J-S61029-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    DANIEL JOHN PATTON                         :
                                               :   No. 3288 EDA 2016
                       Appellant

           Appeal from the Judgment of Sentence September 8, 2016
     In the Court of Common Pleas of Montgomery County Criminal Division
                       at No(s): CP-46-CR-0006940-2015


BEFORE:       LAZARUS, RANSOM, and PLATT,* JJ.

MEMORANDUM BY RANSOM, J.:                                FILED NOVEMBER 14, 2017

        Appellant, Daniel John Patton, appeals from the judgment of sentence

of six months of probation, imposed September 8, 2016, following a bench

trial resulting in his conviction for driving under the influence (DUI) - general

impairment.1 We affirm.

        The relevant facts and procedural history are as follows. On May 3,

2015, around 10:30 p.m., a patron of a Sunoco gas station saw Appellant park

his vehicle diagonally in front of the gas pump and was talking on his cellphone

loudly about being at a bar. Trial Ct. Op., 1/12/2017, at 1. Appellant exited

his vehicle, stumbled around, and appeared to be flushed. Id. at 2.           The

patron called 911 to report a suspected intoxicated person at the gas station

because he was concerned for the safety of others. Id. at 1-2.
____________________________________________


1   75 Pa.C.S. § 3802(a)(1).

____________________________________
* Retired Senior Judge assigned to the Superior Court.
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      Officer Peter Kondan (“the Officer”), who had experience in making DUI

arrests, responded to the 911 call. When the Officer arrived at the gas station,

he observed Appellant sitting in the vehicle and driving away with the

passenger door open.     The Officer followed Appellant onto the roadway to

advise him about the open passenger door. Appellant was driving at a slow

rate of speed of 7 miles per hour. The Officer activated his emergency lights;

he followed Appellant’s vehicle until Appellant pulled into a driveway. See id.

      When the Officer approached Appellant’s vehicle, Appellant “was

speaking in unintelligible comments while raising his arms in the air.” Id. at

2. The Officer asked Appellant about the passenger door. Before Appellant

answered, the Officer smelled a strong odor of alcohol coming from inside the

vehicle. Id. at 2-3. The Officer asked how much Appellant had to drink that

evening; Appellant answered that he only had one drink. Id. at 3. The Officer

observed Appellant’s “bloodshot and glassy” eyes, as well as his “extremely

slurred and at times unintelligible” speech, and his “slow and lethargic”

gestures and movements. Id.

      The Officer proceeded to administer standard field sobriety tests,

including the Alphabet Test, Number Test and Romburg Balance Test.

Appellant performed poorly on all tests, despite attempting some tests

numerous times. Id. at 3. Based on Appellant’s performance and his other

observations of Appellant’s demeanor, it was the Officer’s opinion that

Appellant was incapable of safe driving due to a chemical or alcohol-related

impairment. Id. at 4.

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      In addition, Officer Daniel Monroe responded to this incident. Officer

Monroe described Appellant’s demeanor as “belligerent,” exhibiting slurred

speech, signs of intoxication, glassy eyes, and the smell of alcohol from his

person. See Notes of Testimony (N.T.), 9/8/2016, at 53. After observing

Appellant’s performance on the field sobriety tests, Officer Monroe also

concluded that Appellant was incapable of safely operating a motor vehicle.

Id. at 54. Officer Monroe accompanied Appellant to the hospital for a blood

draw to test blood alcohol content. Id. Appellant refused to consent to the

test and did not sign the DL-26 implied consent form. Id. at 55.

      Over Appellant’s objection, his refusal to submit to a blood draw was

admitted into evidence. See id. at 55-56. Following a bench trial, the trial

court found the evidence sufficient to sustain Appellant’s conviction for DUI –

general impairment. Appellant was sentenced as described above.

      On September 19, 2016, Appellant timely filed a post-sentence motion

for acquittal or, in the alternative, a new trial.   Appellant’s post-sentence

motion was denied on September 21, 2016.

      Appellant timely filed a notice of appeal. The trial court did not order

Appellant to file a concise statement pursuant to Pa.R.A.P. 1925(b). The court

issued an opinion assessing the sufficiency and weight of the evidence claims

raised in Appellant’s post-sentence motion.

      On appeal, Appellant raises a single issue for review:

      1. Did the court err in allowing the Commonwealth to introduce
         evidence that [Appellant] refused to undergo a blood test that


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         was in violation of the 4th and 14th Amendment to the United
         States Constitution?

Appellant’s Br. at 3.

