Com. v. Runyon, R.

J-A22009-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT ALLEN RUNYON :
:
Appellant : No. 167 MDA 2020
Appeal from the Order Entered December 31, 2019
In the Court of Common Pleas of Cumberland County Criminal Division at
No(s): CP-21-CR-0003474-2018
BEFORE: SHOGAN, J., STABILE, J., and MURRAY, J.
MEMORANDUM BY MURRAY, J.: FILED SEPTEMBER 18, 2020
The Commonwealth appeals from the order granting the suppression
motion of Robert Allen Runyon (Appellee). We affirm.
The facts as set forth in the affidavit of probable cause are as follows:
On [April 13, 2018], at approx[imately] 1222 hrs, [Trooper
Ismail El-Guemra of the Pennsylvania State Police (Trooper El-
Guemra)] was dispatched to a report of a crash involving a
pedestrian on [Interstate]-81 near mile marker 46.2, Carlisle
Borough, Cumberland County.
Upon [Trooper El-Guemra’s] arrival, [he] observed a white
1995 Mack tanker truck bearing PA registration plate ZKK6488,
(Unit 1), behind a 2012 gray Honda Pilot, bearing a WV
registration plate GTURBK, (Unit 2). Both vehicles were still
maintaining contact with each other and appeared to be heavily
damaged at their final rest.
At that time, the driver of the tanker truck, identified via his
driver’s license as [Appellee], was sitting in the driver seat of his
vehicle, facing outside, with his door open. [Trooper El-Guemra]
then interviewed him outside of his truck.
J-A22009-20
[Appellee] related he was traveling on Interstate 81
northbound, in the right lane. [Appellee] related a vehicle slowed
down in front of him. He identified this vehicle to be a gray
passenger vehicle, possibly a Mazda. He related he attempted to
avoid colliding with this vehicle by swerving to the right, where he
ran off of the roadway, struck the Victim’s vehicle, and pushed it
to its final rest. [Appellee] informed [Trooper El-Guemra] he did
not see the Victim until he arrived at the final rest and exited his
vehicle. During this conversation, [Appellee] had a faint odor of
alcoholic beverage on his person and appeared lethargic.
[Appellee] denied consumption of any drugs or alcoholic
beverage. Later, an open 16 OZ. Miller Lite beer can was located
on the driver side floor area [of Appellee’s truck].
At that time, the [Victim], who [Trooper El-Guemra] identified
via his driver license as Robert Albert MARSHALL, DOB 02/17/61,
was in the back of a Carlisle Ambulance. [Trooper El-Guemra]
observed that MARSHALL had blood on his head and around his
eyes. EMS members attending to him advised [Trooper El-
Guemra] that MARSHALL was in critical condition because he had
sustained an open head injury, but he was breathing at that point.
Interviews and physical evidence conducted at the scene
corroborated the following:
MARSHALL stopped his vehicle on the right shoulder of
Interstate 81 at approx. mile marker 46.2 and was in the process
of changing the left rear tire of his vehicle, prior to the crash. Unit
1 exited the northbound travel lane onto the shoulder impacting
Unit 2. MARSHALL was air lifted to Holy Spirit hospital then
transported to Hershey Medical Center. MARSHALL succumbed to
his injuries and was pronounced dead, on [April 21, 2018].
* * *
[Appellee] was later transported to Carlisle regional hospital for
a blood draw. [Appellee] agreed to submit to a Chemical Blood
Test.
[Appellee]’s blood results displayed a Blood Alcohol Content
(BAC) of 0.225%.
Affidavit of Probable Cause, 12/10/18, at 1-2.
