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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                    Appellant             :
                                          :
                                          :
              v.                          :
                                          :
                                          :
 ALEXIS HARRIS                            :   No. 2876 EDA 2017

                   Appeal from the Order August 9, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0004696-2017

BEFORE: BOWES, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY BOWES, J.:                              FILED APRIL 16, 2019

      The Commonwealth appeals from the August 9, 2017 order holding that

it presented insufficient evidence to create a prima facie case of driving under

the influence (DUI) with refusal to submit to chemical testing. We reverse

and remand for further proceedings.

      We gather the following underlying facts from the trial court’s opinion.

At approximately 3:00 a.m. on May 22, 2016, Harris, who was operating a

vehicle despite the fact that her license was suspended, drove fifty-five miles

per hour in a residential neighborhood, twice failed to stop at red traffic

signals, and nearly collided with a police vehicle. The arresting officers noted

that Harris’s eyes were glassy and bloodshot, her speech was slurred, she

smelled strongly of alcohol, and she was unable to walk unassisted. When in

custody, Harris declined to undergo chemical testing.
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      The Commonwealth filed a criminal complaint alleging one count of

DUI—general impairment and one count of driving with a suspended license.

The complaint included allegations that Harris refused chemical testing, and

that, if she was convicted, the Commonwealth would seek imposition of the

enhanced sentencing provisions of 75 Pa.C.S. § 3804. Following a preliminary

hearing, the refusal aspect of the DUI charge was dismissed, but the DUI

charge itself and the charge of driving with a suspended license were held for

court. The Commonwealth withdrew and refiled the charges, again alleging

the refusal enhancement. The trial court held a preliminary hearing on the

refiled charges on August 9, 2017, at which the Commonwealth presented

Officer David Soto to testify about the circumstances surrounding Harris’s

refusal to submit to chemical testing. At the conclusion of the hearing, the

trial court determined that the Commonwealth failed to show by a

preponderance of the evidence that Harris knowingly refused, ordering that

the Commonwealth could not proceed on the sentencing enhancement.

      The Commonwealth filed a timely notice of appeal in which it certified

that the trial court’s order substantially terminated or handicapped the

prosecution. Notice of Appeal, 9/7/17, at 1. Although not ordered to do so,

the Commonwealth filed a statement of errors complained of on appeal. The

trial court subsequently filed an opinion in support of its decision.

      The Commonwealth presents the following question for our review:

“Properly viewed in the light most favorable to the Commonwealth, did the


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evidence establish a prima facie case of driving under the influence—general

impairment with refusal, where [Harris] drove drunk and then ignored the

officer’s request that she submit to breath testing?”1 Commonwealth’s brief

at 4.

        We consider the Commonwealth’s question mindful of the following

principles. “It is well-settled that the evidentiary sufficiency, or lack thereof,

of the Commonwealth’s prima facie case for a charged crime is a question of

law as to which an appellate court’s review is plenary.”    Commonwealth v.

Hilliard, 172 A.3d 5, 12 (Pa.Super. 2017) (citation and internal quotation

marks omitted). “[O]ur scope of review is limited to determining whether the

Commonwealth has established a prima facie case.” Id. (citation and internal

quotation marks omitted).

        Our Supreme Court has described the Commonwealth’s burden as

follows.

              At the preliminary hearing stage of a criminal prosecution,
        the Commonwealth need not prove the defendant’s guilt beyond
        a reasonable doubt, but rather, must merely put forth sufficient
        evidence to establish a prima facie case of guilt. A prima facie
        case exists when the Commonwealth produces evidence of each
        of the material elements of the crime charged and establishes
        probable cause to warrant the belief that the accused committed
        the offense. Furthermore, the evidence need only be such that, if


____________________________________________


1 The Commonwealth does not contend that Harris is subject to sentencing
enhancements for refusing to submit to a blood test. Therefore, the holding
of Birchfield v. North Dakota, 136 S. Ct. 2160, 2186 (2016), regarding
Fourth Amendment’s prohibition of warrantless blood draws, is inapplicable to
this appeal.

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     presented at trial and accepted as true, the judge would be
     warranted in permitting the case to be decided by the jury.

Commonwealth v. Karetny, 880 A.2d 505, 513-14 (Pa. 2005) (citations

omitted, emphasis added).

     Pursuant to 75 Pa.C.S. § 3802(a)(1), the crime of DUI—general

impairment contains the following elements: “‘the accused was driving,

operating, or in actual physical control of the movement of a vehicle during

the time when he or she was rendered incapable of safely doing so due to the

consumption of alcohol.’” Commonwealth v. Teems, 74 A.3d 142, 145

(Pa.Super. 2013) (quoting Commonwealth v. Segida, 985 A.2d 871, 879

(Pa. 2009)). Under 75 Pa.C.S. § 3804(c), a person who violates § 3802(a)(1)

and refuses to submit to a breath test is subject to specified heightened

penalties, depending on the number of prior offenses.

     This Court has held, both before and after the decision in Alleyne v.

United States, 570 U.S. 99 (2013), that the sentencing enhancements of

§ 3804 are not elements of the crime of DUI.      See Commonwealth v.

Farrow, 168 A.3d 207, 218 (Pa.Super. 2017); Commonwealth v. Mobley,

14 A.3d 887, 894 (Pa.Super. 2011).     Rather, those who commit DUI and

refuse chemical testing must be charged under § 3802(1)(a), be given notice

of the alleged applicability of the § 3804 enhancement, be found to have

refused beyond a reasonable doubt by the factfinder at trial consistent with

the dictates of Alleyne. Farrow, supra at 218-19.




