Commonwealth v. Kurtz, 102317 PASUP, 286 MDA 2017

Docket Nº:286 MDA 2017
Opinion Judge:RANSOM, J.
Case Date:October 23, 2017
Court:Superior Court of Pennsylvania




No. 286 MDA 2017

Superior Court of Pennsylvania

October 23, 2017

Appeal from the Order Entered January 19, 2017 In the Court of Common Pleas of Cumberland County Criminal Division at No(s): CP-21-CR-0001790-2016




The Commonwealth appeals from the order entered January 19, 2017, granting the motion to suppress filed by Appellee, Gregory Alan Kurtz.1 We affirm.

The suppression court made the following findings of fact, which are in turn supported by the record. On December 2, 2015, at approximately 23:13 hours, Trooper Cummings of the Pennsylvania State Police stopped [Kurtz] on I-81 near mile marker 49.5, Middlesex Township, Cumberland County[, ] Pennsylvania. Trooper Cummings called for back-up because he had someone else in the back of his vehicle in custody for DUI. Trooper Caley arrived as back-up, Trooper Cummings apprised Trooper Caley of observations he made of [Kurtz] and Trooper Cummings left the scene.

Trooper Caley approached [Kurtz], who was in his vehicle and immediately detected the odor of an alcoholic beverage emanating from the vehicle. The [T]rooper asked [Kurtz] for his driver's license, registration, insurance and explained to [Kurtz] the reason for the stop. In addition to the smell of an alcohol beverage, the [T]rooper noticed that [Kurtz] had bloodshot [] and glassy eyes, sleepy or sluggish behavior and was having difficulty retrieving the requested documents. Trooper Caley noted that in talking to [Kurtz] that there was a strong odor of alcohol coming from [Kurtz] himself.

Trooper Caley asked [Kurtz] to step out of the vehicle to do field sobriety tests. As [Kurtz] did so, [he] struggled with his footing[, ] staggered[, ] and stumbled as he walked. [Kurtz's] clothes were disheveled. [Kurtz's] speech was slurred and at times incoherent. Trooper Caley had [Kurtz] do the Standardized Field Sobriety tests. [Kurtz's] performance on all the tests was poor.

Trooper Caley had [Kurtz] take a Portable Breath Test, which clearly showed that [Kurtz] had imbibed alcohol. Trooper Caley was of the opinion that [Kurtz] was under the influence of alcohol and incapable of safely operating his vehicle, and he placed [Kurtz] under arrest.

Trooper Caley took [Kurtz] to the Carlisle Regional Medical Center for legal blood to be drawn. At 23:45 hours, Trooper Caley read the entire DL-26 Implied Consent Form to [Kurtz] before asking for consent to submit a blood sample. The implied consent warning read to [Kurtz] contained a statement which warned [Kurtz] that, "If you refuse to submit to the chemical test…because of your refusal, you will be subject to more severe penalties…[.]" On December 2, 2014, at approximately 23:48 hours [Kurtz's] blood was drawn and the kit was collected for testing.

Findings of Fact in Support of Order Granting Defendant's Pretrial Motion to Suppress Evidence of Blood Results, 1/19/2017, at ¶¶ 1-18 (formatting modified, citations omitted). Thereafter, Kurtz was charged with driving under the influence (DUI) - general impairment, DUI - high rate of alcohol, DUI - highest rate of alcohol, and failure to regard traffic lane while driving on roadways laned for traffic.2

Kurtz filed a motion to suppress the blood results. Within his motion to suppress, Kurtz argued that his blood test was obtained in violation of the Fourth and Fourteenth Amendments of the United States Constitution, and Article 1, Section 8 of the Pennsylvania Constitution because his consent to the test was coerced under threat of enhanced criminal penalties. See Kurtz's Motion to Suppress, 9/26/2016, at ¶¶ 6-7 (citing Birchfield v. North Dakota, 136 S.Ct. 2160, 2185 (2016)).3

Following a hearing in November 2016, the suppression court granted Kurtz's motion and suppressed the results of the blood test, finding that Kurtz "did not knowingly and voluntarily consent to the blood draw." See Suppression Order, Findings of Fact, and Conclusions of Law, 1/19/2017, at ¶¶ 1-2.

The Commonwealth timely filed a notice of appeal and court-ordered Pa.R.A.P. 1925(b) statement. The suppression court issued a responsive opinion.

On appeal, the Commonwealth raises the following issues: I. Should the exclusionary rule be applied in Pennsylvania in limited circumstances where suppression is not the proper remedy where police were following valid established precedent pre-Birchfield?

II. Did the [t]rial [c]ourt improperly suppress [] [Kurtz's] blood test results when [he] gave valid actual consent?

Commonwealth's Br. at 4.

Our standard of review is as follows. When reviewing the grant of a suppression motion, we must determine whether the record supports the trial court's factual findings and "whether the legal conclusions drawn from those facts are correct." Commonwealth v. Brown, 64 A.3d 1101, 1104 (Pa. Super. 2013) (quoting Commonwealth v. Cauley, 10 A.3d 321, 325 (Pa. Super. 2010)). We may only consider evidence presented at the suppression hearing. In re L.J., 622 Pa. 126, 79 A.3d 1073, 1085-87 (2013). 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." Brown, 64 A.3d at 1104 (quoting Cauley, 10 A.3d at 325). We...

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