J-A01001-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

    LESHON A. MARTIN,

                             Appellant                 No. 537 EDA 2017


              Appeal from the Judgment of Sentence July 14, 2016
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No.: CP-51-CR-0002616-2015


BEFORE: LAZARUS, J., OTT, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                               FILED APRIL 04, 2018

        Appellant, Leshon A. Martin, appeals from the judgment of sentence

imposed following his conviction of driving under the influence (DUI) of

marijuana.1 We affirm.

        We take the following facts from our independent review of the certified

record. Lieutenant James McCarrick, the DUI coordinator for the Philadelphia

Police Department, established a checkpoint at 301 East Allegheny Avenue

from 10:00 P.M. on Friday, July 11, 2014, through 4:00 A.M. on Saturday,

July 12, 2014.       Police briefly stopped every vehicle that drove past the



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*   Retired Senior Judge assigned to the Superior Court.

1   75 Pa.C.S.A. § 3802(d)(1).
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location, as a matter of standard procedure. At 12:01 A.M., on July 12, 2014,

Officer Mary Novack of the Philadelphia Police Department stopped Appellant

at the checkpoint. Based on his bloodshot, watery eyes, slow speech, and the

odor of marijuana in the car, the officer asked him to perform field sobriety

tests, which he failed.        After police gave him his O’Connell2 warnings,

Appellant agreed to a blood draw.

        On May 4, 2015, Appellant filed a pre-trial motion to suppress all

evidence on the bases that the roadblock was unconstitutional and his

statements to police were made without his having received the required

Miranda3 warnings. (See Omnibus Motion, 5/04/15, at unnumbered pages

2-3; N.T. Hearing, 7/08/15, at 5). The court denied the motion and, on May

5, 2016, a jury convicted Appellant of DUI.

        On July 13, 2016, Appellant filed a sentencing memorandum notifying

the court that he would make a motion for extraordinary relief at sentencing,

challenging the voluntariness of his blood test (for the first time), on the basis




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2An O’Connell warning specifically informs a motorist that his or her driving
privileges will be suspended for one year if he or she refuses chemical testing.
See Com., Dept. of Transp., Bureau of Traffic Safety v. O’Connell, 555
A.2d 873, 877 (Pa. 1989); (see also Warnings to be Given by Police,
7/12/14).

3   Miranda v. Arizona, 384 U.S. 436 (1966).




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of Birchfield v. North Dakota, 136 S. Ct. 2160 (2016).4 At sentencing, on

July 14, 2016, Appellant made the motion, which the court denied. The court

sentenced Appellant as a third time DUI offender, to the mandatory minimum

term of not less than one nor more than two years’ imprisonment, followed

by three years of probation.

       On July 25, 2016, Appellant filed a post-sentence motion, again raising

Birchfield. After argument and extensive briefing by the parties, the court

denied the motion on December 13, 2016. Appellant timely appealed.5

       Appellant raises three issues for this Court’s review:

       1. Whether the trial court erred in denying Appellant[‘s] Motion to
       Suppress his stop, search and arrest and all of the fruits that
       followed from said stop as a result of a constitutionally defective
       road block/checkpoint in that the choice of time and place for the
       checkpoint was not based on local experience as to where and
       when intoxicated drivers are likely to be traveling[?]

       2. Whether the trial court erred in finding the issue of whether the
       Commonwealth of Pennsylvania was required to obtain a search
       warrant for Appellant[’s] blood sample was waived by him due to
       the failure to raise the issue until the Birchfield case was decided
       and prior to sentencing[?]


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4 On June 23, 2016, the Supreme Court decided Birchfield, holding that
criminalizing a suspect’s refusal to consent to a blood test violates the Fourth
Amendment to the United States Constitution. See Birchfield, supra at
2186.

5 On February 7, 2017, Appellant filed a timely court-ordered statement of
errors complained of on appeal. The court filed an opinion on March 20, 2017.
See Pa.R.A.P. 1925.




