Com. v. Newdeck, K.

J-A14021-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

KIMBERLY D. NEWDECK

Appellant No. 974 EDA 2016

Appeal from the Judgment of Sentence February 25, 2016

In the Court of Common Pleas of Chester County

Criminal Division at No(s): CP-15-CR-0001874-2015

BEFORE: BENDER, P.J.E., BOWES, J. AND SHOGAN, J.

MEMORANDUM BY BOWES, J.: FILED SEPTEMBER 27, 2017

Kimberly Newdeck appeals from the judgment of sentence of a flat

ninety-day period of confinement1 followed by three years of probation,

imposed following her convictions for two counts of driving a bicycle under

the influence (DUI).2 We vacate Appellant’s judgment of sentence, vacate

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1

The trial court states that Appellant “was made eligible for Recovery

Court.” Trial Court Opinion, 11/10/16, at 4. The record does not indicate

what that entails. To the extent the sentence is for a period of total

confinement, it is illegal as those sentences must specify both a minimum

and a maximum sentence. 42 Pa.C.S. § 9756(b)(1); Commonwealth v.

Mitchell, 986 A.2d 1241, 1244 (Pa.Super. 2009) (flat sentence of ninety

days incarceration was illegal). However, because we vacate judgment of

sentence on other grounds, any illegality is irrelevant.

2

A bicycle qualifies as a vehicle under the Vehicle Code, and the DUI laws

therefore apply. See Commonwealth v. Brown, 620 A.2d 1213

(Footnote Continued Next Page)

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the suppression order, and remand the case for proceedings consistent with

this memorandum.

We adopt the facts as ably set forth by the trial court in its Pa.R.A.P.

1925(a) opinion.

On November 6, 2014 . . . . Ms. Jennings testified that she was

on Route 100 at the intersection of Commerce Boulevard. She

had a green light and was proceeding into the intersection when

she then heard and felt defendant [,who was riding a bicycle,]

collide with her driver's side door. As soon as the defendant hit

her car, she stopped her vehicle and checked to see if the

defendant was okay. She heard her moan, and then immediately

grabbed her phone and called 911. The police were already

dispatched to the scene after a 911 call was placed by a Mr. Fred

Slack at 9:54 p.m. Ms. Jennings' car sustained damage to the

driver's side of the vehicle, including to the driver's side mirror.

Officer Richard Barth of the West Whiteland Police Department

was dispatched to the scene for an accident involving a bicyclist

and a vehicle. Upon his arrival, Officer Barth found the defendant

lying on the road next to her bicycle with serious injuries. She

was unable to speak clearly and was in obvious pain and

discomfort. While attempting to talk to defendant, he detected a

strong odor of alcohol emanating from her breath and person.

He also found an unopened bottle of vodka on the ground about

a foot away from where she was lying, which he later

ascertained was hers. While at the accident scene, Officer Barth

formed the opinion that defendant was intoxicated to the point

that she was incapable of safely operating a bicycle.

....

Defendant was transported to Paoli Memorial Hospital's trauma

unit where she was treated for serious injuries including a

_______________________

(Footnote Continued)

(Pa.Super. 1993) (“A bicycle is clearly not a motor vehicle . . . However, it is

the operators of vehicles, not the operators of motor vehicles, who are

regulated[.]”).

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hemoneumothorax, collapsed lung, fractured ribs, broken

scapula and a head injury, which required 8-9 staples in her

scalp. While in the trauma room and receiving treatment, Officer

Barth waited either in the room or right outside.

While defendant was obtaining treatment for her injuries, Officer

Barth advised her that he suspected that she was operating her

bicycle while she was intoxicated, and he was therefore

investigating her for Driving Under the Influence (hereinafter

"DUI"). He then requested a sample of her blood for testing.

Defendant, who was 45 years old at the time, responded that

she wanted to speak with her father. The officer told her that

she was above the age of 18 and had to make the decision

herself, and she replied, "well, I guess." He then asked if she

was consenting to the blood draw and he told her she could

refuse, but that she would face penalties from the Department of

Transportation including the loss of her license and a $1,000.00

fine. She then asked to speak to her father again. Officer Barth

explained that she needed to make the decision, not her father,

and she replied, "okay, I guess." At that point, the nurse came in

and drew the blood, which was then provided to the officer and

tested through the regular means of testing. The results showed

a blood alcohol content (hereinafter "BAC ") of .173%. . . .

