J-A14014-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ALFRED DINO PELLEGRINI, JR.,

                            Appellant                No. 1150 MDA 2014


         Appeal from the Judgment of Sentence Entered June 17, 2014
             In the Court of Common Pleas of Cumberland County
             Criminal Division at No(s): CP-21-CR-0000651-2013


BEFORE: BENDER, P.J.E., JENKINS, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                          FILED JULY 06, 2015

        Appellant, Alfred Dino Pellegrini, Jr., appeals from the judgment of

sentence of ninety (90) days’ to six (6) months’ imprisonment, imposed

after he was convicted of driving under the influence, general impairment,

second offense,1 and driving under the influence, general impairment with

refusal, second offense.2 Appellant challenges the trial court’s denial of his

pretrial motion to suppress and contests the enhanced sentence imposed by

the court. We affirm.


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    Pursuant to 75 Pa.C.S. § 3802(a)(1).
2
    Pursuant to 75 Pa.C.S. § 3802(a)(1).
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     The trial court set forth the relevant facts and procedural history in its

Rule 1925(a) opinion as follows:

            Officer Jason Hall of the Shiremanstown Borough Police
     Department was on duty on December 16, 2012, monitoring
     traffic in the 200 block of West Main Street in Shiremanstown,
     Cumberland County, Pennsylvania. At approximately 2:55 a.m.,
     Officer Hall observed a black Mercedes Benz sedan, later
     determined to be driven by [Appellant], approach the
     intersection of South Rupp and West Main Street. The vehicle
     then pulled over to the side of the road, but was not parked
     parallel to the curb. Officer Hall decided to pull in behind the
     vehicle and make sure everything was okay. Officer Hall noticed
     that the vehicle was stopped in an unusual position in the street.
     One end of the vehicle was 4 feet from the curb [and] the other
     end was 5 feet from the curb. [Appellant’s] vehicle was only 20
     feet from the intersection and was in the roadway such that it
     constituted a safety hazard.

           Officer Hall pulled in behind [Appellant’s] vehicle and
     started to approach the driver’s side. [Appellant] began to get
     out of the vehicle and Officer Hall instructed him to stay inside
     the vehicle. When Officer Hall was by the left rear quarter panel
     of the vehicle, he noticed [Appellant] was talking on his cell
     phone and he also smelled an odor of an alcoholic beverage
     emanating from the vehicle. Officer Hall approached [Appellant]
     and asked him to hang up the phone and [Appellant] complied.

           Officer Hall then identified himself to [Appellant] and
     began talking to him. He told [Appellant] that he had stopped
     him because he had made a left turn without using his turn
     signal. [Appellant] told him that his mother had died and he was
     having a rough day. [Appellant] also informed Officer Hall that
     he was on his way to his girlfriend’s house and knew he was
     close, but was not sure where he was going from there. Officer
     Hall noticed that [Appellant] had glassy and bloodshot eyes and
     that his speech was slurred. Officer Hall received [Appellant’s]
     information and then asked if [Appellant] would be willing to
     perform some field sobriety tests. [Appellant] agreed and got
     out of the vehicle. After getting out of the vehicle for field
     sobriety tests, [Appellant] reminded Officer Hall that he was
     having a rough day and that his mother was on life support.
     Officer Hall asked [Appellant] about this because previously

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     [Appellant] said his mother had died. [Appellant] replied that he
     meant he had taken her off life support that day and she would
     die soon.

           After this conversation, Officer Hall first performed the
     HGN test and said that “it took a while for [Appellant] to follow
     the instructions, mainly keeping his head still.” Next, Officer Hall
     performed the walk and turn test and had to remind [Appellant]
     to get into the starting position several times. [Appellant] was
     frustrated with Officer Hall and accused him of making the test
     too tough for him. Then [Appellant] mentioned he was just on
     his way to a friend’s house. Officer Hall responded that he
     understood [Appellant] was going to his girlfriend’s house.
     [Appellant] then stated in a defiant tone that he never said he
     was going to his girlfriend’s house. Officer Hall pointed out the
     inconsistencies in [Appellant’s] stories and [Appellant] got quiet.
     Following this exchange, [Appellant] was unwilling to complete
     the walk and turn test.

           Finally, Officer Hall performed the one-leg stand test.
     [Appellant] could not keep his foot up and almost fell into Officer
     Hall. [Appellant] was unable to complete this test either. Officer
     Hall then asked if [Appellant] would complete a portable breath
     test (“PBT”) test. [Appellant] voluntarily did the PBT and the
     results “did confirm [Officer Hall’s] observations that there was a
     presence of alcohol on [Appellant’s] breath.” This confirmed
     Officer Hall’s opinion that [Appellant] was incapable of safe
     operations and was DUI.          Thereafter, Officer Hall placed
     [Appellant] under arrest for DUI.

