Com. v. Slack, A.

J-A28016-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
ANTHONY M. SLACK
Appellant No. 1049 EDA 2019
Appeal from the Judgment of Sentence Entered March 22, 2019
In the Court of Common Pleas of Northampton County
Criminal Division at No.: CP-48-CR-0000633-2018
BEFORE: PANELLA, P.J., STABILE, J., and COLINS, J.*
MEMORANDUM BY STABILE, J.: FILED APRIL 24, 2020
Appellant Anthony M. Slack appeals from the March 22, 2019 judgment
of sentence entered in the Court of Common Pleas of Northampton County
(“trial court”), following his negotiated plea of nolo contendere to driving
under the influence of alcohol (“DUI”)—highest rate (.23%) and second
offense—under Section 3802(c) of the Vehicle Code (“Code”), 75 Pa.C.S.A. §
3802(c). Upon review, we affirm.
Following a traffic stop, Appellant was charged with DUI (alcohol)—
general impairment, DUI—highest rate, and failure to stop at red signal.1 On
August 1, 2018, Appellant filed a motion to suppress the results of his blood
test, arguing, inter alia, that he did not voluntarily consent to blood draw and
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* Former Senior Judge assigned to the Superior Court.
1 75 Pa.C.S.A. §§ 3802(a)(1), (c) and 3112(a)(3)(i), respectively.
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that, as a result, the blood draw violated his constitutional rights. On August
10, 2018, the trial court conducted a suppression hearing, at which the
Commonwealth offered the testimony of Officer Steven Lindstedt and
Sergeant Eric Smith of the Wilson Borough Police Department.
Officer Lindstedt testified that he has been a police officer since 1981.
N.T. Suppression, 8/10/18, at 4. While on duty in a marked police vehicle on
January 14, 2018, a little after 1:00 a.m., he observed a black 2015 Hyundai
sedan traveling west on Freemansburg Avenue and approaching the 25th
Street intersection. Id. at 4-5. According to Officer Lindstedt, although “[t]he
vehicle had its right turn signal on,” “it went straight through a steady red
traffic signal.” Id. at 5. Officer Lindstedt initiated pursuit. Id. Officer
Lindstedt described that he activated the emergency lights of the marked
police vehicle and ultimately caught up with Appellant. Id. Officer Lindstedt
testified that there “was no chase or anything like that[.]” Id. Describing the
traffic stop, Officer Lindstedt testified:
I stopped the vehicle on 27th Street and Dearborn, a little bit past
the initial violation. I called out to the county dispatch center. I
approached the vehicle, and the driver was the gentleman seated
over there. He was identified as [Appellant], and he had a very,
very strong odor of an alcoholic beverage on him. [His eyes were
glassy and bloodshot and watery.] I asked him where he was
going. He said 25th Street. I said, you know where you’re at?
And he said—he was unaware of his surroundings. He was from
Easton on 9th Street. I asked him where he was coming from.
He said he went out to dinner with a girlfriend, and he had a couple
of drinks.
So it’s 1:00 in the morning, and I decided to ask him to come out
of the vehicle to perform field sobriety tests. And that day and
hour in January, it was extremely cold. So we didn’t perform all
the field sobriety tests, but we tried to do the HGN test on him,
which is the following of the eyes. He wouldn’t cooperate in
respect that he kept moving his head. You have to keep your
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head straight and just follow with your eyes alone. And we gave
him a PBT test, which is a preliminary breath test. Instead of
blowing into the straw, he was sucking on the straw. And I had
another officer with me, Officer Stout. He became verbally
abusive with Officer Stout. And so it was our opinion at that time
that he was under the influence of alcohol. So I affected an arrest,
and he was transported to the DUI center in Easton.
Id. at 6-7 (sic). Officer Lindstedt further recalled that Appellant appeared to
be “zoned out” and that he had a “stupor about him.” Id. at 7. He further
testified that at the DUI center, where Appellant’s blood was drawn,
Appellant’s demeanor was “nasty” and Appellant “was loud and disrespectful.”
Id. at 8. Officer Lindstedt explained that Appellant “was making derogatory
comments towards my coworker. From my understanding, he was just
verbally abusive.” Id. at 8-9. Finally, Officer Lindstedt testified that the
results of Appellant’s blood test revealed a blood alcohol content (“BAC”) of
.23. Id. at 9.
