J-S60028-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    THOMAS KEN IRWIN,                          :
                                               :
                      Appellant                :   No. 207 WDA 2017

            Appeal from the Judgment of Sentence January 25, 2017
                In the Court of Common Pleas of Potter County
               Criminal Division at No.: CP-53-CR-0000095-2016

BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY DUBOW, J.:                              FILED JANUARY 18, 2018

        Appellant, Thomas Ken Irwin, appeals from the Judgment of Sentence

entered by the Potter County Court of Common Pleas following his conviction

after a jury trial of Driving Under the Influence (General Impairment)

(“DUI”).1 After careful review, we affirm.

        In the early morning hours of November 26, 2015, while on patrol in a

marked car, State Troopers Andrea Pelachick (“Trooper Pelachick”) and

James Culvey (“Trooper Culvey”) of the Coudersport station observed

Appellant driving a 1997 Dodge Ram as it slowly weaved, touching and

crossing both the centerline and the fog line several times.           Trooper

Pelachick eventually pulled Appellant over.


____________________________________________


1
    75 Pa.C.S. § 3802(a)(1).


____________________________________
* Former Justice specially assigned to the Superior Court.
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     Upon stopping his vehicle, Appellant exited the truck while the

Troopers were running Appellant’s registration in their patrol car.    When

Appellant put his right hand into his back pocket while approaching the

patrol car, Trooper Pelachick ordered Appellant to show his hands and stand

by the back of his vehicle for officer safety. Appellant appeared unsteady on

his feet and swayed while standing, he was very slow and sluggish, he

slurred and stuttered while speaking, and he used his hands to steady

himself on the side of his vehicle.       Appellant’s eyes were glassy and

bloodshot, and both Troopers smelled a very strong odor of alcohol on his

breath from a few feet away.

     Appellant could not produce a valid driver’s license, despite telling

Trooper Pelachick twice that he had a license. Appellant would not submit to

any field sobriety tests, despite four offers, and would not answer some of

Trooper Pelachick’s questions about his suspected alcohol consumption.

Twice, Appellant told Trooper Pelachick to “just put the cuffs on me.” N.T.

Trial, 12/15/16, at 74-75.

     Trooper Pelachick arrested Appellant, patted him down, placed him in

the patrol car, and drove him to the hospital for a blood test.    Appellant

refused to consent to the blood test after Trooper Pelachick gave the




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O’Connell warnings2 provided in the DL-26 form and refused to sign the

form acknowledging that he had received the warnings.           After Trooper

Pelachick read Miranda3 warnings, Appellant refused to answer any

questions.

        The Commonwealth charged Appellant with DUI, as well as summary

offenses. Appellant proceeded to a jury trial, representing himself. During a

pre-trial hearing on the day of trial, Appellant presented five distinct issues

addressing evidence he sought to admit at trial: (1) his request to present a

copy of the video footage from the patrol car; (2) his request to “reserve an

opening;” (3) his desire to present a “blood alcohol content chart” with an

easel; (4) his request to admit blood testing kits, breathalyzers, and

information from the manufacturers to show their inaccuracies; and (5)

evidence regarding why he did not present a valid driver’s license. He also

sought paperwork completed by Trooper Pelachick, and moved to strike

Trooper Pelachick’s testimony for failure to provide this statement. The trial

court denied the motion because Appellant did not request that specific

discovery and Trooper Pelachick had not prepared any paperwork or

statements.     N.T. Trial, 12/15/16, at 9-23.   Trial proceeded immediately

thereafter.
____________________________________________


2
 See Commonwealth, Dep’t of Transp., Bureau of Traffic Safety v.
O’Connell, 555 A.2d 873 (Pa. 1989).
3
    Miranda v. Arizona, 384 U.S. 436 (1966).



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       At trial, the Commonwealth presented testimony from Trooper

Pelachick and Trooper Culvey.           Both Troopers testified about Appellant’s

behavior the night of his arrest and opined that Appellant had been under

the influence of alcohol to a sufficient degree that rendered him incapable of

driving safely.     The court admitted into evidence video footage from the

Troopers’ patrol car showing Appellant driving erratically, as well as

Appellant’s behavior during the stop and the short drive to the hospital.

Appellant presented testimony from Todd Williams, his regular bartender,

and Charles Chappell, the owner of the vehicle. Appellant also testified in

his own defense, and admitted that he had been drinking alcohol the night

the Troopers had pulled him over.

       The jury convicted Appellant of DUI.4 On January 25, 2017, the trial

court sentenced Appellant to 3 to 24 months’ incarceration. The trial court

did not impose a mandatory minimum sentence of incarceration based on

Appellant’s refusal to consent to a blood test.

