J. A04003/16


                             2016 PA Super 127

COMMONWEALTH OF PENNSYLVANIA            :      IN THE SUPERIOR COURT OF
                                        :            PENNSYLVANIA
                  v.                    :
                                        :
JOHN ROBERT CARLEY, JR.,                :            No. 1820 WDA 2014
                                        :
                       Appellant        :


         Appeal from the Judgment of Sentence, October 16, 2014,
            in the Court of Common Pleas of Allegheny County
             Criminal Division at No. CP-02-CR-0007537-2013


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND SHOGAN, J.


OPINION BY FORD ELLIOTT, P.J.E.:                        FILED JUNE 16, 2016

     John Robert Carley, Jr., appeals from the October 16, 2014 judgment

of sentence resulting from his conviction of driving under the influence

(“DUI”) general impairment, driving while operating privileges suspended or

revoked, and disorderly conduct.1 We affirm.

     The trial court provided the following facts:

           The evidence at trial established that on
           February 27, 2013, the defendant drove a green
           Buick into the parking lot of the GetGo in Scott
           Township. The defendant drew the attention of the
           clerk as he was walking around the store and going
           up to a kiosk to order food. The clerk was eating a
           sandwich and the defendant approached her and
           asked what she was eating. The clerk could smell an
           odor of alcohol and noticed that the defendant’s eyes
           were red and glassy and his speech was slurred.

1
  75 Pa.C.S.A. §§ 3802(a)(1) and 1543(b)(1.1)(i), and 18 Pa.C.S.A. § 5503
(a)(1), respectively.
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          The defendant then returned to the kiosk,
          presumably to order food. At that time Carnegie
          Borough police officer Timothy Clark entered the
          store.

          Officer Clark had come into the store for a drink and
          was informed by the clerk that the defendant had
          driven into the parking lot and appeared to be
          intoxicated. Officer Clark continued to observe the
          defendant visibly swaying and stumbling at the kiosk
          while attempting to order food. He also observed
          that the defendant’s eyes were glassy. The clerk
          told the officer there is something up with that guy
          (indicating the defendant). Officer Clark contacted
          Scott Township police to investigate as the GetGo is
          located in Scott Township.       The defendant was
          swaying back and forth at the kiosk but did [not]
          order any food. He then left the kiosk to exit the
          store. The Scott Township police arrived while the
          defendant was exiting the GetGo and Officer Clark
          stayed at the scene and observed the defendant
          struggle and fight with police after he was asked to
          provide identification.

          Scott Township Police Officer Steven Spaniol was one
          of the officers to arrive at the scene as the defendant
          was exiting the store. He approached the defendant
          and noticed that he was disheveled, swaying and his
          eyes were glassy. The defendant had a strong odor
          of alcohol on his breath and appeared “very visibly
          intoxicated.” Officer Spaniol asked the defendant
          whether the green Buick was his, and whether
          anyone      accompanied       him    to    the    store.
          Officer Spaniol requested that the defendant make a
          call and get someone to pick him up. The defendant
          then got argumentative and started asking him
          questions. The defendant acknowledged that he had
          been drinking but continued to be confrontational
          and argumentative with police. Officer Spaniol then
          asked another Officer to stand by with the defendant
          while he went into the store to speak with the clerk
          and observe the store surveillance tape which clearly
          showed that the defendant drove into the lot and
          entered the store. When Officer Spaniol exited the


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            store to the parking lot the defendant was shouting
            derogatory remarks at officers. At that point he told
            the defendant he was under arrest for suspicion of
            driving under the influence.     Field sobriety tests
            could not be performed because the defendant
            began to resist arrest and fought with officers upon
            being informed that he was being placed under
            arrest. It took four police officers to place him in
            handcuffs and he had to be carried to the patrol car
            after refusing to walk. He was then transported to
            St. Clair Hospital where he continued to be
            non-compliant and combative with commands. He
            was advised of his O’Connell[2] warnings and just
            stood there and screamed obscenities. He refused to
            submit to testing and had to be carried back to the
            patrol car.

Trial court opinion, 8/20/15 at 2-5 (citations omitted).

      Appellant filed an omnibus pretrial motion with the trial court on

February 11, 2014, in which he moved to suppress evidence and have the

charges against him dismissed. The trial court held a suppression hearing

on July 23, 2014, and held a non-jury trial immediately thereafter,

incorporating the evidence presented at the suppression hearing.    Neither

the Commonwealth nor appellant introduced any additional evidence during

trial, and the trial court found appellant guilty. On October 16, 2014, the

trial court sentenced appellant to an aggregate term of 18-36 months’

imprisonment.

      Appellant filed a timely notice of appeal on October 30, 2014.    On

January 26, 2015, appellant filed a concise statement of errors complained


2
 See Commonwealth, Dept. of Transp. v. O’Connell, 555 A.2d 873 (Pa.
1989).


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of on appeal pursuant to Pa.R.A.P. 1925(b). On August 20, 2015, the trial

court filed an opinion pursuant to Pa.R.A.P. 1925(a).

