Com. v. Smith, G.

• Court: Superior Court of Pennsylvania
• Decided: February 25, 2025
• Docket: 282 EDA 2024
• Status: Unpublished

Opinion

J-A01018-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : GARY SMITH : : Appellant : No. 282 EDA 2024

Appeal from the Order Entered September 26, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): MC-51-CR-0021218-2022

BEFORE: DUBOW, J., KING, J., and SULLIVAN, J.

MEMORANDUM BY KING, J.: FILED FEBRUARY 25, 2025

Appellant, Gary Smith, appeals from the order entered in the

Philadelphia County Court of Common Pleas, which denied his petition for writ

of certiorari after he was convicted of driving under the influence in the

Philadelphia Municipal Court.1 We affirm.

The relevant facts and procedural history of this case are as follows. On

December 5, 2022, at approximately 11:34 a.m., Officer Tina Willis observed

Appellant’s vehicle swerving in and out of traffic, almost hitting parked

vehicles. Officer Willis also noticed Appellant’s head slumped down, and that

he seemed sleepy or “nodding off.” Officer Willis followed Appellant for about

a block and a half and pulled him over. While attempting to question

Appellant, Officer Willis had to repeatedly wake him. Appellant’s speech was

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1 75 Pa.C.S.A. § 3802. J-A01018-25

slurred and he could not produce a driver’s license when asked. Officer Willis

placed Appellant under arrest for suspicion of DUI because, in her opinion, he

could not safely operate a motor vehicle.

Officer David Soto, Jr. met Appellant at the Police Detention Unit to

conduct chemical testing around 1:30 p.m. Officer Soto read Appellant the

DL-26 form, verbatim, in a regular, conversational tone. Appellant signed the

form consenting to a blood draw, which a nurse performed in Officer Soto’s

presence. Appellant fell asleep during the blood draw. At the time, Officer

Soto was not wearing his service weapon, and Appellant was not wearing

handcuffs. Although Appellant had constricted pupils and slow speech, he was

able to answer Officer Soto’s questions and did not seem to have difficulty

understanding what was happening. The parties stipulated that the blood

report was positive for fentanyl, clonazepam, methadone, codeine, morphine,

THC, and gabapentin.

On June 7, 2023, the parties appeared at Municipal Court for trial, at

which time Appellant made a motion to suppress evidence of his blood draw,

arguing that his consent to the DL-26 was not knowing and voluntary and that

the DL-26 was unconstitutionally coercive. The court issued findings of fact

and conclusions of law, denied Appellant’s suppression motion, and continued

trial to August 30, 2023, at which time it found Appellant guilty of DUI

(controlled substance). On September 26, 2023, the court sentenced

Appellant to 72 hours to 6 months of incarceration, followed by six months’

probation.

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On October 25, 2023, Appellant filed a petition for writ of certiorari to

the Court of Common Pleas. On December 19, 2023, the court held a hearing

on Appellant’s petition and denied it that same day.

On January 11, 2024, Appellant timely filed a notice of appeal. 2 On

February 29, 2024, the court ordered Appellant to file a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal. Appellant timely

complied on March 20, 2024.

On appeal, Appellant raises the following issues for our review:

1. Did the Commonwealth fail to establish that Appellant knowingly and voluntarily consented to his blood being drawn?

2. Were the warnings read to Appellant prior to his blood draw unduly coercive, rendering any consent involuntary?

(Appellant’s Brief at 2).

Initially, we note that:

When the Municipal Court (1) denies a motion to suppress, (2) finds the defendant guilty of a crime, and (3) imposes sentence, the defendant has the right either to request a trial de novo or to file a petition for a writ of certiorari in the Court of Common Pleas of Philadelphia County. Pa.R.Crim.P. 1006(1)(a). If the defendant files a certiorari petition challenging the denial of a suppression motion, the Court of Common Pleas of Philadelphia County sits as an appellate court and reviews the record of the suppression hearing in the Municipal Court. Commonwealth v. Coleman, 19 A.3d 1111, 1118-19 (Pa.Super. 2011); Commonwealth v. Menezes, 871 A.2d 204, 207 n.2 ____________________________________________

2 Appellant’s notice of appeal incorrectly stated that the appeal was from the

judgment of sentence, but this Court has corrected the docket to reflect that the appeal lies from the denial of the petition for writ of certiorari.

