J-S10011-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

ARTHUR LEE MOSLEY, JR.,

                            Appellant                No. 2401 EDA 2016

         Appeal from the Judgment of Sentence Entered June 30, 2016
               In the Court of Common Pleas of Monroe County
             Criminal Division at No(s): CP-45-CR-0001889-2015


BEFORE: BENDER, P.J.E., DUBOW, J., and SOLANO, J.

MEMORANDUM BY BENDER, P.J.E.:                       FILED MARCH 28, 2017

        Appellant, Arthur Lee Mosley, Jr., appeals from the judgment of

sentence of 9 to 24 months’ incarceration, followed by 3 years’ probation,

imposed after he was convicted of driving under the influence of alcohol

(DUI) - highest rate of alcohol, as well as DUI - general impairment.1 On

appeal, Appellant challenges the voluntariness of his consent to have his

blood drawn. After careful review, we affirm.

        In May of 2015, Appellant was arrested in the area of a DUI

checkpoint, based on an officer’s suspicion that Appellant was driving while

intoxicated.    “Appellant was then taken to the [c]ounty’s DUI processing

center which, notably, is part of the [Monroe] County Correctional Facility.”
____________________________________________


1
    See 75 Pa.C.S. §§ 3802(c) and (a)(1), respectively.
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Appellant’s Brief at 7. There, he was given the implied consent warnings set

forth in 75 Pa.C.S. § 1547(b)(2).2 See Trial Court Opinion (TCO), 8/31/16,

at 1.    Appellant consented to a blood draw, from which his blood alcohol

concentration (BAC) was determined to be in the highest rate, as defined by

75 Pa.C.S. § 3802(c) (“An individual may not drive, operate or be in actual

physical control of the movement of a vehicle after imbibing a sufficient

amount of alcohol such that the alcohol concentration in the individual’s

blood or breath is 0.16% or higher within two hours after the individual has

driven, operated or been in actual physical control of the movement of the

vehicle.”).

        Based on Appellant’s BAC, he was charged with the above-stated DUI

offenses. Notably, Appellant did not file any pretrial motions. On April 13,


____________________________________________


2
    That statute states:

        (b) Suspension for refusal.--

           (2) It shall be the duty of the police officer to inform the
           person that:

              (i) the person's operating privilege will be suspended
              upon refusal to submit to chemical testing; and

              (ii) if the person refuses to submit to chemical
              testing, upon conviction or plea for violating section
              3802(a)(1), the person will be subject to the
              penalties provided in section 3804(c) (relating to
              penalties).

75 Pa.C.S. § 1547(b)(2).




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2016, he was tried before a jury and was convicted of both DUI offenses.

On June     30, 2016, Appellant was sentenced to           9   to   24   months’

incarceration, followed by 3 years’ probation, for his conviction of DUI -

highest rate of alcohol, which constituted Appellant’s third DUI offense.

Appellant’s conviction of DUI - general impairment merged for sentencing

purposes.

     Appellant filed a timely notice of appeal, and he also timely complied

with the trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal.      Herein, he presents one issue for our

review:

     1. Should Appellant be granted a new trial under Birchfield v.
     North Dakota[, 136 S.Ct. 2160 (2016),] which was decided just
     before [Appellant] was sentenced on an enhanced, middle tier,
     3rd offense DUI and as a result of a warrantless search of his
     blood and the form used to obtain his consent contains the
     impermissible threat of enhanced criminal penalties?

Appellant’s Brief at 6 (emphasis omitted).

     Appellant argues that he is entitled to a new trial in light of Birchfield,

which was decided on June 23, 2016, after Appellant’s trial but before his

sentencing hearing.   Pertinent to the issue before us, in Birchfield, the

United States Supreme Court concluded that a state may not “insist upon an

intrusive blood test, but also … impose criminal penalties on the refusal to

submit to such a test.”   Birchfield, 136 S.Ct. at 2186.       Additionally, the

Court held “that motorists cannot be deemed to have consented to submit to

a blood test on pain of committing a criminal offense.” Id. In applying this


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ruling to one of the three consolidated cases before it - where the driver had

consented to a blood draw after being informed that his refusal to do so

could be criminally penalized - the Birchfield Court remanded for the trial

court to “reevaluate [that individual’s] consent given the partial inaccuracy

of the officer’s advisory.” Id. at 2186.

