J-S15009-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

MONICA A. MATULA

                            Appellant                    No. 1297 MDA 2014


              Appeal from the Judgment of Sentence May 13, 2014
               In the Court of Common Pleas of Schuylkill County
              Criminal Division at No(s): CP-54-CR-0001193-2013


BEFORE: LAZARUS, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY LAZARUS, J.:                                FILED APRIL 29, 2015

        Monica A. Matula appeals from her judgment of sentence, imposed in

the Court of Common Pleas of Schuylkill County, after she was convicted by

a jury of driving under the influence of alcohol (DUI).1 Upon careful review,

we affirm.

        The trial court set forth the facts of this case as follows:

        At about 1:00 a.m. on [May 25, 2013], Officer [Joseph] Krebs
        [of the Tamaqua Police Department] saw a white Jeep Cherokee
        vehicle – which he subsequently learned was being driven by
        [Matula] – proceed east towards the intersection of Routes 209
        and 309 in Tamaqua. The roadway had both a left turning lane
        and a straight/right turning lane. The two lanes were marked on
        the roadway.



____________________________________________


1
    75 Pa.C.S.A. § 3802(a)(1).
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     The traffic light facing [Matula] was red. [Matula] stopped in the
     straight/right turning lane and a second vehicle in the left
     turning lane was moving towards the light. When the traffic light
     turned green, Officer Krebs saw [Matula] abruptly cut into the
     left turning lane into the path and in front of the other vehicle,
     almost striking that vehicle. The operator of the second vehicle
     slammed on its brakes to avoid a collision.          [Matula] had
     executed the maneuver and thereafter made the left turn
     without utilizing any turn signal.

     As a result of the inappropriate action by [Matula], Officer Krebs
     began to follow her vehicle. [Matula] drove about a half block
     on the one-way roadway she had entered and then stopped at
     the side of the road with her vehicle about “halfway off the
     roadway.” Officer Krebs, who had not previously activated the
     siren or lights of his unmarked car, stopped behind [Matula’s]
     vehicle. While he sat in the patrol car, Officer Krebs observed
     that [Matula] had her vehicle in reverse, as the reverse lights
     were activated the entire one to two minutes he was in his
     vehicle.

     After finishing radio communication about the stop, Officer Krebs
     then approached [Matula] and asked for license, registration and
     proof of insurance documents. [Matula] fumbled and dropped all
     of her paperwork in her lap. Following what Officer Krebs
     thought was “a long time,” [Matula] provided him a Pennsylvania
     driver’s license. The officer noted [Matula] had very slurred
     speech, glassy bloodshot eyes, and was emitting a strong odor
     of alcoholic beverages about her facial area. [Matula] indicated
     that she had had two drinks that evening, had an argument with
     her boyfriend and was just out driving around. Officer Krebs
     testified that he “had no indication” that she had been crying.

     Officer Krebs asked [Matula] to exit her vehicle so he could
     conduct standard field sobriety tests. When [Matula] exited her
     vehicle, she kept her left hand on the vehicle while she walked
     around it, until reaching the pavement. As Officer Krebs was
     advising [Matula] how to perform the walk-and-turn test,
     [Matula] swayed front to back and lost her balance.

     After she lost her balance, [Matula] told Officer Krebs that she
     had a foot injury. However, [Matula] said she could perform the
     test. Officer Krebs believed [Matula] was wearing sandals and
     he saw nothing “out of the ordinary” with her feet. After the

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      officer explained the test again, [Matula] did nothing except look
      straight ahead.

      As [Matula] was uncooperative in performing the test, Officer
      Krebs decide to take her into custody for suspicion of driving
      under the influence. At first [Matula] pulled away from him and
      then cried and begged that she not be arrested. After seating
      her in her car, Officer Krebs began to read [Matula] the chemical
      test warnings and consent form, known as the DL-26. [Matula]
      cried, said she was probably over the legal limit and that she
      just wanted to go home.

      Officer Krebs read [Matula] the consent form twice and gave her
      the opportunity to read it. After Officer Krebs asked [Matula] to
      sign the form and to submit to the test, [Matula] said nothing
      except to ask about her vehicle and say that she wanted to go
      home. Because [Matula] did not respond to the officer’s request
      that she submit to testing, she was transported to her home.

Trial Court Opinion, 7/18/14, at 1-4.

      A criminal complaint was issued on May 28, 2013, charging Matula

with DUI, failing to employ the required position and method of turning

(summary offense) and failing to signal when turning (summary offense). A

jury trial was held on April 9, 2014, after which Matula was found guilty of

DUI. The trial court further found Matula guilty of both summary offenses.

On May 13, 2014, Matula was sentenced to 1 to 5 years in prison plus fines

and costs; her license was suspended for a period of 18 months and she was

ordered to obtain a mental health evaluation and any recommended

treatment.

      Matula filed post-sentence motions, which were denied.      This timely

appeal followed on July 25, 2014, in which Matula raises the following issue,

verbatim, for our review:

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       A jury must find that a defendant had been properly warned of
       the consequences of refusing chemical testing – in a DUI context
       – in order to find that the defendant had refused to submit to
       testing. Here, the Commonwealth elicited a legal conclusion
       from a police officer on the parameters of his “obligation” to
       advise. The officer responded that he “Just [has to] advise them
       of their chemical test warnings.” Where refusal – and specific
       consideration of the refusal element – was central to the
       Commonwealth’s case – did the trial court err in overruling trial
       counsel’s objection to such testimony?

Brief of Appellant, at 4.