      Appellant contends that the court erred in admitting testimony of his

refusal as substantive evidence of guilt. Id. at 7. Appellant seeks relief in

the form of a new trial. Id. at 6. Appellant contends that the admission of

his refusal was not harmless error insofar as the evidence of refusal impacted

the outcome of his trial. Id. at 9-10. Appellant did not seek a new trial on

the basis of the alleged evidentiary error at trial or in his post-sentence

memorandum. Appellant does not challenge the sufficiency or weight of the

evidence on appeal.

      Although not addressed by the trial court in its opinion, the sole issue

that is properly before us is whether the court erred as a matter of law in

overruling Appellant’s objection to the admission of his refusal at trial. N.T.

at 56; see Pa.R.Crim.P. 720(B)(1)(c) (“Issues raised before or during trial

shall be deemed preserved for appeal whether or not the defendant elects to

file a post-sentence motion on those issues.”). Due to Appellant’s failure to

properly preserve his request for a new trial, we deem the remainder of

Appellant’s argument waived and limit our discussion accordingly.         See

Pa.R.A.P. 302, 2119(a), and 2119(e), respectively.

      Appellant correctly asserts that the challenged evidentiary ruling

involves the exercise of a constitutional right. See Appellant's Br. at 7. See,

e.g., Schmerber v. California, 384 U.S. 757, 764 (1966) (“To compel a

person to submit to testing in which an effort will be made to determine his

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guilt or innocence on the basis of physiological responses, whether willed or

not, is to evoke the spirit and history of the Fifth Amendment.”). Our standard

of review is as follows.

      [Ordinarily,] questions concerning the admissibility of evidence
      are within the sound discretion of the trial court and will only be
      reversed upon a showing that the court abused its discretion.
      Commonwealth v. Johnson, 42 A.3d 1017, 1027 (Pa. 2012).
      An abuse of discretion occurs where “the law is overridden or
      misapplied, or the judgment exercised is manifestly unreasonable,
      or the result of partiality, prejudice, bias, or ill will, as shown by
      the evidence or the record.” Commonwealth v. Randolph, 873
      A.2d 1277, 1281 (Pa. 2005). However, to the extent the question
      presents as “an issue involving a constitutional right, it is a
      question of law; thus, our standard of review is de novo, and our
      scope of review is plenary.” Commonwealth v. Baldwin, 58
      A.3d 754, 762 (Pa. 2012).

Commonwealth v. Adams, 104 A.3d 511, 517 (Pa. 2014)

      Appellant argues that the blood test he refused was illegal under

Birchfield v. North Dakota, 136 S.Ct. 2160 (2016). See Appellant's Br. at

6-8. Appellant maintains that he had a Fourth Amendment right to refuse

such a test and that such refusal cannot be used against him during trial. See

id. at 7-8. Appellant suggests that the evidentiary admission of refusal to

take a blood test is analogous to imposing a penalty for exercising the Fifth

Amendment right to remain silent.           See id. at 8 (citing in support

Commonwealth v. Molina, 104 A.3d 430, 441 (Pa. 2014) (holding that

reference to defendant’s pre-arrest silence violated defendant’s right against

self-incrimination under the Pennsylvania Constitution)).




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      In response, the Commonwealth contends that Birchfield “is only

concerned with increased criminal penalties for a defendant who does not

submit to a blood draw and the administration of a blood draw without a

search warrant.”    Commonwealth's Br. at 4.       Further, the Commonwealth

directs our attention to this Court’s recent precedent in Commonwealth v.

Bell, 167 A.3d 744 (Pa. Super. 2017), reargument denied (Sept. 26, 2017),

in which this Court explained that Birchfield does not impact the admissibility

of refusal of a warrantless blood test. The Bell Court rejected the appellee’s

argument that the admission of refusal violated his Fifth Amendment right

against self-incrimination or his Fourteenth Amendment right to due process.

See Bell, 167 A.3d at 748-749. Relying in part on South Dakota v. Neville,

459 U.S. 553 (1983), this Court concluded that “it was constitutionally

permissible for the prosecution to introduce evidence of this refusal at his trial

on DUI charges.”     Bell, 167 A.3d at 749; see also Commonwealth v.

Graham, 703 A.2d 510, 513 (Pa. Super. 1997) (rejecting notion that 75

Pa.C.S. § 1547(e) burdens constitutional rights by allowing evidence of refusal

of a chemical test to be admitted at trial).