-2-
J-A22009-20
Appellee was charged with homicide by vehicle while driving under the
influence, aggravated assault by vehicle while driving under the influence,
driving under the influence of alcohol (DUI) – general impairment, DUI –
highest rate of alcohol, two counts of DUI – commercial vehicle, driving on
roadways laned for traffic, careless driving, reckless driving, restrictions on
alcoholic beverages, and recklessly endangering another person.1
On July 1, 2019, Appellee filed an omnibus pre-trial motion seeking the
suppression of his blood alcohol content (BAC) test results based on this
Court’s decision in Commonwealth v. Krenzel, 209 A.3d 1024 (Pa. Super.
2019), appeal denied, Commonwealth v. Kliner-Krenzel, 222 A.3d 370(Pa. 2019). In Krenzel, this Court held that where a police officer fails to
inform a DUI suspect of his or her right to refuse chemical testing and the
consequences arising from that refusal, the DUI suspect cannot make a
knowing and voluntary decision to submit to the blood test. Id. at 1032.
On July 19, 2019, the trial court held a hearing on Appellee’s
suppression motion. The transcript of the hearing is absent from the certified
record. However, the Commonwealth concedes the parties “stipulated that
the Pennsylvania State Police did not read [Appellee] his implied consent
warnings through a DL-26 form.” Commonwealth Brief at 5-6. Because a
petition for allowance of appeal of our Krenzel decision was pending before
____________________________________________
1 75 Pa.C.S.A. §§ 3735(a), 3735.1(a), 3802(a)(1), (c), (f)(1)(i), (f)(2),
3309(1), 3714(a), 3736(a), 3809(a); 18 Pa.C.S.A. § 2705.
-3-
J-A22009-20
the Pennsylvania Supreme Court at the time, the trial court delayed ruling
until after December 17, 2019, when the Supreme Court denied the petition
for allowance of appeal.
On December 31, 2019, the trial court granted Appellee’s motion and
suppressed the results of his BAC test. On January 24, 2020, the
Commonwealth filed a timely notice of appeal, certifying, pursuant to
Pennsylvania Rule of Appellate Procedure 311(d), that the court’s order would
terminate or substantially handicap the prosecution.2
On appeal, the Commonwealth presents the following issues for review:
I. Is the automatic suppression of blood test results improper
where the only factor considered is whether or not a
defendant was read his implied consent warnings through
the use of a DL-26 form?
II. Is the holding in Commonwealth v. Krenzel inapplicable
to CDL holders when driving their commercial motor
vehicles as federal regulations mandate that they submit to
chemical testing and historically CDL holders have been
treated differently under the law?
Commonwealth Brief at 4.
Our standard of review when the court grants suppression is as follows:
When the Commonwealth appeals from a suppression order, we
follow a clearly defined standard of review and consider only the
evidence from the defendant’s witnesses together with the
evidence of the prosecution that, when read in the context of the
entire record, remains uncontradicted. The suppression court’s
findings of fact bind an appellate court if the record supports those
findings. The suppression court’s conclusions of law, however, are
____________________________________________
2Both the trial court and the Commonwealth have complied with Pennsylvania
Rule of Appellate Procedure 1925.
-4-
J-A22009-20
not binding on an appellate court, whose duty is to determine if
the suppression court properly applied the law to the facts.
Commonwealth v. Vetter, 149 A.3d 71, 75 (Pa. Super. 2016), appeal
denied, 169 A.3d 577 (Pa. 2017) (citations omitted). Our scope of review
from a suppression ruling is limited to the evidentiary record that was created
at the suppression hearing. In re L.J., 79 A.3d 1073, 1087 (Pa. 2013).
In its first issue, the Commonwealth challenges the trial court’s decision
to grant suppression based on Krenzel. In that case, the appellant argued
that her consent to a BAC test was not knowing and voluntary because the
police did not read her the warnings from a DL-26 form or otherwise advise
her of her right to refuse a blood draw. This Court first considered 75
Pa.C.S.A. § 1547 of the Pennsylvania Motor Vehicle Code, Pennsylvania’s
Implied Consent Law, which provides 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 . . . 3802 (relating to driving under influence of alcohol or
controlled substance)[.]
(b) Civil Penalties for refusal.--
(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[.]
