J-S16010-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JAMIE R. LIPCHIK,

                            Appellant                  No. 556 WDA 2016


              Appeal from the Judgment of Sentence April 1, 2016
                  in the Court of Common Pleas of Erie County
               Criminal Division at No.: CP-25-CR-0002184-2015


BEFORE: MOULTON, J., RANSOM, J., and PLATT, J.*

CONCURRING AND DISSENTING MEMORANDUM BY PLATT, J.:
                                   FILED: OCTOBER 24, 2017

        I respectfully concur in part and dissent in part.   I would affirm the

judgment of sentence arising out of Appellant’s jury conviction of his fourth

DUI offense.

        I concur with the learned Majority’s conclusion that the trial court

properly denied the motion to suppress the arresting police officer’s

testimony about Appellant’s refusal to perform field sobriety tests.       (See

Majority, at *11).     I also agree with the finding that Appellant’s refusal to

submit to chemical testing (a “blood draw”) was properly admitted into



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*
    Retired Senior Judge assigned to the Superior Court.
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evidence for the consideration of the jury, as provided in 75 Pa.C.S.A.

§ 1547(e).

      However, I am constrained to disagree with the learned Majority’s

conclusion that the trial court erred in denying Appellant’s motion for a

mistrial.

      Preliminarily, I note that Appellant’s motion for a mistrial was

untimely.    “When an event prejudicial to the defendant occurs during trial

only the defendant may move for a mistrial; the motion shall be made

when the event is disclosed.       Otherwise, the trial judge may declare a

mistrial only for reasons of manifest necessity.”        Pa.R.Crim.P. 605(B)

(emphasis added); see also Commonwealth v. Brinkley, 480 A.2d 980,

986 (Pa. 1984) (affirming denial of counsel’s motion for mistrial made on

day following first reference to polygraph test, as untimely). Here, similarly,

counsel did not move for a mistrial until the next day. I would conclude this

motion was also untimely, and, therefore, waived.

      I would also reject Appellant’s claim on the merits.

            A motion for a mistrial is within the discretion of the trial
      court. [A] mistrial [upon motion of one of the parties] is
      required only when an incident is of such a nature that its
      unavoidable effect is to deprive the appellant of a fair and
      impartial trial.   It is within the trial court’s discretion to
      determine whether a defendant was prejudiced by the incident
      that is the basis of a motion for a mistrial. On appeal, our
      standard of review is whether the trial court abused that
      discretion.




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Commonwealth v. Tejeda, 834 A.2d 619, 623 (Pa. Super. 2003)

(citations, footnote, and quotation marks omitted) (emphasis added).

      The Tejeda Court explained further:

            An abuse of discretion is more than an error in judgment.
      On appeal, the trial court will not be found to have abused its
      discretion unless the record discloses that the judgment
      exercised by the trial court was manifestly unreasonable, or the
      result of partiality, prejudice, bias, or ill-will.

                  When the discretion exercised by the trial court is
          challenged on appeal, the party bringing the challenge
          bears a heavy burden. . . . [I]t is not sufficient to
          persuade the appellate court that it might have reached a
          different conclusion if, in the first place, [it was] charged
          with the duty imposed on the court below; it is necessary
          to go further and show an abuse of discretionary power.
          An abuse of discretion is not merely an error of judgment,
          but if in reaching a conclusion the law is overridden or
          misapplied, or the judgment exercised is manifestly
          unreasonable, or the result of partiality, prejudice, bias or
          ill-will as shown by the evidence of record, discretion is
          abused. We emphasize that an abuse of discretion
          may not be found merely because the appellate
          court might have reached a different conclusion. . . .

Id. at 623–24 (citations omitted) (emphasis added).

      Here, I find no evidence of partiality, prejudice, bias, or ill-will in the

denial of the mistrial. Nor was the denial manifestly unreasonable. I would

affirm.

      The Majority’s main rationale for vacating the judgment of sentence

and remanding is that the trial court described Appellant’s repeated refusal

to perform field sobriety tests or to permit a blood draw as “wrongful.”