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        3. Whether the trial court erred in refusing to apply . . . Birchfield
        . . . where the Commonwealth of Pennsylvania is required to
        obtain a search warrant in order to obtain Appellant[‘s] blood
        sample, despite the fact the trial occurred prior to the decision in
        Birchfield, but before Appellant . . . was sentenced and where
        the issue was not raised until the time of sentencing and in all
        post-trial submission filings[?]

(Appellant’s Brief, at 11) (emphasis omitted).6

        In his first issue, Appellant challenges the denial of his motion to

suppress evidence on the basis of the unconstitutionality of the DUI

checkpoint. (See id. at 20-29). This issue is waived.

        It is well-settled that our standard of review in addressing a
        challenge to a trial court’s denial of a suppression motion is limited
        to determining whether the factual findings are supported by the
        record and whether the legal conclusions drawn from those facts
        are correct. Further,

              [w]e may consider only the evidence of the
              prosecution and so much of the evidence for the
              defense as remains uncontradicted when read in the
              context of the record as a whole. Where the record
              supports the findings of the suppression court, we are
              bound by those facts and may reverse only if the court
              erred in reaching its legal conclusions based upon the
              facts.

Commonwealth v. Powell, 171 A.3d 294, 310 (Pa. Super. 2017) (citations

and quotation marks omitted).

           . . . [T]o be constitutionally acceptable, a checkpoint must meet
        the following five criteria: (1) vehicle stops must be brief and must
        not entail a physical search; (2) there must be sufficient warning
        of the existence of the checkpoint; (3) the decision to conduct a
        checkpoint, as well as the decisions as to time and place for the
        checkpoint, must be subject to prior administrative approval; (4)
        the choice of time and place for the checkpoint must be based on
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6   We have reordered Appellant’s questions for ease of disposition.

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      local experience as to where and when intoxicated drivers are
      likely to be traveling; and (5) the decision as to which vehicles to
      stop at the checkpoint must be established by administratively
      pre-fixed, objective standards, and must not be left to the
      unfettered discretion of the officers at the scene.

Commonwealth v. Worthy, 957 A.2d 720, 725 (Pa. 2008) (citation

omitted). “Substantial compliance with the [above] guidelines is all that is

necessary to minimize the intrusiveness of a roadblock seizure to a

constitutionally acceptable level.” Commonwealth v. Menichino, 154 A.3d

797, 802 (Pa. Super. 2017), appeal denied, 169 A.3d 1053 (Pa. 2017)

(citation and footnote omitted).

      Instantly, Appellant challenges the fourth prong of the above test. (See

Appellant’s Brief, at 29) (arguing the Commonwealth failed to establish that

the location of the DUI checkpoint “was a route likely to be travelled by

intoxicated drivers.”). However, at the hearing on the suppression motion,

counsel expressly argued that the Commonwealth failed to establish prongs

three and five, “prior administrative approval” of the checkpoint, and

“administrative objective standards” for which vehicles to stop.             (N.T.

Suppression, 7/08/15, at 34-35; see id. at 33-36).

            “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). This
      requirement bars an appellant from raising “a new and different
      theory of relief” for the first time on appeal. Commonwealth v.
      York, 319 Pa. Super. 13, 465 A.2d 1028, 1032 (1983).




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Commonwealth v. Wanner, 158 A.3d 714, 717 (Pa. Super. 2017).

Therefore, Appellant’s first claim is waived.7

       In his second issue,8 Appellant alleges that the trial court erred in

finding that he waived the Birchfield issue. (See Appellant’s Brief, at 11, 29,

40-44).

       In Pennsylvania, it has long been the rule that criminal defendants
       are not entitled to retroactive application of a new constitutional
       rule unless they raise and preserve the issue during trial. [See]
       Commonwealth v. Newman, 99 A.3d 86, 90 (Pa. Super. 2014)
       (en banc), appeal denied, 121 A.3d 496 (Pa. 2014). . . .

