Com. v. Runyon, R.

• Court: Superior Court of Pennsylvania
• Decided: September 18, 2020
• Docket: 167 MDA 2020
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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