Commonwealth v. Bell

• Citation: 211 A.3d 761
• Decision Date: 17 July 2019
• Docket Number: No. 11 MAP 2018,11 MAP 2018
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Thomas S. BELL, Appellant
• Court: United States State Supreme Court of Pennsylvania

211 A.3d 761

COMMONWEALTH of Pennsylvania, Appellee

v.Thomas S. BELL, Appellant

No. 11 MAP 2018

Supreme Court of Pennsylvania.

Submitted: November 30, 2018

Decided: July 17, 2019

OPINION

JUSTICE DOUGHERTY

We granted discretionary review to determine whether Section 1547(e) of the Vehicle Code, 75 Pa.C.S. § 1547(e),¹ which expressly allows the Commonwealth to introduce evidence at trial that a defendant charged with Driving Under the Influence (DUI) refused to submit to chemical testing, violates the Fourth Amendment to the United States Constitution² or Article I, Section 8 of the Pennsylvania Constitution.³ We conclude the evidentiary consequence authorized by Section 1547(e) is constitutional. Accordingly, we affirm the order of the Superior Court.

Following his arrest on suspicion of DUI on May 16, 2015, appellant Thomas Bell was transported to the Lycoming County DUI Center. N.T. 4/28/16 at 37. At the DUI Center, Detective Douglas Litwhiler read the PennDOT DL-26 form to appellant and he refused to submit to a blood test. Id. at 38. Appellant was subsequently charged with DUI — general impairment, 75 Pa.C.S. § 3802(a)(1), and a summary traffic offense for failing to use required lighting, 75 Pa.C.S. § 4302(a)(1).

Appellant filed a pre-trial motion to dismiss arguing he had a constitutional right to refuse to submit to a warrantless blood test and thus evidence of his refusal should be suppressed and the DUI charge dismissed. See Appellant's Motion to Dismiss, 3/8/16 at 5. The trial court denied the motion on April 28, 2016, and appellant proceeded to a nonjury trial that same day. N.T. 4/28/16 at 6. During trial, Detective Litwhiler testified regarding appellant's refusal to submit to blood testing and his assertion he did not want a needle in his arm because he had previously contracted hepatitis from a hospital needle. Id. at 38. At the conclusion of trial, appellant was found guilty of all charges.

Appellant filed a motion for reconsideration. Appellant specifically argued the United States Supreme Court's decision in Birchfield v. North Dakota , ––– U.S. ––––, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016),⁴ precludes states from penalizing DUI defendants for refusing to submit to warrantless blood testing and, because he was convicted of DUI based on his refusal, his DUI charge should have been dismissed or, alternatively, he should be granted a new trial at which evidence of his refusal would be inadmissible. See Appellant's Motion for Reconsideration, 7/1/16 at 2. The trial court ruled the matter was "clearly controlled [by] Birchfield 's main point: a warrantless blood test violates a defendant's right to be free from unreasonable searches and he thus has a constitutional right to refuse it, which refusal cannot provide the basis for him to be convicted of a crime or otherwise penalized." Trial Court Op., 8/19/16 at 5 (emphasis omitted). The trial court ultimately determined appellant was entitled to a new trial because the court had relied on his refusal as a basis for the DUI conviction. Id.

The Commonwealth filed an interlocutory appeal to the Superior Court pursuant to Pa.R.A.P. 311(a)(6) (new trial awarded and Commonwealth claims trial court committed error of law). The Commonwealth argued Birchfield did not alter the admissibility of refusal evidence to show consciousness of guilt. The Commonwealth noted the Birchfield Court explicitly stated it had previously approved of " ‘implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply ... and nothing we say here should be read to cast doubt on them.’ " Commonwealth's Superior Court Brief at 11 (emphasis omitted), quoting Birchfield , 136 S.Ct. at 2185. The Commonwealth further contended scenarios involving implied consent are distinguishable from other situations, such as an individual's refusal to consent to a warrantless search of his home, where such refusal would be inadmissible at trial. Id. at 13. Appellant responded that Birchfield created a constitutional right to refuse a warrantless blood test and the admission of his refusal was improper as it penalized him for exercising this constitutional right. Appellant's Superior Court Brief at 4.

A three-judge panel of the Superior Court reversed the trial court's order granting appellant a new trial and remanded the case for sentencing. Commonwealth v. Bell , 167 A.3d 744, 750 (Pa. Super. 2017). The panel reviewed Pennsylvania's implied consent statute, 75 Pa.C.S. § 1547, as well as case law in which both the United States Supreme Court and the Superior Court stated motorists suspected of drunk driving have no constitutional right to refuse chemical testing. Bell , 167 A.3d at 748-49, discussing South Dakota v. Neville , 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983) and Commonwealth v. Graham , 703 A.2d 510 (Pa. Super. 1997). Based on this precedent, the panel held appellant had no constitutional right to refuse a blood test and it was constitutionally permissible for the Commonwealth to introduce evidence of such refusal at his trial. Id. at 749.