-5-
J-A22009-20
* * *
(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 $2000[.]
75 Pa.C.S.A. § 1547(a), (b)(1), (b)(2)(i).
We then analyzed Commonwealth v. Myers, 164 A.3d 1162 (Pa.
2017), which examined Section 1547 in the context of a warrantless blood
draw from an unconscious person. In Myers, our Supreme Court stated that
Section 1547(b)(1) provides individuals with a statutory right to refuse
chemical testing, and Section 1547(b)(2) explicitly requires the police to
inform an individual of the consequences of such refusal. Id. at 1170-71,
n.12. Thus, in Myers, the Supreme Court held that an individual is entitled
to know that he or she has a right to refuse a blood test and the consequences
of such refusal, “so that his choice to take a [chemical] test can be knowing
and conscious.” Id. at 1171. Because an unconscious person cannot exercise
his or her right to refuse a blood test, the Supreme Court concluded that the
appellant in Myers had not voluntarily consented to the blood draw. Id. at
1181.
Applying Section 1547 and Myers, this Court in Krenzel explained:
There is no dispute that the police asked [the] [a]ppellant to go
to the hospital for a chemical blood test and she complied without
receiving a recitation of her rights under DL-26[] or Section 1547
or confirming her consent by signature. Because [the police
officer] was statutorily obligated to inform [the] [a]ppellant of her
-6-
J-A22009-20
right to refuse chemical testing and the consequences arising
therefrom and failed to effectuate those precautions, [the]
[a]ppellant did not make a knowing and conscious choice of
whether to submit to the blood draw.
Krenzel, 209 A.3d at 1032.
In light of Krenzel’s bright-line rule, the trial court in this case
determined that Krenzel controlled. See Trial Court Opinion, 3/23/20, at 1-
2. Both the Commonwealth and Appellee agreed that the police did not read
Appellee the DL-26 consent form or otherwise inform him of his right to refuse
blood testing, or the penalties associated with a refusal, before Appellee
consented to the blood draw. Indeed, the Commonwealth concedes, “in
following the Krenzel Court’s ruling, the [t]rial [c]ourt was compelled to
automatically suppress the blood test results because of the State Police’s
failure to read [Appellee] his implied consent warnings through the use of a
DL-26 form.” Commonwealth Brief at 17.
On appeal, the Commonwealth argues that Krenzel was wrongly
decided. The Commonwealth asserts that courts should evaluate the
voluntariness of the consent to a BAC test under a totality of the circumstances
analysis, rather than apply a bright-line rule suppressing results when a police
officer fails to read a defendant the DL-26 consent form or otherwise inform
him or her of the right to refuse the blood draw. See Commonwealth Brief at
11-18. The Commonwealth opines:
[The Krenzel analysis] is an improper analysis as it fails to
consider the totality of the circumstances. If the voluntariness of
the consent was appropriately evaluated, the totality of the
-7-
J-A22009-20
circumstances in the instant case would yield the only logical
conclusion – [Appellee’s] consent was valid. [Appellee] voluntarily
spoke with troopers at the scene, complied with a PBT, voluntarily
went with the troopers to the Carlisle Regional Medical Center,
immediately agreed to a blood draw, and then sat down for a
recorded interview with law enforcement. All of these factors
clearly indicate valid consent and the mere fact that [Appellee]
was not directly informed of his implied consent warnings should
not negate the other factors. The holding in Krenzel improperly
places such weight on the DL-26 form and actual reading of the
implied consent warnings that it creates automatic suppression
without considering any other factors for consent. This Honorable
Court should hold that the totality of the circumstances test is the
proper analysis, [Appellee’s] consent was voluntarily, and that the
blood test results should not be suppressed.
Id. at 18.
While we understand the Commonwealth’s logic, “[i]t is beyond the
power of a Superior Court panel to overrule a prior decision of the Superior
Court . . . except in circumstances where intervening authority by our
Supreme Court calls into question a previous decision of this Court.”