Commonwealth v. Moyer, 171 A.3d 849, 855 (Pa. Super. 2017) (some

citation formatting provided).




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7 Moreover, it would lack merit. Lieutenant McCarrick testified that he is
“responsible . . . for the administration and operation of DUI checkpoints [for
Philadelphia].” (N.T. Suppression, at 8). He scheduled the checkpoint for 10
P.M. on Friday, July 11, 2014, through 4:00 A.M. Saturday, July 12, 2014,
based on statistical evidence showing that the number of DUI arrests
“skyrocket” during this time. (Id. at 13). He selected the location based on
statistics about the significant number of DUI arrests in that area. (See id.
at 8). Finally, the area could safely accommodate the roadblock. (See id. at
8-9). Therefore, based on this evidence, we conclude that the trial court did
not abuse its discretion in denying Appellant’s suppression motion. Powell,
supra at 310.

8 In violation of Pennsylvania Rule of Appellate Procedure 2119(a), although
Appellant raises three questions in his statement of questions involved, he
appears to address his second and third issues together. (See Appellant’s
Brief, at 11, 29-44); see also Pa.R.A.P. 2119(a) (“The argument shall be
divided into as many parts as there are questions to be argued[.]”). However,
because we are able to discern his arguments, we will not find waiver on this
basis.

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      Here, Appellant failed to challenge his consent to the warrantless blood

draw during trial, and he concedes that he raised Birchfield for the first time

after his conviction. (See Appellant’s Brief, at 40). As stated above, Appellant

“[is] not entitled to retroactive application of a new constitutional rule unless

[he] raise[d] and preserve[d] the issue during trial.” Moyer, supra at 855

(citation omitted). In fact, Birchfield’s retroactive application was raised in

Moyer, supra, under similar circumstances to those presented here, and

failed. The Moyer Court observed:

      . . . Appellant argues that the trial court erred in declining to
      vacate her DUI conviction under Birchfield. As explained above,
      the United States Supreme Court handed down Birchfield two
      days after Appellant’s sentence. Appellant never challenged the
      warrantless blood draw during trial, and did not raise any issue
      under Birchfield until her nunc pro tunc post-sentence motion.
      In Pennsylvania, it has long been the rule that criminal defendants
      are not entitled to retroactive application of a new constitutional
      rule unless they raise and preserve the issue during trial. [See]
      Commonwealth v. Newman, 99 A.3d 86, 90 (Pa. Super. 2014)
      (en banc), appeal denied, 632 Pa. 693, 121 A.3d 496 (2014). The
      Newman Court relied on Commonwealth v. Cabeza, 503 Pa.
      228, 469 A.2d 146, 148 (1983). There, the Supreme Court wrote:

                  [W]here an appellate decision overrules prior
            law and announces a new principle, unless the
            decision specifically declares the ruling to be
            prospective only, the new rule is to be applied
            retroactively to cases where the issue in question is
            properly preserved at all stages of adjudication up
            to and including any direct appeal.

      Id. (emphasis added). Instantly, Appellant failed to challenge the
      warrantless blood draw at any stage of the litigation prior to her
      nunc pro tunc post-sentence motion. Thus, she is not entitled to
      retroactive application of Birchfield.




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              Appellant argues that she should not have been required to
       anticipate the United States Supreme Court’s Birchfield opinion.
       The same could be said, however, in nearly every case in which a
       defendant is denied retroactive application of a new constitutional
       principle. The rule permitting retroactive application was created
       for the benefit of defendants who raised and preserved the issue
       in question and in whose case the issue remained pending while a
       higher court decided the issue in a similar case. The Cabeza
       Court explained:

                    In both cases, a defense challenge to the ruling
              was raised during trial and the issue preserved and
              argued in post trial motions and on appeal. The only
              noteworthy difference between [Commonwealth v.
              Scott, 496 Pa. 188, 436 A.2d 607 (1981),] and the
              appellee is that Scott was argued and decided first.
              The instant case may well have been the case which
              overruled prior law if Scott had not been decided
              while appellee’s appeal to the Superior Court was
              pending.    The question of whether to apply an
              enlightened rule in favor of a discredited one should
              not be determined by the fortuity of who first has his
              case decided by an appellate court.