Notably, as confirmed by Appellant’s brief, the trial court said “wrongful” in


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front of the jury only twice (within a few moments of each other) on the

first day of trial. (See Appellant’s Brief, at 6; see also N.T. Trial, 2/10/16,

at 88 (line 9, and line 15)). Nevertheless, I count at least five additional

references in the Majority’s memorandum to “wrong” or “wrongful,”

suggesting, however inadvertently, that the trial court repeated “wrongful”

to the jury over and over and over.1 It did not.2

        At the end of the first day of trial, after testimony concluded but

before closing arguments, the court dismissed the jury. The trial court judge

explained to counsel that he intervened because the “unspoken inference,”

(N.T. Trial, 2/10/16, at 91), of defense counsel’s assertion was that “you

can’t draw any inference against it, which is not true, because they can.”

(Id. at 92).

        Defense counsel told the trial court judge that he was “worried about

the word wrongfully.” (Id. at 91). After some further discussion, no formal

agreement was reached, and no further action was taken by anyone at that

time.
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1
  Except for the two direct quotations from the trial court transcript, the
learned Majority does not reference the source in the record for its
numerous quotations of “wrongful.” (See Majority, at *3, *8, *9). I
conclude that the Majority refers to “wrong” or “wrongful” repeatedly as a
way to emphasize its principal point rather than to reflect any additional
repetitions by the trial court.
2
  There is no dispute that Appellant loudly and belligerently said “refuse,
refuse,” repeatedly, when asked to submit to field sobriety tests and a blood
test. (N.T. Trial, 2/10/16, at 39, 41).



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      Parenthetically, in my view, defense counsel also waived the entire

issue of how to refer to the right to refuse testing when he told the trial

court, “I guess ─ I’m not here to belabor it. I guess maybe I should have

said he had the ability to refuse, not the right.” (Id. at 91). In any event,

at the end of the discussion, counsel simply said, “We can discuss this at a

later time.” (Id. at 93).

      Instead, the next day, Appellant’s counsel filed a motion for a mistrial.

The trial court considered the motion in chambers, on the record with both

counsel present, and denied it. (See N.T. Trial, 2/11/16, at 2-6).

      It bears emphasis that the refusal to submit to a blood test, while

inarguably permissible under the Implied Consent Law, has serious negative

consequences. See 75 Pa.C.S.A. § 1547. Most notably, the Legislature has

provided for lengthy license suspension (in Appellant’s case, based on his

prior DUI convictions, eighteen months), adverse evidentiary treatment,

and, under then-applicable law, after conviction, sentencing according to a

scheme equivalent to conviction for the highest level of blood alcohol

content. See id.

      A panel of this Court has recently decided that “[c]onsistent with . . .

federal precedent, this Court has also emphasized that an individual

suspected of drunk driving does not have a constitutional right to refuse

chemical testing.”    Commonwealth v. Bell, --- A.3d ----, 2017 WL

3046937 (Pa. Super. filed July 19, 2017) at *3.


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      Here, in my view, the trial court’s sua sponte comments, while

perhaps inartful, were the judge’s spontaneous efforts to offer the jury a

corrective to the defense counsel’s misleading insinuation that Appellant had

an absolute right to refuse to take the test, with no further consequences.

(See N.T. Trial, 2/10/16, at 67) (defense counsel stating “He exercised his

right to take the test or not.”).

      In any event, I would conclude that on the next day in its formal

instructions to the jury, the trial court cured any possible harmful effects of

its earlier remarks.   In the formal charge to the jury the trial court never

uttered the word “wrongful.” (See N.T. Trial, 2/11/16, at 43-45).

      To the contrary, in its instructions, the trial court bent over backwards

to emphasize to the jury its proper role of finding the facts and weighing the

evidence presented:

      But I say again, [whether Appellant refused or not is] for you to
      determine because you have absolute control over what the
      facts are. The Commonwealth’s view is that he refused. If he
      refused, then you can take that refusal into account.

            What do you do with it? Well, it’s a factor to consider.
      The refusal doesn’t establish the defendant’s guilt,
      certainly not. Okay? And even though I said he had no
      right to refuse, I’m not implying that either. I’m simply
      saying he had a duty to take the test in the circumstances he
      was in.

(N.T. Trial, 2/11/16, at 43) (emphasis added).

      The learned Majority concludes that the court’s instructions were

inadequate. I respectfully disagree.


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        Our standard of review of a trial court’s jury instructions is well-

settled:

        [T]his Court will look to the instructions as a whole, and not
        simply isolated portions, to determine if the instructions were
        improper. We further note that [ ] a trial court has broad
        discretion in phrasing its instructions, and may choose its own
        wording so long as the law is clearly, adequately, and accurately
        presented to the jury for its consideration. Only where there is
        an abuse of discretion or an inaccurate statement of the law is
        there reversible error.

Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa. Super. 2014), appeal

denied, 95 A.3d 275 (Pa. 2014) (citation omitted).              Moreover, “[t]he law

presumes      that   the   jury   will   follow   the   instructions   of   the   court.”

Commonwealth v. Brown, 786 A.2d 961, 971 (Pa. 2001), cert denied, 537

U.S. 1187 (2003) (citation omitted).

        In my view, the trial court’s formal instructions accurately reflected the

relevant law.3 I would also note that Appellant waived any objection to the

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3
    See section 1547 of the Vehicle Code, which in pertinent part provides:

              (e) Refusal admissible in evidence.─In any summary
        proceeding or criminal proceeding in which the defendant is
        charged with a violation of section 3802 or any other violation of
        this title arising out of the same action, 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.         No
        presumptions shall arise from this evidence but it may be
        considered along with other factors concerning the charge.

75 Pa.C.S.A. § 1547(e) (emphasis added).




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trial court’s formal instructions to the jury, not once but twice.4 (See N.T.

Trial, 2/11/16, at 45, 47). In my opinion, the trial court’s final instructions,

taken as a whole, cured any errors in its comments the day before, and

Appellant, through counsel, waived any challenge to the charge.

          The Majority’s citation to authority does not require a different result.

In Commonwealth v. Claiborne, 102 A.2d 900 (Pa. Super. 1953) this

Court castigated the trial court judge for “caustic . . . scathing, and, for the

most part, frivolous interjections . . . delineat[ing] the tawdry pattern of the

trial.”    Id. at 902; (see Majority at *8).       Such misconduct is not at all

evident here.       In fact, nothing even similar appears in the record of this

case. Appellant’s objections are to the explication of the applicable law, not

to judicial behavior.

          Similarly, the Majority cites Commonwealth v. Burwell, 42 A.3d

1077 (Pa. Super. 2012), for incidental observations about the exalted

position of a judge, about which there is no dispute. Burwell is something

of a procedural curiosity, which occasioned four remands to the trial court.

It dealt with a variety of issues, not the least the trial court judge’s

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4
  At the end of the instruction the trial court asked defense counsel if he
wanted a sidebar for anything. Defense counsel did mention the credibility
of witnesses, but concluded, “You kind of covered it.” (N.T. Trial, 2/11/16,
at 45). Nevertheless, the trial court added a further explanation of the
credibility of witnesses. (See id. at 45-47). At the conclusion of the
supplemental instruction, the trial court again asked if defense counsel had
anything further. Counsel replied, “No.” (Id. at 47).



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persistent reluctance to provide a compliant opinion as required by Pa.R.A.P.

1925 and his insistence on lecturing this Court on the applicable law. See

id. at 1083. That judicial behavior (or misbehavior) is not present here.

      In any event, the Majority’s reliance is misplaced.    After the fourth

remand, the Burwell Court concluded that the objection to the jury

instruction (which originally caused it concern) was waived. See Burwell,

58 A.3d 790, 795 (Pa. Super. 2012), appeal denied, 69 A.3d 242 (Pa. 2013).

      As the panel Majority noted in its final Burwell decision: “[E]very

unwise or irrelevant remark made in course of trial by a judge does not

compel the grant of a new trial unless the remark is prejudicial and it may

reasonably be said to have deprived the defendant of a fair and impartial

trial.” Burwell, 58 A.3d at 795 n.8 (citing Commonwealth v. Ryder, 359

A.2d 379 (Pa. 1976)).

      Furthermore, the Burwell Court added that “even if this claim were

not waived on appeal, we would find that the court’s remark constituted

harmless error in light of the overwhelming evidence of Burwell’s guilt.” Id.

      Similarly here, I would conclude that even if the issue were not

waived, it constituted, at most, harmless error in light of the overwhelming

evidence of Appellant’s guilt. “The accused is entitled to a fair trial, not a

perfect trial[.]” Commonwealth v. West, 834 A.2d 625, 634 (Pa. Super.

2003), appeal denied, 889 A.2d 1216 (Pa. 2005) (citation omitted).




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      “A mistrial is required only when an incident is of such a nature that its

unavoidable effect is to deprive the appellant of a fair and impartial trial.”

Tejeda, supra at 623. On this record, I would conclude that Appellant was

not deprived of a fair and impartial trial.   I would affirm the judgment of

sentence.

      Accordingly, I respectfully concur in part and dissent in part.




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