J-S26043-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    FREDRICK T. BROWN                          :
                                               :
                       Appellant               :   No. 2267 EDA 2018

              Appeal from the PCRA Order Entered July 5, 2018
     In the Court of Common Pleas of Monroe County Criminal Division at
                       No(s): CP-45-CR-0000466-2015


BEFORE:      PANELLA, P.J., GANTMAN, P.J.E., and PELLEGRINI*, J.

MEMORANDUM BY PELLEGRINI, J.:                             FILED JUNE 04, 2019

       Fredrick T. Brown (Brown) appeals from the order denying his petition

filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541-

9546, in the Court of Common Pleas of Monroe County (PCRA court). Brown

argues that trial counsel was ineffective for failing to file a motion to suppress

his blood test results on the basis of Birchfield v. North Dakota, 136 S.Ct.

2160 (2016)1 or to object to the admission of evidence related to his field

sobriety tests. We affirm.




____________________________________________


1 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.


____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S26043-19


      We take the following pertinent factual and procedural background from

our independent review of the certified record and the PCRA court’s July 5,

2018 and September 24, 2018 opinions. On July 22, 2014, Pennsylvania State

Police Trooper Andrew Depew stopped Brown after running his vehicle’s

license plate through the NCIC system and discovering that the car insurance

had been cancelled and the registration suspended.            (See N.T. Trial,

12/05/18, at 10). When he approached the vehicle, he could smell marijuana

and saw that Brown’s “eyes were red, glossy and bloodshot.” (Id. at 11).

Based on his observations, Trooper Depew administered field sobriety tests

on Brown. As a result of Trooper Depew’s interaction with and observations

of Brown, he believed Brown to have marijuana in his system, read him the

DL-26 Form, and asked him to submit to chemical testing of his blood. Brown

did so. (See id. at 12, 14). The results of the blood test revealed the presence

of a marijuana metabolite. (See id. at 17, 28; Commonwealth’s Exhibit 3,

NMS Toxicology Report).

      The jury convicted Brown of Driving Under the Influence—Metabolite

(DUI), 75 Pa.C.S. § 3802(d)(1)(iii), second offense, and the trial court

convicted him of two summary offenses.        The court sentenced him to an

aggregate term of incarceration of not less than 18 nor more than 60 months

and, after a hearing, denied Brown’s post-sentence motion. We affirmed his

judgment of sentence on April 6, 2017.




                                     -2-
J-S26043-19


       Brown then filed a PCRA petition alleging the ineffective assistance of

counsel for failing to file a motion to suppress the blood test results based on

Birchfield as well as not objecting to testimony about the field sobriety tests.

The court denied the petition and Brown timely appealed.2 Both he and the

court complied with Rule 1925. See Pa.R.A.P. 1925.

       To establish the ineffective assistance of counsel, the petitioner must

prove that “the underlying claim is of arguable merit; counsel had no

reasonable basis for the act or omission in question; and he suffered prejudice

as a result, i.e., there is a reasonable probability that, but for counsel’s error,

the outcome of the proceeding would have been different.” Commonwealth

v. Laird, 119 A.3d 972, 978 (Pa. 2015) (citations omitted). “Appellant bears

the burden of proving all three prongs; failure to prove any of these prongs is

sufficient to warrant dismissal of the claim without discussion of the other

two.” Commonwealth v. Robinson, 877 A.2d 433, 439 (Pa. 2005) (citations

omitted).

       Brown argues first that trial counsel was ineffective for failing to file a

motion to suppress the results of his blood test on the basis of Birchfield.

(See Brown’s Brief, at 9-11).          He acknowledges that Birchfield was not



____________________________________________


2“Our standard of review for issues arising from the denial of PCRA relief is
well-settled. We must determine whether the PCRA court’s ruling is supported
by the record and free of legal error.” Commonwealth v. Bush, 197 A.3d
285, 286 (Pa. Super. 2018) (citation omitted).


                                           -3-
J-S26043-19


decided until after his sentencing, but maintains that because the issue raised

in Birchfield had been raised in other cases, counsel was ineffective for failing

to file the motion. This claim lacks merit.