Commonwealth v. Pepe, 897 A.2d 463, 465 (Pa. Super. 2006) (citation
omitted). Notably, the Pennsylvania Supreme Court denied the petition for
allowance of appeal in Krenzel, and the parties agree that Krenzel is
dispositive.3 Accordingly, no relief is due.
In its second issue, the Commonwealth argues that Krenzel should not
apply to Appellee because he is a Commercial Driver’s License (CDL) holder.
____________________________________________
3 The Commonwealth states its reasons for appealing include “preserv[ing]
the issue for potential Pennsylvania Supreme Court review.” Commonwealth
Brief at 11 n. 9.
-8-
J-A22009-20
The Commonwealth asserts that Krenzel should not apply to CDL holders
“because of the inherent increased risk and specialized skill required to
operate commercial vehicles.” Commonwealth Brief at 19. The
Commonwealth further contends that “commercial drivers are subjected to
different laws and penalties when it comes to driving under the influence of
alcohol and controlled substances,” and “are aware of the risks and have
enhanced knowledge of their licensing requirements.” Id. at 26. The
Commonwealth also suggests that Appellee’s BAC test results should be
admissible because federal regulations require such testing by employers
following an accident involving a commercial vehicle.
After a thorough review of the certified record, we are constrained to
find waiver because the Commonwealth raised this issue for the first time in
its Rule 1925(b) statement. See Commonwealth v. Coleman, 19 A.3d
1111, 1118 (Pa. Super. 2011) (finding claim waived where appellant raised it
for the first time in Pa.R.A.P. 1925(b) statement). It is well-settled that
“[i]ssues not raised in the lower court are waived and cannot be raised for the
first time on appeal.” Pa.R.A.P. 302(a); see also Commonwealth v.
Truong, 36 A.3d 592, 598 (Pa. Super. 2012) (“New legal theories cannot be
raised on appeal.”). The record indicates that the Commonwealth did not
present to the trial court its argument that Krenzel should not apply to
Appellee because he was a CDL holder driving a commercial vehicle.
-9-
J-A22009-20
We again note that while the record reflects that the trial court held a
suppression hearing on July 19, 2019, a transcript from the hearing is not part
of the certified record, and the record does not indicate that the
Commonwealth requested the transcript of the hearing. “The fundamental
tool for appellate review is the official record of the events that occurred in
the trial court.” Commonwealth v. Preston, 904 A.2d 1, 6 (Pa. Super.
2006) (en banc) (citation omitted). The certified record consists of “original
papers and exhibits filed in the lower court, paper copies of legal papers filed
with the prothonotary by means of electronic filing, the transcript of
proceedings, if any, and a certified copy of the docket entries prepared by the
clerk of the lower court[.]” Pa.R.A.P. 1921. Items that are not part of the
certified record cannot be considered on appeal. See Preston, 904 A.2d at
6. In Pennsylvania, we place the responsibility of ensuring that the record on
appeal is complete “squarely upon the appellant and not upon the appellate
courts.” Id. at 7 (citing Pa.R.A.P. 1931).
With regard to transcripts, the Rules of Appellate Procedure require an
appellant to order and pay for any transcript necessary for resolution of the
issues appellant raises on appeal. See Pa.R.A.P. 1911(a). When an appellant
fails to adhere to Rule 1911 and order all necessary transcripts, “any claims
that cannot be resolved in the absence of the necessary transcripts or
transcripts must be deemed waived for the purpose of appellate review.”
Preston, 904 A.2d at 7 (citation omitted).
- 10 -
J-A22009-20
Here, our review of the record indicates that the Commonwealth failed
to request the transcript from the suppression hearing, and it was never
transcribed. We are therefore unable to determine whether the
Commonwealth raised at the suppression hearing its second issue concerning
Appellee being a CDL holder driving a commercial vehicle. Accordingly, the
issue is waived.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/18/2020
- 11 -