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(Pa.Super. 2005). Importantly, when performing this appellate review, the Court of Common Pleas of Philadelphia County applies precisely the same standard that the Superior Court applies in appeals from [C]ommon [P]leas [C]ourt orders denying motions to suppress. Specifically,

[the Court of Common Pleas] 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. Because the Commonwealth prevailed before the suppression court, [the Court of Common Pleas] may consider only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the suppression court’s factual findings are supported by the record, [the Court of Common Pleas is] bound by [those] findings and may reverse only if the court’s legal conclusions are erroneous. Where … the appeal of the determination of the suppression court turns on allegations of legal error, the suppression court’s legal conclusions are not binding on the [C]ourt [of Common Pleas], whose duty it is to determine if the suppression court properly applied the law to the facts. Thus, the conclusions of law of the cour[t] below are subject to … plenary review.

Commonwealth v. Jones, 605 Pa. 188, [197-98,] 988 A.2d 649, 654 (2010). The scope of review from a suppression ruling is limited to the evidentiary record created at the suppression hearing. In re L.J., 622 Pa. 126, [149,] 79 A.3d 1073, 1087 (2013).

Commonwealth v. Neal, 151 A.3d 1068, 1070-71 (Pa.Super. 2016).

This Court has recently explained:

“[A] defendant is legally required to raise all claims in a writ of certiorari pertaining to the proceedings in the Municipal Court, or they will be considered waived on appeal.” Commonwealth v. Williams, 125 A.3d 425, 431 (Pa.Super. 2015) (citation omitted). Further, when an appellant challenges a trial court’s denial of a petition for

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writ of certiorari, “[w]e will not disturb the [trial] court’s [decision] unless we find an abuse of discretion.” Commonwealth v. Noss, 162 A.3d 503, 507 (Pa.Super. 2017). When a writ of certiorari is denied, a defendant may raise evidentiary and sufficiency issues on appeal. See Coleman, 13 A.3d at 1119.

Commonwealth v. Hicks, No. 2738 EDA 2023, 2024 WL 5232934 at *2

(Pa.Super. filed Dec. 27, 2024) (unpublished memorandum).3

Appellant first argues that the Commonwealth failed to establish that he

knowingly and voluntarily consented to the blood draw. Appellant avers that

the evidence established that he was too impaired to consent. Specifically,

Appellant suggests that he was stuporous, semi-verbal, and unable to get out

of the car without police assistance, and that his blood draw showed significant

concentrations of six separate psychoactive substances. Appellant also

contends that the officer who administered the DL-26 warnings could not

explain how he concluded that Appellant understood the warnings and

confirmed that Appellant fell asleep as his blood was being taken. Appellant

suggests that at best, he was intermittently aware of his circumstances and

was certainly incapable of meaningful consent. For these reasons, Appellant

concludes that the court erred in denying his suppression motion. We

disagree.

“The United States Supreme Court has held that because ‘the taking of

a blood sample’ is a search within the meaning of the Fourth Amendment to

the United States Constitution, police officers may not compel the taking of a ____________________________________________

3 We may rely on unpublished decisions of this Court filed after May 1, 2019

for their persuasive value. See Pa.R.A.P. 126(b).

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blood sample without a search warrant, absent an applicable exception.”

Commonwealth v. Haines, 168 A.3d 231, 234 (Pa.Super. 2017) (quoting

Birchfield v. North Dakota, 579 U.S. 438, 455, 136 S.Ct. 2160, 2173, 195

L.E.d2d 560 (2016) (footnote omitted)). “One such exception is consent,

voluntarily given.” Commonwealth v. Strickler, 563 Pa. 47, 56, 757 A.2d

884, 888 (2000). See also Commonwealth v. Myers, 640 Pa. 653, 681,

164 A.3d 1162, 1178 (2017) (plurality) (explaining that Birchfield’s holding

“supports the conclusion that ... an individual must give actual, voluntary

consent at the time that testing is requested”).

Section 1547 of the Vehicle Code provides that “any person who drives,

operates or is in the actual physical control of a vehicle” in the Commonwealth

is 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 that said person has been driving while intoxicated. See 75

Pa.C.S.A. § 1547(a). This implied consent nevertheless implicates a right to

refuse, that may be subject to civil penalties. See id.

“[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), appeal

denied, 650 Pa. 247, 199 A.3d 858 (2018).

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

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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. Robertson, 186 A.3d 440, 444 (Pa.Super. 2018), appeal

denied, 649 Pa. 179, 195 A.3d 852 (2018).

“[K]nowledge 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.” Commonwealth v. Carmenates, 266 A.3d 1117, 1125 (Pa.Super.

2021) (quoting Strickler, supra at 79, 757 A.2d at 901). “Further, the

maturity, sophistication and mental or emotional state of the defendant

(including age, intelligence and capacity to exercise free will), are to be taken

into account.” Id. (internal citation, footnote, and quotation marks omitted).

