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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                    :
                                       :
BRANDON MICHAEL SCOTT,                 :          No. 1485 MDA 2016
                                       :
                      Appellant        :


        Appeal from the Judgment of Sentence, September 1, 2016,
            in the Court of Common Pleas of Bradford County
            Criminal Division at No. CP-08-CR-0000463-2015


BEFORE: OLSON, J., MOULTON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED AUGUST 08, 2017

     Brandon Michael Scott appeals from the judgment of sentence of

September 1, 2016, following his conviction of one count of driving under

the influence (“DUI”) -- general impairment and summary offenses.     We

affirm the convictions, but vacate the judgment of sentence and remand for

resentencing.

     This case was submitted on stipulated facts, as follows:

                        STIPULATION OF FACTS

           1.    On April 25, 2015 at approximately 2:38 AM,
                 [appellant] was driving a motor vehicle on
                 SR 6 in Wysox Township, Bradford County,
                 Pennsylvania.

           2.    Trooper Christopher Schelling initiated a traffic
                 stop after he observed [appellant]’s motor
                 vehicle swerve multiple times over the center
                 yellow line, observed the motor vehicle almost
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               strike the curb, and observed a cigarette
               littered out of the driver’s side window.

          3.   Upon     making    contact   with  [appellant],
               Trooper Schelling detected a strong odor of an
               alcoholic     beverage     emanating      from
               [appellant]’s breath. He also observed that
               [appellant] had blood shot eyes, and that
               [appellant]’s speech was slurred.

          4.   During the traffic stop [appellant] admitted to
               consuming alcohol earlier in the night.

          5.   During the traffic stop [appellant] consented to
               participate in multiple Standard Field Sobriety
               Tests: (1) The Horizontal Gaze Nystagmus
               Test, (2) the Walk and Turn Test, and (3) the
               One-Leg      Stand     Test.        [Appellant]’s
               performance on these tests indicated to
               Trooper    Schelling    that   [appellant]   was
               intoxicated.

          6.   Based on his observations of [appellant],
               [appellant]’s admission to drinking alcohol, and
               [appellant]’s performance of the Standard Field
               Sobriety Tests, Trooper Schelling concluded
               [that appellant] had imbibed a sufficient
               amount of alcohol such that he could not safely
               operate a motor vehicle. [Appellant] was then
               arrested under probable cause of DUI.

          7.   After   placing    [appellant] under arrest,
               Trooper Schelling transported him to the
               emergency room of Towanda Memorial
               Hospital for a blood draw.

          8.   At 3:10 AM Trooper Schelling read [appellant]
               his    Implied    Consent     and     O’Connell
                          1
               Warnings,[ ] and [appellant] refused to submit
               to Blood Alcohol Concentration testing.


1
 See Com., Dept. of Transp., Bureau of Traffic Safety v. O’Connell,
555 A.2d 873 (Pa. 1989).


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              9.      Trooper Schelling then transported [appellant]
                      to the Towanda Barracks of the Pennsylvania
                      State Police, where [appellant] refused to be
                      fingerprinted   or    processed, and    where
                      [appellant] was verbally combative with
                      another member of the Pennsylvania State
                      Police, Trooper William McDermott.

Docket No. 32.

        Appellant filed an omnibus pre-trial motion, alleging, inter alia, that

the Commonwealth withheld exculpatory Brady2 material in the form of the

audio component of the audio/video recording generated by the patrol unit

during the traffic stop.      According to appellant, an audio recording of his

interaction    with    the   troopers   would   have   demonstrated   racial   bias.

Appellant’s omnibus pre-trial motion was denied on February 3, 2016,

following an evidentiary hearing.3

        Appellant agreed to a bench trial on stipulated facts, and was found

guilty on June 9, 2016, of all four counts in the information: count 1, DUI --

general impairment, graded as a first-degree misdemeanor; count 2,

disregarding traffic lanes, a summary offense; count 3, depositing waste on

highways, a summary offense; and count 4, careless driving, a summary

offense.4     Appellant filed a post-trial motion on July 5, 2016, which was



2
    Brady v. Maryland, 373 U.S. 83 (1963).
3
  Appellant also claimed that the police lacked probable cause to stop his
vehicle; however, he has abandoned that claim on appeal.
4
    75 Pa.C.S.A. §§ 3802(a)(1), 3309(1), 3709(a), and 3714(a), respectively.


