from the Order entered June 30, 2017, in the Court of Common
Pleas of Centre County, Criminal Division, at No(s):
BEFORE: LAZARUS, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.
Commonwealth appeals from the order granting Sharon Kay
Johnson's motion to suppress the test results of a
warrantless blood-draw. We reverse.
summary of the facts, as stipulated to by the parties, is as
January 16, 2017, Officer Nicole Foley arrested Johnson with
probable cause and requested a blood-draw. Within the
required two hour time period, Johnson was transported to
Nittany Medical Center for a blood-draw. At the hospital,
Officer Foley gave Johnson the revised DL-26 form; the form
did not list enhanced criminal penalties as a consequence of
failing to consent to a blood-draw. Officer Foley read the
DL-26 form to Johnson and gave her the opportunity to read it
herself. She did not tell Johnson that she would face greater
criminal penalties if she refused consent to a blood-draw.
Johnson, signing the form, consented to the blood-draw.
Officer Foley did not threaten or coerce Johnson.
testified that, at the time of her arrest, she sincerely but
erroneously believed that refusing the blood-draw would
subject her to greater criminal penalties. This
misunderstanding came from Johnson's previous DUI arrest
and attending DUI Safe Driving School.
filed a pretrial motion, seeking to suppress the warrantless
blood-draw. She argued that: 1) a blood-draw given based upon
the revised O'Connell warnings,  even without the
clause regarding increased penalties, remained coercive and
contrary to Birchfield v. North Dakota, 579 U.S.,
136 S.Ct. 2160 (2016), because 75 Pa.C.S.A. § 3804(c)
still contained the increased penalty language as the law;
and 2) Johnson's existing knowledge of the enhanced
penalties under 75 Pa.C.S.A. § 3804 rendered her
warrantless blood-draw coercive under Birchfield.
The trial court granted Johnson's motion to suppress.
Commonwealth appealed one issue:
Whether the trial court erred in granting Johnson's
motion to suppress, because Officer Foley did not tell
Johnson that she would face harsher criminal penalties for
refusing a blood test, making Johnson's consent
See Commonwealth's Brief at 4.
standard of review for a suppression court's conclusions
is de novo, because when police elect not to procure
a warrant prior to searching, they forgo prior judicial
authorization and so invite our highest degree of appellate
scrutiny on review. See Ornelas v. United States,
517 U.S. 690 (1996). That said, we must "take care both
to review findings of historical fact only for clear error
and to give due weight to inferences drawn from those facts
by resident judges and local law enforcement officers."
Id. at 699.
making these judgments, our scope of review is limited to
only the evidence in the suppression hearing. See
Commonwealth v. Ennels, 167 A.3d 716 (Pa. Super. 2017)
(citations omitted). "In addition, because the defendant
prevailed on this issue before the suppression court, we
consider only the defendant's evidence and so much of the
Commonwealth's evidence as remains uncontradicted when
read in the context of the record as a whole."
Ennels at 718-19 (quotation marks and citations
omitted). Despite our narrowed view of the record and the
clearly erroneous standard we apply to the trial judge's
findings of fact, we cannot sustain the order granting
suppression of Johnson's blood-draw in this case.
governing law in this area is well settled. The Fourth
Amendment to the Constitution of the United States and
Article I, § 8 of the Constitution of the Commonwealth
of Pennsylvania both prohibit unreasonable searches and
seizures. "The administration of a blood test, performed
by an agent of, or at the direction of the government,
constitutes a search under both the United States and
Pennsylvania Constitutions." Commonwealth v.
Evans, 153 A.3d 323, 328 (2016) (citations omitted). If
an officer performs a blood-draw search without a warrant, it
is "unreasonable and therefore constitutionally
impermissible, unless an established ...