J-A18018-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA


                       v.

JARAD A. ANGOTTI

                            Appellant                No. 966 WDA 2016


             Appeal from the Judgment of Sentence May 23, 2016
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0006569-2015


BEFORE: BOWES, J., LAZARUS, J., and OTT, J.

CONCURRING MEMORANDUM BY BOWES, J.:               FILED JANUARY 30, 2018

       I agree that the evidence, when taken in the light most favorable to

the Commonwealth, circumstantially established that Appellant was driving

under the influence of a controlled substance.1 I write separately to address

____________________________________________


1
  On the day of Appellant’s non-jury trial, the trial court ordered a urine
screen. In rendering its verdict, the trial court noted that Appellant tested
positive for methamphetamines, in contradiction to his trial testimony. N.T.,
5/5/16, at 50. The trial court’s opinion notes that this result “further called
into question” Appellant’s credibility. Trial Court Opinion, 11/30/16, at 8.

Relying on that evidence was improper. While the results of the drug screen
were properly considered with respect to the trial court’s decision regarding
bond, credibility findings must be made in light of the evidence presented by
the parties and cannot encompass extra-record investigations by the
factfinders. Juries are commonly instructed to refrain from conducting their
own investigations, and the same principle equally applies in a non-jury
proceeding.
J-A18018-17


the learned Majority’s discussion of the fact that Appellant consented to a

blood draw.2

       Appellant was convicted on May 5, 2016.           On June 23, 2016, the

United States Supreme Court issued Birchfield v. North Dakota, 136 S.Ct.

2160 (2016), which held that a warrantless blood draw cannot be justified as

a search incident to an arrest.         The Majority opines that Birchfield could

raise a question as to the legality of Appellant’s sentence.

       [W]e are not constrained to implicate Birchfield only where a
       defendant receives an enhanced penalty for refusing a blood
       draw. Rather, Birchfield is also implicated where a defendant
       consents to a blood draw subsequent to receiving DL-26
       warnings; however, such cases do not necessarily raise legality
       of sentence questions that this Court may address sua sponte.

       Here, Angotti voluntarily consented to a blood draw after
       admitting to using heroin. There is no indication in the record
       that Officer McDaniel informed Angotti that he would face
       enhanced criminal penalties for failing to do so or that Officer
       McDaniel administered a DL-26 form prior to Angotti giving
       consent. See Commonwealth v. Wolfe, 106 A.3d 800, 802
       (Pa.Super. 2014) (standard and scope of review over questions
       involving the legality of sentence is de novo and scope of review
       is plenary). Moreover, Angotti does not argue in his brief that his
       consent was involuntary. Therefore, we deem it inappropriate to
       sua sponte raise this issue and, instead, chose to address only
       the claim Angotti raised on appeal.

Majority memorandum at 6, n.4. I agree that we cannot sua sponte raise

any Birchfield issue in this case, but that is because Birchfield is not


____________________________________________


2
  For ease of reference I will refer to our memorandum as the Majority;
however, Judge Ott has concurred only in the result.



                                           -2-
J-A18018-17


implicated where a defendant consents to a blood draw and fails to file a

motion to suppress that evidence as involuntary.

       In my view, the Majority overlooks the distinction between convictions

and sentences.       Assuming arguendo that Birchfield rendered Appellant’s

consent involuntary under the rationale expressed in Birchfield, then the

blood evidence must be suppressed and we would be required to grant a

new trial. Whatever the contours of the illegality of sentence construct, it

clearly limits this Court to correcting defects regarding sentences, not

convictions.3 Assuming arguendo that Birchfield did apply in this case, I

fail to see what action we could take with respect to Appellant’s sentence.

There is no illegality to correct, and we clearly cannot vacate the conviction.

       Birchfield would present a legality of sentence question in this case

only if Appellant received an enhanced sentence as the result of refusing a

blood draw, where the issue of consent was properly preserved.4          As we

____________________________________________


3
   I note that Appellant does not address Birchfield in his brief. Appellant’s
Pa.R.A.P. 1925 statement, however, did raise Birchfield.            Unlike the
Majority, Appellant did not assert to the trial court that his sentence was
illegal, but rather that his conviction was: “[R]etroactive application entitles
Mr. Angotti to a new trial, as Mr. Angotti's blood was drawn without a
warrant and the results of the blood draw were admitted as substantive
evidence of guilt at his trial.” Concise statement, 11/27/16, at unnumbered
3.
4
  We recently held in Commonwealth v. Napold, 2017 WL 4105733
(Pa.Super. September 15, 2017), that an appellant who seeks application of
Birchfield to a claim that the Commonwealth cannot introduce evidence of
refusal as substantive evidence of guilt is required to preserve the issue at
(Footnote Continued Next Page)


                                           -3-
J-A18018-17


explained in Commonwealth v. Evans, 153 A.3d 323, 324 (Pa.Super.

2016), Birchfield precludes the imposition of enhanced criminal penalties

when a driver refuses to provide blood.

      Thus, even though Pennsylvania's implied consent law does not
      make the refusal to submit to a blood test a crime in and of
      itself, the law undoubtedly “impose[s] criminal penalties on the
      refusal to submit to such a test.” Birchfield, 136 S.Ct. at 2185–
      2186. To be sure, Section 3804(c) provides that an “individual
      who violates section 3802(a)(1)[, DUI, general impairment] and
      refused testing of blood” is punished more severely than an
      individual who commits the stand-alone DUI, general impairment
      offense under Section 3802(a)(1)—and to the same extent as an
      individual who violates Section 3802(c), relating to DUI, highest
      rate of alcohol. 75 Pa.C.S.A. § 3804(c).

Id. at 331.

      Herein, Appellant was not subjected to any criminal penalty due to a

refusal, as he did not refuse.           Therefore, Birchfield has no applicability

whatsoever to the legality of the instant sentence, and there is simply no

action we could take with respect to his sentence even if we were permitted

to reach the issue sua sponte.           See Commonwealth v. Giron, 155 A.3d

635, 639 (Pa.Super. 2017) (“Accordingly, we must determine if Appellant

received criminal penalties for his refusal to submit to a warrantless blood

test. If he did, his sentence was illegal.”) (footnote omitted).


                       _______________________
(Footnote Continued)

the trial court level. I filed a concurring memorandum expressing my
skepticism that Birchfield would have applied to that particular claim.




                                            -4-
J-A18018-17


     Therefore, I do not join the portions of the memorandum addressing

Birchfield.

     Judge Ott joins the concurring memorandum.




                                 -5-
