J-S27007-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DEREK PRINCE                               :
                                               :
                       Appellant               :   No. 2279 EDA 2019

          Appeal from the Judgment of Sentence Entered July 29, 2019
     In the Court of Common Pleas of Delaware County Criminal Division at
                        No(s): CP-23-CR-0002465-2018


BEFORE:      SHOGAN, J., McCAFFERY, J., and STEVENS, P.J.E.*

MEMORANDUM BY SHOGAN, J.:                                 FILED JULY 31, 2020

        Appellant, Derek Prince, appeals from the judgment of sentence entered

on July 29, 2019, in the Court of Common Pleas of Delaware County. We

affirm.

        The trial court summarized the factual and procedural history of this

case as follows:

              On October 15, 2017, at approximately 7:00 a.m., Officer
        Michael Kester of the Lansdowne Police Department was
        dispatched to 73 E. Stratford Ave, Lansdowne, Delaware County,
        Pennsylvania to respond to a report of an unconscious person in a
        running motor vehicle. Upon arrival, Officer Kester observed a
        black Mercedes sedan bearing Pennsylvania license plate number
        JVB-8606, stationary and located in the center of Stratford Ave.
        Appellant Derek Prince was in the driver’s seat with the engine
        running and the vehicle in a gear marked “drive.” [Appellant] was
        unconscious with his foot on the brake pedal. Sgt. Kevin Kienzle,
        who also responded to assist Officer Kester, entered the vehicle
____________________________________________


*   Former Justice specially assigned to the Superior Court.
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     through the front passenger door, placed the vehicle in “park” and
     removed the keys from the ignition. To awaken Appellant Prince,
     Officer Kester made physical contact by executing a “sternum
     rub.”1

           1An ambulance responded to the scene and evaluated
           Appellant Prince but medical treatment was refused.

            Appellant Prince had an odor of alcoholic beverage on his
     breath[] and person. An open bottle of Ciroc peach flavored vodka
     was observed on the passenger side floor of the vehicle and an
     odor of burnt marijuana emanated from the vehicle. Appellant
     Prince had difficulty exiting the vehicle and was forced to keep his
     hands on the door and roof to prevent losing his balance.
     Appellant Prince exhibited watery, bloodshot eyes and slurred
     speech and refused to perform field sobriety tests which he
     declined on two occasions.          A portable breath test was
     administered to Appellant Prince and registered above the legal
     limit. An inventory search of the vehicle, revealed three burnt
     marijuana cigarettes in the vehicle’s ash tray and a small amount
     of leaf marijuana in the vehicle cup holder. Appellant Prince was
     taken into police custody and a subsequent review of his PennDOT
     record revealed Appellant Prince’s operating privileges were
     suspended.

            Appellant Prince was read the implied consent warning DL-
     26, signed the warning form, and provided his consent to have his
     blood drawn for chemical testing.           Appellant Prince was
     transported to Mercy Fitzgerald Hospital where a sample of his
     blood was drawn by a registered nurse. The blood sample was
     collected in two vials and returned to the Lansdowne Police station
     where it was stored in evidence.

           Appellant Prince was subsequently charged with the
     following offenses: (1) 75 § 3802 §§ A2 - DUI: Gen Imp (BAC .08-
     .10) 4th Offense & Subsequent, (2) 75 § 3802 §§ D3 DUI:
     Controlled Substance - Combination Alcohol/Drug - 4th &
     Subsequent Offense (3) 75 § 3802 §§ D1i - DUI: Controlled
     Substance - Schedule I - 4th and Subsequent Offense (4) 35 §
     780-113 §§ A31 – Possession of Marijuana, (5) 35 § 780-113 §§
     A32 - Use/Possession of Drug Paraphernalia,2 (6) 75 § 1543 §§
     B1, Driving License Suspension/Rev. Pursuant to 3802/1547B1,
     and (7) Driving While BAC .02 or Greater While License
     Suspension.3

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           2 Counts (4) 35 § 780-113 §§ A31 - Possession of
           Marijuana and (5) 35 § 780-113 §§ A32 - Use/Poss of
           Drug Paraphernalia were withdrawn prior to jury
           selection.

