J-A27002-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

ROGER ALLEN MCCONNELL, II

                            Appellant                  No. 163 EDA 2016


           Appeal from the Judgment of Sentence December 16, 2015
                In the Court of Common Pleas of Monroe County
              Criminal Division at No(s): CP-45-CR-0001320-2015


BEFORE: PANELLA, J., LAZARUS, J., FITZGERALD, J.*

MEMORANDUM BY PANELLA, J.                          FILED JANUARY 25, 2017

        Appellant, Roger Allen McConnell, II, appeals from the judgment of

sentence entered December 16, 2015, in the Monroe County Court of

Common Pleas. McConnell contests the sufficiency of the Commonwealth’s

evidence and the constitutionality of 75 Pa.C.S.A. § 1543(b)(2). After careful

review, we affirm.

        The trial court summarized the relevant facts and procedural history as

follows.
              On May 11, 2015, Pennsylvania State Trooper Matthew
        Borger responded to a call involving an ATV that rolled over on
        the driver at 516 Bottom Road in Polk Township. Upon arrival,
        Trooper Borger observed [McConnell] refusing medical attention
        from responding EMS for lacerations and brush burns caused by
        the accident. [McConnell] and witnesses who saw the crash told
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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     Trooper Borger that [McConnell] was driving the four-wheeler
     when he lost control and it landed on top of him.

            When Trooper Borger spoke with [McConnell], he noticed a
     strong odor of alcohol coming from [McConnell’s] breath. In
     addition, Trooper Borger observed [McConnell] had slurred
     speech and bloodshot eyes. When Trooper Borger asked
     [McConnell] how much he had to drink, [McConnell] responded,
     “Enough.” [McConnell] also testified that he consumed two beers
     on the day of the incident. [McConnell] refused to participate in
     field sobriety tests, and signed a waiver refusing to submit to a
     blood test.

           [McConnell] informed Trooper Borger that he did not have
     a driver’s license. Trooper Borger obtained a copy of
     [McConnell’s] driving record indicating [McConnell’s] license was
     suspended as of the date of the accident as the result of a
     February 23, 2013 [Driving under the Influence (“DUI”) charge]
     for    which     he    received     [Accelerated    Rehabilitative
     Disposition(“ARD”)]. As part of the ARD, [McConnell’s] driver’s
     license was suspended for sixty days effective May 31, 2013.
     [McConnell] was present when he was admitted into the ARD
     program, and therefore, was well aware of the suspension.
     Additionally, PennDot mailed an official suspension notice on May
     31, 2013. [McConnell] never took steps to restore his license.
     Moreover, more than four months prior to the accident,
     [McConnell] was charged with [d]riving under DUI [s]uspension.

            The Commonwealth charged [McConnell] with [DUI] under
     75 Pa.C.S.A. Section 3802(a)(1)(General Impairment) and two
     summary offenses – [d]riving under DUI [s]uspension (75
     Pa.C.S.A. Section 1543(b)(1)[)] and [c]areless [d]riving (75
     Pa.C.S.A. Section 3714(a)). On October 14, 2015, a bifurcated
     trial took place whereby the DUI charge was presented to a jury
     and the [court] decided the summary offenses. During the trial,
     Trooper Borger testified that [McConnell’s] son told Trooper
     Borger that [McConnell] was traveling on Serfass Road, a public
     road, and tried to turn onto Bottom Road, a private road, when
     the accident occurred. Moreover, Trooper Borger observed skid
     marks on Serfass Road indicating [McConnell] was driving on
     Serfass Road at the time of the accident.

          [McConnell] admitted crossing Serfass Road to get to dirt
     roads; however, [McConnell] denied operating his ATV on

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      Serfass Road at the time of the accident. [McConnell] testified
      that he used Bottom Road. Bottom Road is a service road off of
      Serfass Road into a mobile home park. [McConnell’s] son
      testified that Bottom Road is frequently traveled by many people
      in order to get to their homes. It is also used by visitors, delivery
      persons, and others. [McConnell’s] investigator, Wilson Miller,
      witnessed cars traveling on Bottom Road during his
      investigation.