The panel further held the trial court's reliance on Birchfield for the opposite conclusion was misplaced, finding the decision did not support the assertion appellant had a constitutional right to refuse chemical testing and thus did not change the analysis applied by the courts in Neville and Graham. Instead, the panel agreed with the Commonwealth, concluding although the Birchfield Court ultimately held it was unreasonable for implied consent laws to impose criminal penalties for refusals, the Court "express[ed] approval of the imposition of civil penalties and evidentiary consequences on motorists who refuse to comply with chemical testing upon their arrest[.]" Id. at 750, citing Birchfield , 136 S.Ct. at 2185. Based on the Supreme Court's approval of evidentiary consequences set forth in implied consent laws such as Pennsylvania's statute, the Superior Court held appellant's refusal was properly admitted into evidence and thus he was not entitled to a new trial. Id.

We accepted review to consider the following question raised by appellant: "Whether § 1547(e) of the Vehicle Code, 75 Pa.C.S. § 1547(e), is violative of Article 1 Section 8 of the Pennsylvania Constitution and the Fourth Amendment to the United States Constitution to the extent that it permits evidence of an arrestee's refusal to submit a sample of blood for testing without a search warrant as proof of consciousness of guilt at the arrestee's trial on a charge of DUI?" Commonwealth v. Bell , ––– Pa. ––––, 183 A.3d 978 (2018) (per curiam ). As we are presented with a question of law, our scope of review is plenary and non-deferential. Commonwealth v. Ali , 637 Pa. 371, 149 A.3d 29, 34 (2016).

Appellant contends Missouri v. McNeely , 569 U.S. 141, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013), which rejected a per se exigent circumstances exception to the warrant requirement for blood testing based on dissipation of blood alcohol content (BAC), and Birchfield , which rejected a search incident to arrest exception to the warrant requirement for blood testing, make clear that DUI suspects have a Fourth Amendment right to refuse warrantless blood testing. Appellant's Brief at 7-8. Appellant submits the cases relied on by the Superior Court, Neville and Graham , are inapposite as those decisions were based on a Fifth Amendment⁵ analysis and were decided when it was still viewed as constitutionally permissible to conduct blood testing without first securing a warrant. Id. at 8-9. According to appellant, since Birchfield declared a Fourth Amendment right to be free from warrantless blood testing, we must follow the law as stated in Commonwealth v. Welch , 401 Pa.Super. 393, 585 A.2d 517 (1991), which held a defendant's refusal of a warrantless search of her bedroom could not be used as evidence of consciousness of guilt. Appellant's Brief at 9, citing Welch , 585 A.2d at 520. In further support of this proposition, appellant cites Commonwealth v. Chapman , 635 Pa. 273, 136 A.3d 126 (2016), in which this Court held a defendant's refusal to submit to a warrantless blood test for DNA purposes was inadmissible to demonstrate consciousness of guilt. Appellant's Brief at 15, citing Chapman , 136 A.3d at 131.

Appellant further argues the language in Birchfield pertaining to evidentiary consequences was dicta and does not require a different result here. Id. at 10, citing Trial Court Op., 8/19/16 at 4. Appellant contends the issue in Birchfield was whether DUI defendants may be " ‘convicted of a crime or otherwise penalized’ " for their refusal and it is clear that allowing the Commonwealth to introduce his refusal into evidence penalized him by providing a basis for his conviction. Id. (emphasis omitted), quoting Birchfield , 136 S.Ct. at 2172. Additionally, appellant argues our decision in Commonwealth v. Myers , 640 Pa. 653, 164 A.3d 1162 (2017) (plurality) held the Pennsylvania implied consent statute does not establish an exception to the warrant requirement and the Commonwealth is required to prove there was voluntary consent given prior to the extraction of blood. Id. at 11. Appellant requests we expand the holding in Myers — which involved an unconscious DUI suspect — to conscious individuals and hold there is a Fourth Amendment right to refuse warrantless blood testing. Id.

Appellant alternatively requests we hold there is an independent right to refuse a warrantless blood test under Article I, Section 8 of the Pennsylvania Constitution, and that Section 1547(e) violates it. Id. at 12-14, citing Commonwealth v. Edmunds , 526 Pa. 374, 586 A.2d 887 (1991). Appellant contends although the text of Article I, Section 8 is very similar to that of the Fourth Amendment, this Court has held Article I, Section 8 to be more protective. Id. at 12, citing, e.g. , Commonwealth v. Brion , 539 Pa. 256, 652 A.2d 287 (1994). Relative to his claim herein, appellant maintai...