Opinion
J-A08017-17 No. 1452 EDA 2016
07-21-2017
COMMONWEALTH OF PENNSYLVANIA Appellant v. ELMO PENA Appellee
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order April 20, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): MC-51-CR-0013593-2015 BEFORE: PANELLA, J., LAZARUS, J., and STEVENS, P.J.E. MEMORANDUM BY LAZARUS, J.:
Former Justice specially assigned to the Superior Court.
The Commonwealth of Pennsylvania appeals from the order, entered in the Court of Common Pleas of Philadelphia County, granting Elmo Pena's motion to suppress. We affirm.
The Commonwealth has certified in its notice of appeal that the suppression order will "terminate or substantially handicap the prosecution." See Pa.R.A.P. 311(d).
On May 2, 2015, Police Officer Lorenz Hardy responded to a radio dispatch regarding an automobile accident. Officer Hardy found Pena in his car, which was on the lawn of a residential property. Pena was bleeding from his head, his speech was slurred and he smelled of alcohol. He was transported to the hospital and treated for a concussion.
Approximately one hour later, Officer Daniel Shead went to the hospital and arrested Pena, charging him with driving under the influence, 75 Pa.C.S.A. § 3802(a)(1). After Officer Shead obtained Pena's marking on the O'Connell warnings form and his initials on the date line of the Report for Chemical Testing consent form, a nurse drew blood from Pena's left arm.
Section 3802(a)(1) provides:
(a)General impairment.—
(1) An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle.
The O'Connell warnings were first announced in Commonwealth , Department of Transportation , Bureau of Traffic Safety v. O'Connell , 555 A.2d 873 (Pa. 1989). In a later opinion, our Supreme Court explained both the O'Connell warnings and the reasoning behind the warnings:
in order to guarantee that a motorist makes a knowing and conscious decision on whether to submit to testing or refuse and accept the consequence of losing his driving privileges, the police must advise the motorist that in making this decision, he does not have the right to speak with counsel, or anyone else, before submitting to chemical testing, and further, if the motorist exercises his right to remain silent as a basis for refusing to submit to testing, it will be considered a refusal and he will suffer the loss of his driving privileges[. T]he duty of the officer to provide the O'Connell warnings as described herein is triggered by the officer's request that the motorist submit to chemical sobriety testing, whether or not the motorist has first been advised of his Miranda rights.
Pena filed a motion to suppress the blood test results. Following a hearing, the suppression court granted Pena's motion. The Commonwealth appeal, and presents one issue for our review:
Did the suppression court err by granting [Pena's] motion to suppress where he knowingly consented to a blood draw?Appellant's Brief, at 4.
When a motion to suppress evidence has been filed, it is the Commonwealth's burden to prove, by a preponderance of the evidence, that the challenged evidence was not obtained in violation of the defendant's rights. Commonwealth v. Wallace , 42 A.3d 1040, 1047-1048 (Pa. 2012). see also Pa.R.Crim.P. 581(H).
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 not binding on an appellate court, whose duty is to determine if the suppression court properly applied the law to the facts.Commonwealth v. Miller , 56 A.3d 1276, 1278-79 (Pa. Super. 2012) (citations omitted). "Our standard of review is restricted to establishing whether the record supports the suppression court's factual findings; however, we maintain de novo review over the suppression court's legal conclusions." Commonwealth v. Brown , 996 A.2d 473, 476 (Pa. 2010) (citation omitted).
At the suppression hearing, Officer Shead testified that he read Pena the O'Connell warnings, however, Pena neither reviewed them nor verbally responded that he understood them. N.T. Suppression Hearing, 8/13/15, at 41-42. Officer Shead acknowledged that "[Pena] just signed." Id. at 42. "He moved slightly. He wasn't up and about. Like I said, he was laying on a gurney. . . . I physically had to hold the forms in front of him so he could sign them." Id. Pena remained in the hospital for two days, and his discharge papers indicated he had suffered a concussion. Id. at 46. The suppression court found that Pena's head trauma and related injuries impaired his ability to understand, and, therefore, consent.
Based on our review of the parties' briefs, the record, and the relevant law, we agree with the suppression court's determination that the Commonwealth did not establish by a preponderance of the evidence that Pena gave either implied or actual consent to the blood draw. See Wallace , supra ; see also Commonwealth v. Eisenhart , 611 A.2d 681, 684 (Pa. 1992) (conscious driver has explicit right under section 1547(b) to refuse blood draw). We, therefore, affirm the order granting suppression based on Judge Michael E. Erdos' opinion. The parties are directed to attach a copy of that opinion in the event of further proceedings.
Order affirmed.
Judge Panella joins the Memorandum.
President Judge Emeritus Stevens files a Dissenting Memorandum. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 7/21/2017
Image materials not available for display.
Commonwealth, Dep't of Transp., Bureau of Driver Licensing v. Scott, 546 Pa. 241, 684 A.2d 539, 545 (1996).