The opinion
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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KAREEM LUKE, :
:
Appellant : No. 3152 EDA 2015
Appeal from the Judgment of Sentence May 19, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0007750-2014
BEFORE: DUBOW, J., MURRAY, J., and PLATT, J.*
MEMORANDUM BY DUBOW, J.: FILED OCTOBER 18, 2018
Appellant, Kareem Luke, appeals from the Judgment of Sentence
entered by the Philadelphia County Court of Common Pleas following his
conviction by a jury of Driving Under the Influence of a Controlled Substance
(“DUI”) and Driving While Operating Privilege is Suspended or Revoked.1
Appellant challenges the sufficiency of the evidence and the denial of his
Motion to Suppress the results of a blood draw performed while he was
unconscious. Because we conclude that, pursuant to Commonwealth v.
Myers,2 the Implied Consent Law did not authorize Appellant’s blood draw,
the suppression court should have granted the Motion to Suppress.
Accordingly, we reverse.
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1 75 Pa.C.S. § 3802(d)(1) and 75 Pa.C.S. § 1543(1.1)(iii), respectively.
2 Commonwealth v. Myers, 164 A.3d 1162 (Pa. 2017).
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* Retired Senior Judge assigned to the Superior Court.
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In its Pa.R.A.P. 1925(a) Opinion, the trial court set forth the underlying
facts. See Trial Court Opinion, filed 7/19/17, at 2-4. Briefly, at approximately
2:00 A.M. on March 29, 2014, Philadelphia Police Officer Scott Amrik saw
Appellant fail to stop at a stop sign at 6000 Ditman Street. Officer Amrik
pulled Appellant over and called for backup. As he approached Appellant’s
vehicle, Officer Amrik smelled a strong, distinctive chemical smell he knew
from experience to be PCP.
After briefly interacting with Appellant during the traffic stop and
observing Appellant’s dazed stare, confusion, and delayed responses to
questions, Officer Amrik believed that Appellant was under the influence of a
controlled substance and unable to operate his vehicle safely. Officer Amrik
asked Appellant to step out of his vehicle and attempted to place him in
handcuffs. Appellant resisted his arrest and struggled with Officer Amrik, and
they both fell to the ground during the struggle. Officer Amrik tased Appellant,
but after briefly falling to the ground, Appellant popped up and ran away.
Police later found Appellant collapsed at the bottom of basement steps of a
nearby building, arrested him, and transported him to the hospital.
Significantly, Philadelphia Police Officer Jimmy Brown interacted with
Appellant at the hospital at approximately 3:00 A.M. that same morning.
Officer Brown spoke with the other officers about the circumstances of
Appellant’s arrest and learned that Appellant had been tased by police during
a car stop.
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Officer Brown observed Appellant lying on a gurney in the emergency
room with his eyes closed. Officer Brown did not see any visible signs of injury
on Appellant. Seeking Appellant’s consent to conduct a blood test, Officer
Brown attempted to rouse Appellant by speaking to him and tapping his
shoulders. Appellant opened his eyes once, looked at Officer Brown briefly,
and then closed his eyes. Appellant did not otherwise move or respond during
the encounter with Officer Brown.
Officer Brown gave O’Connell warnings3 by reading them in Appellant’s
presence while Appellant was unresponsive on the gurney. Predictably,
Appellant did not respond and did not provide his affirmative consent. Officer
Brown did not obtain a warrant for a blood draw. Rather, Officer Brown
concluded that Appellant had provided “implied consent,” and summoned a
nurse to draw Appellant’s blood. Appellant remained unconscious throughout
the blood draw. The results of Appellant’s blood test indicated both PCP and
Xanax.
The Commonwealth charged Appellant with the above offenses. On July
16, 2014, Appellant filed a Motion to Suppress, inter alia, the “blood results”
obtained without a warrant while he was unconscious. Following a
suppression hearing at which Officers Amrik and Brown testified, the court
denied Appellant’s Motion to Suppress.
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3See Commonwealth, Dep’t of Transp., Bureau of Traffic Safety v.
