Commonwealth v. Neysmith

• Decision Date: 28 June 2018
• Docket Number: No. 1584 MDA 2017,1584 MDA 2017
• Citation: 192 A.3d 184
• Parties: COMMONWEALTH of Pennsylvania v. Kevin NEYSMITH, Appellant
• Court: Pennsylvania Superior Court

192 A.3d 184

COMMONWEALTH of Pennsylvania

v.Kevin NEYSMITH, Appellant

No. 1584 MDA 2017

Superior Court of Pennsylvania.

Submitted April 16, 2018

Filed June 28, 2018

Tara F. Taylor, Chambersburg, for appellant.

Matthew D. Fogal, District Attorney and Rosby M. Carr, Assistant District Attorney, Chambersburg, for Commonwealth, appellee.

BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J.

OPINION BY KUNSELMAN, J.:

Kevin Neysmith appeals from the judgment of sentence, after a jury convicted him of driving under the influence (DUI) of alcohol.¹ We affirm.

Late one night, Neysmith drove upon a highway of the Commonwealth with a blood alcohol content (BAC) of 0.126. Erratic driving ensued. The state police, following close behind Neysmith, recorded events on their cruiser's dashboard camera. See Commonwealth's Suppression Exhibit 1. Neysmith had difficulty staying in his lane, so the troopers pulled him over.

At first, things proceeded routinely. The police smelled alcohol; heard slurred speech; observed bloodshot and glassy eyes; and administered two field sobriety tests and four breathalyzers. Neysmith failed both sobriety tests and did not breathe hard enough to produce readings on the breathalyzer. As the troopers arrested him, Neysmith, drawing on his knowledge from several prior DUI arrests, asked, "Can I get a needle test, please, with all due respect?" Commonwealth's Suppression Exhibit 1; see also N.T. of Suppression Hearing, 12/19/16, at 14.

The state police had not requested a blood sample, so the trooper asked, "For blood?" Commonwealth's Suppression Exhibit 1.

Neysmith answered, "Yeah, for blood." Id.

The trooper quickly accepted, saying, "That's what we're gonna do, sir. We're gonna take you to the hospital." Id.

Neysmith was so sure that a BAC test would prove his innocence that, as the police patted him down, he again asked, "Do I get to take a blood test, though?" Id.

"Yes, we're gonna do that," the trooper reassured him. Id.

Later, when they were at the hospital, the police presented Neysmith with a DL–26 Form that Birchfield v. North Dakota , 579 U.S. ––––, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016), would later render unconstitutional.² Because Neysmith had personally requested the blood draw before receiving the unconstitutional DL–26 Form, the judge distinguished these events from those in Birchfield and permitted the jury to consider Neysmith's blood-draw results.

The jury convicted him of DUI.

Next, the trial judge scheduled Neysmith's sentencing for June 14, 2017 but, after several false starts, postponed that hearing until September 7, 2017. Neysmith caused these delays by contesting the Commonwealth's claim that he had two prior DUI convictions. He challenged the prosecutors' submission of a 2014 DUI conviction in Franklin County, Pennsylvania and a similar 2013 conviction from Washington County, Maryland. Neysmith used the alias of "Prince Fevoir St. Hilaire," in both of those prior cases. He provided that same alias to police during his arrest in this case.

In the Maryland case, an intoxicated "St. Hilaire" drove a car registered to Michelle McKeller, Neysmith's "girlfriend of seven years." Trial Court Opinion at 10. Also, the Maryland defendant's "name" and "birth date" matched the "name" and "birth date" that Neysmith used in his past DUI conviction in Pennsylvania. Thus, the trial court found that this case marked Neysmith's third DUI conviction in the past ten years. It therefore imposed a sentence of 18 to 60 months of incarceration in the state penitentiary.

This appeal followed.

Neysmith raises three claims of error. First, he challenges the admission of his blood draw into evidence, because, he claims, his consent to the draw was involuntary. Neysmith's Brief at 11. Second, Neysmith asserts that the Commonwealth's evidence was insufficient to support the trial court's finding that he has a prior DUI conviction from Maryland. Id. Third, he argues that the trial court violated his due process and speedy-trial rights by sentencing him more than 90 days after his conviction. Id. We will address each issue in turn.

1. The evidence of record supports the suppression court's finding that the DL–26 Form did not coerce Neysmith into requesting the blood draw.