While Officer Barth did inform the defendant of the

consequences for refusing to provide a blood sample, he did not

read the Implied Consent Form (DL-26) to her or ask her to sign

one since she consented to the blood draw. He testified that he

only provides the form to a person if they refuse to give consent.

Trial Court Opinion, 11/10/16, at 1-3.

Appellant was charged with a summary traffic offense, and two counts

of driving under the influence, one for general impairment and one for

driving with a blood alcohol concentration (“BAC”) greater than 0.16% within

two hours of driving. Appellant filed a motion to suppress the blood results,

asserting that the warrantless blood draw did not fall within any valid

exception to the warrant requirement.

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The trial court denied the motion after an evidentiary hearing.

Appellant then submitted, on October 14, 2015, a supplemental motion to

suppress, averring that “[t]he original seizure of blood was unlawful,” and

that a subsequent warrant for hospital records was predicated upon the

results of the blood draw taken by Officer Barth. Supplemental Motion to

Suppress, 10/14/15, at ¶ 6-7. An evidentiary hearing was not held, nor was

the motion ruled upon, presumably because the trial court had already

determined that the Commonwealth could introduce the evidence obtained

by Officer Barth.

Following a bench trial, Appellant was convicted of all counts. The trial

court subsequently imposed the foregoing sentence. Appellant filed a timely

notice of appeal and complied with the trial court’s order to file a concise

statement. The trial court authored an opinion in response and we now

examine the two issues posed by Appellant.

1. Did the trial court err in denying defendant's Motion to

Suppress and in concluding that she knowingly, intelligently and

voluntarily consented to the seizure of a sample of her blood,

after the officer refused to allow her to consult with another, and

told the defendant that there would be an enhanced penalty if

she refused to consent to blood testing?

2. Did the trial court err in denying defendant's Motion For

Judgment of Acquittal, and in concluding that the

Commonwealth's evidence was sufficient to prove, beyond a

reasonable doubt, the charged violation of 75 Pa.C.S. § 3802(c)

that defendant drove a vehicle within two hours before a sample

of her blood was drawn?

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Appellant’s brief at 4. We agree that the order denying suppression must be

reversed; however, we address the second issue first. “Since a sufficiency

claim warrants automatic discharge rather than retrial, we address that issue

at the outset.” Commonwealth v. Coleman, 130 A.3d 38, 41 (Pa.Super.

2015) (reviewing sufficiency claim before addressing suppression claim).

Following the Commonwealth’s presentation of evidence, Appellant

moved for judgment of acquittal at the § 3802(c) charge, which criminalizes

the following:

(c) Highest rate of alcohol.--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 alcohol concentration in the individual's blood or breath is

0.16% or higher within two hours after the individual has driven,

operated or been in actual physical control of the movement of

the vehicle.

75 Pa.C.S. § 3802(c). That motion challenged the sufficiency of the

evidence. See Pa.R.Crim.P. 606(A)(1) (motion for judgment of acquittal

challenges the sufficiency of the evidence). Whether the evidence was

sufficient to support the conviction presents a question of law. Our standard

of review is de novo and our scope of review is plenary. Commonwealth v.

Walls, 144 A.3d 926, 931 (Pa.Super. 2016) (citation omitted). In

conducting our inquiry, we

examine whether the evidence admitted at trial, and all

reasonable inferences drawn therefrom, viewed in the light most

favorable to the Commonwealth as verdict winner, support the

jury's finding of all the elements of the offense beyond a

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reasonable doubt. The Commonwealth may sustain its burden by

means of wholly circumstantial evidence.

Commonwealth v. Doughty, 126 A.3d 951, 958 (Pa. 2015).3

The only element at issue is whether the Commonwealth established

that Appellant’s BAC was 0.16% or higher within two hours of operation.

While our standard of review is de novo, the trial court’s rationale for

denying the motion is well-stated:

Defendant claims that the Commonwealth failed to establish the

third element. The court disagrees. Ms. Jennings testified that

as soon as the defendant hit her car, she stopped her vehicle

and checked to see if the defendant was okay. She heard her

moan, and then immediately grabbed her phone and called 911.

