J-A10011-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    DAVID H. VENABLE, SR.                      :
                                               :
                       Appellant               :         No. 2192 EDA 2017

              Appeal from the Judgment of Sentence June 2, 2017
             In the Court of Common Pleas of Northampton County
              Criminal Division at No(s): CP-48-CR-0003394-2016

BEFORE:      GANTMAN, P.J., McLAUGHLIN, J., and RANSOM*, J.

MEMORANDUM BY GANTMAN, P.J.:                                 FILED JUNE 20, 2018

        Appellant, David H. Venable, Sr., appeals from the judgment of sentence

entered in the Northampton County Court of Common Pleas, following his

bench trial conviction for one count each of driving under the influence of

alcohol or a controlled substance (“DUI”) (general impairment and high rate

of alcohol) and careless driving.1 We affirm.

        In its opinion, the trial court fully and correctly set forth the relevant

facts and procedural history of this case. Therefore, we have no reason to

restate them. We add only that the court convicted Appellant on May 12,

2017, of all charges and sentenced him on June 2, 2017, to three (3) days to

six (6) months’ incarceration plus fines.          Appellant timely filed a notice of

appeal on June 26, 2017. The court ordered Appellant on June 29, 2017, to

____________________________________________


1   75 Pa.C.S.A. §§ 3802(a)(1), (c); 3714(a).
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A10011-18


file a concise statement of errors complained of on appeal per Pa.R.A.P.

1925(b), and Appellant timely complied on July 19, 2017.

      Appellant raises the following issues for our review:

         WHETHER THE TRIAL COURT ERRED IN REFUSING TO
         SUPPRESS THE RESULTS OF A BLOOD DRAW WHERE
         APPELLANT WAS READ THE DL-26B WARNINGS WHICH DO
         NOT ADDRESS ENHANCED CRIMINAL PENALTIES AND
         UNDER THE TOTALITY OF THE CIRCUMSTANCE[S]
         APPELLANT DID NOT KNOWINGLY AND VOLUNTARILY GIVE
         HIS CONSENT TO THE BLOOD DRAW?

         WHETHER THE TRIAL COURT ERRED IN FINDING THE
         ARRESTING OFFICER HAD PROBABLE CAUSE OR
         REASONABLE SUSPICION TO PERFORM A VALID TRAFFIC
         STOP?

(Appellant’s Brief at 5).

      Our standard of review of the denial of a motion to suppress evidence

is as follows:

         [An appellate court’s] standard of review in addressing a
         challenge to the denial of a suppression motion is limited to
         determining whether the suppression court’s factual
         findings are supported by the record and whether the legal
         conclusions drawn from those facts are correct. Because
         the Commonwealth prevailed before the suppression court,
         we may consider only the evidence of the Commonwealth
         and so much of the evidence for the defense as remains
         uncontradicted when read in the context of the record as a
         whole. Where the suppression court’s factual findings are
         supported by the record, [the appellate court is] bound by
         [those] findings and may reverse only if the court’s legal
         conclusions are erroneous.       Where…the appeal of the
         determination of the suppression court turns on allegations
         of legal error, the suppression court’s legal conclusions are
         not binding on [the] appellate court, whose duty it is to
         determine if the suppression court properly applied the law
         to the facts. Thus, the conclusions of law of the [trial court
         are] subject to plenary review.

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Commonwealth v. Hoppert, 39 A.3d 358, 361-62 (Pa.Super. 2012), appeal

denied, 618 Pa. 684, 57 A.3d 68 (2012).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Michael J.

Koury, Jr., we conclude Appellant’s issues merit no relief.    The trial court

opinion comprehensively discusses and properly disposes of the questions

presented. (See Trial Court Opinion, filed April 25, 2017, at 7-17) (finding:

(1) at DUI processing center, Officer Molnar read Appellant DL-26B form that

contained no reference to enhanced criminal penalties for failure to consent

to blood draw; Appellant testified he believed he had no choice but to consent

and recalled being told he would be subject to higher penalties if he did not

consent; Appellant admitted his knowledge of DUI law stemmed from his prior

DUI in 2004 and conversations with acquaintance; court considered

Appellant’s testimony incredible and concluded these events unlikely

influenced decision to consent; further, Appellant wavered in his testimony at

suppression hearing regarding his specific knowledge of potential penalties;

although Appellant was unclear as to specific penalties associated with refusal

to consent, Appellant did not clarify his understanding with DUI processing

officer prior to blood draw; Appellant’s argument, that citizens are presumed

to know law and by extension Appellant is presumed to know Pennsylvania

statute imposes enhanced criminal penalties on motorists who refuse to

consent to blood draw, fails; if court presumes Appellant knows law, court

                                     -3-
J-A10011-18


must presume Appellant knew that Birchfield2 decision called into question

Pennsylvania’s implied consent statute and provision authorizing enhanced

criminal penalties for motorists who refuse to consent to blood draw; under

totality of circumstances, Appellant voluntarily consented to blood draw;

review of video recording from Northampton County DUI Processing Center

revealed no police excesses or threats; Officer Molnar calmly read Appellant

DL-26B warning; at conclusion of warning, Officer Molnar asked Appellant to

consent to blood draw, and Appellant consented; Appellant actively

participated in and testified at suppression hearing in English and was capable

of understanding DL-26B warning as it was read to him; (2) Officer Fischer

testified he observed Appellant exceed speed limit and fail to signal right-hand

turn; Officer Fischer could “barely keep up” with Appellant; Officer Fischer had

probable cause to conduct traffic stop).3 Accordingly, we affirm based on the

trial court’s opinion.

       Judgment of sentence affirmed.




____________________________________________


2Birchfield v. North Dakota, ___ U.S. ___, 136 S. Ct. 2160, 195 L. Ed. 2d
560 (2016).

3 See also Commonwealth v. Johnson, ___ A.3d ___, 2018 Pa. Super. 133
(filed May 21, 2018) (holding defendant’s knowledge of law from previous
arrest was irrelevant; threat of civil penalties and evidentiary consequences
in DL-26 revised warning is permissible; form that did not threaten criminal
sanctions for refusal to consent to blood draw accurately reflected post-
Birchfield law; police had no duty to provide defendant with update on law
or criminal procedure prior to requesting blood-draw).

                                           -4-
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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/20/18




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