S.C. Kane v. PennDOT, Bureau of Driver Licensing

           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Shawn C. Kane                                 :
                                              :
                 v.                           : No. 1849 C.D. 2019
                                              : Submitted: May 1, 2020
Commonwealth of Pennsylvania,                 :
Department of Transportation,                 :
Bureau of Driver Licensing,                   :
                                              :
                              Appellant       :


BEFORE:        HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                                FILED: October 16, 2020


               The Department of Transportation, Bureau of Driver Licensing (DOT)
appeals the order of the Dauphin County Court of Common Pleas (trial court)
sustaining the appeal of Shawn C. Kane (Licensee) and rescinding DOT’s one-year
suspension of his operating privilege pursuant to Section 1547(b)(1)(i) of the
Vehicle Code.1 We affirm.
               On November 16, 2018, DOT sent Licensee an Official Notice of the
Suspension of his driving privilege as a result of his violation of Section 1547 of
the Vehicle Code, based on his refusal to submit to chemical testing. Reproduced

       1
         75 Pa. C.S. §1547(b)(1)(i). Section 1547(b)(1)(i) states, in pertinent part, “If any person
placed under arrest for a violation of section 3802 is requested to submit to chemical testing and
refuses to do so, the testing shall not be conducted but upon notice by the police officer, [DOT]
shall suspend the operating privilege of the person . . . for a period of 12 months.”
Record (R.R.) at 61a-64a. On December 13, 2018, Licensee appealed the one-year
license suspension to the trial court.

Id. at 1a-10a.

               The evidence presented at the February 28, 2019 trial court hearing
may be summarized as follows.2 Lower Paxton Township (Township) Police
Officer Matthew Bartow (Officer) testified that on November 3, 2018, he received
a call from a concerned citizen that there had been a single-vehicle accident on
Dowhower Road in the Township. Officer traveled to the scene, but no vehicle
was present. Officer spoke again with the concerned citizen, who described the
motorist and his motorcycle and stated that the motorist had been lying on the
ground with some blood, a glove, and some motorcycle parts. The concerned
citizen stated that the motorist then drove southbound from the accident scene
when the concerned citizen went to call an ambulance. R.R. at 78a.
               Less than ten minutes later, Officer received a call that a motorcycle
matching the concerned citizen’s description was located on Gallon Street,
approximately two blocks away from the accident scene. Officer went to Gallon
Street and saw a motorist, ultimately identified as Licensee, lying on the ground
next to a motorcycle matching the description and license plate number previously
given to officers. Officer saw that Licensee was bleeding from the back of the
head and applied gauze to help control the bleeding. Officer noticed an extreme
odor of alcohol when applying the gauze.                 Officer asked Licensee what had
happened, and Licensee stated that he fell.                Officer asked about his alcohol


       2
          See Finney v. Department of Transportation, Bureau of Driver Licensing, 

721 A.2d 420

, 423 (Pa. Cmwlth. 1998) (“As fact finder, the trial court is required to evaluate the witnesses,
their demeanor and make necessary credibility determinations. The trial court may accept or
reject the testimony of any witness in whole or in part. These credibility determinations cannot
be disturbed on appeal.”) (citations omitted).


                                                 2
consumption, and Licensee initially replied that he had not consumed any alcohol,
but on further inquiry admitted that he drank two beers at a friend’s house.
Although Licensee had slurred speech and uncommonly watery eyes, he provided
sensible responses to Officer’s questions and requested a lawyer several times.
R.R. at 78a-79a.
            Officer stated that Licensee struggled to stand up and was
subsequently placed on a stretcher and transported to Penn State Hershey Medical
Center (HMC).      Upon his arrival at HMC, Licensee underwent an initial
evaluation, had blood drawn for medical treatment purposes, and had x-rays taken.
Twenty to thirty minutes after Licensee’s arrival, Officer approached Licensee,
who was lying on a stretcher, and explained that Officer was going to read DOT’s
Form DL-26B (Form) regarding a request for chemical testing of the blood and the
consequences for refusal. Officer first read the Form to Licensee verbatim, and
Licensee indicated that he heard Officer’s reading of the Form. Immediately
thereafter, Officer explained the Form’s contents to Licensee in generic terms, and
Licensee indicated that he understood that explanation as well. Officer then asked
Licensee to submit to chemical testing of his blood, but Licensee refused.
Licensee signed the Form, demonstrating that he was apprised of the warnings
contained therein, and Officer left HMC. R.R. at 79a-80a.
            Licensee’s wife, Kathryn Kane (Wife), testified that on November 3,
2018, she received a call from a pastor who informed her that her husband was in
HMC’s trauma unit. Wife arrived at HMC and found Licensee on a stretcher in an
emergency hall area. Licensee was wearing a neck brace and had multiple cuts and
lacerations on his hands, legs, and face, and his body and pillow were covered in




