Opinion
J-A31026-17 No. 1285 EDA 2017
02-27-2018
COMMONWEALTH OF PENNSYLVANIA v. SEAN JOSEPH KURTZ
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Decision March 22, 2017
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0005500-2016 BEFORE: PANELLA and OLSON, JJ. and STEVENS, P.J.E. JUDGMENT ORDER BY OLSON, J.:
Former Justice specially assigned to the Superior Court
The Commonwealth of Pennsylvania appeals from the March 22, 2017 order granting Sean Joseph Kurtz's ("Appellee's") motion in limine. We reverse.
The factual background and procedural history of this case are as follows. Early in the morning on May 1, 2016, Appellee was involved in a motor vehicle accident. Appellee fled the scene. The driver of the other vehicle recognized Appellee and informed police of his identity. Appellee was stopped a short time later. Police requested that he undergo a blood test to determine if he were under the influence of alcohol and/or drugs but he refused to consent to such testing.
On September 14, 2016, the Commonwealth charged Appellee via criminal information with driving under the influence - general impairment and fleeting the scene of an accident. Thereafter, Appellee filed a motion in limine seeking to prohibit the Commonwealth from introducing evidence that he refused a blood test. On March 22, 2017, the trial court granted Appellee's motion in limine. This timely interlocutory appeal as of right followed. See Pa.R.A.P. 311(d) (Commonwealth may appeal as of right from an order that does not end the entire case where the Commonwealth certifies that the order will terminate or substantially handicap the prosecution.).
75 Pa.C.S.A. § 3802(a)(1).
75 Pa.C.S.A. § 3744(a).
On May 2, 2017, the trial court ordered the Commonwealth to file a concise statement of errors complained of on appeal ("concise statement"). See Pa.R.A.P. 1925(b). On May 12, 2017, the Commonwealth filed its concise statement. On June 15, 2017, the trial court issued its Rule 1925(a) opinion. Both of the Commonwealth's issues were included in its concise statement.
The Commonwealth presents two issues for our review:
1. Did the trial court err and/or abuse its discretion in granting Appellee's [m]otion in [l]imine to preclude evidence of Appellee's refusal of blood testing and circumstances surrounding same, where the trial court based its ruling on an erroneous interpretation of Birchfield v. North Dakota , [136 S.Ct. 2160 (2016)] . . . ?Commonwealth's Brief at 4.
2. Did the trial court err and/or abuse its discretion in granting Appellee's [m]otion in [l]imine to preclude evidence of Appellee's refusal of blood testing . . . when it determined that the probative value of the refusal evidence was outweighed by its prejudicial impact . . . ?
Both of the Commonwealth's issues challenge the trial court's order granting Appellee's motion in limine to exclude evidence relating to his refusal to submit to a blood test. "We review a trial court's decision to grant a motion in limine for an abuse of discretion." Commonwealth v. Ribot , 169 A.3d 64, 67 (Pa. Super. 2017) (citation omitted).
While this appeal was pending, a three-judge panel of this Court decided Commonwealth v. Bell , 167 A.3d 744 (Pa. Super. 2017). In Bell , this Court held that evidence of a motorist's refusal to submit to a blood test is admissible post- Birchfield. Id. at 749-750. Appellee's counsel conceded at oral argument that the outcome of this appeal is controlled by Bell. We agree. Under Bell , admission of evidence that Appellee refused to submit to a blood test does not violate his constitutional rights and the probative value of the refusal evidence outweighs its prejudicial effect. Accordingly, we reverse the trial court's order granting Appellee's motion in limine and remand for further proceedings consistent with this judgment order.
Although some members of this panel disagree with Bell , as a three-judge panel we are bound by that decision. See Commonwealth v. Johnson , 125 A.3d 822, 826 n.2 (Pa. Super. 2015) (citation omitted). --------
Order reversed. Case remanded. Jurisdiction relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 2/27/18