J-A22036-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    ALLEN PIPPEN                               :
                                               :   No. 2112 EDA 2016
                       Appellant

             Appeal from the Judgment of Sentence June 13, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0009346-2014


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

CONCURRING/DISSENTING MEMORANDUM BY LAZARUS, J.:

FILED OCTOBER 31, 2017

       I join in the majority’s disposition of Pippen’s compulsory joinder issue;

we are bound by our en banc decision in Perfetto. I respectfully dissent,

however, from the majority’s determination that Pippen waived his Birchfield

claim.1 I believe that the issue implicates the legality of Pippen’s sentence

and, therefore, is non-waivable.
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1 Moreover, to the extent that the majority relies upon Commonwealth v.
Grays, 2017 PA Super 245 (Pa. Super. 2017), to support its waiver analysis,
I would note that the factual circumstances underlying the blood draw in that
case are significantly different than those in the instant matter. In Grays, the
defendant filed a motion to suppress his pre-arrest BAC from blood drawn by
order of his treating physician at the local hospital’s emergency room. There,
the defendant argued that the medical records had been obtained pursuant to
an improperly issued and served subpoena, in violation of the doctor-patient
privilege, not as a result of implied consent laws. In fact, the trial court


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* Retired Senior Judge assigned to the Superior Court.
J-A22036-17



       It is well established that “an exception to the issue-preservation

requirement exists where the challenge is one implicating the legality of the

appellant’s sentence.” Commonwealth v. Barnes, 151 A.3d 121, 124 (Pa.

2016). Here, Pippen was arrested for suspected DUI and taken to the police

station.     When he arrived at the station, he was read his implied

consent/O’Connell2 warnings prior to having his blood drawn.            See N.T.

Suppression Motion Hearing, 5/2/14, at 30.         Pursuant to Birchfield, the

voluntariness of Pippen’s consent was potentially compromised and, thus, a

violation of his constitutional rights against unlawful searches and seizures.

Accordingly, I would vacate Pippen’s judgment of sentence and remand the

case for a re-evaluation of Pippen’s purported consent. See Commonwealth

v. Evans, 153 A.3d 323 (Pa. Super 2016); see also Commonwealth v.

Giron, 155 A.3d 635 (Pa. Super. 2017) (where defendant refused to read and

sign DL-26/O’Connell warnings or give consent to have blood drawn, and was

subjected to enhanced DUI penalties, court sua sponte deemed sentence

illegal despite fact that defendant never raised Birchfield).3

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actually suppressed the defendant’s post-arrest BAC from blood drawn at the
arresting officer’s request. Thus, any discussion regarding Birchfield and
waiver under the instant circumstances is inapplicable to Pippen’s case.
2   Commonwealth v. O’Connell, 555 A.2d 873 (Pa. 1989).

3 I also take issue with the unreasonable expectation placed on criminal
defense attorneys in cases finding waiver under these circumstances. “[T]rial
counsel cannot be held ineffective for failing to anticipate a change in the law.”
Commonwealth v. Cox, 983 A.2d 666, 702 (Pa. 2009). Here, the issue of



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J-A22036-17




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blood draws in DUI cases was not granted review by the United States
Supreme Court in Birchfield until December 11, 2015 – more than two years
after Pippen was arrested and his blood was drawn, nineteen months after
Pippen’s motion to suppress was decided and he was found guilty of section
3802(d)(3) in the Municipal Court, and almost four months after Pippen filed
an appeal for a trial de novo in the Court of Common Pleas.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
