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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :     IN THE SUPERIOR COURT OF
                                       :           PENNSYLVANIA
                    v.                 :
                                       :
DAVID M. HORSEY,                       :         No. 558 WDA 2016
                                       :
                         Appellant     :


            Appeal from the Judgment of Sentence, March 10, 2016,
               in the Court of Common Pleas of McKean County
               Criminal Division at No. CP-42-CR-0000608-2014


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND SOLANO, J.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED MARCH 09, 2017

        David M. Horsey appeals from the judgment of sentence of March 10,

2016, following his conviction of one count of driving under the influence

(“DUI”) -- incapable of safe driving1 and related summary offenses.     We

affirm appellant’s convictions, but vacate the judgment of sentence and

remand for resentencing.

        The factual and procedural history of this case can be briefly

summarized as follows. Pennsylvania state trooper Frederick W. Burns, III,

testified that at the time of this offense, he was assigned to the Kane

barracks.     (Notes of testimony, 11/16/15 at 65.)     On the evening of

August 9, 2014, he was called to the site of a one-vehicle accident on State



1
    75 Pa.C.S.A. § 3802(a)(1).
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Route 146, Cleremont Road. (Id. at 66-67.) When he arrived on scene, he

observed a vehicle pulled off to the right-hand side of the road, with the rear

tires elevated off the road.    (Id. at 67.)     Firefighters directed him to

appellant’s location further down the road. (Id.)

      When he encountered appellant, he noticed that his eyes were

bloodshot, watery, and glassy. (Id. at 69.) There was an odor of alcohol

emanating from appellant’s breath and person. (Id.) Appellant related that

he was heading home when he hit a deer. (Id. at 71.) Trooper Burns asked

appellant how much he had to drink that day, and appellant replied,

“nothing.” (Id.)

      Trooper Burns transported appellant back to the scene of the accident.

(Id. at 72.)       Trooper Burns asked appellant for his insurance and

registration; appellant did not have a registration card and his proof of

financial responsibility was expired. (Id. at 73.) Trooper Burns attempted

to conduct field sobriety testing, but appellant refused to cooperate. (Id. at

78.) At that point, Trooper Matt Petrof arrived on the scene. (Id. at 80,

119-120.)    Appellant continued to refuse to comply with the troopers’

attempts to administer standardized field sobriety testing and was placed

under arrest for suspicion of DUI. (Id. at 80, 120.) Appellant was also read




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his DL-262 implied consent warnings and refused chemical testing. (Id. at

81-82, 121; Commonwealth’s Exhibit 2.)         Trooper Burns saw no evidence

that appellant’s vehicle had struck a deer. (Id. at 84-85.)

        Following a jury trial before the Honorable John H. Pavlock, appellant

was found guilty of count 1, DUI. Judge Pavlock found appellant guilty of

count 2, registration card to be signed and exhibited on demand, 3 and

count 5, careless driving.4 Appellant was found not guilty of the remaining

summary offenses.      (Id. at 172-173.) On March 10, 2016, appellant was

sentenced to 30 days’ to 6 months’ incarceration for DUI and fines on the

summary offenses.        (Docket #13.)     The trial court granted appellant’s

motion for bail and stay of sentence pending appeal. Timely post-sentence

motions were denied on March 18, 2016, and this timely appeal followed on

April 18, 2016. On April 27, 2016, appellant was ordered to file a concise

statement of errors complained of on appeal within 21 days pursuant to

Pa.R.A.P. 1925(b); appellant timely complied on May 16, 2016, and on

June 13, 2016, the trial court filed a Rule 1925(a) opinion.

        Appellant has raised the following issues for this court’s review:


2
   The DL–26 form contains warnings of the potential consequences of a
person’s refusal to consent to a blood test, including that the individual’s
license could be suspended for at least one year, and that if convicted of
violating 75 Pa.C.S.A. § 3802(a), the individual will face more severe
penalties because of the refusal.
3
    75 Pa.C.S.A. § 1311(b).
4
    75 Pa.C.S.A. § 3714(a).


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            I.    Should judgement of sentence be reversed by
                  operation of law under the circumstances of
                  this case because the Commonwealth failed to
                  present sufficient evidence in the record that
                  appellant drove in McKean County, the
                  Commonwealth having presented no evidence
                  at trial that the underlying location of the
                  vehicle crash and subsequent stop are located
                  in McKean County?