             At trial, both the Commonwealth and [McConnell] provided
      evidence that [McConnell] drove carelessly at the time of the
      accident. Based on his extensive experience in investigating over
      1,000 vehicle accidents, Trooper Borger concluded that
      [McConnell] was operating the vehicle at a high rate of speed
      when he lost control. In addition, Investigator Miller testified that
      [McConnell] told Miller he was driving 80 mph at the time of the
      accident. [McConnell], in turn, testified he was attempting to do
      a wheelie when he lost control of the vehicle, and that he had
      consumed two alcoholic beverages at some time on the day of
      the accident. [Further, McConnell testified that he did not recall
      Trooper Borger asking him to submit to a blood test, but did
      recall refusing a breath test].

            The jury acquitted [McConnell] of the DUI charge. The
      [court] found [McConnell] guilty of [d]riving under DUI
      [s]uspension and [c]areless [d]riving.

            On December 16, 2015, the [court] sentenced [McConnell]
      to ninety days incarceration and a fine of $500 on the [d]riving
      under DUI [s]uspension count and fined [McConnell] $25 for
      [c]areless [d]riving.


Trial Court Opinion, 3/14/16, at 1-4. McConnell filed post-sentence motions,

which the trial court denied. Subsequently, McConnell filed a timely notice of

appeal and a court-ordered Rule 1925(b) statement of errors complained of

on appeal.

      Appellant raises two issues for our review.




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      I.    WHETHER THE TRIAL COURT COMMITTED AN ERROR OF
            LAW WHEN IT FOUND THAT THE EVIDENCE WAS
            SUFFICIENT TO PROVE EVERY ELEMENT OF THE SUMMARY
            VEHICLE CODE VIOLATIONS BEYOND A REASONABLE
            DOUBT.

      II.   WHETHER THE TRIAL COURT COMMITTED AN ERROR OF
            LAW IN FINDING THAT SECTION 1543(b)(2) OF THE
            VEHICLE CODE DOES NOT VIOLATE DUE PROCESS.

Appellant’s Brief, at 6.

      As a preliminary matter, we must determine whether McConnell has

preserved his issues for our review. Through his appellate brief, McConnell

challenges the sufficiency of the evidence for his summary conviction of

driving under DUI suspension. Specifically, he contends that the evidence

was insufficient to support the trial court’s finding that McConnell operated

his ATV on a “highway” or “trafficway” and the finding that McConnell

refused blood testing. Appellant’s Brief, at 14. However, McConnell failed to

preserve this issue in his court-ordered Rule 1925(b) statement.

      We have previously outlined the requirements necessary to preserve a

sufficiency of the evidence argument on appeal. In Commonwealth v.

Williams, 959 A.2d 1252 (Pa. Super. 2008), we found that an appellant

waived the claim in his Rule 1925(b) statement that there was insufficient

evidence to sustain Murder, Robbery, and related charges. In explaining our

rationale for finding that appellant waived this claim, we stated that:

      [i]f [an a]ppellant wants to preserve a claim that the evidence
      was insufficient, then the 1925(b) statement needs to specify
      the element or elements upon which the evidence was
      insufficient. This Court can then analyze the element or elements
      on appeal. The instant 1925(b) statement simply does not

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          specify the allegedly unproven            elements.       Therefore,    the
          sufficiency issue is waived.

                Before leaving this issue, we note that the Commonwealth
          failed to object to the aforementioned defect in the 1925(b)
          statement. We also see that the trial court’s opinion addressed
          the topic of sufficiency. The Commonwealth’s failure and the
          presence of a trial court opinion are of no moment to our
          analysis because we apply Pa.R.A.P. 1925(b) in a predictable,
          uniform fashion, not in a selective manner dependent on an
          appellee’s argument or a trial court’s choice to address an
          unpreserved claim. [See Commonwealth v.] Castillo, 888
          A.2d [775,] 779,780; Commonwealth v. Butler, 571 Pa. 441,
          812 A.2d 631, 634 (2002). Thus, we find 1925(b) waiver where
          appropriate despite the lack of objection by an appellee and
          despite the presence of a trial court opinion. Castillo, 888 A.2d
          at 779, 780; Butler, 812 A.2d at 634.