           Officer Hall transported [Appellant] to Cumberland County
     Prison for booking. After arriving, Officer Hall read [Appellant]
     the DL-26 form, which informed [Appellant] about the
     consequences of refusing to submit to the blood draw, and then
     asked him to submit to a blood draw. [Appellant] ultimately
     refused to submit to the blood draw. Based on his refusal, no
     blood was drawn from [Appellant].

           Prior to the non-jury trial, [Appellant] filed a Motion to
     Suppress on February 5, 2014. [Appellant] argued that the
     evidence of his refusal to submit to chemical testing should be
     suppressed because the Commonwealth did not have a warrant
     to conduct a “search” of [Appellant’s] blood when [Appellant]
     was asked to consent to the blood test. The basic logic of
     [Appellant’s] motion was that after the U.S. Supreme Court case


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      of Missouri v. McNeely, 569 U.S. ___, 133 S.Ct. 1552 (2013),
      implied consent laws have no validity and that a[n] [Appellant’s]
      refusal to submit to a blood test is an exercise of a
      constitutionally protected right when the Commonwealth has not
      obtained a warrant to draw blood for a test prior to asking
      [Appellant] to consent.      Appellant also argued that it was
      unconstitutional to impose a greater penalty on him for refusing
      the chemical test. [Appellant’s] Motion to Suppress was denied
      on March 10, 2014, following [Appellant’s] stipulation that he
      was read the DL-26 implied consent form and that he refused
      the chemical test.

            A non-jury trial was held on May 7, 2014, where [the trial
      court] found [Appellant] guilty beyond a reasonable doubt of the
      above-captioned offenses. [Appellant] was found not guilty of
      DUI Highest Rate, as there was no evidence presented that
      showed [Appellant’s] BAC was above .16. On June 17, 2014,
      [Appellant] was sentenced at Count 2, DUI, second offense, with
      Refusal, to a period of incarceration in Cumberland County
      Prison for a period of 90 days to 6 months. Count 1 merged
      with Count 2 for sentencing.

Trial Court Opinion (TCO), dated 9/10/14, at 2-5.

      On July 11, 2014, Appellant filed a notice of appeal, followed by a

timely Rule 1925(b) statement. Appellant now presents the following issues

for our review:

      [I.] Did the trial court err in denying Appellant’s omnibus pre-
      trial motion without a hearing?

      [II.] Did the trial court err in sentencing Appellant to enhanced
      penalties based on his refusal to submit to chemical test
      demands?

Appellant’s Brief, at 6.

      We review Appellant’s challenge to the denial of his motion to suppress

pursuant to the following standard and scope of review:

      Our standard of review in addressing a challenge to the denial of
      a suppression motion is limited to determining whether the


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      suppression court’s factual findings are supported by the record
      and whether the legal conclusions drawn from those facts are
      correct.    Because the Commonwealth prevailed before the
      suppression court, we may consider only the evidence of the
      Commonwealth 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 suppression court’s factual findings are
      supported by the record, we are bound by these findings and
      may reverse only if the court’s legal conclusions are erroneous.
      Where … the appeal of the determination of the suppression
      court turns on allegations of legal error, the suppression court’s
      legal conclusions are not binding on an appellate court, whose
      duty it is to determine if the suppression court properly applied
      the law to the facts. Thus, the conclusions of law of the courts
      below are subject to our plenary review.

Commonwealth v. Farnan, 55 A.3d 113, 115 (Pa. Super. 2012).

      Appellant argues that the trial court erred in denying his suppression

motion without first conducting a hearing, alleviating the Commonwealth of

its burden to establish that the challenged evidence was not obtained in

violation of Appellant’s rights. Appellant’s Brief, at 10-11. In support of his

argument, Appellant cites Commonwealth v. Long, 753 A.2d 272 (Pa.

Super. 2000), where the judgment of sentence was vacated and the case

was remanded to the trial court for the purposes of conducting a full

suppression hearing.      Appellant is requesting similar relief here.        The

reliance on Long is misplaced, however, and Appellant’s claim is without

merit.

      In Long, the defendant was first made aware of the existence of a

videotape of a traffic stop taken from the inside of the arresting officer’s

police cruiser the night of the defendant’s arrest, just prior to the start of the

trial. Id. After viewing the videotape, defense counsel orally moved at trial


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to suppress evidence obtained during the traffic stop.        Id.    Typically, “a

motion to suppress must be made pretrial, unless ‘the opportunity did not

previously exist, or the interests of justice otherwise require.’”    Id. at 279

(quoting Commonwealth v. Barnyak, 639 A.2d 40, 45 (Pa. Super. 1994)).

Given the unique circumstances, this Court concluded that, in the interest of

justice, a suppression hearing was warranted and remanded the case for a

hearing. Long, 753 A.2d at 282. No such extenuating circumstances exist

in the case before us.

