13052. See Commonwealth’s Trial Exhibit C-1. The driver history does
not identify either of those addresses or any other address as the destination
of the suspension notice PennDOT sent.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/31/20
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