Com. v. Rosario, J.

• Court: Superior Court of Pennsylvania
• Decided: February 25, 2026
• Docket: 1594 WDA 2024
• Status: Unpublished
• Author: Stabile

Opinion

J-A26007-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JUAN JAVIER VARGA ROSARIO : : Appellant : No. 1594 WDA 2024

Appeal from the Judgment of Sentence Entered November 22, 2024 In the Court of Common Pleas of Allegheny County Criminal Division at No: CP-02-CR-0007077-2023

BEFORE: OLSON, J., STABILE, J., and KING, J.

MEMORANDUM BY STABILE, J.: FILED: FEBRUARY 25, 2026

Appellant, Juan Javier Varga Rosario, appeals from the judgment of

sentence imposed on November 22, 2024, by the Court of Common Pleas of

Allegheny County. He challenges the denial of his suppression motion. Upon

review, we affirm.

The trial court summarized the facts as follows:

At 6:49am on April 29, 2023, Officer [Corey] Fogel of the Ohio Township Police Department was called to an incident involving a vehicle parked on a hillside. The driver of the vehicle was identified as [Appellant]. Officer Fogel obtained [Appellant’s] information and driver’s license. The officer observed [Appellant] to have slow and sluggish behavior and the odor of alcohol about him. A review of Officer Fogel’s body worn camera showed that he had extensive verbal interactions with [Appellant].

The officer expressed no concerns about [Appellant’s] ability to understand him and the instructions provided, nor did [Appellant] express any inability to understand the officer. In fact, the officer asked [Appellant] if he understood the officer’s directions and he responded that he did. J-A26007-25

[Appellant] was put through a series of field sobriety tests which he completed. These included the horizontal gaze nystagmus test and the finger to nose test. [Appellant] communicated using English and indicated that he had injured his leg in a motorcycle accident, so the one leg stand test was started but not completed. [Appellant] completed the finger to nose test using the correct hand as verbally instructed six out of six times. After a failed attempt at a portable breath test, [Appellant] was read the DL- 26B form in its entirety and consented to a blood draw. [The results showed a blood alcohol content of .104% and the presence of THC].

Trial Court Opinion, 3/10/25, at 1-2. Appellant was charged with four

subsections of the driving under the influence (“DUI”) statute, 75 Pa.C.S.A. §

3802. Two additional DUI counts were added by Information on November 6,

2023.

On August 30, 2024, Appellant filed an omnibus pretrial motion. In it,

he argued that his constitutional rights were violated because of a substantial

language barrier. Appellant is a native Spanish speaker, and English is a

secondary language. He argues that Officer Fogel’s failure to request an

interpreter or use a translation service when communicating with Appellant

violated his rights under the equal protection clause of the United States and

Pennsylvania Constitutions. Therefore, Appellant contends, his consent to a

blood draw was not voluntary, knowing or intelligent, and the results must be

suppressed.

A hearing was held on October 10, 2024, and the matter was taken

under advisement. On November 22, 2024, the trial court announced its

decision to deny Appellant’s motion in open court and the case proceeded to

a stipulated bench trial. See generally N.T. Hearing, 11/22/24. Appellant

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was found guilty of three counts of DUI. He was sentenced on Count 1 (DUI:

Controlled Substance or Metabolite – 2nd offense1) to 18 months of probation

with 90 days on electronic monitoring. The remaining DUI convictions merged

for sentencing. This appeal followed. Both Appellant and the trial court have

complied with Pa.R.A.P. 1925. Appellant raises a sole issue for our review:

Whether the trial court erred in denying suppression of the results of the blood draw, the waiver of his Miranda rights, and any statements or evidence derived therefrom as they were obtained in violation of the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution and Article I § 29 of the Pennsylvania Constitution.

Appellant’s Brief, at 5.

Our standard of review when addressing a challenge to the denial of a

suppression motion is

limited to determining whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. We are bound by the suppression court’s factual findings so long as they are supported by the record; our standard of review on questions of law is de novo. Where, as here, the defendant is appealing the ruling of the suppression court, we may consider only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted.