       Appellant objects to the trial court’s denial of his motion to suppress

without first conducting a hearing, asserting that his stipulation to the

implied consent and refusal of the blood test, “did not alleviate the

Commonwealth of [its] burden to prove that this information could be used

against him….” Appellant’s Brief, at 11.             Appellant’s assertions are

perplexing, as the Commonwealth filed an answer and new matter in

response to the suppression motion, and a suppression hearing was held on

March 10, 2014.3        TCO, at 8.      After meeting with counsel in chambers,

Appellant stipulated at the hearing that implied consent was given in

accordance with Pennsylvania law and that he refused to submit to a blood

test. Id. at 8-9. Accordingly, the trial court entered an order denying the

motion to suppress. Appellant made no objections to the entry of the order

____________________________________________


3
  The trial court allocated 2½ hours for the purposes of Appellant’s
suppression hearing. Id.



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during the suppression hearing, nor did he request a full hearing at the time.

Id. “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). Therefore, we are

constrained to conclude that Appellant’s claim regarding the denial of his

motion to suppress has been waived.            Nevertheless, were we to reach

Appellant’s claim, it is without merit.

      Appellant alleges that the request for a blood test violated his Fourth

Amendment      rights   and,   therefore,    should   have   been   suppressed.

Appellant’s Brief, at 13-15. In support of his argument and as noted by the

trial court, Appellant cites McNeely, where the Supreme Court held “the

natural dissipation of alcohol in the bloodstream does not constitute an

exigency in every case sufficient to justify conducting a blood test without a

warrant.”   McNeely, 133 S.Ct. at 1568.         Appellant mistakenly concludes

that, based on McNeely, evidence of his refusal should be suppressed

because the officer did not obtain a warrant prior to requesting Appellant’s

consent to a blood test. McNeely is not applicable here, as Appellant was

never subjected to a blood test, unlike in McNeely, where the defendant

was forced to submit to a blood test despite his refusal. We agree with the

trial court that it is clear there was no unreasonable search and seizure here,

as no evidence was seized, and that it is unreasonable for Appellant to

suggest that police must have a warrant to simply ask for consent to draw

blood. TCO, at 7.

      The Supreme Court recognized in McNeely that:

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      [A]ll 50 states have adopted implied consent laws that require
      motorists, as a condition of operating a motor vehicle within the
      State, to consent to BAC testing if they are arrested or otherwise
      detained on suspicion of a drunk-driving offense…. Such laws
      impose significant consequences when a motorist withdraws
      consent … and most States allow the motorist’s refusal to take a
      BAC test to be used as evidence against him in a subsequent
      criminal prosecution.

Id. at 1566.     Moreover, Pennsylvania has recognized that there is no

constitutional right to refusal of a blood test. Commonwealth v. Beshore,

916 A.2d 1128, 1141-42 (Pa. Super. 2007) (citing Commonwealth v.

Graham, 703 A.2d 510 (Pa. Super. 1997)). See also Commonwealth v.

Stair, 699 A.2d 1250 (1997). Appellant’s claim that the mere request for

his consent to a blood test violated his constitutional rights is wholly without

merit.

      Next, we address Appellant’s challenge to the sentence imposed,

applying the following standard of review:

      A claim that the court improperly graded an offense for
      sentencing purposes implicates the legality of a sentence. A
      challenge to the legality of a sentence may be raised as a matter
      of right, is not subject to waiver, and may be entertained as long
      as the reviewing court has jurisdiction…. When we address the
      legality of a sentence, our standard of review is plenary and is
      limited to determining whether the trial court erred as a matter
      of law.

Commonwealth v. Bowers, 25 A.3d 349, 352 (Pa. Super. 2011) (citations

omitted).

      Appellant avers that the trial court erred by taking into consideration

his refusal of the blood test at the time of sentencing. Appellant’s Brief, at

13. We disagree. Section 1547(e) of the Vehicle Code provides that, “[i]n


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any … criminal proceeding in which the defendant is charged with a violation

of section 3802 … 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.”          75

Pa.C.S. § 1547(e). Additionally, section 1547(b)(2)(ii) expressly states, “if

[a] 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) ….” 75 Pa.C.S. § 1547(b)(2)(ii). Thus, the trial

court did not err by taking into consideration Appellant’s refusal of the blood

test at the time of sentencing. Having already determined that Appellant’s

constitutional rights have not been violated, it is noted that Appellant

stipulated on the record to his refusal of the blood test. We conclude that

Appellant was properly sentenced in compliance with section 3804(c).4
____________________________________________


4
    Section 3804(c) provides as follows:

        (c)    Incapacity;  highest   blood    alcohol;   controlled
        substances.—An individual who violates section 3802(a)(1) and
        refused testing of blood or breath … shall be sentenced as
        follows:

        …

              (2) For a second offense, to:

                     (i) undergo imprisonment of not less than 90 days;

                     (ii) pay a fine of not less than $1,500;

75 Pa.C.S. § 3804(c).




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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/6/2015




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