The police were already dispatched to the scene, however, after

a 911 call was placed by a Mr. Fred Slack at 9:54 p.m. It is

clear, based on the totality of the circumstances, that the

accident happened within moments of that call. This conclusion

is based on the time of day, the location of the accident, and the

number of people in the area. It is supported by the fact that

Ms. Jennings called almost immediately after the accident but

the police were already on their way because of the call from Mr.

Slack. Defendant's blood was drawn at 11:50 p.m., which was

within two hours of the accident and the test reflected a BAC of

0.173%. Accordingly, the court finds that the Commonwealth

established that defendant's BAC was 0.16% or higher within

two hours of riding her bicycle as required by the statute.

Order Denying Motion for Judgment of Acquittal, 11/17/15, at 1, n.1.

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3

Since Appellant moved for judgment of acquittal at the close of the

Commonwealth’s case-in-chief, we slightly modify the inquiry by asking

whether the evidence could support a finding of guilt beyond a reasonable

doubt. The distinction is immaterial for legal purposes.

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We fully agree with this analysis, as the Commonwealth may establish

its burden of proof as to any element of a crime through wholly

circumstantial evidence. In Commonwealth v. Johnson, 833 A.2d 260

(Pa.Super. 2003), we noted that “an eyewitness is not required to establish

that a defendant was driving, operating, or was in actual physical control of

a motor vehicle. The Commonwealth can establish [that] through wholly

circumstantial evidence[.]” Id. at 263. The evidence established that

Appellant, riding a bicycle, struck a vehicle driven by Brandy Jennings. Ms.

Jennings testified that she immediately stopped her vehicle and called 911.

N.T., 10/19/15, at 111. Police arrived within minutes of the accident. Id. at

96. Corporal Gary Moore, the first police officer on scene, stated that he

was dispatched by 911 at 9:55 p.m. Tara Capoferri testified that the blood

was drawn at 11:50 p.m.4 Id. at 74.

Viewing this evidence in a light most favorable to the Commonwealth

establishes that Appellant was operating the bicycle at approximately 9:54

p.m. Hence, the blood draw at 11:50 p.m. was within two hours. In other

words, the blood draw was timely unless Appellant was last operating the

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4

Appellant maintains that the time of the blood draw was 11:55 p.m., as

Officer Barth listed that time in his testimony. Appellant’s brief at 22-23.

However, the nurse who conducted the blood draw testified that the blood

was drawn at 11:50 p.m. It is for the fact-finder to resolve these types of

factual discrepancies, and for sufficiency purposes we must view the facts in

the light most favorable to the Commonwealth, not Appellant.

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bicycle prior to 9:50 p.m. We find that the Commonwealth’s circumstantial

evidence established that was not the case. Therefore, the trial court

properly denied the motion.

Furthermore, even if the circumstantial evidence alone did not suffice,

the Commonwealth clearly established, pursuant to 75 Pa.C.S. § 3802(g),

that the blood was drawn within two hours of operation for purposes of the

underlying DUI crime. That subsection states:

(g) Exception to two-hour rule.--Notwithstanding the

provisions of subsection (a), (b), (c), (e) or (f), where alcohol or

controlled substance concentration in an individual's blood or

breath is an element of the offense, evidence of such alcohol or

controlled substance concentration more than two hours after

the individual has driven, operated or been in actual physical

control of the movement of the vehicle is sufficient to establish

that element of the offense under the following circumstances:

(1) where the Commonwealth shows good cause

explaining why the chemical test sample could not be

obtained within two hours; and

(2) where the Commonwealth establishes that the

individual did not imbibe any alcohol or utilize a

controlled substance between the time the individual

was arrested and the time the sample was obtained.

75 Pa.C.S. § 3802(g).

The Commonwealth, recognizing that the two-hour window was close,

established each of these two requirements, a fact that Appellant does not

dispute. Instead, Appellant maintains that the Commonwealth cannot rely

on that subsection, since “Section 3802(g) creates an ‘aggravated’ offense

that is different and separate from the offenses set forth in . . . Section

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3802(c).” Appellant’s brief at 24. Appellant avers that the (g)(1), (2)

provisions constitute “additional elements” that, when proven, result in

increased penalties in violation of United States v. Alleyne, 133 S.Ct. 2151

(2013) (holding that any fact that, by law, increases the penalty for a crime

is an element that must be submitted to the jury and found beyond a

reasonable doubt). Appellant’s brief at 24-25.