      In the wake of Birchfield, our Supreme Court has explained:

          By operation of the implied consent statute, once a police
      officer establishes reasonable grounds to suspect that a motorist
      has committed a DUI offense, that motorist “shall be deemed to
      have given consent to one or more chemical tests of breath or
      blood for the purpose of determining the alcoholic content of blood
      or the presence of a controlled substance.” 75 Pa.C.S. § 1547(a).
      Notwithstanding this provision, Subsection 1547(b)(1) confers
      upon all individuals under arrest for DUI an explicit statutory right


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     to refuse chemical testing, the invocation of which triggers
     specified consequences. See 75 Pa.C.S. § 1547(b)(1) (“If any
     person placed under arrest for [DUI] is requested to submit to
     chemical testing and refuses to do so, the testing shall not be
     conducted”); [Commonwealth v. Eisenhart, 611 A.2d 681, 683
     (Pa. 1992)] (“The statute grants an explicit right to a driver who
     is under arrest for [DUI] to refuse to consent to chemical
     testing.”).

        Under this statutory scheme, a motorist placed under arrest for
     DUI has a critical decision to make. The arrestee may submit to
     a chemical test and provide the police with evidence that may be
     used in a subsequent criminal prosecution, or the arrestee may
     invoke the statutory right to refuse testing, which: (i) results in a
     mandatory driver's license suspension under 75 Pa.C.S. §
     1547(b)(1); (ii) renders the fact of refusal admissible as evidence
     in a subsequent DUI prosecution pursuant to 75 Pa.C.S. §
     1547(e); and (iii) authorizes heightened criminal penalties under
     75 Pa.C.S. § 3804(c) if the arrestee later is convicted of DUI. In
     very certain terms, this Court has held that, in requesting a
     chemical test, the police officer must inform the arrestee of the
     consequences of refusal and notify the arrestee that there is no
     right to consult with an attorney before making a decision. See
     [Pa. Dep’t of Transp., Bureau of Traffic Safety v. O'Connell,
     555 A.2d 873, 877–78 (Pa. 1989)]. “An arrestee is entitled to this
     information so that his choice to take a [chemical] test can be
     knowing and conscious.” Id. at 878. The choice belongs to the
     arrestee, not the police officer.

Commonwealth v. Myers, 164 A.3d 1162, 1170–71 (Pa. 2017).

     As we stated in Bell:

        The Implied Consent Law sets forth penalties to be imposed
     upon a person who is arrested for DUI and refuses to submit to
     chemical testing. First, Section 1547(b) requires the Pennsylvania
     Department of Transportation to suspend the driver's license for
     at least one year. 75 Pa.C.S.A. § 1547(b). Second, Section
     1547(e) allows for evidence of the motorist's refusal to submit to
     chemical testing to be admitted at his or her criminal trial on DUI
     charges:

        (e) Refusal admissible in evidence.— In any summary
        proceeding or criminal proceeding in which the defendant is


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         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
         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.A. § 1547(e).

Bell, 167 A.3d at 747.

      Appellant’s reliance on Molina is unpersuasive.         The Molina Court

recognized that, in Pennsylvania, the right against self-incrimination has

“generally developed in parallel or following the dictates of federal precedent

interpreting the Fifth Amendment, particularly … Griffin [v. California], 380

U.S. 609, 615 (1965).” Molina, 104 A.3d at 444. In Neville, the United

States Supreme Court declined to extend a defendant’s privilege against self-

incrimination, as set forth in Griffin, to a case in involving a defendant’s

refusal to submit to warrantless blood testing pursuant to a state’s implied

consent statute. The Court explained:

      Griffin held that a prosecutor's or trial court's comments on a
      defendant's refusal to take the witness stand impermissibly
      burdened the defendant's Fifth Amendment right to refuse.
      Unlike the defendant's situation in Griffin, a person suspected of
      drunk driving has no constitutional right to refuse to take a blood-
      alcohol test. The specific rule of Griffin is thus inapplicable.

Neville, 459 U.S. at 560 n.10.

      Contrary to Appellant’s contention, Birchfield does not create a

constitutional right to refuse a warrantless test and avoid the civil


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consequences of such refusal imposed by statute. See Birchfield, 136 S.Ct.

at 2185.   The Birchfield Court noted: “[o]ur prior opinions have referred

approvingly to the general concept of implied-consent laws that impose civil

penalties and evidentiary consequences on motorists who refuse to comply.”

Id. (citing Neville, 459 U.S. at 560).       The Neville Court held that the

evidentiary admission of a lawful refusal is “unquestionably legitimate.”

Neville, 459 U.S. at 560.

      For these reasons, the trial court correctly concluded that Birchfield

does not affect the evidentiary admissibility of refusal authorized by 75 Pa.C.S.

§ 1547(e). See Bell, 167 A.3d at 750. Accordingly, the trial court did not

err. Appellant is entitled to no relief.

      Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/14/2017




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