            II.   Should the case be remanded for resentencing
                  in light of the fact that the arresting officer did
                  not receive and execute a search warrant
                  before demanding that appellant submit to a
                  blood test?

Appellant’s brief at 5 (unnecessary capitalization omitted).

      In his first issue on appeal, appellant claims that the Commonwealth

failed to present sufficient evidence of where the offense occurred to

establish jurisdiction. We disagree.

            A court has no jurisdiction over an offense unless the
            offense occurred within the county in which the trial
            takes place.    Commonwealth v. Thomas, 305
            Pa.Super. 158, 451 A.2d 470 (1982). The burden to
            establish the court’s jurisdiction is on the
            Commonwealth. Commonwealth ex rel. Chatary
            v. Nailon, 416 Pa. 280, 285, 206 A.2d 43 (1965).

Commonwealth v. Sestina, 546 A.2d 109, 112 (Pa.Super. 1988), appeal

denied, 554 A.2d 508 (Pa. 1989).

            For a county to exercise jurisdiction over a criminal
            case, an overt act involved in the crime must have
            occurred within that county. Commonwealth v.
            Bradfield, 352 Pa.Super. 466, 508 A.2d 568, 571
            (1986), appeal denied, 513 Pa. 633, 520 A.2d
            1384 (1987) (citing Commonwealth v. Tumolo,
            455 Pa. 424, 427, 317 A.2d 295, 297 (1974)).
            “While the Commonwealth bears the burden of


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            proving facts sufficient to establish jurisdiction, it
            may rely upon circumstantial evidence to meet its
            burden.” Bradfield, supra.

Commonwealth v. Passmore, 857 A.2d 697, 709 (Pa.Super. 2004),

appeal denied, 868 A.2d 1199 (Pa. 2005).

            “The doctrine of judicial notice is intended to avoid
            the necessity for the formal introduction of evidence
            in certain cases when there is no real need for it,
            where a fact is so well established as to be a matter
            of common knowledge.” Albert Appeal, 372 Pa.
            13, 20, 92 A.2d 663, 666 (1952); See
            Commonwealth ex rel. Duff v. Keenan, 347 Pa.
            574, 582-83, 33 A.2d 244, 249 (1943) (“so well
            known as to be incontestable.”). Included in the
            subjects appropriate for judicial notice is the county
            in which a town or city is located, [s]ee Emert v.
            Larami Corp., 414 Pa. 396, 200 A.2d 901 (1964);
            Commonwealth v. Kaiser, 184 Pa. 493, 39 A. 299
            (1898), and the location of roads and highways.
            See Schmidt v. Allegheny County, 303 Pa. 560,
            154 A. 803 (1931); Commonwealth v. Ball, 277
            Pa. 301, 121 A. 191 (1923).

Commonwealth v. Varner, 401 A.2d 1235, 1236 (Pa.Super. 1979).

      In Varner, the offense occurred in the parking lot of the Shippensburg

Fair Grounds and on Possum Hollow Road near the Fair Grounds. Id. While

the appellant never alerted the prosecution that the county of the offense

was in issue, he argued on post-trial motions and on appeal that

Shippensburg is near the border of Cumberland and Franklin counties and

that the prosecution never specifically established that the situs of the

offense was in Franklin County. Id. at 1235-1236. This court held that the

trial court did not err in taking judicial notice that the offense occurred in



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Franklin County where the locality of the offense was only technically in

issue.    Id. at 1236.   In overruling post-trial motions, the trial court took

judicial notice that “it is a well-known geographical fact that” the area near

the Fair Grounds where the appellant was arrested is in Franklin County. Id.

at 1235.     See also Sestina, 546 A.2d at 112 (where the Commonwealth

established a specific street and intersection location, the trial court would

have been entitled to take judicial notice of the fact that the site of the

offense was in Warren County).