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denied by order entered August 16, 2016; however, the trial court amended

its June 9, 2016 order to change the grading of count 1, DUI -- general

impairment, to an ungraded misdemeanor. (Docket No. 36.) The trial court

also indicated that appellant would be sentenced at the Tier 3 level for DUI

and would be given credit for 20 days’ time served. (Id.)

     On September 1, 2016, appellant was sentenced to 72 hours to

6 months’ incarceration for count 1, DUI -- general impairment, and a fine of

$1,000. This was a mandatory sentence imposed pursuant to 75 Pa.C.S.A.

§ 3804(c)(1) (providing for     mandatory    penalties for   DUI where   the

defendant refused testing of blood or breath).5 Appellant was sentenced to



5
           (c)   Incapacity;      highest     blood     alcohol;
                 controlled substances.--An individual who
                 violates section 3802(a)(1) and refused testing
                 of blood or breath or an individual who violates
                 section 3802(c) or (d) shall be sentenced as
                 follows:

                 (1)   For a first offense, to:

                       (i)     undergo imprisonment
                               of   not   less   than
                               72 consecutive hours;

                       (ii)    pay a fine of not less
                               than $1,000 nor more
                               than $5,000;

                       (iii)   attend   an    alcohol
                               highway safety school
                               approved    by     the
                               department; and



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pay fines on counts 2 and 3, the summary offenses.6       A timely notice of

appeal was filed on September 6, 2016. On September 14, 2016, the trial

court ordered appellant 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 September 19, 2016. On September 29, 2016, the trial court

filed a Rule 1925(a) opinion, relying on the February 3, 2016 opinion and

order denying appellant’s omnibus pre-trial motion.    (Docket No. 5.)    On

June 5, 2017, appellant filed a “motion to file supplemental record on

appeal,” seeking to include the June 16, 2015 preliminary hearing transcript.

     On appeal, appellant argues that the Commonwealth violated Brady

by withholding exculpatory evidence, i.e., the audio portion of the automatic

recording made when the troopers stopped his vehicle.       Appellant alleges

that the audio recording would have revealed that Trooper McDermott made

certain racially biased statements against appellant, an African-American.

Appellant claims that this evidence was relevant to attack the trooper’s




                       (iv)   comply with all drug
                              and alcohol treatment
                              requirements imposed
                              under sections 3814
                              and 3815.
6
 Count 4, careless driving, merged with count 1, DUI -- general impairment.
(Docket No. 31.)


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credibility as well as to show why appellant became combative and

uncooperative.7

            In order to succeed on a Brady claim, a defendant
            must establish that the evidence withheld was
            favorable to him, i.e., that it was exculpatory or had
            impeachment value; the evidence was suppressed by
            the     prosecution;     and     prejudice    resulted.
            Commonwealth v. Sattazahn, 597 Pa. 648, 952
            A.2d 640, 658 n. 12 (2008). In order to establish
            prejudice, a defendant is obliged to show that “the
            evidence in question was material to guilt or
            punishment, and that there is a reasonable
            probability that the result of the proceeding would
            have been different but for the alleged suppression
            of the evidence.”       Commonwealth v. James
            Dennis, 597 Pa. 159, 950 A.2d 945, 966 (2008)
            (citing Brady, 373 U.S. at 87, 83 S.Ct. 1194; Kyles
            v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131
            L.Ed.2d 490 (1995)).

Commonwealth v. Miller, 987 A.2d 638, 655 (Pa. 2009).                   “The

Commonwealth does not violate [Pa.R.Crim.P.] Rule 573 when it fails to

disclose to the defense evidence that it does not possess and of which it is

unaware.”    Commonwealth v. Collins, 957 A.2d 237, 253 (Pa. 2008)

(citations omitted).




7
  Appellant has failed to include a statement of questions involved, as
required by Pa.R.A.P. 2111 and 2116(a). However, because that failure
does not hamper our review, we will address appellant’s substantive
argument. Appellant only raises one issue for this court’s review, the
purported Brady violation, which was raised in his pre-trial motion and in
his Rule 1925(b) statement. See Savoy v. Savoy, 641 A.2d 596, 598
(Pa.Super. 1994) (where failure to provide a separate statement of
questions involved does not impede this court’s ability to review the issues,
we may address the merits of the appeal).