Williams, 959 A.2d at 1257 (citing Commonwealth v. Flores, 921 A.2d

517, 522-523 (Pa. Super. 2007)).

          Here, in his Rule 1925(b) statement, McConnell claimed that “[t]he

[t]rial    [c]ourt   committed   an    error   of   law   when       it   found   that   the

Commonwealth’s evidence was sufficient to prove every element of the

[s]ummary        [v]ehicle   [c]ode   violations    beyond      a    reasonable    doubt.”

Appellant’s Concise Statement of Matters Complained of on Appeal, 1/22/16,

at ¶ 1. At trial, McConnell was convicted of both careless driving and driving

under DUI suspension. Each of the aforementioned charges involves multiple

elements. It is clear that McConnell completely failed to identify the element

or elements that he alleges the Commonwealth failed to sufficiently prove.

See Williams, 959 A.2d at 1257. Thus, we find that McConnell’s failure to

properly identify his challenge in his Rule 1925(b) statement has resulted in

a waiver of his sufficiency argument.


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      In his final issue on appeal, McConnell challenges the trial court’s

finding that § 1543(b)(2) of the Vehicle Code is constitutional. See

Appellant’s Brief, at 14. McConnell, who could have easily sought restoration

of his driving privileges, but did not do so, contends that the “until

restoration” provision of § 1543(b)(2) is unconstitutional because it

arbitrarily lengthens a period of DUI related suspension until a licensee

restores their operating privileges. See id. at 14-15. McConnell argues that

this violates substantive due process under both Article 1, Section 9 of the

Pennsylvania Constitution, and the Fourteenth Amendment to the United

States Constitution. See id. at 23. We disagree.

      The constitutionality of a statute is a question of law; therefore the

scope of appellate review is plenary. See Commonwealth v. Moss, 852

A.2d 374, 379 (Pa. Super. 2004). “The constitutional validity of duly enacted

legislation is presumed.” The party seeking to overcome the presumption of

validity must meet a formidable burden.” Commonwealth v. Haughwout,

837 A.2d 480, 487 (Pa. Super. 2003) (citation omitted). “A statute will not

be declared unconstitutional unless it clearly, palpably, and plainly violates

the Constitution; all doubts are to be resolved in favor of a finding of

constitutionality.” Commonwealth v. Mayfield, 832 A.2d 418, 421 (Pa.

2003) (internal citations and quotation marks omitted).

      Where an appellant challenges a statute as violating the constitutional

protection to substantive due process, we must first determine the


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appropriate   degree   of   scrutiny   to    apply.   See   Commonwealth    v.

Etheredge, 794 A.2d 391, 396-397 (Pa. Super. 2002). In situations where

an appellant’s challenge restricts a fundamental right, we examine it under

strict scrutiny. See Smith v. Coyne, 722 A.2d 1022, 1025 (Pa. 1999).

However, “[a]bsent a fundamental right, the standard of review for a

substantive due process challenge is whether the statute at issue has a

reasonable basis.” Commonwealth v. Agnew, 600 A.2d 1265,1268 (Pa.

Super. 1991).

      McConnell concedes that his challenge implicates a privilege rather

than a fundamental right.       See Appellant’s Brief, at 23;       see also

Commonwealth v. Jenner, 681 A.2d 1266, 1273 (Pa. Super. 1996) (“This

Court has often stated that driving is a privilege, not a fundamental right.”)

Thus we will examine § 1543(b)(2) of the Vehicle Code under the rational

basis test.

      The rational relationship test evaluates whether a particular
      statute is rationally related to furthering a legitimate state
      purpose. It is enough that there is an evil at hand for correction,
      and that it might be thought that the particular legislative
      measure was a rational way to correct it. Thus, the rational
      relationship test mandates a two-step analysis. The first step is
      to consider whether the challenged statute seeks to promote any
      legitimate state interest or public value. The second prong of the
      analysis mandates an evaluation of whether the statute is
      reasonably related to accomplishing the articulated state interest
      or interests.