       On January 26, 2017, Appellant filed a timely Notice of Appeal. Both

Appellant and the trial court complied with Pa.R.A.P. 1925.

       Appellant presents two issues for our review:

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4
  The trial court found Appellant guilty of the summary offenses of Driving
Without a License, Driving While Operating Privilege Suspended or Revoked,
Disregarding Traffic Lanes (Single Lane), and Careless Driving after a bench
trial. 75 Pa.C.S. § 1501; 75 Pa.C.S. § 1543; 75 Pa.C.S. § 3309(1); and 75
Pa.C.S. § 3714(a), respectively.



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      I. Did the Commonwealth taint the verdict by repeatedly making
      improper references to [Appellant’s] post-arrest silence and by
      asking the jury “What is he hiding from you? What is he not
      wanting you to know?”

      II. Was the introduction of [Appellant’s] refusal to submit to an
      unlawful warrantless blood test as substantive evidence of guilt
      an improper penalty for the exercise of his constitutional rights?

Appellant’s Brief at 5.

      Appellant’s first issue involves allegations of prosecutorial misconduct

at trial for commenting on Appellant’s post-arrest silence during testimony,

opening statements, and closing arguments. Before we address the merits

of Appellant’s issue, we must first determine whether Appellant preserved

any aspect of this issue in the court below.

      “Issues not raised in the lower court are waived and cannot be raised

for the first time on appeal.” Pa.R.A.P. 302. A defendant’s failure to object

contemporaneously constitutes a waiver of any claim regarding improper

police testimony about his silence, as well as prosecutorial commentary

about his silence during closing argument. Commonwealth v. Adams, 39

A.3d 310, 319-20 (Pa. Super. 2012). See also Commonwealth v. Rivera,

983 A.2d 1211, 1229-30 (Pa. 2009) (same).

      While this Court is willing to construe materials filed by a pro se

appellant liberally, “pro se status confers no special benefit upon an

appellant.”   Commonwealth v. Adams, 882 A.2d 496, 498 (Pa. Super.

2005). “To the contrary, any person choosing to represent himself in a legal

proceeding must, to a reasonable extent, assume that his lack of expertise


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and legal training will be his undoing.” Id. Appellant’s pro se status does

not relieve Appellant of his duty to raise properly and develop his appealable

claims. Smathers v. Smathers, 670 A.2d 1159, 1160 (Pa. Super. 1996).

       Our review of the trial transcript shows that Appellant failed to

preserve the instant issue at trial. Appellant did not object to any aspect of

the prosecutor’s opening or closing statements. See N.T. Trial, 12/15/16, at

33-42, 218-22. Appellant did not object to any of the pertinent testimony

by Trooper Pelachick or Trooper Culvey that he now challenges for the first

time on appeal.        In fact, Appellant himself specifically asked numerous

questions about his silence during his cross-examination of both Trooper

Pelachick and Trooper Culvey. Id. at 101-04, 115-16, 127-30, 212-13.5

       Appellant argues that he preserved this claim during a pre-trial

hearing, at which he purportedly objected to any testimony about his refusal

to answer questions or submit to a blood test. Appellant’s Brief at 13-14.

Although he acknowledges the trial court never “directly rule[d] on the

objection,” Appellant essentially avers that raising the issue pre-trial relieved

him of any further obligation to preserve the issue for appeal.       Id. at 14.

Appellant further avers that he “attempted to object throughout his trial,
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5
  Appellant discussed his own silence during his testimony and in his opening
and closing arguments. See N.T. Trial, 12/15/16, at 45-48 (“My refusal of
everything. I refused the breathalyzer. I refused roadside sobriety test. . . .
[S]o I exercised the [F]ifth [A]mendment right that every American has in
the [C]onstitution to refrain from convicting myself on the roadside.”); 182-
85 (testifying regarding his silence).



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despite being admonished to cease doing so[,]” specifically during his own

opening statement and during his own testimony. Id. We disagree.

        At the pre-trial hearing on the day of trial, Appellant requested the

admission of blood testing kits, breathalyzers, and information from the

manufacturers to show their inaccuracies in the event that the prosecutor

planned to rely on the evidence of Appellant’s refusal to submit to blood

testing to suggest he was guilty. N.T. Trial, 12/15/16, at 13-18. Appellant

mentioned the Fifth Amendment and his right to remain silent in explaining

why he wanted to introduce this evidence. Id. at 17-18. At no point in the

pre-trial    proceeding     did   Appellant      seek   to   preclude   any    of   the

Commonwealth’s evidence, lodge a specific objection regarding such

evidence, or otherwise preserve the instant issue on appeal.

        After careful review of the certified record, we conclude that Appellant

has waived this first issue on appeal. See Pa.R.A.P. 302; Adams, 39 A.3d

at 319-20; Rivera, 983 A.2d 1229-30.