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      Here, appellant testified that Trooper McDermott told him, “[L]ong

way, what cha [sic] doing here[,] you don’t belong here anyway[.]” (Notes

of testimony, 11/24/15 at 51.)8             Appellant interpreted this as a racist

comment.       (Id.)    However, appellant’s vehicle had out-of-state South

Carolina    plates,    and   Trooper   McDermott     denied    making   any   racist

comments. (Id. at 7, 55.) The trial court found the trooper’s testimony to

be credible. (Trial court opinion, 2/3/16 at 7.)9

      Furthermore, Corporal Norman Strauss, III, patrol supervisor of

Troop P in Towanda, testified that he is responsible for the Motor Vehicle

Recordings (“MVRs”).           (Notes of testimony, 11/24/15 at 27.)             He

downloaded the video of the traffic stop and saved it. (Id. at 29.) However,

there was no audio. (Id. at 30.) Corporal Strauss testified that he has had

technical    difficulties    with   audio    recordings   in   the   past.    (Id.)

Corporal Strauss explained,

             [O]ne possible reason would be if the microphone
             was not turned on, there’s a switch[,] an on and off
             switch, [] if it was off that would be one reason,
             another reason would be [] if say the microphone
             was damaged that could be a reason[,] a third
             reason would be if there was a technical difficulty[,]
             these occur from time to time where the microphone
             is turned on for whatever reason [] there’s a

8
  In his Rule 1925(b) statement, appellant alleged that the trooper stated,
“We don’t like your kind here.” (Docket No. 40.) This was not reflected in
appellant’s testimony, and appellant does not make any such allegation in
his brief on appeal.
9
  The trial court’s opinion is unpaginated; page numbers are by our own
count.


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             technical difficulty where it won’t work sporadically
             and then sometimes it will work. Often times if you
             turn it off and then start it back up again that will
             resolve some of the issues [] as occurs with
             computer[s] or appliances.

Id. at 31.    Corporal Strauss could not determine why the MVR failed to

record the audio in this case. (Id. at 31-32.)

      Appellant has failed to prove any Brady violation. It is unclear why

the audio component of the MVR failed. The Commonwealth does not have

any audio recordings of the traffic stop in its possession.       There is no

evidence whatsoever that the MVR was tampered with; the failure to record

the trooper’s verbal interaction with appellant appears to have been the

result of a technical malfunction.    Furthermore, the trial court believed

Trooper McDermott’s testimony that he never made any racist comments as

appellant alleged.

      Appellant has also failed to demonstrate how the audio recording

would be exculpatory. The undisputed facts are that appellant was stopped

after the troopers observed multiple Vehicle Code violations. Appellant failed

field sobriety tests and admitting drinking that night.     Appellant exhibited

classic symptoms of excessive alcohol consumption, including slurred speech

and bloodshot eyes. Appellant’s Brady claim fails.

      Finally, we are constrained to vacate appellant’s judgment of sentence

and remand for resentencing in light of the recent United States Supreme

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



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

submit to a blood test in the absence of a warrant.      Appellant cannot be

subject to enhanced criminal penalties for refusal to submit to a blood test.

See also Commonwealth v. Giron, 155 A.3d 635, 640 (Pa.Super. 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, 153 A.3d 323 (Pa.Super. 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

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).

Therefore, it is necessary to remand for resentencing without consideration

of the mandatory minimum sentence in Section 3804(c).10

     Appellant did not raise this issue on appeal and, in fact, explicitly

agreed to waive the issue at sentencing.     (Notes of testimony, 9/1/16 at




10
   As a first-time DUI offender, appellant would have faced a mandatory
minimum term of 6 months’ probation and a $300 fine. 75 Pa.C.S.A.
§ 3804(a)(1).


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4.)11 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 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). It is

well settled that a defendant cannot agree to an illegal sentence, and that

this court may raise issues pertaining to the legality of a defendant’s

sentence sua sponte. See Commonwealth v. Gentry, 101 A.3d 813, 819



11
   Even though appellant only had time served of 2 days, the trial court
agreed to give him credit of 20 days in exchange for appellant agreeing not
to raise the Birchfield issue on appeal. (Notes of testimony, 9/1/16 at
1-4.)


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(Pa.Super. 2014) (“Our cases clearly state that a criminal defendant cannot

agree to an illegal sentence . . . .”); Commonwealth v. Snavely, 982 A.2d

1244, 1246 (Pa.Super. 2009) (“Challenges to an illegal sentence cannot be

waived and may be reviewed sua sponte by this Court.” (citation omitted)).

      Appellant’s June 5, 2017 motion to file supplemental record on appeal

is granted.      Convictions affirmed.      Judgment of sentence   vacated.

Remanded for resentencing consistent with this memorandum. Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/8/2017




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