              Id.

              In contrast, Appellant’s case could not have been the case
       that invalidated warrantless blood draws coerced by the threat of
       criminal prosecution because Appellant never raised the
       issue. Absent further development of the law of retroactivity
       from the Pennsylvania Supreme Court, Appellant is not entitled to
       rely on Birchfield. . . .

Moyer, supra at 854-55 (some emphases added).

       We agree with the reasoning employed by Moyer and find it

dispositive.9 Instantly, similar to the defendant in Moyer, Appellant failed to

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9 We recognize that, in Moyer, the defendant was sentenced two days prior
to the Birchfield decision, and, here, Birchfield was decided after Appellant’s



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challenge the validity of his consent until after his conviction and Birchfield’s

disposition. Therefore, necessarily, Appellant did not have a consent issue

that was pending the United States Supreme Court’s holding in Birchfield.

Hence, Appellant was not entitled to Birchfield’s retroactive application, and

the trial court properly declined to reverse Appellant’s conviction. See id.

Appellant’s second issue does not merit relief.10

       Because we conclude that Appellant was not entitled to Birchfield’s

retroactive application, we likewise conclude that his third issue lacks merit.

However, for the sake of completeness, we will address his claim that, “[a]s

the Birchfield Court held that the practice of criminalizing the failure to

consent to blood testing . . . was unconstitutional, the trial court improperly

relied upon section 3804(c)(1) in imposing a mandatory minimum sentence

upon [him].” (Appellant’s Brief, at 43).

       Our standard of review is well-settled.

             Initially, we note [a] claim that implicates the fundamental
       legal authority of the court to impose a particular sentence
       constitutes a challenge to the legality of the sentence. If no
       statutory authorization exists for a particular sentence, that
       sentence is illegal and subject to correction. Issues relating to the
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conviction, but before sentencing. However, this timing is not dispositive to
the reasoning of the Moyer Court and its applicability to the case herein.

10The trial court declined to extend Birchfield based on waiver. Because
Appellant raised Birchfield soon after it was decided, and before he was
sentenced, we decline to find that Appellant waived the claim. (See Trial Ct.
Op., at 7). However, “[w]e can affirm the trial court’s decision if there is any
basis to support it. Commonwealth v. Sunealitis, 153 A.3d 414, 423 (Pa.
Super. 2016) (citation omitted).

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     legality of sentence are questions of law, and thus, our standard
     of review is de novo and our scope of review is plenary.

           Moreover, in construing statutes, we are guided by the rules
     set forth in the Statutory Construction Act of 1972.

                  The object of all interpretation is to ascertain
            and effectuate the intent of the [legislature], a task
            that is best accomplished by considering the plain
            language of the [statutes] at issue. However, when
            the words are not explicit, then the court must
            consider various other indicia of intent, such as the
            object and necessity of the rule and the mischief
            meant to be remedied. The [statutes] should be
            construed to give effect to all their provisions, and a
            single [statute] should not be read in a vacuum,
            especially where there is an apparent interrelationship
            among [the statutes].

                   [I]n ascertaining legislative intent, courts may
            apply, inter alia, the following presumptions: that the
            legislature does not intend a result that is absurd,
            impossible of execution, or unreasonable; and that
            the legislature intends the entire statute to be
            effective and certain.

Commonwealth v. Clarke, 70 A.3d 1281, 1284 (Pa. Super. 2013), appeal

denied, 85 A.3d 481 (Pa. 2014) (citations, footnote, and quotation marks

omitted).