       We begin by noting:

       The standard of review employed when faced with a challenge to
       the trial court’s decision as to whether or not to admit evidence
       is well settled.     Questions concerning the admissibility of
       evidence lie within the sound discretion of the trial court, and a
       reviewing court will not reverse the trial court’s decision absent a
       clear abuse of discretion. Abuse of discretion is not merely an
       error of judgment, but rather where the judgment is manifestly
       unreasonable or where the law is not applied or where the record
       shows that the action is a result of partiality, prejudice, bias or ill
       will.

Commonwealth v. Young, 989 A.2d 920, 924 (Pa. Super. 2010) (internal

citations omitted).

       The following exchange between counsel for the Commonwealth and

Officer Krebs regarding form DL-262 comprises the testimony of which

Matula complains:

____________________________________________


2
  Pennsylvania's “DL-26 form” is issued by the Pennsylvania Department of
Transportation and is titled “Chemical Testing Warnings and Report of
Refusal [to] Submit to Chemical Testing as Authorized by Section 1547 of
the Vehicle Code in Violation [of] Section 3802 (relating to driving under the
influence of Alcohol or Controlled Substance).” Commonwealth v. Barr,
79 A.3d 668, 669 n.2 (Pa. Super. 2013).
(Footnote Continued Next Page)


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      Q:    Okay. And with reference to the DL-26, your obligation
      with reference to the DL-26 is to do what with that?

      A:     Just advise them of their chemical test warnings.

            MR QUINN:         Your Honor, I want to object to that and
      move to strike that. His obligation, that’s a legal conclusion. His
      obligation, what he’s supposed to do, that’s a matter of
      interpretation by – by the Courts.

             THE COURT:             It – it’s overruled.

N.T. Trial, 4/9/14, at 83.




                       _______________________
(Footnote Continued)


      The DL-26 [f]orm provides the following information: (1) the
      licensee is under arrest for DUI in violation of Section 3802(a) of
      the Vehicle Code, 75 [Pa.C.S.A.] § 3802(a); (2) the officer is
      requesting a chemical test of a particular type (blood, urine,
      etc.); (3) it is the officer’s duty to inform the licensee that, if the
      licensee refuses to submit to the chemical test, the licensee’s
      operating privileges will be suspended for at least one year, that
      if the licensee refuses and is convicted [of] or pleads guilty to
      violating Section 3802(a) of the Vehicle Code (related to
      impaired driving), the licensee is subject to more severe
      penalties, the same as [if] he [were] convicted of driving with
      the highest rate of alcohol; and (4) it is the officer’s duty to
      inform the licensee that the licensee does not have the right to
      speak with an attorney, or anyone else, before deciding whether
      to submit and that any request to speak to an attorney or
      anyone else after being provided the warnings or remaining
      silent when asked to submit to chemical testing will constitute a
      refusal, resulting in the suspension of the licensee’s operating
      privileges and other enhanced criminal penalties if convicted of
      impaired driving.

Id., quoting Sitoski v. Commonwealth, Dep’t of Transp., 11 A.3d 12, 15
n.2 (Pa. Cmwlth. 2010).



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       Matula claims that the trial court erred by allowing Officer Krebs to

“render a legal conclusion on a critical element the jury had to decide.” Brief

of Appellant, at 11.       Matula argues that, because a finding of refusal to

submit to chemical testing increases the penalty for DUI,3 pursuant to

Apprendi,4 the jury was required to find that (1) Matula was provided the

implied consent warnings and (2) she refused to submit to testing. Matula

asserts that Officer Krebs’ testimony regarding his obligations with reference

to form DL-26 was an opinion regarding a legal question that Officer Krebs

was unqualified to render. Matula is entitled to no relief.

       Contrary to Matula’s assertion, Officer Krebs’ challenged testimony did

not address a “critical element the jury had to decide.”      The jury was not

tasked with determining whether Officer Krebs had an obligation to advise

Matula of the warnings contained in the DL-26 form. Indeed, Officer Krebs’

“obligations” were irrelevant to the ultimate questions of fact to be decided

____________________________________________


3
   This was Matula’s third DUI offense.      Pursuant to 75 Pa.C.S.A. §
3803(a)(2), a third offense is generally graded as a second-degree
misdemeanor carrying a maximum penalty of two years’ imprisonment. See
18 Pa.C.S.A § 106(b)(7).      However, because Matula refused chemical
testing, section 3803(b)(4) provides that her offense be graded as a first-
degree misdemeanor, which carries a penalty of not more than five years in
prison. See 18 Pa.C.S.A § 106(b)(6). Moreover, 75 Pa.C.S. § 3804(c)(3)
subjects a third-time offender who refuses chemical testing to a mandatory
minimum sentence of one year’s imprisonment.
4
  Apprendi v. New Jersey, 530 U.S. 466 (2000) (holding that any fact that
increases penalty for crime beyond prescribed statutory maximum must be
submitted to jury, and proved beyond reasonable doubt).



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by the jury.     Rather, the jury was charged with deciding, based upon the

evidence presented at trial, whether Officer Krebs did, in fact, provide

Matula with the implied consent warnings and whether Matula declined to

submit to chemical testing. See Commonwealth v. Xander, 14 A.3d 174

(Pa. Super. 2011) (refusal to submit to chemical testing necessarily requires

knowing refusal insofar as police must have provided arrestee with warnings

beforehand).       Accordingly, even assuming, arguendo, that Officer Krebs’

testimony amounted to an improper legal opinion,5 the error was harmless.

See Commonwealth v. Holland, 543 A.2d 1068, 1072 (Pa. Super. 1988)

(opinions of lay witness on matter not in issue necessarily harmless in their

effect).

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/29/2015




____________________________________________


5
  We note that form DL-26 itself states that “it is the officer’s duty” to inform
a motorist of the information contained on the form. See Barr, supra.



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