         Here, Trooper Burns testified that the crash occurred on State

Route 146. (Notes of testimony, 11/16/15 at 67.) The criminal information

identified the location as “State Route 146/Red Mill Road near Creekside

Drive, Norwich Township.”      (Docket #32.) This was sufficient for the trial

court to take judicial notice that the incident occurred in McKean County. As

Judge Pavlock explained in his Rule 1925(a) opinion:

                     [Appellant] is correct that the underlying
              location of the vehicle crash and subsequent stop
              were never specifically identified as being located in
              McKean County. This was clearly an oversight by the
              Commonwealth.        However, in accordance with
              Commonwealth v. Sestina, the court can take
              judicial notice that State Route 146 or “Clermont
              Road”[5] is located entirely within McKean County,
              Pennsylvania, which is a physical fact that cannot be
              disputed. If facts existed that could establish that
              even a small portion of that Route was not in
              McKean County the court would rule in [appellant]’s
              favor. However, because Route 146 is where it is

5
 In the trial transcript it is spelled “Cleremont Road.” (Notes of testimony,
11/16/15 at 67.)


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            and cannot be moved, there is nothing that could
            demonstrate that the location of this “crash” was
            anywhere other than McKean County.             Further,
            although standing alone it would not establish
            location, the fact that Trooper Burns testified that he
            was assigned to the Kane Barracks, which covers
            McKean County is additional evidence that the
            location was in McKean County. In sum, although
            not ideal, there is sufficient evidence to establish
            venue or jurisdiction in McKean County, and,
            therefore, the motion for demurrer or motion for
            direct[ed] verdict was properly denied.

Trial court opinion, 6/13/16 at 2-3. We agree.

      We now turn to appellant’s second issue on appeal. Appellant basically

argues that his sentence was illegal under the recent United States Supreme

Court case of Birchfield v. North Dakota,           U.S.     , 136 S.Ct. 2160

(2016), which invalidates any criminal sanction assessed for refusing to

submit to a blood test in the absence of a warrant. We are constrained to

agree.

      Initially, we note that appellant did not raise this issue in the court

below; in post-sentence motions and in his Rule 1925(b) statement, he only

challenged jurisdiction.     The Commonwealth contends that the issue is

waived on this basis.      (Commonwealth’s brief at 8.)    However, the issue

goes to the legality of appellant’s sentence, which is non-waivable.     See

Commonwealth v. Barnes, 151 A.3d 121, 127 (Pa. 2016) (“[W]here the

mandatory minimum sentencing authority on which the sentencing court

relied is rendered void on its face, and no separate mandatory authority

supported the sentence, any sentence entered under such purported


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authority is an illegal sentence for issue preservation purposes on direct

appeal.”); Commonwealth v. Foster, 17 A.3d 332, 345 (Pa. 2011)

(plurality) (“[W]here a sentencing court is required to impose a mandatory

minimum sentence, and that mandatory minimum sentence affects a trial

court’s traditional sentencing authority or the General Assembly’s intent in

fashioning punishment for criminal conduct, a defendant’s challenge thereto

sounds in legality of sentence and is therefore nonwaivable.”).         See also

Commonwealth v. Edrington, 780 A.2d 721, 723 (Pa.Super. 2001), citing

Commonwealth v. Vasquez, 744 A.2d 1280 (Pa. 2000) (application of a

mandatory sentencing provision implicates the legality of the sentence, not

the discretionary aspects of the sentence).

         In addition, Birchfield was decided on June 23, 2016, after

appellant’s sentence, but during the pendency of the instant appeal. Where

a United States Supreme Court decision “results in a ‘new rule,’ that rule

applies to all criminal cases still pending on direct review.”     Schriro v.

Summerlin, 542 U.S. 348, 351 (2004). The Commonwealth cites case law

for the proposition that in order for a new rule to apply retroactively to a

case pending on direct appeal, the issue had to be preserved at all stages of

litigation up to and including the direct appeal. (Commonwealth’s brief at 8,

citing    Commonwealth      v.   Tilley,      780   A.2d   649   (Pa.     2001);

Commonwealth v. Cabeza, 469 A.2d 146 (Pa. 1983).)                   See also

Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and



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cannot be raised for the first time on appeal.”). However, the Pennsylvania