                                        3
blood. Wife attempted to converse with Licensee and ask him questions, but he
merely rambled in response. R.R. at 80a.
            Wife stated that Licensee was ultimately admitted to a hospital room
for observation due to brain trauma. Wife spoke with Licensee in the room and he
said some alarming things, such as repeatedly asking Wife about whether she had
informed his father regarding what had happened.        Wife found the questions
alarming because Licensee’s father had been dead for eight years. R.R. at 80a-81a.
            Licensee testified that on November 3, 2018, he was traveling on
Dowhower Road when a vehicle traveling in the opposite direction crossed over
the center line into his lane of travel. He recalled swerving to avoid the oncoming
vehicle into some wet leaves and losing control of his motorcycle. Licensee’s last
memory of the accident is the sound of his head hitting the pavement. He did not
remember getting back onto his motorcycle and driving from Dowhower Road to
Gallon Street. He did not recall being in the emergency room at HMC, and did not
recall speaking to Officer at HMC or at any other time that night. Therefore,
Licensee did not recall Officer telling him that he would lose his license if he
refused to consent to a chemical test of his blood, and he did not recall the Form
being read to him. When shown the Form at the trial court hearing, Licensee did
not recall seeing it on the night in question. When shown his signature on the
Form, he stated that the signature does not resemble his normal signature.
Licensee also did not recall asking for his father while at HMC. R.R. at 81a.
            Medical records admitted by the trial court confirmed that Licensee
sustained multiple traumatic injuries including a severe traumatic brain injury; a
fracture of the left ankle bone; and two brain hemorrhages, one in the front of his




                                         4
head and one in the back. R.R. at 75a-76a. Licensee spent four days in HMC’s
trauma unit.

Id. At the conclusion

of the hearing, based on the testimony of his
witnesses and the HMC medical records, Licensee argued that his refusal to submit
to chemical testing was not knowing and conscious based on his obvious traumatic
brain injuries.    R.R. at 53a-56a.    In contrast, DOT argued that Licensee’s
suspension should be upheld based on Officer’s testimony, the Form, and
Licensee’s failure to present medical evidence that the brain injuries alone
rendered him incapable of a knowing and conscious refusal to submit to chemical
testing.

Id. at 56a-57a.

             On December 5, 2019, the trial court issued a Memorandum Opinion
and Order sustaining Licensee’s appeal and rescinding DOT’s one-year suspension
of his operating privilege. R.R. at 77a-93a. The trial court initially rejected
Licensee’s claims that he was not under arrest when Officer asked him to submit to
chemical testing of his blood. See

id. at 83a-86a.

             The trial court next considered Licensee’s claim that he did not
knowingly refuse Officer’s request to submit to chemical testing of his blood due
to the head injury that he sustained in the accident prior to the request. R.R. at
86a-90a. Relying on Department of Transportation, Bureau of Driver Licensing v.
Groscost, 

596 A.2d 1217

(Pa. Cmwlth. 1991), and Department of Transportation,
Bureau of Traffic Safety v. Day, 

500 A.2d 214

(Pa. Cmwlth. 1985), the trial court
determined that Licensee’s injuries were so severe and obviously incapacitating
that medical evidence, in addition to the HMC medical records that were already
admitted, was not necessary for Licensee to sustain his burden of demonstrating
that he was unable to make a knowing and conscious refusal to submit to chemical


                                         5
testing of his blood. See R.R. at 88a-90a. Specifically, the trial court explained
that “[a]lthough there was no expert medical testimony, the uncontroverted
evidence presented at the Hearing, including [Licensee’s] medical records from
HMC, established that the injuries sustained by [him] consisted of multiple severe
head injuries, which were far from trivial or unspecified.”

Id. at 89a.