Commonwealth v. Strunk, 582 A.2d 1326, 1328 (1990) (internal citations

and quotations omitted).


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        Here, the statute McConnell challenges provides as follows.

        This subsection shall apply to any person against whom one of
        these suspensions has been imposed whether the person is
        currently serving this suspension or whether the effective date of
        suspension has been deferred under any of the provisions of
        section 1544 (relating to additional period of revocation or
        suspension). This provision shall also apply until the person has
        had the operating privilege restored. This subsection shall also
        apply to any revocation imposed pursuant to section 1542
        (relating to revocation of habitual offender’s license) if any of the
        enumerated offenses was for a violation of section 3802 or
        former section 3731 or for an out-of-State offense that is
        substantially similar to a violation of section 3802 or former
        section 3731, for which a revocation is imposed under section
        1581.

75 Pa.C.S.A. § 1543(b)(2) (emphasis added).

        McConnell concedes that the first prong of the rational basis test has

been met because the state has a legitimate interest in protecting “‘the

safety of those who use the Commonwealth’s highways’ from intoxicated

drivers.” Appellant’s Brief, at 24 (quoting Jenner, 681 A.2d at 1273). In

fact, we note that the entirety of the challenged legislation “was enacted in

coordination with the New Drunk Driving Law as part of the legislature’s

broad      response   to   the   serious   problem     of   intoxicated   drivers.”

Commonwealth v. Hoover, 494 A.2d 1131, 1133 (Pa. Super. 1985).

Further,

        As to the second prong of the rational basis test, McConnell argues

that the provision of the statute imposing the penalties “until restoration” of

a party’s operating privileges lacks the required nexus to the identified state

interest of preventing drunk driving. See Appellant’s Brief, at 24. McConnell

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avers that there is “no logical nexus between the need to protect the public

from intoxicated drivers and subjecting individuals who are eligible to have

their operating privileges restored to the heighted penalties set aside for

driving with DUI-related suspension simply because they have not taken the

steps    necessary     for   restoration.”     Id.   However,   despite   McConnell’s

contentions, we believe that it is logical for a party who has had their

operating privileges suspended to be required to take affirmative action to

have their privileges restored. Many DUI offenders, including McConnell,

have their licenses suspended more than one time due to DUI offenses.

Requiring a party to affirmatively apply to have their licenses restored allows

the Pennsylvania Department of Transportation the opportunity to review a

party’s driving record and ensure that they are not mistakenly reissuing a

license to a party whose license has been suspended due to an additional

DUI offense.

        Because we find that the legislature’s action in requiring a party to

take affirmative action to restore their operating privileges is reasonably

related to the goal of preventing drunk driving, we hold that § 1543(b)(2)

does not deny McConnell substantive due process.

        Judgment of sentence affirmed.1

____________________________________________


1
  We note that McConnell’s refusal to submit to a warrantless breath and/or
blood test and subsequent conviction under 75 Pa.C.S.A. § 1543(b)(1.1)(i)
implicates the United States Supreme Court’s decision in Birchfield v.
(Footnote Continued Next Page)


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/25/2017




                       _______________________
(Footnote Continued)

North Dakota, 136 S.Ct. 2160, 2169 (U.S. 2016) (holding that implied
consent laws that impose criminal penalties for refusing to submit to a blood
test violates the Fourth Amendment when such searches are not authorized
by a warrant signed by a magistrate). Because of Birchfield, we have held
that sentences imposing criminal penalties on the refusal to submit to a
warrantless blood test are per se illegal and necessitate resentencing. See
Commonwealth v. Evans, ___ A.3d ___, ___, 2016 WL 7369120, *8 (Pa.
Super., filed 12/20/16). However, the Court also held in Birchfield that a
defendant can be criminally prosecuted for refusing a warrantless breath
test. See id. at 2186. Here, § 1543(b)(1.1)(i) imposes criminal penalties for
refusing to submit to either a breath test or a blood test. McConnell testified
that he recalled refusing to submit to a breath test. Thus, because
McConnell’s actions in refusing a breath test are subject to criminal penalties
under § 1543(b)(1.1)(i), we are not required to vacate McConnell’s sentence
under Birchfield.



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