On cross-examination, Officer Lindstedt acknowledged that Appellant
was “angry” and “argumentative” through the process. Id. at 9-10. Officer
Lindstedt recalled that Appellant was handcuffed when he was transported to
the DUI center. Id. at 11. Accordingly to Officer Lindstedt, “at least three or
four” officers were working at the DUI center that night. Id.
The Commonwealth next called to the stand Sergeant Smith, who
testified that he is a police sergeant “with Lehigh University Police and Palmer
Township Police and Wilson Police.” Id. at 12. He also testified that he works
at the DUI center in Easton. Id. at 12-13. Sergeant Smith described his
duties at the DUI centers as follows: “When they first come in, we collect their
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information. We read the implied consent form, the DL-26B. If they’re willing
to do so, we do field sobriety tests and an interview with them.” Id. at 13.
Sergeant Smith further testified that he was on duty at the DUI center on the
morning of January 14, 2018. In addition to the officers who brought
Appellant to the DUI center, Sergeant Smith recalled that it was him and
another officer as well as a phlebotomist who were at the DUI center that
night. Id. Sergeant Smith further recalled that he wore khaki-colored cargo
pants and a Northampton County DUI polo shirt on the night in question. Id.
at 13-14. Sergeant Smith did not carry any firearms. Id. at 14.
Sergeant Smith testified that when Appellant arrived at the DUI center,
the officers removed his handcuffs, invited him to sit in the phlebotomy chair
and initiated the intake process. Id. Sergeant Smith explained that when he
interviewed Appellant, he was not in handcuffs or in a holding cell. Id. at 14-
15. At that time, according to Sergeant Smith, a second officer was with him
whose responsibility was to record Appellant’s interview. Id. at 15. The
Commonwealth then introduced the recording of Appellant’s interview into the
record and played it for the trial court. Recalling Appellant’s demeanor,
Sergeant Smith testified: “It was argumentative. He was insulting. Personal
attacks against the staff. It was terrible behavior.” Id. at 16-17.
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Sergeant Smith testified that he read verbatim to Appellant the DL-26B
form, in specific the required parts 1 through 4.2 Id. at 17. Sergeant Smith
described Appellant’s response to his reading of form DL-26B. “He
interrupted. He kind of tried to stall the process and was arguing certain point
of it. And then once we thought he was going to sign it, he wanted to go over
the whole thing again and read it. And he finally did sign it.” Id. at 17-18.
Sergeant Smith testified that he explained “certain parts of [DL-26B] to him
again[.]” Id. at 18.
Sergeant Smith testified that Appellant signed the DL-26B form in his
presence while Appellant was being video-recorded. Id. at 19. Thereafter,
the phlebotomist drew Appellant’s blood. Id. According to Sergeant Smith,
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2 DL-26B provides in relevant part:
It is my duty as a police officer to inform you of the
following:
1. You are under arrest for driving under the influence of alcohol
or a controlled substances in violation of Section 3802 of the
Vehicle Code.
2. I am requesting that you submit to a chemical test of blood.
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.
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Appellant did not need to be restrained during the blood draw. Id. at 21.
Appellant allowed the phlebotomist to draw his blood. Id. Sergeant Smith
further testified that, once the phlebotomist drew Appellant’s blood, “it [went]
downhill.” Id. at 19. “There was – he seemed to become more agitated and
started actually verbally abusing the phlebotomist. And we were done
processing at that point. There was nothing productive that was going to
come from it.” Id. Finally, Sergeant Smith testified that Appellant refused to
sign the Miranda3 form.4 Id. at 20.
On cross-examination, Sergeant Smith testified that officers at the DUI
center do not wear guns and that doors to the DUI center are locked from the
outside. Id. at 22. Sergeant Smith denied that he argued with Appellant.
Id. at 24. He clarified that Appellant’s blood was drawn within three to five
minutes from the time he read and explained to Appellant form DL-26B. Id.
Sergeant Smith testified that Appellant did not request an attorney. Id.
Rather, Appellant “just didn’t understand why he wasn’t entitled to an
attorney” as per form DL-26B. Id. Sergeant Smith acknowledged that he
twice asked Appellant for a “yes or no” answer with respect to form DL-26B.
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3 Miranda v. Arizona, 384 U.S. 436 (1966).