     Here, Appellant was convicted of violating section 3802(d)(1) of the DUI

statute. Section 3802(d)(1) provides:

     (d) Controlled substances.—An individual may not drive,
     operate or be in actual physical control of the movement of a
     vehicle under any of the following circumstances:

            (1) There is in the individual’s blood any amount of a:




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              (i) Schedule I controlled substance, as defined in the
              act of April 14, 1972 (P.L. 233, No. 64), known as The
              Controlled Substance, Drug, Device and Cosmetic Act;

              (ii) Schedule II or Schedule III controlled substance,
              as defined in The Controlled Substance, Drug, Device
              and Cosmetic Act, which has not been medically
              prescribed for the individual; or

              (iii) metabolite of a substance under subparagraph (i)
              or (ii).

75 Pa.C.S.A. § 3802(d)(1). Section 3804, Penalties, provides, in pertinent

part:

        (c)    Incapacity;    highest    blood    alcohol;     controlled
        substances.—An individual who violates section 3802(a)(1) and
        refused testing of breath under section 1547 (relating to chemical
        testing to determine amount of alcohol or controlled substance)
        or testing of blood pursuant to a valid search warrant or an
        individual who violates section 3802(c) or (d) shall be sentenced
        as follows:

                                       *       *    *

              (3) For a third or subsequent offense, to:

                     (i) undergo imprisonment of not less than one year[.]

75 Pa.C.S.A. § 3804(c)(3)(i) (emphasis added).11           After the United States

Supreme Court decided Birchfield, this Court has found that, “pursuant to


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11 Similarly, section 3803, Grading, reads, in pertinent part: “An individual
who violates section 3802(a)(1) where the individual refused testing of blood
or breath, or who violates section 3802(c) or (d) and who has one or more
prior offenses commits a misdemeanor of the first degree.” 75 Pa.C.S.A. §
3803(b)(4); see also 2017 S.B. 961, 75 Pa.C.S.A § 3803(b) (amending
statute, inter alia, to remove language, “refused testing of blood”). Because
our analysis applies equally to both section 3803 and section 3804, we confine
our discussion to section 3804(d), above.

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Birchfield, in the absence of a warrant or exigent circumstances justifying a

search, a defendant who refuses to provide a blood sample when

requested by police is not subject to the enhanced penalties provided

in 75 Pa.C.S.A. §§ 3803–3804.” Commonwealth v. Giron, 155 A.3d 635,

636 (Pa. Super. 2017) (emphasis added and footnote omitted).

      Appellant maintains that Giron compels a finding that the trial court

improperly imposed an illegal sentence by relying on section 3804(c).

However, we disagree.

      By its plain language, the penalties provided by section 3804 are to be

applied in two separate scenarios: either to a driver that commits DUI-General

Impairment and refuses a blood test OR to an individual who violates DUI-

Controlled Substances. See 75 Pa.C.S.A. § 3804(c). Giron is inapposite to

this case because it merely observed that a defendant who refuses a blood

test cannot be subject to the enhanced penalties of section 3804. See Giron,

supra at 636-37, 640. The case does not address the situation before us,

where a third time DUI-Controlled Substances offender is subject to a

mandatory minimum sentence. See id.          In fact, Appellant does not provide

any case law, and we are not aware of any, that finds that an individual

convicted of a third violation of DUI-Controlled Substances, is not subject to

the mandatory minimum sentence provided by section 3804(c).

      Therefore, we conclude that, based on the plain meaning of section

3804(c), the trial court did not impose an illegal sentence on Appellant. See


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Clarke, supra at 1284. The court imposed a mandatory minimum sentence

based on Appellant’s third DUI conviction for violating section 3802(d), not an

illegal enhancement for refusing a blood test.12 See id. Hence, Birchfield’s

prohibition on criminal sentencing enhancements for refusal to consent to a

blood test is not implicated by Appellant’s sentence, and his illegal sentencing

claim fails.

        Judgment of sentence affirmed.

        Judge Ott joins the Memorandum.

        Judge Lazarus files a Concurring and Dissenting Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/4/18




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12   We reiterate that Appellant did not refuse the blood test.

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