O’Connell, 555 A.2d 873 (Pa. 1989).
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On August 27, 2014, a jury convicted Appellant of the above offenses.
On May 19, 2015, the trial court sentenced Appellant to a term of two to five
years’ incarceration.
On May 29, 2015, Appellant filed a Post-Sentence Motion. On June 4,
2015, Appellant filed a Notice of Appeal. This Court quashed Appellant’s
appeal as interlocutory on September 22, 2015, because the trial court had
not yet decided Appellant’s Post-Sentence Motion. Commonwealth v. Luke,
No. 1738 EDA 2015 (Pa. Super. filed Sept. 22, 2015) (per curiam).
Appellant’s Post-Sentence Motion was denied by operation of law on
October 7, 2015. On October 15, 2015, Appellant filed a Notice of Appeal.
Both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant presents two issues for our review:
[1.] Did the court commit error by denying Appellant’s Motion to
Suppress the results of Appellant’s blood test when such blood
was taken without a warrant or exigent circumstances and without
Appellant’s consent?
[2.] Did the court commit error by convicting Appellant of [DUI]
where the evidence at trial was insufficient to establish that
Appellant operated a vehicle under the influence of a controlled
substance?
Appellant’s Brief at 3 (reordered, capitalization omitted).
In reviewing the denial of a Motion to Suppress, we are limited to
considering only the Commonwealth’s evidence and “so much of the evidence
for the defense as remains uncontradicted when read in the context of the
record as a whole.” Commonwealth v. McCoy, 154 A.3d 813, 815-16 (Pa.
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Super. 2017). Where the testimony and other evidence supports the
suppression court’s findings of fact, we are bound by them and “may reverse
only if the court erred in reaching its legal conclusions based upon the facts.”
Id. at 816. It is within the exclusive province of the suppression court to
“pass on the credibility of witnesses and determine the weight to be given to
their testimony.” Id.
“The scope of review from a suppression ruling is limited to the
evidentiary record created at the suppression hearing.” Commonwealth v.
Neal, 151 A.3d 1068, 1071 (Pa. Super. 2016) (citing In re L.J., 79 A.3d
1073, 1087 (Pa. 2013)). This Court will not disturb a suppression court’s
credibility determination absent a clear and manifest error. Commonwealth
v. Camacho, 625 A.2d 1242, 1245 (Pa. Super. 1993).
Importantly, “[o]nce a [M]otion to [S]uppress [E]vidence 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, 1047-48
(Pa. 2012) (citation omitted); see also Pa.R.Crim.P. 581(H).
The Fourth Amendment of the United States Constitution and Article 1,
Section 8 of the Pennsylvania Constitution protect citizens from unreasonable
searches and seizures. In re D.M., 781 A.2d 1161, 1163 (Pa. 2001). To
effectuate these protections, the exclusionary rule bars the use of illegally
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obtained evidence in state prosecutions in order to deter illegal searches and
seizures. Commonwealth v. Arter, 151 A.3d 149, 153-54 (Pa. 2016).
Pennsylvania’s Implied Consent Law provides that any person who
drives a vehicle in the Commonwealth “shall be deemed to have given
consent” to a blood draw if a police officer has reasonable grounds to believe
the person has been driving under the influence of a controlled substance. 75
Pa.C.S. § 1547(a). The statute provides numerous civil and evidentiary
consequences of a person’s refusal to consent to the testing authorized in
Section 1547(a). See, e.g., 75 Pa.C.S. §§ 1547(b), (b.1), (b.2), (c), (e), (f),
(g.1).