The court
noted that “[Licensee] sustained a severe traumatic brain injury and two
hemorrhages of the brain as a result of his motorcycle accident,” and that the
“injuries were so severe that they necessitated a four (4)-day in-patient stay in the
trauma unit of HMC[.]”

Id. at 89a-90a

(footnote omitted). The court continued,
“[Licensee’s] mental state following the accident was so disrupted that he did not
recall any of the events that occurred in the hours after his head hit the pavement,
and, moreover, he was under the illusion that his father, who had been dead for
eight (8) years, was still alive.”

Id. at 90a.

             Accordingly, the trial court held:

             [T]he facts and circumstances presented in the instant
             matter establish that [Licensee’s] injuries were severe,
             incapacitating, and obvious such that expert medical
             testimony was unnecessary to validate his inability to
             make a knowing and conscious refusal, and we find that
             his ([Licensee’s]) articulated refusal was NOT knowing
             and conscious.
R.R. at 92a (emphasis in original).
             The trial court also determined that “the very evidence that was being
sought by [] Officer, a [blood alcohol content (BAC)] reading obtained from a
blood sample, was already obtained [by HMC] and available to [] Officer, without
subjecting [Licensee] to another invasive procedure to obtain another sample[.]”
R.R. at 90a-91a. As a result, the trial court stated:


                                            6
               We further find that the blood sample sought by [Officer]
               had already been obtained and the BAC results of same
               were readily obtainable for subsequent prosecution
               purposes, through the acquisition and service of a valid
               search warrant (as was obviously done in this case) upon
               the medical records official at HMC. There was
               absolutely no exigent circumstances in this case which
               would justify law enforcement insisting on a second
               invasive procedure to obtain another blood sample at the
               HMC.

Id. at 92a.

               Based on the foregoing the trial court issued an order sustaining
Licensee’s appeal and rescinding DOT’s license suspension. R.R. at 93a. DOT
then filed the instant appeal of the trial court’s order.3
               As this Court has stated:

                      Before a license suspension in accordance with 75
               Pa. C.S. §1547 will be sustained, [DOT] must establish
               that the driver involved: (1) was arrested for driving
               under the influence of alcohol; (2) was asked to submit to
               a chemical test of intoxication; (3) refused to submit to
               such test; and (4) was specifically warned that a refusal
               would result in the revocation of his driver’s license. . . .

                      Once [DOT] has met its burden of establishing the
               above four factors, it is the driver’s responsibility to
               prove that he was not capable of making a knowing and
               conscious refusal to take the test. Moreover, a driver’s
               self-serving testimony that he was incapable of providing
               a knowing and conscious consent to or refusal of a
               chemical test is not sufficient to meet his burden of proof,
               and expert medical testimony, although not a per se

       3
          “When appellate courts review the decision of a [trial court] in a license suspension
case, the scope of review is limited to determining whether the findings of facts of the trial court
are supported by competent evidence and whether the trial court committed an error of law or an
abuse of discretion in reaching its decision.” Department of Transportation, Bureau of Traffic
Safety v. O’Connell, 

555 A.2d 873

, 875 (Pa. 1989) (citation omitted).


                                                 7
               requirement, is generally required in order to validate his
               testimony. However, an expert medical opinion to
               validate a driver’s alleged inability to make a knowing
               and conscious refusal (or agreement) to submit to a
               chemical test will not be required when severe,
               incapacitating injuries are obvious.
Ostermeyer v. Department of Transportation, Bureau of Driver Licensing, 

703 A.2d 1075

, 1077 (Pa. Cmwlth. 1997) (citations omitted and emphasis in original).
See also 

Groscost, 596 A.2d at 1220

(holding that the hospital records showing a
five-day stay, and an officer’s description of the licensee’s injuries of a deep facial
laceration two and one-half to three inches long caused by contact with the steering
column, and description that the vehicle’s steering column was pushed forward,
bent and covered with blood from the accident, obviated the need for expert
medical testimony); 

Day, 500 A.2d at 215

(holding that a broken jaw, severe facial
lacerations, a broken arm, an injured leg, and blows to the back of the head were
sufficiently obvious and severe so that expert medical testimony was not required).
               In this appeal,4 DOT does not argue that the trial court erred in relying
on the foregoing case law in sustaining Licensee’s appeal. Indeed, DOT states:

               [C]iting decisions such as [Day] and [Groscost], the trial
               court held that [Licensee] did not need to offer any expert
               medical testimony because, in the trial court’s opinion,
               [Licensee’s] evidence shows that he suffered severe,
               incapacitating injuries that were obvious.