      As observed by the PCRA Court:

             “[W]e cannot impose upon trial counsel the qualities of a
      seer and fault him for not foreseeing future decisions of the
      [United    States    and    Pennsylvania     Supreme]     Court[s].”
      Commonwealth v. Roach, 388 A.2d 1056, 1059 (Pa. 1978)
      (citation omitted). To that end, “an attorney cannot be held
      responsible for knowing the inner workings of any appellate
      court,” and such a demand upon counsel would go “beyond
      rational limits.” Commonwealth v. Smith, 417 A.2d 729, 732
      (Pa. Super. 1979). As such trial counsel [] was not ineffective for
      failing to predict the ruling in Birchfield and filing an Omnibus
      Pretrial Motion predicated on the results of a case not decided until
      after [Brown] had been sentenced.

            Furthermore, [Brown] is not entitled to retroactive
      application of Birchfield. The Pennsylvania Superior Court put
      quite plainly that “Birchfield does not apply retroactively in
      Pennsylvania to cases pending on collateral review.”
      Commonwealth v. Olson, 179 A.3d 1134, 1139 (Pa. Super.
      2018). . . .

(PCRA Court Opinion, 7/05/18) (case citation formatting provided).

      We agree with the sound reasoning of the PCRA Court. It properly found

that Brown’s claim of counsel’s ineffectiveness for failing to file a motion to

suppress based on Birchfield lacks merit.         See Laird, supra at 978;

Robinson, supra at 439.

      Brown next argues that trial counsel was ineffective for failing to object

to irrelevant trial testimony about his field sobriety tests. (See Brown’s Brief,

at 4, 10-11). He maintains that because the only issue was whether he drove


                                      -4-
J-S26043-19


with an illegal metabolite in his blood, evidence regarding his field sobriety

tests was irrelevant.3 (See id. at 10-11).

        Pursuant to 75 Pa.C.S. § 3802(d)(1), “[a]n individual may not drive,

operate or be in actual physical control of the movement of a vehicle [if]

[t]here is in the individual’s blood any amount of a . . . metabolite of a

[controlled] substance . . .” 75 Pa.C.S. § 3802(d)(1). Under this provision,

the Commonwealth was required to establish that Brown operated a motor

vehicle with a metabolite in his blood.          Officer Depew requested the blood

draw based on his observations of Brown, which included the field sobriety

tests. His mention of the tests4 explained why he ordered the blood test. This

is not irrelevant.

        Moreover, even if the testimony was irrelevant, its admission was

harmless.      “[A]n error may be considered harmless . . . when the

Commonwealth proves beyond a reasonable doubt that the error could not

have contributed to the verdict.”         Commonwealth v. Brooker, 103 A.3d

325, 332 (Pa. Super. 2014) (citation omitted).

        Here, Trooper Depew testified that Brown was driving a motor vehicle,

which was corroborated by his vehicle’s camera recording. (See N.T. Trial, at



____________________________________________


3 Brown waived this issue by failing to cite any pertinent law or discussion
thereof in support of his argument. (See Brown’s Brief, at 10-11); Pa.R.A.P.
2119(a). However, for the sake of completeness, we will review the claim.

4   The Commonwealth did not elicit the results of the field tests.

                                           -5-
J-S26043-19


11, 22; Commonwealth’s Exhibit 1, DVD of Motor Vehicle Record). Forensic

scientist Donna Papsun testified that the minimum reporting amount of the

marijuana metabolite that must be present in an individual’s blood is one

nanogram per millimeter. (See N.T. Trial, at 29). Papsun stated that Brown

had 6.4 nanograms of a marijuana metabolite in his blood and the lab report

entered into evidence corroborated this testimony. (See N.T. Trial, at 28;

Commonwealth’s Trial Exhibit 3, Laboratory Report).             This evidence

sufficiently established Brown’s violation of the DUI statute. All of this make

the evidence presented at trial “so overwhelming and the prejudicial effect of

the error was so insignificant by comparison that the error could not have

contributed to the verdict.” Commonwealth v. Robinson, 721 A.2d 344,

350 (Pa. 1998); see Brooker, supra at 332. Brown’s allegation of counsel’s

ineffectiveness for failing to object to the admission of testimony about the

field sobriety tests, even if it was irrelevant, lacks merit.

      Accordingly, we affirm the PCRA court’s order denying Brown’s petition

because its “ruling is supported by the record and free of legal error.” Bush,

supra at 286.

      Order affirmed.




                                       -6-
J-S26043-19




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/4/19




                          -7-