Commonwealth v. Yandamuri, 159 A.3d 503, 516 (Pa. 2017) (internal

citations omitted). Our scope of review is limited to the record created during

the suppression hearing. In re L.J., 79 A.3d 1073, 1085 (Pa. 2013).

____________________________________________

1 75 Pa.C.S.A. § 3802(D)(1).

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“It is within the suppression court’s sole province as factfinder to pass

on the credibility of witnesses and the weight to be given their testimony.”

Commonwealth v. Luczki, 212 A.3d 530, 542 (Pa. Super. 2019). “If there

is sufficient evidence of record to support the suppression court’s ruling and

the court has not misapplied the law, we will not substitute our credibility

determinations for those of the suppression court judge.” Commonwealth

v. Johnson, 86 A.3d 182, 187 (Pa. 2014).

It is well-settled that “an appellate court is limited to considering only

the materials in the certified record when resolving the issue.”

Commonwealth v. Houck, 102 A.3d 443, 456 (Pa. Super. 2014) (citation

omitted). Where, as here, the appellant has not made the transcript of the

proceedings at issue a part of the certified record, we have said:

With regard to missing transcripts, the Rules of Appellate Procedure require an appellant to order and pay for any transcript necessary to permit resolution of the issues raised on appeal. Pa.R.A.P. 1911(a). . . . When the appellant . . . fails to conform to the requirements of Rule 1911, any claims that cannot be resolved in the absence of the necessary transcript or transcripts must be deemed waived for the purpose of appellate review.

Id. (some citations omitted).

In the instant case, the transcript of the suppression hearing is not part

of the certified record. Both parties’ briefs, however, cite to the transcript.

Thus, we presume that a transcript was created, but not properly filed with

the clerk of the lower court. However, video of Officer Fogel’s body worn

camera was admitted into evidence during the suppression hearing and is part

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of the certified record. Therefore, under the circumstances, we decline to find

waiver because Appellant’s claim can be resolved in the absence of the

transcript by viewing video from Officer Fogel’s body worn camera.

On appeal, Appellant complains that all communications with Officer

Fogel and his partner occurred in English, which is not Appellant’s native

language. He contends that this language barrier weighed against a finding

of voluntary consent to the blood draw. To support this contention, Appellant

relies on Commonwealth v. Carmenates, 266 A.3d 1117 (Pa. Super. 2021)

(en banc) for the proposition that a substantial language barrier can render

consent invalid.

It is well-settled that the taking of a blood sample is a search within the

meaning of the Fourth Amendment to the United States Constitution and

Article I, Section 8 of the Pennsylvania Constitution; therefore, police officers

may not compel an individual to undergo a blood draw without a search

warrant or applicable exception. See Commonwealth v. Johnson, 188 A.3d

486, 489 (Pa. Super. 2018). One such exception is consent. See

Carmenates, 266 A.3d at 1123.

“[A] trial court must consider the totality of the circumstances when

determining if a defendant’s consent to a blood draw was voluntary.”

Commonwealth v. Miller, 186 A.3d 448, 451 (Pa. Super. 2018). We are

further guided by the following precedent:

In determining the validity of a given consent, the Commonwealth bears the burden of establishing that a consent is the product of

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an essentially free and unconstrained choice – not the result of duress of coercion, express or implied, or a will overborne – under the totality of the circumstances.

****

Where 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. Krenzel, 209 A.3d 1024, 1028-29 (Pa. Super. 2019).

“[K]knowledge of the right to refuse to consent to the search is a factor to be

taken into account, [but] the Commonwealth is not required to demonstrate

such knowledge as a prerequisite to establishing voluntary consent.”

Carmenates, 266 A.3d at 1124.

Here, Appellant argues that “the Commonwealth failed to demonstrate

that [Appellant] understood that he could refuse to consent to the blood

draw[.]” Appellant’s Brief, at 21. He further argued:

Being unable to understand the officers, like [Appellant] was unable to understand Officer Fogle, rendered his intelligence level so low that he was unable to validly consent to the blood-draw[.]