                     [DOT] agrees that this is exactly what these
               decisions allow a trial court to do. However, [DOT]
               respectfully submits that in light of the guidance
               provided to lower courts by the Supreme Court in
               [Barbour v. Department of Transportation, Bureau of
               Driver Licensing, 

732 A.2d 1157

(Pa. 1999)], it is well


      4
          We reorder DOT’s claims on appeal for the sake of clarity.


                                                8
             past time for this Court, sitting en banc, to overrule all of
             these no longer legally supportable decisions.
Brief for Appellant at 25-26.
             However, DOT did not argue in the trial court that Barbour overruled
Day and Groscost sub silentio or that the foregoing case law is no longer binding
precedent, and did not raise this claim in its Pa. R.A.P. 1925(b) Statement of Errors
Complained of on Appeal. See R.R. at 56a-57a, 112a-117a; Pa. R.A.P. 302(a)
(“Issues not raised in the lower court are waived and cannot be raised for the first
time on appeal.”); Commonwealth v. Castillo, 

888 A.2d 775

, 780 (Pa. 2005) (“[T]o
preserve their claims for appellate review, [a]ppellants must comply whenever the
trial court orders them to file a [Statement] pursuant to Pa. R.A.P. 1925(b). Any
issues not raised in a Pa. R.A.P. 1925(b) [S]tatement will be deemed waived.”);
Siegfried v. Borough of Wilson, 

695 A.2d 892

, 894 (Pa. Cmwlth. 1997)
(“[Pa. R.A.P.] 302(a) clearly states that issues not raised in the trial court are
waived and cannot be raised for the first time on appeal. Pennsylvania courts have
consistently applied this rule. Commonwealth v. Piper, [

328 A.2d 845

, 846-47 (Pa.
1974)].”) (footnote omitted). As a result, DOT’s claim in this regard has been
waived and will not be addressed for the first time in this appeal.
             Finally, DOT claims that the trial court erred in its alternative holding
that Officer should not have insisted that Licensee submit to a second chemical test
of his blood after HMC had already obtained a blood sample for diagnostic
purposes. See Brief for Appellant at 14-15 (“In its opinion the trial court held that
one of the reasons the court sustained [Licensee’s] appeal was because [Officer]
should not have requested that [Licensee] submit to a blood test under the [Vehicle
Code] after the officer learned that blood already had been drawn by [HMC] for
medical purposes.”) (emphasis added).

                                          9
             However, as DOT indicates, this was another basis upon which the
trial court sustained Licensee’s appeal. The trial court’s holding in this regard in
no way affects its separate holding that Licensee was not capable of making a
knowing and conscious refusal to submit to chemical testing of his blood. As a
result, even if it is assumed that DOT is correct, the trial court’s order sustaining
Licensee’s appeal and rescinding his license suspension under Section 1547(b)(1)
of the Vehicle Code will not be disturbed because it is proper under Day and
Groscost. See, e.g., Pennsy Supply, Inc. v. Zoning Hearing Board of Dorrance
Township, 

987 A.2d 1243

, 1251 (Pa. Cmwlth. 2009) (“[T]he trial court’s reference
to [a case stating the incorrect burden of proof] in its original opinion was harmless
error since the trial court affirmed the [board’s] decision that applied the
appropriate burden of proof, and the error had no effect on the outcome of this
case.”); Campbell v. Department of Environmental Resources, 

396 A.2d 870

(Pa.
Cmwlth. 1979) (“It is axiomatic that we will not disturb a judgment, order, or
decree on appeal for harmless error. Paley v. Trautman, [

177 A. 819

, 820 (Pa.
1935).]”).
             Accordingly, the trial court’s order is affirmed.




                                       MICHAEL H. WOJCIK, Judge




                                         10
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Shawn C. Kane                      :
                                   :
            v.                     : No. 1849 C.D. 2019
                                   :
Commonwealth of Pennsylvania,      :
Department of Transportation,      :
Bureau of Driver Licensing,        :
                                   :
                      Appellant    :



                                  ORDER


           AND NOW, this 16th day of October, 2020, the order of the Dauphin
County Court of Common Pleas dated December 5, 2019, is AFFIRMED.




                                   __________________________________
                                   MICHAEL H. WOJCIK, Judge

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