We disagree. First, Appellant’s legal argument is misdirected; her

argument that § 3802(g) violates Alleyne has nothing to do with the

sufficiency of the evidence to satisfy the two-hour timing element but rather

an assertion that § 3802(g) is unconstitutional for reasons divorced from the

sufficiency context.

More importantly, § 3802(g) does not increase the otherwise

applicable penalty for the pertinent DUI crimes, nor does it involve proof of

any additional facts. A violation of the underlying DUI offense, in this case §

3802(c), remains the pertinent crime that the Commonwealth must establish

beyond a reasonable doubt. Section 3802(g) simply provides an exception

to the normal two-hour requirement where the two delineated conditions are

met. Contrary to Appellant’s argument, the two conditions do not constitute

additional elements, but instead reflect a legislative recognition that the

Commonwealth cannot meet the two-hour time requirement in all DUI cases.

In this sense, § 3802(g) is no different than the constructive possession

doctrine, which serves to satisfy the element of possession. See

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Commonwealth v. Mudrick, 507 A.2d 1212, 1213 (Pa. 1986) (“Clearly the

Commonwealth could not show actual possession of the contraband. Its case

was based on constructive possession. Constructive possession is a legal

fiction, a pragmatic construct to deal with the realities of criminal law

enforcement.”). Likewise, § 3802(g) is a legal fiction, explicitly codified by

the legislature, to deal with the practical realities of enforcing DUI laws. It

applies only when the Commonwealth has good cause for not testing a

defendant’s blood alcohol level within two hours. There is no doubt that the

scenario herein, where the suspected DUI defendant received medical

attention for injuries sustained in a crash, qualified as good cause.

Therefore, even if we accepted that the blood draw occurred a few minutes

outside the two-hour window, the Commonwealth satisfied the statutory

exception.

Having concluded that sufficient evidence supported the verdict, we

now address the suppression issue. During the pendency of this appeal, the

United States Supreme Court issued North Dakota v. Birchfield, 136 S.Ct.

2160 (2016), which concluded that a warrantless blood draw was not

justified as a search incident to arrest. Next, with respect to whether the

consent exception for searches applied based on implied consent, i.e. the

theory that operating a motor vehicle constitutes consent by conduct, the

Court concluded that the warrantless taking of a blood sample could not be

justified based on such laws.

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Our prior opinions have referred approvingly to the general

concept of implied-consent laws that impose civil penalties and

evidentiary consequences on motorists who refuse to comply.

Petitioners do not question the constitutionality of those laws,

and nothing we say here should be read to cast doubt on them.

It is another matter, however, for a State not only to insist upon

an intrusive blood test, but also to impose criminal penalties on

the refusal to submit to such a test. There must be a limit to the

consequences to which motorists may be deemed to have

consented by virtue of a decision to drive on public roads.

Id. at 2185 (citations omitted).

In Commonwealth v. Evans, 153 A.3d 323 (Pa.Super. 2016), we

applied Birchfield, vacated the judgment of sentence, and remanded for an

evidentiary hearing regarding whether, in light of Birchfield, the

defendant’s consent could be deemed voluntary. Therein, David Evans

agreed to provide blood after being read the implied consent warnings. See

75 Pa.C.S. § 1547(a). Like Appellant herein, Evans maintained that his

consent was coerced by the threat of criminal penalties and was therefore

involuntary. Applying Birchfield, we determined that further proceedings

were required:

[E]ven though Pennsylvania's implied consent law does not

make the refusal to submit to a blood test a crime in and of

itself, the law undoubtedly “impose[s] criminal penalties on the

refusal to submit to such a test.” Birchfield, 136 S.Ct. at 2185–

2186. To be sure, Section 3804(c) provides that an “individual

who violates section 3802(a)(1)[, DUI, general impairment] and

refused testing of blood” is punished more severely than an

individual who commits the stand-alone DUI, general impairment

offense under Section 3802(a)(1)—and to the same extent as an

individual who violates Section 3802(c), relating to DUI, highest

rate of alcohol. 75 Pa.C.S.A. § 3804(c). As such, Birchfield

controls the case at bar.