        In his second issue, Appellant essentially avers that 75 Pa.C.S. §

1547(e),6 Pennsylvania’s implied consent statute, is unconstitutional in light

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6
    Pennsylvania’s implied consent statute reads, in relevant part, as follows:

            (e) Refusal admissible in evidence.--In any summary
            proceeding or criminal proceeding in which the defendant
            is charged with a violation of section 3802 or any other
            violation of this title arising out of the same action, the fact
            that the defendant refused to submit to chemical testing as
(Footnote Continued Next Page)


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of Birchfield v. North Dakota, ___ U.S. ___, 136 S.Ct. 2160, 195 L.Ed. 2d

560 (2016).7 Appellant further argues that under Birchfield, the application

of Section 1547(e), an evidentiary provision, is unconstitutional because the

admission of evidence of a defendant’s refusal to submit to a blood test is, in

essence, an impermissible penalty for the exercise of his constitutional

rights. Appellant’s Brief at 20-27.


                       _______________________
(Footnote Continued)

           required by subsection (a) may be introduced in evidence
           along with other testimony concerning the circumstances
           of the refusal. No presumptions shall arise from this
           evidence but it may be considered along with other factors
           concerning the charge.

75 Pa.C.S. § 1547(e).
7
    This Court recently described the Birchfield holding as follows:

        In Birchfield, the United States Supreme Court held that
        “motorists cannot be deemed to have consented to submit to a
        blood test on pain of committing a criminal offense.” Id. at
        2185-86.       Accordingly, this Court has recognized that
        Pennsylvania’s implied consent scheme was unconstitutional
        insofar as it threatened to impose enhanced criminal penalties
        for the refusal to submit to a blood test. Commonwealth v.
        Ennels, 167 A.3d 716, 724 (Pa. Super. 2017), reargument
        denied (Sept. 19, 2017) (noting that “implied consent to a blood
        test cannot lawfully be based on the threat of such enhanced
        penalties”); Commonwealth v. Evans, 153 A.3d 323, 330-31
        (Pa. Super. 2016).

Commonwealth v. Kurtz, ___ A.3d ___, 2017 PA Super 336 (Pa. Super.
Filed Oct. 23, 2017). Relevant to Appellant’s claim, the Birchfield Court
clarified that its holding should not be read to cast doubt on the propriety of
rules allowing for evidentiary consequences resulting from a motorist’s
refusal to consent to a blood draw. Birchfield, 136 S.Ct. at 2185.



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      Before we address the merits of Appellant’s issue, we again must

determine whether Appellant has preserved this issue in the lower court. As

noted above, “[i]ssues not raised in the lower court are waived and cannot

be raised for the first time on appeal.” Pa.R.A.P. 302. This Court has held

that even “issues regarding the constitutionality of a statute can be waived”

if not preserved below. Commonwealth v. Lawrence, 99 A.3d 116, 122

(Pa. Super. 2014) (citation and quotation marks omitted).

      Appellant argues that he preserved this second issue during the pre-

trial hearing, when he purportedly objected to any testimony about his

refusal to answer questions and to submit to a blood test. Appellant’s Brief

at 20-21.   As described above, Appellant raised six evidentiary matters at

the pre-trial hearing, but he did not challenge the constitutionality of 75

Pa.C.S. § 1547(e).      See N.T. Trial, 12/15/16, at 9-23.        Rather, he

mentioned the general parameters of Birchfield in the context of his

explanation about why the trial court should allow his evidence of blood

testing kits, breathalyzers, and information from the manufacturers.     See

N.T. Trial, 12/15/16, at 13-18.

      In addition, our review of the certified record shows that Appellant

never sought to preclude any of the Commonwealth’s evidence regarding his

refusal to submit to blood testing, and never lodged a specific objection to

any of the testimony regarding such evidence during trial. In fact, during his




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own testimony at trial, Appellant repeatedly discussed his refusal to submit

to blood testing. See id. at 184-87, 189, 198, 204-05.

       Significantly, after the trial court instructed the jury that it could

consider Appellant’s refusal of blood testing as evidence of his consciousness

of guilt, the court asked Appellant if he had any questions or objections

regarding the jury instructions. Appellant responded “No, Your Honor.” Id.

at 231.

       After careful review of the certified record, we conclude that Appellant

has waived this second issue on appeal. See Pa.R.A.P. 302; Lawrence, 99

A.3d 122.8

       Judgment of Sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/18/2018



____________________________________________


8
   We reiterate our observation that the trial court did not impose a
mandatory minimum sentence of incarceration based on Appellant’s refusal
to consent to a blood test. Thus, there are no concerns regarding the
legality of Appellant’s sentence under Birchfield.




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