      After Birchfield, this Court decided Commonwealth v. Evans, ---

A.3d ----, 2016 PA Super 293, (Pa. Super. filed December 20, 2016). There,

Evans was arrested and charged with DUI - highest rate of alcohol, and DUI

- general impairment. In January of 2014 (prior to Birchfield), Evans filed

a motion to suppress his BAC results, arguing that his consent to the blood

draw was involuntary.     Id. at *1.       Specifically, Evans averred that his

consent was coerced, as it was given only after police provided the implied

consent warnings required by 75 Pa.C.S. § 1547, during which he was told

that if he did not submit to the test, he would face harsher penalties. Id. In

sum, Evans maintained that “his consent was involuntary and, since the

police did not have a warrant, the taking of his blood constituted an

unreasonable search in violation of both the Fourth Amendment to the

United States Constitution and Article I, Section 8 of the Pennsylvania

Constitution.” Id.

      Following a suppression hearing in May of 2014, the trial court denied

Evans’s motion to suppress. Id. He was subsequently convicted of the DUI

counts with which he was charged, and he was sentenced in June of 2015.




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Id. at 3.    Evans timely appealed, contending that the trial court erred by

denying his motion to suppress. Id.

        During the pendency of Evans’s appeal, Birchfield was issued.            In

assessing the implications of the Birchfield decision to Pennsylvania’s

implied     consent   statute,   the   Evans   panel   held   that   “even   though

Pennsylvania’s implied consent law does not make the refusal to submit to a

blood test a crime in and of itself, the law undoubtedly ‘impose[s] criminal

penalties on the refusal to submit to such a test.’” Evans, 2016 PA Super at

*8 (quoting Birchfield, 136 S.Ct. at 2185-86).           Specifically, the Evans

panel pointed to the DUI penalty provisions of 75 Pa.C.S. § 3804, stressing

that:

        To be sure, Section 3804(c) provides that an “individual who
        violates section 3802(a)(1)[, DUI, general impairment] and
        refused testing of blood” is punished more severely than an
        individual who commits the stand-alone DUI, general impairment
        offense under Section 3802(a)(1)—and to the same extent as an
        individual who violates Section 3802(c), relating to DUI, highest
        rate of alcohol. 75 Pa.C.S.A. § 3804(c). As such, Birchfield
        controls the case at bar.

Id.

        The Evans panel then addressed how Birchfield applied to Evans’s

case, where he had consented to the blood draw only “after being informed,

by the police, that refusal to submit to the test could result in enhanced

criminal penalties[]” under section 3804(c). Evans, 2016 PA Super at *8.

We ultimately concluded that,

        [s]ince Birchfield held that a state may not ‘impose criminal
        penalties on the refusal to submit to [a warrantless blood] test,”

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       the police officer's advisory to [Evans] was partially inaccurate.
       Therefore, we must vacate [Evans’s] judgment of sentence,
       vacate the suppression court's order, and remand the case to
       the trial court to “reevaluate [Evans’s] consent ... [, based on]
       the totality of all the circumstances ... [and] given the partial
       inaccuracy of the officer's advisory.” Birchfield, 136 S.Ct. at
       2186.

Evans, 2016 PA Super at *8.

       Clearly, under Birchfield and Evans, the voluntariness of Appellant’s

consent to the blood draw is questionable, given that he provided his

consent only after being informed that harsher penalties would apply if he

refused. However, Appellant’s case is distinguishable from Evans, and does

not warrant remand. Unlike Evans, Appellant did not file a pretrial motion

to suppress challenging the voluntariness of his consent to the warrantless

blood draw. Our Supreme Court has repeatedly declared “that in order for a

new rule of law to apply retroactively to a case pending on direct appeal, the

issue had to be preserved at ‘all stages of adjudication up to and

including the direct appeal.’” Commonwealth v. Tilley, 780 A.2d 649,

652 (Pa. 2001) (emphasis added) (holding that Tilley was not entitled to

retroactive application of a new rule of law regarding the Commonwealth’s

use of peremptory challenges, which was issued during the pendency of

Tilley’s   direct   appeal,   because    Tilley   had   not   “challenged   the

Commonwealth’s use of peremptory challenges at trial and again on appeal”)

(quoting Commonwealth v. Cabeza, 469 A.2d 146, 148 (Pa. 1983)).

       In sum, because Appellant at no point challenged the voluntariness of

his consent to the blood draw before the trial court, we conclude that


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Birchfield does not apply retroactively to his case.3   See Tilley, supra;

Cabeza, supra. See also Commonwealth v. Newman, 99 A.3d 86, 90

(Pa. Super. 2014) (en banc) (“To be entitled to retroactive application of a

new constitutional rule, a defendant must have raised and preserved the

issue in the court below….”) (citation omitted).

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/28/2017




____________________________________________


3
  We point out that Appellant offers no argument that he is entitled to
retroactive application of Birchfield, despite his failure to preserve his
challenge to the voluntariness of his consent below.



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