See also Commonwealth v. Hill, No. 1359 MDA 2018 (Pa.Super. filed Aug.

15, 2019) (unpublished memorandum) (rejecting argument that defendant

was too intoxicated to provide consent to blood draw, because voluntary

intoxication is not defense to criminal charge).

Instantly, the Court of Common Pleas denied Appellant’s petition for writ

of certiorari, reasoning:

[Appellant] being in police custody at the time of the blood draw weighs against his voluntariness of consent for the first factor. However, simply being in custody is not sufficient to render consent to a blood draw involuntary.

Regarding the second factor, there was no evidence of the

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use of duress or coercive tactics by law enforcement personnel established on record. [Appellant] was not handcuffed and [Officer] Soto did not have his service weapon on him when he read the DL-26 warnings. [Officer] Soto testified that he read the DL-26 warnings in a regular conversation voice and read them verbatim and [Appellant] did not have any difficulty understanding the form.

Regarding the third Robertson factor, [Appellant] knew of his right to refuse to consent. [Officer] Soto read the DL- 26 form to him which informs a defendant of his right to refuse consent. [Appellant] signed the form after being informed of his right to refuse consent.

Regarding the fourth Robertson factor, there is no evidence in the record regarding [Appellant’s] education level or intelligence so this factor cannot be weighed in favor of [Appellant]. Regarding the fifth factor, no testimony was given regarding any sort of belief from [Appellant] that no incriminating evidence would be found which cannot be weighed in favor of [Appellant]. Neither the fourth nor the fifth factors weigh against the Commonwealth. Regarding the sixth factor, the record indicates that [Appellant] was cooperative with the police.

The only Robertson factor which weighs against the Commonwealth is the custodial status of [Appellant] which is not sufficient, on its own, to invalidate voluntary consent. The factors assessing voluntariness lead towards a finding that [Appellant] voluntarily consented to the blood draw when applying the Robertson factors.

(Trial Court Opinion, 3/11/24, at 7-8) (internal citations omitted).

Regarding Appellant’s argument that he was too intoxicated to provide

voluntary consent, the trial court observed:

[Appellant] provided no evidence that he was unconscious, medicated, or injured to the extent that he could not voluntarily consent to the blood draw. [Officer] Soto testified that he read the warnings to [Appellant] verbatim in a normal conversational voice. [Officer] Soto also testified that he gave [Appellant] the opportunity to read

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the warnings and gave the chance to ask any questions [Appellant] may have had. [Appellant] did not have difficulty answering the questions. Ultimately, [Appellant] did not ask any questions about the warnings and he physically signed the DL-26B form consenting to the blood draw. [Officer] Soto testified that had [Appellant] refused to consent to the blood draw, it would not have been conducted.

(See id. at 10).

We agree with the trial court that Appellant’s consent to the DL-26 form

was voluntary. The record confirms that the circumstances of the

administration of the warnings were not unduly coercive. Further, despite the

fact that Appellant was “slow” and “sleepy,” the record indicates that Appellant

was not so intoxicated to render his consent involuntary. See Robertson,

supra; Hill, supra.

In Appellant’s second issue, he contends that even if he was capable of

giving meaningful consent at the time of the blood draw, that consent would

have been vitiated by the nature of the warnings themselves. According to

Appellant, the DL-26 form, which threatens lengthy license suspensions and

costly restoration fees, forces a defendant to choose between constitutionally

protected interests. Appellant admits that prior panels of this Court have

found that the DL-26 implicates civil rather than criminal penalties and are,

therefore, not unduly coercive. However, Appellant suggests that these

decisions are incompatible with a long history of United States Supreme Court

precedent such that the court should have granted his suppression motion.

We disagree.

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As Appellant acknowledges, this Court has previously considered and

rejected Appellant’s argument, and we are bound by these decisions. See,

e.g., Commonwealth v. Geary, 209 A.3d 439, 443 (Pa.Super. 2019)

(stating: “Though the language of the consent form threatens penalties for

refusing consent, they are exclusively either civil or evidentiary in nature”;

this does not run afoul of Birchfield, supra); Commonwealth v. Ingram,

926 A.2d 470, 476 (Pa.Super. 2007) (explaining Superior Court opinions are

binding precedent which this Court must follow unless and until they are

overruled by en banc Superior Court panel or by higher court). Accordingly,

we discern no error or abuse of discretion and affirm the denial of Appellant’s

petition for writ of certiorari.

Order affirmed.

Date: 2/25/2025

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