           3 Counts (6) 75 § 1543 §§ B1, Driving License
           Suspension/Rev. Pursuant to 3802/1547B1 and (7)
           Driving While BAC .02 or Greater While License
           Suspension were summary offenses and not
           presented to the jury for consideration.

           A jury trial commenced in the Court of Common Pleas of
     Delaware County, Pennsylvania on April 16, 2019 and concluded
     on April 18, 2019. The jury found Appellant Prince guilty of all
     prosecuted offenses: (1) 75 § 3802 §§ A2 - DUI: Gen Imp (BAC
     .08 - .10) 4th Off & Subsequent, (2) 75 § 3802 §§ D3 DUI:
     Controlled Substance - Combination Alcohol/Drug - 4th &
     Subsequent Offense (3) 75 § 3802 §§ D1I - DUI: Controlled
     Substance - Schedule I - 4th and Subsequent Offense. The Court
     found Appellant Prince guilty on the summary offenses listed at
     information (6) 75 § 1543 §§ B1, Driving License Suspension/Rev.
     Pursuant to 3802/1547B1, and (7) Driving While BAC .02 or
     Greater While License Suspension.

          At trial, the following testimony regarding Appellant’s blood
     draw was provided by Sergeant Kevin Kienzle on direct
     examination by counsel for the Commonwealth:

           Q: Okay. When you [Sergeant Kevin Kienzle] get
           back, did you ask [Appellant] to submit to chemical
           testing of his blood?

           A: Yes, sir, I did.

           Q: Okay. And what is your responsibility under the
           laws of the Commonwealth of Pennsylvania, when you
           want to request a person submit to chemical testing?

           A: I read the DL-26 Implied Consent Form, which
           [Appellant] had a few questions about which I then
           gave him the form to -- I said you can read this to
           yourself and then sign it when you’re done and he did
           sign that form.

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          Q: But prior to handing it to him, did you read him
          that form verbatim as it’s printed by?

          A: Yes, sir.

          Q: Okay. If you were to see that form here today,
          would you recognize it?

          A: Yes, sir, I would.

          MR. DIROSATO: Your Honor, I’d ask that this be
          marked for identification purposes as C-6. The record
          should reflect a copy has been given to Defense
          Counsel during the course of discovery.

          THE COURT: C-6 is a copy.

          MR. DIROSATO: Permission to approach, Your Honor.

          THE COURT: You have permission.

          BY MR. DIROSATO:

          Q: Sergeant Kienzle, I’m going to show you what’s
          marked    for    identification    purposes   as
          Commonwealth’s Exhibit C-6.      Can you take a
          moment to review that exhibit? Do you recognize
          Commonwealth’s Exhibit C-6, Sergeant Kienzle?

          A: Yes, sir.

          Q: Can you tell the members of the jury what C-6 is?

          A: This is the DL-26(b), commonly called the Implied
          Consent Form with the instructions that I’m required
          under the law to read to [Appellant].

          Q: And did you read that form verbatim as it’s printed
          by PennDOT that day?

          A: Yes, sir.




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          Q: And after being read that form and you gave
          [Appellant] an opportunity to read that form on his
          own as well?

          A: Yes, sir.

          Q: Did you witness him do that or did you just hand
          it to him and go about any other business?

          A: I don’t recall. I handed him the form and the pen,
          I don’t recall how much time passed before he handed
          it back to me.

          Q: Okay. Regardless of whether you watched him,
          did you give him or did he take the time or did time
          pass before he handed the form back to you and --

          A: Yes, sir.

          Q: And after being informed of his implied consent
          rights, did [Appellant] agree to submit to testing of his
          blood?

          A: Eventually. I seem to recall that he had objections
          to taking the blood test because I remember saying
          to him that this -- I actually said the words this isn’t a
          game show, you don’t get to make the deal, you either
          take the test or you don’t and he reluctantly agreed
          to take the test.

          Q: But after you informed him of his rights?

          A: Yes, sir.

     (4/17/19, N.T., pp. 187-190).

           The following testimony was provided by Sergeant Kevin
     Kienzle on cross examination by counsel for [Appellant]:

          Q: Okay. And as far as your involvement with this
          job, it was, I guess, collection of data, the blood, I
          guess, excuse me, to take him to the hospital and
          collect blood?


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          A: My involvement?

