Appeal from the Order Entered July 18, 2012 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0003840-2011
The opinion of the court was delivered by: Stevens, P.J.
BEFORE: STEVENS, P.J., FORD ELLIOTT, P.J.E., and OLSON, J.
Appellant, the Commonwealth of Pennsylvania (hereinafter "the Commonwealth") appeals from the Order entered in the Court of Common Pleas of Luzerne County on July 18, 2012, granting the Motion to Suppress Evidence of Onix Gorbea-Lespier (hereinafter "Appellee").*fn1 Upon our review of the record, we reverse the suppression court's Order and remand for further proceedings.
The record reveals that on July 3, 2011, Trooper James Quiroz, the affiant in the instant matter, accompanied by Trooper John Stravinski, responded to an accident which occurred on PA Route 81 southbound on the off ramp in the area of mile marker 141 in Luzerne County. N.T., 6/29/12 at 5-6.*fn2 Trooper Quiroz testified that upon his arrival he observed two vehicles, both of which were outside the lane of travel and on the west side of the roadway. The first was a gold vehicle, driven by Appellee, and a female deceased victim was lying facing west in front of that vehicle. Id. at 6. The second vehicle, a red Dodge Neon, was located quite a bit off of the roadway in the grassy portion of the berm. Id.
Trooper Quiroz spoke to Appellee who revealed he had been at a picnic earlier in the day where he consumed a "couple of alcoholic beverages." Id. at 7. Trooper Quiroz detected an odor of alcoholic beverage on Appellee's breath and noticed his speech was slightly slurred. Id. at 8. A Preliminary Breath Test (PBT) was administered, and Appellee was placed under arrest for suspicion of driving under the influence. Id.
Appellee was transported to Hazleton General Hospital, and Trooper Quiroz stated he personally advised Appellee of the implied consent warnings en route from the scene of the crash to the hospital. Id. at 8-9.*fn3
Specifically, Trooper Quiroz reiterated for the suppression court the information he had provided to Appellee as follows:
Complied [sic] consent warnings are a police officer will ask someone to submit to a blood, breath, urine test and advise them that refusal to submit to this test would constitute at least a minimum of a 12-month suspension on their license. If they happen to have a refusal prior to the request their license can be suspended for up to 18 months. Subsequently, they would still be--they can still have the highest rate of alcohol charged along with the refusal.
Now, they do not have a right to speak to an attorney or anyone else prior to the testing. If they do request to speak to an attorney or anyone else prior to the testing or they refuse to answer to your submission they would [be] deemed as a refusal and they would be subject to the penalties described above as far as being charged with the highest rate of alcohol.
Id. at 9. Appellee told Trooper Quiroz he consented to a blood alcohol content (BAC) test, though he did not sign a written consent form. Id. at 10, 16.
It took approximately ten to fifteen minutes for Appellee to arrive at Hazleton General Hospital from the crash scene. Appellee was admitted to the hospital, and he submitted to the blood draw. Id. at 10. The first blood draw occurred at approximately 0025 hours on July 4th. Id. Appellee was again placed in handcuffs and had exited the hospital doors with the officers when the latter received a phone call from Corporal Francis Aigeldinger, the patrol unit supervisor that evening. As a result of that call, Trooper Quiroz informed Appellee that the Assistant District Attorney was requesting a second blood draw and asked whether he would be willing to submit to one. Id. at 12-13. Only Troopers Quiroz and Stravinski were with Appellee at this time, and neither officer had a weapon drawn. Appellee consented, and Trooper Quiroz described his demeanor as "very cooperative" at this point in time. Id. at 13.
The second blood draw occurred at 0055 hours. Appellee had not been given O'Connell warnings again prior to the second test. Id. at 21- 22. Trooper Quiroz explained those warnings were not reiterated as he believed Appellee had to submit only to the initial test and, therefore, implied consent and O'Connell warnings only pertained to the initial blood draw. Id. at 23.
Appellee was forty-nine years old at the time of the incident, and appeared to Trooper Quiroz to be of average intelligence and in no way injured such that he would have been rendered unable to consent to either blood test. Appellee was offered medical treatment, though he declined to seek it. Id. at 14. Appellee did not eat, drink or smoke anything between the first and second blood tests. Id.
On June 4, 2012, Appellee filed his Omnibus Pretrial Motion which contained a motion to preclude preliminary breath test evidence and a motion to suppress the second blood test performed on Appellee; the Commonwealth filed its response thereto on June 25, 2012. The Commonwealth filed a timely notice of appeal on July 26, 2012. In its brief, the Commonwealth raises the following issue for our review:
Whether the court properly suppressed the second BAC when the totality of circumstances showed [Appellee's] consent to the second BAC was properly obtained?
Commonwealth's Brief at 4.
On August 6, 2012, the suppression court filed its Statement in Lieu of Opinion wherein it noted that no further Opinion would be forthcoming because it had set forth its reasons for its decision in the Findings of Fact, Conclusions of Law and Order filed on July 18, 2012. The trial court did not require the Commonwealth to file a statement pursuant to Pa. R.A.P. 1925(b).
We note at the outset that the suppression court made no explicit finding of fact in terms of the credibility of Trooper Quiroz either at the motion hearing or in its Order granting suppression as is required by Rule Pa.R.Crim.P. 581(I). However, we need not remand for further findings of fact as to credibility because the trial court's findings of fact largely adopt Officer Quiroz's account, though it found that even accepting Officer Quiroz's description of events, Appellee did not give proper consent to the second blood draw. See Commonwealth v. Astillero, 39 A.3d 353, 357 (Pa. Super. 2012), ...