Any person arrested for suspicion of DUI possesses an express
“statutory right to refuse chemical testing.” Commonwealth v. Myers, 164
A.3d 1162, 1170 (Pa. 2017); 75 Pa.C.S. §§ 1547(b)(1). The Pennsylvania
Supreme Court recently held that this right of refusal applies to unconscious
arrestees. Myers, 164 A.3d at 1171-72. When an arrestee’s unconscious
state “prevent[s] him from making a knowing and conscious choice as to
whether to exercise that right,” the Implied Consent Law does not authorize
a blood draw while the arrestee is unconscious. Id. at 1172.4
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4 The Myers Court also held that: (1) implied consent is not an independent
exception to the warrant requirement; and (2) an arrestee does not voluntarily
consent to a blood draw when he or she is unconscious and deprived of the
right to refuse testing. Myers, 164 A.3d at 1180-81. The Myers Court further
noted that “Birchfield (like our own precedents) provides a general if
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Appellant argues that the suppression court erred in denying his Motion
to Suppress the blood sample because the Commonwealth obtained it without
a warrant and without his consent. Appellant’s Brief at 11. Appellant contends
that, similar to the arrestee in Myers, police relied on the Implied Consent
Law to obtain his blood sample while he was unconscious in the emergency
room. Id. at 12-13. The Commonwealth agrees that we must vacate
Appellant’s Judgment of Sentence because Myers held “that a blood draw
under similar circumstances violated the Fourth Amendment, notwithstanding
Pennsylvania’s implied consent statute.” Commonwealth’s Brief at 6.
Based on Appellant’s status as an unconscious arrestee, his failure to
refuse the blood test, and Officer Amrik’s probable cause to suspect Appellant
was driving under the influence of a controlled substance, the trial court
opined, “Appellant had given his implied consent to a blood test without a
warrant.” Trial Court Opinion, 7/19/17, at 10. In its Opinion, the trial court
relied on two Pennsylvania Supreme Court cases: Commonwealth v. Riedel,
651 A.2d 135 (Pa. 1994), and Commonwealth v. Eisenhart, 611 A.2d 681
(Pa. 1992). In Myers, our Supreme Court expressly: (1) disapproved of
Riedel insofar as it suggested that implied consent was an independent
exception to the warrant requirement; and (2) found untenable the statement
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uncontroversial endorsement of the concept of implied consent.” Myers, 164
A.3d at 1178 (citing Birchfield v. North Dakota, ___ U.S. ___, 136 S.Ct.
2160, 2185, 195 L.Ed. 2d 560 (2016)).
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in Eisenhart “that testing is allowed absent an affirmative showing of the
subject’s refusal to consent to the test at the time that the testing is
administered.” Myers, 164 A.3d at 1180, 1181 n.21 (quoting Eisenhart, 611
A.2d at 683).5
After careful review, we conclude that Myers is directly on point and
squarely controls the outcome here. Officer Brown did not obtain a warrant
before directing the emergency room nurse to draw a sample of Appellant’s
blood. Although Officer Brown read Appellant the O’Connell warnings,
attempted to wake Appellant up by tapping him and speaking to him, saw no
visible signs of injury, and believed Appellant was “play[ing] possum,” 6
Appellant remained unconscious while lying on a hospital gurney during the
encounter. Although Appellant looked up briefly at Officer Brown at some
point during the interaction, he did not otherwise acknowledge Officer Brown
or the O’Connell warnings.
Notwithstanding Appellant’s unconscious state, Officer Brown directed
the emergency room nurse to draw Appellant’s blood. That blood sample
served as the basis for Appellant’s particular DUI charge because it revealed
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5 We note that the trial court filed its Opinion on the same date that the
Pennsylvania Supreme Court filed its Opinion in Myers and thus, would not
have known about the change in the law.
6 N.T. Suppression, 8/19/14, at 34.
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the presence of controlled substances, and the Commonwealth presented the
results of the blood test at Appellant’s jury trial.
Because Appellant’s unconscious state “prevented him from making a
knowing and conscious choice as to whether to exercise” his right to refuse
the blood draw, the Implied Consent Law did not authorize the blood draw.
Myers, 164 A.3d at 1172. Accordingly, we conclude that the suppression
court should have granted Appellant’s Motion to Suppress.
We vacate Appellant’s Judgment of Sentence, reverse the Order denying
Appellant’s Motion to Suppress, and remand for a new trial at which the trial
court shall exclude the evidence derived from the warrantless blood draw.7
Judgment of Sentence vacated. Case remanded for further proceedings.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/18/18
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7 Given our resolution, we need not reach Appellant’s second issue.
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