Supreme      Court   in   Barnes   made   clear   that   “an   exception   to   the

issue-preservation requirement exists where the challenge is one implicating

the legality of the appellant’s sentence.”    Barnes, 151 A.3d at 124, citing

Commonwealth v. Dickson, 918 A.2d 95, 99 (Pa. 2007). Therefore, the

matter is not waived, and appellant is entitled to retroactive benefit of the

new rule.6

        In Birchfield, as in this case, the defendant refused a blood test after

being read his implied consent warnings. He was advised that his refusal to

undergo blood alcohol content (“BAC”) testing would expose him to criminal

penalties.    Birchfield, 136 S.Ct. at 2170.        Birchfield pled guilty to a

misdemeanor violation of the North Dakota refusal statute, but argued that

the Fourth Amendment prohibited criminalizing his refusal to submit to the

test.   Id. at 2170-2171.     The United States Supreme Court agreed and

reversed Birchfield’s conviction, holding that a State may not criminalize a

motorist’s refusal to comply with a demand to submit to blood testing.

        The Birchfield Court distinguished between breath and blood tests,

the latter of which it found to be significantly more intrusive. Id. at 2184.

The Court determined that with regard to blood tests, the police must either


6
  The Commonwealth does not dispute that appellant was sentenced under
75 Pa.C.S.A. § 3804(c), providing for mandatory penalties for refusal: “On
March 10, 2016, [appellant] was sentenced pursuant to 75 Pa.C.S.A.
§ 3804(c) for a first offense DUI with the refusal sentencing enhancement.”
(Commonwealth’s brief at 1.)


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seek a warrant or show exigent circumstances. Id. The Court in Birchfield

also rejected the argument that warrantless blood tests are justified based

on the driver’s legally implied consent to submit to them:

            Our 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. Petitioners do not
            question the constitutionality of those laws, and
            nothing we say here should be read to cast doubt on
            them.

            It is another matter, however, for a State not only to
            insist upon an intrusive blood test, but also to
            impose criminal penalties on the refusal to submit to
            such a test.      There must be a limit to the
            consequences to which motorists may be deemed to
            have consented by virtue of a decision to drive on
            public roads.

Id. at 2185 (citations omitted).

      Appellant cannot be subject to enhanced criminal penalties for refusal

to submit to a blood test.   See also Commonwealth v. Giron,            A.3d

   , 2017 WL 410267 (Pa.Super. filed Jan. 31, 2017) (“[P]ursuant to

Birchfield, in the absence of a warrant or exigent circumstances justifying a

search, a defendant who refuses to provide a blood sample when requested

by police is not subject to the enhanced penalties provided in 75 Pa.C.S.A.

§§ 3803-3804.” (footnote omitted)); Commonwealth v. Evans,              A.3d

   , 2016 WL 7369120 at *8 (Pa.Super. Dec. 20, 2016) (vacating the

judgment of sentence and remanding for a re-evaluation of the appellant’s

purported consent where the appellant only consented to the warrantless



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blood draw after being informed, by the police, that refusal to submit to the

test could result in enhanced criminal penalties, in violation of Birchfield).7

Therefore, it is necessary to remand for resentencing without consideration

of the mandatory minimum sentence in Section 3804(c).

      Judgment    of   sentence   vacated.     Remanded     for   resentencing.

Jurisdiction relinquished.




7
  The Supreme Court in Birchfield consolidated three separate cases, one of
which was petitioner Steve Michael Beylund’s case. After Beylund’s arrest
for DUI, the officer informed him of North Dakota’s implied consent advisory
and that “test refusal in these circumstances is itself a crime.” Birchfield,
136 S.Ct. at 2172. Beylund then agreed to the requested blood draw, and
testing revealed a BAC of 0.250%, more than three times the legal limit.
Id. Beylund appealed, principally arguing that his consent to the blood test
was coerced by the officer’s warning that refusing to consent would itself be
a crime. The North Dakota Supreme Court found that Beylund’s consent
was valid, emphasizing that North Dakota’s implied consent advisory was not
misleading because it truthfully related the penalties for refusal.      The
Birchfield Court rejected this rationale:

            The North Dakota Supreme Court held that Beylund’s
            consent was voluntary on the erroneous assumption
            that the State could permissibly compel both blood
            and breath tests. Because voluntariness of consent
            to a search must be determined from the totality of
            all the circumstances, we leave it to the state court
            on remand to reevaluate Beylund’s consent given the
            partial inaccuracy of the officer’s advisory.

Id. at 2186 (citation and quotation marks omitted).


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/9/2017




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