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In this case, Appellant consented to the warrantless blood draw

. . . . [only] after being informed, by the police, that refusal to

submit to the test could result in enhanced criminal penalties.

Since Birchfield held that a state may not “impose criminal

penalties on the refusal to submit to [a warrantless blood] test,”

the police officer's advisory to Appellant was partially inaccurate.

Therefore, we must vacate Appellant's judgment of sentence,

vacate the suppression court's order, and remand the case to

the trial court to “reevaluate [Appellant's] consent ... [, based

on] the totality of all the circumstances ... [and] given the partial

inaccuracy of the officer's advisory.” Birchfield, 136 S.Ct. at

2186.

Evans, supra at 331 (all alterations except first in original).

The Commonwealth concedes that the suppression order must be

vacated, as Appellant preserved the issue at all stages and is therefore

entitled to application of the Birchfield holding. The Commonwealth does

not ask for a remand to address the voluntariness of the consent or suggest

that the order may be affirmed on some other ground, such as exigent

circumstances. Instead, the Commonwealth states that the issue of whether

it may introduce the evidence obtained as a result of the search warrant,

which was the subject of the supplemental suppression motion, is for

litigation upon retrial. We agree that Evans applies, and therefore reverse

judgment of sentence and remand for a new trial at which the suppressed

evidence must be excluded.

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Judgment of sentence vacated. Suppression order vacated.

Jurisdiction relinquished.5

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5

We note that, following oral argument in this case, our Supreme Court

decided Commonwealth v. Myers, --- A.3d ---, 2017 WL 3045867 (Pa.

July 19, 2017). A majority of our High Court agreed that an unconscious

driver retained the statutory right to refuse a blood draw, since that right

applies to all DUI arrestees. See 75 Pa.C.S. § 1547(a) (motorist is deemed

to have consented to chemical testing of breath or blood if police officer has

reasonable basis to suspect motorist is impaired by influence of alcohol or a

controlled substance); § 1547(b) (consequences for refusal).

Justice Wecht, joined by Justices Donohue and Dougherty, expressed the

view that the warrantless blood draw was not otherwise saved under the

implied consent theory. Justice Wecht opined that the driver must be given

the chance to refuse, not only as a statutory right, but as a constitutional

command. “This conclusion not only is commanded by the statute; it is a

constitutional necessity.” Id. at *11 (footnote omitted). Justice Todd filed a

concurring opinion, stating that the statutory violation was enough to

resolve the case, and declined to address the constitutional dimensions.

Chief Justice Saylor, joined by Justice Baer, authored a concurring opinion

disagreeing with the foregoing discussion respecting whether implied

consent serves as consent. “[I]t seems to me that the voluntary act of

operating a vehicle suffices to establish the initial consent to chemical

testing.” Id. at *15 (Saylor, C.J., concurring). Justice Mundy also

expressed that view in dissent. “The text reveals the General Assembly's

intent to generally deem all drivers on Pennsylvania's roads as having

consented to blood or breath tests . . . . one who has been deemed to have

given consent and does not affirmatively revoke consent has still given it.”

Id. at *17-18 (Mundy, J., dissenting).

As is evident from Myers, the issue of implied consent remains unsettled

post-Birchfield. See e.g. State v. Brar, --- N.W.2d ---, 2017 WL 2876142

at *4 (Wi. 2017) (“The use of the word ‘implied’ in the idiom ‘implied

consent’ is merely descriptive of the way in which an individual gives

consent. It is no less sufficient consent than consent given by other

means.”). This case deals with a patient who was apparently conscious at

all times, and may or may not have had blood drawn for independent

(Footnote Continued Next Page)

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Judge Shogan joins the memorandum.

P.J.E. Bender concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/27/2017

_______________________

(Footnote Continued)

medical reasons in addition to investigative reasons. Our disposition is

limited to an agreement that Birchfield rendered involuntary Appellant’s

consent to the requested blood draw.

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