In appealing the common pleas court's admission of his BAC from the blood-draw test into evidence, Neysmith claims his consent to the test was involuntary. Specifically, he argues that "the Commonwealth presented no evidence that [his] decision to sign the O'Connell warnings³ and allow his blood to be drawn was not due to fear of enhanced criminal penalties for refusing the blood test." Neysmith's Brief at 21–22. The suppression judge disagreed with this interpretation of the facts and found that Neysmith wanted a blood draw, because he "believed that that blood test result was going to vindicate him, demonstrate that he was not, in fact, under the influence of alcohol." N.T. of Suppression Hearing, 12/19/16, at 31–32.

Neysmith correctly states that our "standard of review is limited" when examining a suppression judge's factual findings. Neysmith Brief at 9. We review those findings "only for clear error and [are] to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers." Ornelas v. United States , 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). When applying a "clearly erroneous" standard, the suppression court's findings of fact are binding upon the appellate court, unless definitely and firmly convinced that the lower court made a mistake. In other words, we shall only reverse a finding of fact if it is implausible in light of the reviewable evidence.

Our scope of review in these matters is limited to certain suppression-hearing evidence. See In re L.J. , 622 Pa. 126, 79 A.3d 1073 (2013). Because the Commonwealth prevailed on this issue in the suppression court, we consider "only the evidence of the prosecution and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. When the record supports the findings of the suppression court, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error." Commonwealth v. Johnson , 33 A.3d 122, 124 (Pa. Super. 2011).

In this case, the crux of the issue is whether Neysmith's consent to the blood draw was knowing and voluntary. See Neysmith's Brief at 18; Commonwealth's Brief at 2. Valid consent is "the product of an essentially free and unconstrained choice—not the result of duress or coercion, express or implied, or a will overborne—under the totality of the circumstances." Commonwealth v. Caban , 60 A.3d 120, 130 (Pa. Super. 2012), overruled on other grounds as recognized in Commonwealth v. Coleman , 130 A.3d 38, 42 n.1 (Pa. Super. 2015).

Neysmith contends that the Commonwealth coerced him into requesting the blood draw, because he knew, based on a DUI arrest in Luzerne County in 2003, that refusing an officer's blood-draw request would result in enhanced criminal penalties. Neysmith's Brief at 21. He also claims that the pre- Birchfield DL–26 Form, which the troopers presented to him at the hospital, confirmed his understanding that enhanced penalties would apply to a refused blood draw.⁴

Nowhere in his brief does he say how or why the judge's findings of fact were clearly erroneous, implausible in light of all the evidence, or unsupportable given the facts of record. Instead, Neysmith is asking us to revisit the suppression judge's view of the facts.

This we may not do, given our narrow scope of review and deferential standard of review applicable to suppression judges' findings of fact. Here, the suppression judge watched the Commonwealth's video of Neysmith repeatedly requesting a blood draw. She found that, after he failed two field sobriety tests and four breathalyzer attempts, Neysmith was worried about one thing and one thing only—going to jail for yet another DUI. So, she concluded that Neysmith begged the state police to let him take a blood-draw test as a final hope of proving his innocence. Indeed, he never expressed any concerns over enhanced penalties for refusing a blood draw—a blood draw that was his own idea. Because the police never requested permission to take the blood test, they could not have overborne Neysmith's will to say "no." Neysmith said "yes" to this search without the troopers ever asking him for his consent.

Moreover, nothing of record indicates that Neysmith requested a blood draw, because he feared enhanced penalties for refusing the test. Thus, the suppression judge's finding of fact—namely, that the DL–26 Form played no part in Neysmith's consent—was anything but "implausible." It was a rational conclusion to draw and, therefore, not clearly erroneous. As such, that factual finding is binding upon this appellate court. See Ornelas , supra ; Johnson , supra .

In a footnote, Neysmith attempts to draw a nonexistent distinction between his case and Commonwealth v. Haines , 168 A.3d 231 (Pa. Super. 2017), because the trial judge relied upon Haines in her 1925(a) opinion. Neysmith claims that Haines "is not dispositive because the Superior Court there merely remanded the case to the suppression court for that court to consider the issue of timing of the consent for a blood draw." Neysmith's Brief at 21 n. 3. This argument fails, because it substitutes Haines ' procedural result with its precedential holding. That does not distinguish Haines from the case at bar.

The Haines record did not clearly indicate when the defendant had consented to the blood draw: before or after receiving the Birchfield -offending DL–26 Form. Thus, the panel remanded for the trial court to ascertain the precise moment of consent. The question on remand was which came first: constitutional consent or unconstitutional coercion. To guide the suppression court, we articulated the following bright-line, conditional rules:

if [a DUI suspect] validly consented bef

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