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      As noted above, the Commonwealth’s burden at a preliminary hearing

is to present evidence of each element of the crimes charged.          Karetny,

supra at 514. Since refusal is not an element of the crime of DUI—general

impairment, we see no basis for the trial court to have required the

Commonwealth present evidence of Harris’s refusal at the preliminary

hearing. Accord Commonwealth v. Orrs, 640 A.2d 911 (Pa.Super. 1994)

(holding prior offenses affecting the grading of the crime of retail theft are not

elements of the crime, and thus need not be proven at the preliminary

hearing; Commonwealth need only place accused on notice of its intent to

seek sentence based upon higher grading). As the court held the DUI charge

for court upon determining that the Commonwealth produced evidence that

would allow the jury to find each element of that crime, there was no reason

to address, let alone preclude the Commonwealth from pursuing at trial, the

applicability of the § 3804 enhancement.

      Moreover, assuming arguendo that evidence of Harris’s refusal was

required to be shown at the preliminary hearing as part of a prima facie case,

we have no hesitation in concluding that the Commonwealth satisfied that

burden. For driver’s refusal to submit to breath testing to result in penalties,

“the police must tell the arrestee of the consequences of a refusal to take the

test so that he can make a knowing and conscious choice.” Com., Dep't of

Transp., Bureau of Traffic Safety v. O'Connell, 555 A.2d 873, 877 (Pa.

1989). Once advised of the consequences, “‘anything less than an unqualified,


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unequivocal assent constitutes a refusal[.]’” Commonwealth v. Myers, 164

A.3d 1162, 1181 n.21 (Pa. 2017); see also Commonwealth v. Hunsinger,

549 A.2d 973, 976 (Pa.Super. 1988).

      At the preliminary hearing, Officer Soto testified that Harris was placed

in a cell, rather than in the testing room, “because she was very hostile[.]”

N.T. Preliminary Hearing, 8/9/17, at 12, 16.     Three separate times, Officer

Soto requested that Harris take a breath test and warned her of the

consequences of her refusal, and all three times she declined. Id. at 11-15.

Harris remained “belligerent the whole time,” laying on the floor and declining

to stand up, asking for a nurse then rejecting the nurse when she was offered.

Id. at 16-17. Officer Soto indicated that Harris “didn’t listen to anything [he]

was saying.”   Id. at 16.    Instead, Harris was hostile and argumentative:

“Everything we said, she didn’t want.” Id.

      The trial court found that the circumstances did not evidence “a

meaningful opportunity or reasonable and sufficient opportunity to either

refuse or consent.” Trial Court Opinion, 11/29/17, at 6. Specifically, it pointed

to the testimony that Harris did not listen to Officer Soto’s requests, that she

was on the floor of a cell rather than in the testing room, and that she

requested medical attention. Id. at 5-6.

      We disagree. Importantly, contrary to what was argued by Harris at the

hearing, Officer Soto indicated that Harris did not listen to him, not that she

was unable to hear him. Compare N.T. Preliminary Hearing, 8/9/17, at 16


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(“[S]he didn’t listen to anything I was saying.”), with id. at 28 (“He said she

couldn’t hear me. He said that.”). Indeed, the trial court appeared to have

formed a mental image of the events that was not supported by the evidence,

such that Harris was face down on the floor of the cell and crying. See id. at

29, 32 (“[H]e said she didn’t hear me, she wasn’t listening. . . . He said she

was in her cell, face down on the floor, asking for medical help, belligerent --

okay, belligerent -- crying? I’m not sure if I heard crying.”).

      Officer Soto testified that, on three distinct occasions, he requested that

Harris undergo a breath test and read her warnings of the consequences of

her refusal. Hence, this is not a case in which the officer did not even try to

administer warnings based upon the unruliness of the motorist.               Cf.

Commonwealth v. Xander, 14 A.3d 174, 180 (Pa.Super. 2011) (holding

refusal enhancements were not applicable because the officer never

attempted to administer warnings to highly-uncooperative detainee). Nor is

this a situation in which the officer sought consent from a motorist who was

physically incapable of consenting or knowingly refusing, as Officer Soto’s

testimony suggests that Harris was conscious and communicative throughout

the episode. Cf. Myers, supra at 1172 (holding motorist did not have the

opportunity to make knowing and conscious choice whether to refuse testing

where warnings had been read to motorist while he was unconscious following

the administration of Haldol)




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      The fact that Harris declined to pay attention to what Officer Soto said,

instead choosing to argue and act out in defiance, doing the opposite of what

was asked of her about everything (e.g., requesting a nurse then rejecting

the services of the nurse who was on site, electing to lay down rather than

stand), does not necessitate the finding that Harris did not make a knowing

and conscious choice to refuse chemical testing.     See Commonwealth v.

Olsen, 82 A.3d 1041, 1048 (Pa.Super. 2013) (holding evidence was sufficient

to allow jury to conclude beyond a reasonable doubt that the defendant’s

refusal was knowing where the officer “attempted to administer the refusal

warnings to [her], but her obnoxious behavior prevented him from completing

the recitation and obtaining a knowing waiver”). If a jury accepted Officer

Soto’s testimony as true, it could reasonably conclude that Harris had a

meaningful opportunity to consent to chemical testing or make a knowing

refusal, yet she did not avail herself of that opportunity. Therefore, we hold

that the trial court erred in ruling that the Commonwealth was precluded from

pursuing at Harris’s trial § 3804(c)’s enhanced penalty for refusal.

      Order reversed. Case remanded for further proceedings. Jurisdiction

relinquished.

      Judge Stabile joins the memorandum.

      Judge McLaughlin concurs in the result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/16/19




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