          Q: Yes.

          A: I was the supervisor. I supervised the other officer
          and assisted him. And that’s correct that I did take
          [Appellant] for blood, yes, sir.

          Q: Okay. And you mentioned on direct examination
          that you agreed to take him home.

          A: Yes, sir.

          Q: Was that in agreement with him complying with
          the blood sample?

          A: Yes, sir.

          Q: Okay. So if he takes a blood sample then you’ll
          drop him home and release him?

          A: Yes, sir.

          Q: Okay. And when you referenced also on direct
          that, you know, this isn’t a game show, you don’t get
          to make a deal, what were you referencing with that?

          A: [Appellant] had, I don’t recall specifically what
          they were, but he was adding conditions to whether
          or not he would take the blood test.

          Q: Okay.

          A: And I just -- I specifically remember using those
          words that this isn’t a game show.

          Q: But the ultimate agreement from you was if you
          submit to the blood test, then I’ll release you and take
          you home.

          A: And he would be charged on something called a
          20 day summons versus being brought before the
          Judge on a criminal complaint at that moment, yes,
          sir.

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       (4/17/19, N.T., pp. 210-212).

             Sentencing was held on July 29, 2019[,] and [Appellant]
       was sentenced to fifteen months to sixty months. On August 7,
       2019, a Notice of Appeal was docketed[1] and by Order dated
       August 19, 2019, Appellant Prince was directed to file a Concise
       Statement of Matters Complained of on Appeal. Appellant Prince’s
       Concise Statement of Matters Complained of on Appeal was filed
       on September 10, 2019.

Trial Court Opinion, 10/23/19, at 1-9 (some internal citations omitted).

       Appellant presents the following issue for our review:

       I.    Did the Commonwealth limit the Appellant’s ability to pursue
       all pretrial avenues of relief by not disclosing information
       regarding the Lansdowne Police unduly influencing Appellant to
       consent to a blood test for the purpose of determining whether or
       not Appellant was under the influence and to what extent?

Appellant’s Brief at 6. In support of this claim, Appellant makes the following

argument:

             On April 16, 2019[,] a trial commenced and during said trial
       the [C]ommonwealth called S[e]rgeant Kevin Kienzile to testify
       and during his testimony he stated in exchange for the Appellant
       taking the blood test that S[e]rgeant Kienzile would not arrest
____________________________________________


1 In his notice of appeal, Appellant asserts that he is appealing “from the Order
of Judgment entered” on August 7, 2019. Notice of Appeal, 8/7/19, at 1. A
review of the record reflects that there are no entries on the docket for this
date other than the notice of appeal and the motion for bail pending appeal.
Appellant was sentenced on July 29, 2019, and Appellant did not file a post-
sentence motion. As such, we deem Appellant’s notice of appeal properly to
be from his judgment of sentence entered on July 29, 2019. Furthermore,
the notice of appeal filed on August 7, 2019, from the judgment of sentence
entered on July 29, 2019, was timely. “Because the appeal is otherwise
proper, we will treat this defect as harmless and proceed to consider the merits
as if the notice of appeal had correctly referred to the judgment of sentence.”
Commonwealth v. Lahoud, 488 A.2d 307, 309 (Pa. Super. 1985) (citing
Pa.R.A.P. 105(a)).

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J-S27007-20


        [Appellant] that evening and that S[e]rgeant Kienzle would take
        him home. This agreement to not arrest the Appellant deprived
        him of being able to knowingly and intelligently agree to have his
        blood tested. The agreement coerced Appellant into not using the
        rights afforded to [Appellant] by both the PA and US Constitution.

                                          ***

        The presentation of statements between the arresting officer and
        [Appellant] should have been disclosed upon discovery request.
        With this information, [Appellant] would have had the opportunity
        to conduct trial in a different manner. Due to this oversight,
        [Appellant] was prejudiced and is entitled to a new trial, as
        precedent dictates.

Id. at 8. Appellant further asserts that “the defense had only become aware

of the officer’s coercion of [Appellant’s] blood withdraw during trial.        . . .