4 When a motorist is arrested for DUI, police inquiry as to whether the suspect
will take a chemical test is not an interrogation and no Miranda warnings are
required. If the driver chooses to refuse, the police can still take a blood draw
without violating the defendant’s Fifth Amendment right against self-
incrimination. Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16
L.Ed.2d 908 (1966). In those cases, drawing blood requires a search warrant
or another exception to the warrant requirement. See e.g. Missouri v.
McNeely, 569 U.S. 141, 133 S. Ct. 1552, 185 L.Ed.2d 696 (2013).
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Id. Sergeant Smith testified that he explained to Appellant “that he has the
explicit right to refuse” to sign form DL-26B. Id. at 25. Sergeant Smith
recalled that he was “within five feet” of Appellant when the phlebotomist drew
his blood. Id. at 26. According Sergeant Smith, he feared that Appellant
posed a danger to the phlebotomist because of “the comments and things he
started to say to her.” Id. Sergeant Smith denied suggesting to Appellant
that he would return home faster if he signed the DL-26B form. Id. at 28.
On re-direct, Sergeant Smith testified that the doors to the DUI center
were not locked from the inside and “[t]here’s actually a sensor. As soon as
you get by the door, it unlocks and the person can walk right out.” Id. at 29.
Following the hearing, on November 21, 2018, the trial court denied
Appellant’s suppression motion, concluding that Appellant voluntarily
consented to the blood draw.
On December 14, 2018, prior to trial, Appellant entered into a
negotiated plea of nolo contendere. In his written plea colloquy, however,
Appellant explicitly noted twice that he “reserves the right to appeal denial of
his suppression motion.” Written Plea Colloquy, 12/14/18, at 5. The trial
court conducted an on-the-record oral colloquy after which it accepted the
negotiated plea. On March 22, 2019, consistent with the negotiated plea, the
trial court sentenced Appellant to, among other things, 90 days to 5 years in
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Northampton County prison. Appellant timely appealed.5 The trial court
directed Appellant to file a Pa.R.A.P. 1925(b) statement of errors complained
of on appeal. Appellant complied, challenging the denial of his suppression
motion. In response, the trial court issued a Pa.R.A.P. 1925(a) statement
wherein it incorporated its November 21, 2018 order denying Appellant’s
suppression motion.
On appeal, Appellant raises a single issue for our review.
[I.] Whether the court erred in refusing to suppress the results of
[] Appellant’s warrantless blood draw where [] Appellant was
coerced into the blood draw by being uncooperative, repeatedly
demanding to be released, repeatedly demanding counsel and
physically resisting the drawing of blood.
Appellant’s Brief at 5 (unnecessary capitalizations omitted).
In reviewing appeals from an order denying suppression, our standard
of review is limited to determining
whether [the trial court’s] factual findings are supported by the
record and whether [its] legal conclusions drawn from those facts
are correct. When reviewing the rulings of a [trial] court, the
appellate court considers only the evidence of the prosecution and
so much of the evidence for the defense as remains
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5 This appeal is proper under Commonwealth v. Singleton, 169 A.3d 79(Pa. Super. 2017), where, as here, the defendant attempted to enter a
conditional plea agreement by reserving the right to appeal the trial court’s
suppression order. We noted that “[w]hile our courts have not specifically
addressed the validity of conditional plea agreements, our courts have
proceeded to review the merits of issues specifically reserved in plea
agreements. Id. at 81-82 (discussing cases). In Singleton, therefore, we
reached the merits of the appellant’s suppression claim because “the trial
court accepted [the appellant’s] conditional plea agreement reserving the
right to appeal the denial of his suppression motion.” Id. at 82. This instant
case is indistinguishable from Singleton and compels the same outcome
because the trial court accepted Appellant’s nolo contendere plea wherein he
explicitly reserved his right to challenge the suppression ruling.
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uncontradicted when read in the context of the record as a whole.
When the record supports the findings of the [trial] court, we are
bound by those facts and may reverse only if the legal conclusions
drawn therefrom are in error.
Commonwealth v. Griffin, 116 A.3d 1139, 1142 (Pa. Super. 2015). Our
scope of review is limited to the evidence presented at the suppression
hearing. In re interests of L.J., 79 A.3d 1073, 1088-89 (Pa. 2013).
In Birchfield v. North Dakota, 136 S. Ct. 2160 (2016), the Supreme
Court addressed the constitutionality of warrantless searches of breath and
blood under the Fourth Amendment, specifically with regard to the search-
incident-to-arrest and consent exceptions to the warrant requirement. Id. at
2184. The Court held, inter alia, that “the Fourth Amendment permits
warrantless breath tests incident to arrests for drunk driving[,]” but
“reach[ed] a different conclusion with respect to blood tests.” Id. Because
obtaining a blood sample is significantly more intrusive than a breath test, the
Court determined that a blood test may not be administered as a search
incident to arrest.6 Id. at 2185.