At best, [Appellant] responded to the officers in broken English. While he was able to follow visible demonstrations and simple, repeated commands during the [standard field sobriety tests], it failed to show that [Appellant] understood Officer Fogle’s reading of his rights or that he validly consented to a blood draw.

Id. at 22-23.

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Instantly, the suppression court evaluated Appellant’s arguments and

determined that Appellant voluntarily consented to the blood draw:

[The suppression court] finds Officer Fogel’s testimony to be fair and credible. Officer Fogel testified throughout the suppression hearing that [Appellant] understood the officer’s verbal directives. The officer also explained the implied consent warnings, including the right to refuse to consent to the blood draw, and that [Appellant] understood them. Officer Fogel testified that [Appellant] exhibited an understanding of English, and [Appellant] was able to follow the instructions and directions of the officer at all times. [Appellant] followed the instructions as though he understood them and what was being asked of him.

Importantly, [Appellant] did not once indicate that he did not understand or that he needed or wanted assistance or an interpreter. The fact that English is not [Appellant’s] first language does not create the “substantial language barrier” that would deem the consent involuntary. See Carmenates, supra. This case is distinguishable from Carmenates. In that case, the defendant and the officer communicated through Google Translate and it was undisputed that the defendant did not speak or understand English. In this case, [Appellant] actually spoke English, albeit with an accent, and indicated that he understood the instructions of the officer. There was no need for translation because [Appellant] understood the officer and vice versa. [Appellant’s] testimony to the contrary was self-serving and not credible.

[Appellant] successfully completed the field sobriety tests that required real time comprehension and response to verbal commands including differentiating between right and left upon instruction. He understood the six (6) different commands given by the officer. He also conversed with the officer in English which further calls into question [Appellant’s] testimony that he did not sufficiency understand his waiver of rights. At no point did [Appellant] express confusion or request assistance. These facts strongly indicate that [Appellant] possessed sufficient comprehension of English to understand the consent warnings provided in the DL-26B form.

Trial Court Opinion, 3/10/25, at 5-6 (our pagination).

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We discern no abuse of discretion. A review of Officer Fogel’s body worn

camera confirms the suppression court’s factual findings. Appellant conversed

with officers in English, even spelling his last name for them. He further

confirmed to officers that he understood the English language. Appellant

followed the officers’ commands and demonstrated that he understood what

was being asked of him. If unsure, Appellant asked a follow-up question and

appeared to understand the response. Prior to the walk and turn test,

Appellant informed officers, in English, that he was in an accident and injured

his leg which made it difficult for him to perform the test. The officers

accepted his explanation and excused him from completing the test.

While there were times that Appellant struggled to follow the officers’

instructions, they did not amount to a “substantial language barrier.” Rather,

it was possible that the lack of understanding stemmed from his inebriated

state rather than a “substantial language barrier.” Officer Fogel explicitly

informed Appellant of his right to refuse a blood test and correctly warned him

that refusal could lead to certain civil penalties. The Commonwealth is not

required to demonstrate Appellant’s knowledge of his right to refuse consent

to establish that the consent was voluntary. See Carmenates, supra.

Under the totality of the circumstances, the court properly determined that

Appellant voluntarily consented to the blood draw. Considering the applicable

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standard of review, we cannot say that the court erred in denying Appellant’s

suppression motion.2

Judgment of sentence affirmed.

DATE: 2/25/2026

2 To the extent Appellant also challenges the validity of his waiver of Miranda

rights, he failed to articulate or specify what incriminating statement, if any, he sought to suppress based on a violation of his rights. Appellant’s suppression motion generally averred that “the totality of the circumstances indicates that [Appellant’s] waiver did not exhibit the requisite level of comprehension of the nature and consequences of the right being waived” and requested the trial court to suppress “all statements” made to Officer Fogel following the Miranda warning. See Omnibus Pretrial Motion, 8/30/24, at 10. As Appellant failed to “state specifically and with particularity the evidence sought to be suppressed, the grounds for suppression, and the facts and events in support thereof[,]” we find this issue waived. See Pa.R.Crim.P. 581(D); see also Commonwealth v. Freeman, 128 A.3d 1231, 1241-42 (Pa. Super. 2015).

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