[Appellant] had no opportunity to raise claims in relation to Brady.”2 Id. at

10. Appellant further contends that

        the prosecution here was specifically privy to the coercive nature
        of the conversation between arresting officer and [Appellant].
        Had the information been disclosed upon original discovery
        request, the defense would have fully utilized all avenues, namely
        filing a motion to suppress the blood results. Without complete
        disclosure of all exculpatory evidence, Appellant and his attorney
        did not have the opportunity to fully conduct trial.

Id. at 11.

        We first note that Appellant raised this issue for the first time on appeal.

“It is axiomatic that claims not raised in the trial court may not be raised for

the first time on appeal.” Commonwealth v. Johnson, 33 A.3d 122, 126

(Pa. Super. 2011). At trial, Appellant’s counsel did not object to the testimony


____________________________________________


2   Brady v. Maryland, 373 U.S. 83 (1963).

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given by Sergeant Kienzle on direct examination. N.T., 4/17/19, at 169-202.

Morever, Appellant’s counsel cross-examined Sergeant Kienzle about the

discussion regarding the blood draw, but did not raise the alleged Brady

violation at any point during the trial. Id. at 202-212. Appellant did not raise

the potential Brady issue during the July 29, 2019 sentencing hearing, N.T.,

7/29/19, at 3-30, or in a post-sentence motion. Indeed, Appellant does not

identify any place in the record where he raised this issue before the trial

court. See Pa.R.A.P. 302(a) (stating that issues not previously raised in a

lower court are waived). Although Appellant raised the Brady issue in his

Pa.R.A.P. 1925(b) statement, we have stated that “a party cannot rectify the

failure to preserve an issue by proffering it in response to a Rule 1925(b)

order.”   Commonwealth v. Monjaras–Amaya, 163 A.3d 466, 469 (Pa.

Super. 2017). Accordingly, this claim is waived.

      Moreover, even if the issue was not waived, Appellant would be entitled

to no relief on his claim. As our Supreme Court stated: “To establish a Brady

violation, an appellant must prove three elements: [1] the evidence at issue

was favorable to the accused, either because it is exculpatory or because it

impeaches; [2] the evidence was suppressed by the prosecution, either

willfully or inadvertently; and [3] prejudice ensued.”    Commonwealth v.

Paddy, 15 A.3d 431, 450 (Pa. 2011). Our Supreme Court further explained:

            The evidence alleged to have been withheld by the
      prosecution must have been material evidence that deprived the
      defendant of a fair trial. Favorable evidence is material, and
      constitutional error results from its suppression by the

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     government, if there is a reasonable probability that, had the
     evidence been disclosed to the defense, the result of the
     proceeding would have been different. A reasonable probability is
     a probability sufficient to undermine confidence in the outcome.

           Brady does not require the disclosure of information that is
     not exculpatory but might merely form the groundwork for
     possible arguments or defenses. Similarly, Brady does not
     require the prosecution to disclose every fruitless lead considered
     during the investigation of a crime. Brady sets forth a limited
     duty, not a general rule of discovery for criminal cases. The
     burden rests with Appellant to prove, by reference to the record,
     that evidence was withheld or suppressed by the prosecution.
     There is no Brady violation when the appellant knew or,
     with reasonable diligence, could have uncovered the
     evidence in question, or when the evidence was available
     to the defense from non-governmental sources.

Paddy, 15 A.3d at 450-451 (emphasis added) (internal citation and quotation

marks omitted).

     Here, we cannot agree that Appellant established the three elements

necessary for a Brady violation. We first note that there was no evidence

suppressed by the prosecution. The conversations between Appellant and the

arresting officer were known to Appellant. Appellant was a participant in the

conversation and was, or should have been aware, of the conversation that

was occurring.    Notably, Appellant does not assert that he was unable to

comprehend or remember the conversation with the arresting officer. Thus,

there is no evidence that the substance of these conversations was kept from

Appellant. As our Supreme Court in Paddy explained: “There is no Brady

violation when the appellant knew or, with reasonable diligence, could have

uncovered the evidence in question, or when the evidence was available to


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the defense from non-governmental sources.” Paddy, 15 A.3d at 450-451.

Furthermore, Appellant has failed to show that the evidence was favorable

because it is exculpatory or impeaches, and that prejudice ensued.

Accordingly, if Appellant’s claim had not been waived and we were to review

it on the merits, we would find it to be without merit.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/31/20




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