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. McAdoo, 46 A.3d 781, 784 (Pa. Super.
2012). “A search conducted without a warrant is deemed to be
unreasonable and therefore constitutionally impermissible, unless
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6 Sergeant Smith in this case used form DL-26B, which did not contain any
threats to impose enhanced criminal penalties on Appellant for refusing to
submit to a blood test. Thus, our current scheme of civil and evidentiary
penalties, as set forth in 75 Pa.C.S.A. § 1547(b)(1) and (e), is not precluded
by Birchfield. See Commonwealth v. Johnson, 188 A.3d 486, 490 (Pa.
Super. 2018) (“[T]he threat of civil penalties and evidentiary consequences is
permissible under the implied consent laws; however a threat of added
criminal sanctions is not.”).
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an established exception applies.” Commonwealth v. Strickler,
757 A.2d 884, 888 (Pa. 2000). “Exceptions to the warrant
requirement include the consent exception, the plain view
exception, the inventory search exception, the exigent
circumstances exception, the automobile exception . . ., the stop
and frisk exception, and the search incident to arrest exception.”
Commonwealth v. Dunnavant, 63 A.3d 1252, 1257 n.3 (Pa.
Super. 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. Commonwealth v. Kohl, 615 A.2d 308, 315 (Pa.
1992); Schmerber[, 384 U.S. at 770].
Commonwealth v. Evans, 153 A.3d 323, 327-28 (Pa. Super. 2016)
(brackets omitted) (emphasis added). “One such exception is consent,
voluntarily given.” Strickler, 757 A.2d 888 (citation omitted). Under the
Fourth Amendment, where an encounter between law enforcement is lawful,
voluntariness of consent to a search becomes the exclusive focus. Id. In
Commonwealth v. Smith, 77 A.3d 562 (Pa. 2013), our Supreme Court
explained:
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.
Smith, 77 A.3d at 583 (citations, quotation marks and ellipses omitted). In
explicating voluntariness under similar circumstances, we have stated:
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
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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. Geary, 209 A.3d 439, 443 (Pa. Super. 2019) (citation
omitted).
It is well settled that in DUI cases, a police officer requesting that a
motorist submit to a warrantless blood draw “ha[s] no obligation to enlighten
[the motorist] as to the full details of federal constitutional law; [the police
officer] only need[] tell [the motorist] the current, legal consequences of
refusing to consent to the blood-draw.” Commonwealth v. Venable, 200
A.3d 490, 498 (Pa. Super. 2018) (citation omitted; bracketed information
amended; emphasis added); see also Commonwealth v. Myers, 164 A.3d
1162, 1171 (Pa. 2017).
Instantly, based upon the totality of the circumstances, we conclude
that the trial court did not err in denying Appellant’s suppression motion on
the finding that he voluntarily consented to the blood draw. As the trial court
reasoned:
The record reveals that [Appellant] was made well aware of his
right to refuse to submit to the blood draw. Both Sergeant Smith’s
testimony at the August 10, 2018 suppression hearing and the
recording of [Appellant]’s processing at the DUI Center indicate
that Appellant was advised several times of his right to either
consent or refuse to submit to the blood test. Further, Sergeant
Smith patiently discussed and explained the consequences of
refusal, allowed [Appellant] ample time to review the consent
form and ask questions, and spent several minutes answering any
questions [Appellant] had regarding the consent form or his
rights.
There is no indication that [Appellant] held any erroneous
subjective beliefs about whether he could refuse, or about what
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the consequences of refusal would be.[7] In any event, any
misguided subjective beliefs that [Appellant] may have held would
have been extinguished by Sergeant Smith’s numerous express
instructions regarding [Appellant’s] right to refuse and the
consequences of doing so. Though [Appellant] urges that no such
conversation took place regarding the nature of [Appellant’s] right
to refuse to submit to the blood draw, the recording of
[Appellant’s] processing, the transcript thereof, and the testimony
given at the August 10, 2018 suppression hearing all indicate that
Sergeant Smith and [Appellant] spent several minutes discussing
the implications of [Appellant’s] choice to either consent or refuse
to submit to the blood draw.[8]
[Appellant’s] contentions that Sergeant Smith employed
coercive tactics to induce [his] consent involuntarily are simply
not supported by the facts. Sergeant Smith remained patient and
cordial with [Appellant] despite the latter’s antagonistic and
profane remarks. Sergeant Smith repeatedly advised [Appellant]
that he needed to provide a yes or no response regarding the
blood draw and politely asked [Appellant] whether he consented
or not. Although [Appellant] suggests that Sergeant Smith’s
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7 In Commonwealth v. Miller, 186 A.3d 448 (Pa. Super. 2018), appeal
denied, 199 A.3d 858 (Pa. 2018), the defendant argued that because of a
prior DUI arrest, he was under the subjective belief that he was subject to
enhanced criminal punishment if he refused to consent to a blood draw. Id.
at 449-450. The Miller court, citing a contemporaneous decision in
Commonwealth v. Robertson, 186 A.3d 440 (Pa. Super. 2018), appeal
denied, 195 A.3d 852 (Pa. 2018), rejected the suppression court’s rationale
for granting the defendant’s motion to suppress because “defendants are
presumed to know case law in addition to statutory law,” and the police do
not have an affirmative duty to “inform defendants that they do not face
enhanced criminal penalties if they refuse a blood test.” Miller, 186 A.3d at
450, citing Robertson, 186 A.3d at 446; see also Commonwealth v.
Krenzel, 209 A.3d 1024, 1029 (Pa. Super. 2019) (finding that a defendant’s
reliance on her subjective, albeit erroneous, misunderstanding of
constitutional law does not render her consent involuntary), appeal denied,
222 A.3d 370 (Pa. 2019).
8 To the extent Appellant invites us to accept his proffered version of the facts
or to credit his testimony, we decline the invitation. See Commonwealth v.
Fudge, 213 A.3d 321, 326 (Pa. Super. 2019) (citation omitted) (noting that
we will not disturb a suppression court’s weight and credibility absent a clear
and manifest error), appeal denied, No. 422 MAL 2019, 2019 WL 7207309(Pa. filed December 27, 2019); see also Commonwealth v. McCoy, 154
A.3d 813, 816 (Pa. Super. 2017) (“[I]t is within the lower court's province to
pass on the credibility of witnesses and determine the weight to be given to
their testimony.”).
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positioning of himself directly beside [him] during the blood draw
was somehow coercive, the [c]ourt finds that this action was a
reasonable measure taken to ensure the safety of the
phlebotomist and other DUI Center personnel during the
administration of the blood draw. Moreover, [Appellant] had
already given his consent for the blood draw by this time. The
[c]ourt gleans no indication from the record that these
circumstances in anyway impaired [Appellant’s] volition or
otherwise induced [him] to involuntarily consent to the blood
draw.
The [c]ourt is further satisfied that [Appellant’s] custodial status
did not inhibit his ability to voluntarily consent to the blood draw.
Testimony from Sergeant Smith indicated that the door to the DUI
Center were secured from the inside, but were not locked so as to
prevent someone from exiting the center.
Moreover, [Appellant] was completely unrestrained during his DUI
processing. [Appellant], who had time to carefully consider his
decision to refuse or consent and ample opportunity to inquire
about his right to refuse, ultimately signed the consent form and
permitted the blood draw to proceed. Despite [Appellant’s]
argumentative and at times confrontational demeanor, the record
reflects that [Appellant] generally cooperated with law
enforcement personnel at critical points of the DUI processing.
Defendant even removed his jacket to allow the phlebotomist to
begin the blood draw.
Trial Court Opinion, 11/21/18, at 3-5 (record citations and footnotes omitted).
Accordingly, based on the facts detailed above, the trial court’s findings,
and the totality of the circumstances in this case, we conclude that the court
did not err in denying Appellant’s suppression motion. See Geary, 209 A.3d
at 443-44 (finding voluntarily consent, despite defendant’s allegation of
duress and coercion, when defendant was brought to a standard DUI
processing room, informed of right to refuse, no coercive techniques were
used and defendant cooperated with police); see also Commonwealth v.
Robertson, 186 A.3d 440 (Pa. Super. 2018) (finding consent voluntary where
police did not use coercive tactics, defendant was informed of her right to
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refuse, and subsequently cooperated with the blood draw), appeal denied,
195 A.3d 852 (Pa. 2018).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/24/20
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