      Appellant raises the following issues for our review:

            I.    Whether the trial court erred in sentencing
                  appellant pursuant to 75 Pa.C.S. § 3803(b)(4)
                  and 75 Pa.C.S. § 3804(c) for his refusal to
                  provide a sample of his blood where such
                  constituted the exercise of a constitutional
                  right?

            II.   Whether the trial court erred in failing to
                  suppress evidence of appellant’s refusal to
                  submit to extraction of his blood, or in
                  admitting such where, by doing so, the
                  Commonwealth was permitted to seek and
                  obtain a conviction of appellant based, in part,
                  on his exercise of a constitutional right?

Appellant’s brief at 5 (capitalization omitted).

      Appellant’s argument relies heavily on the United States Supreme

Court’s holding in Missouri v. McNeely,             U.S.      , 133 S.Ct. 1552

(2013), which he maintains extends a constitutional right to refuse to

consent to chemical testing.        Since both of appellant’s issues aver that

appellant was exercising a constitutional right by refusing to consent to

chemical testing, we must first determine whether McNeely establishes a

constitutional right to refuse to submit to chemical testing in a DUI

investigation.    Our   cases   prior   to    McNeely   indicate   that   no   such

constitutional right is afforded.    See, e.g., Commonwealth v. Beshore,

916 A.2d 1128, 1141-1142 (Pa.Super. 2007) (en banc), appeal denied,




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982 A.2d 509 (Pa. 2007) (holding that there is no constitutional right to

refuse chemical testing under the Implied Consent Law).3

      In McNeely, unlike in the instant appeal, the police directed a hospital

lab technician to take a blood sample from Mr. McNeely, despite the fact that

Mr. McNeely refused to consent to the blood draw and the police did not

obtain a search warrant. McNeely, 133 S.Ct. at 1557. The Court ultimately

held that “in drunk-driving investigations, 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.” Id. at 1568.

      In   a    civil    context   subsequent    to   McNeely,    the   Pennsylvania

Commonwealth Court has held that an individual does not have the


3
               (a)      General rule.--Any person who drives, operates or
                        is in actual physical control of the movement of a
                        vehicle in this Commonwealth shall be deemed to
                        have given consent to one or more chemical tests of
                        breath, blood or urine for the purpose of determining
                        the alcoholic content of blood or the presence of a
                        controlled substance if a police officer has reasonable
                        grounds to believe the person to have been driving,
                        operating or in actual physical control of the
                        movement of a vehicle:

                        (1)   in violation of section 1543(b)(1.1)
                              (relating to driving while operating
                              privilege is suspended or revoked), 3802
                              (relating to driving under influence of
                              alcohol or controlled substance) or
                              3808(a)(2) (relating to illegally operating
                              a motor vehicle not equipped with
                              ignition interlock)

75 Pa.C.S.A. § 1547.


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constitutional right to refuse to consent to chemical testing.   Faircloth v.

Commonwealth, Dept. of Transp., Bureau of Driver Licensing, 99 A.3d

583, 586 (Pa.Cmwlth. 2014), appeal denied, 106 A.3d 727 (Pa. 2014); see

also Sprecher v. Commonwealth, Dept. of Transp., Bureau of Driver

Licensing, 100 A.3d 768, 771-772 (Pa.Cmwlth. 2014) (stating that

McNeely does not support an argument that the Implied Consent Law

violates the Fourth Amendment).4       This court recently considered the

application of McNeely to the Implied Consent Law, but did not reach a

conclusion as to whether a refusal of chemical testing is a constitutional

right. See Commonwealth v. Myers, 118 A.3d 1122 (Pa.Super. 2015).5

     Our reading of McNeely in conjunction with subsequent Pennsylvania

case law from the Commonwealth Court leads us to conclude that Beshore

is still good law in Pennsylvania and that McNeely does not incorporate a

constitutional right to refuse to consent to chemical testing in DUI cases. 6


4
  Both Faircloth and Sprecher explicitly articulated that their respective
holdings were limited only to the civil proceedings under the Implied
Consent Law in which an individual’s driving privileges are suspended for one
year for refusal to consent to chemical testing. See Faircloth, 99 A.3d at
585; Sprecher, 100 A.3d at 772.
5
  The issue in Myers was limited to whether the trial court erred in holding
that, despite the police having probable cause that the defendant was
driving under the influence of an intoxicating substance, a warrant was
required to obtain a blood sample for chemical testing. Id. at 1125.
6
  Commonwealth Court decisions, while not binding on this court, may be
considered as persuasive authority. Commonwealth v. Rodriguez, 81
A.3d 103, 107 n.7 (Pa.Super. 2013), appeal denied, 91 A.3d 1238 (Pa.
2014).


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Moreover, we note that McNeely is distinguishable from this case because

herein the police did not order that a blood sample be taken from appellant

without his consent.    We, therefore, extend the Commonwealth Court’s

holdings in Faircloth and Sprecher to apply to criminal cases.

      Having determined that McNeely does not extend a constitutional

right to refuse to consent to chemical testing, we now address appellant’s

issues raised on appeal.      In his first issue, appellant challenges the

constitutionality of [75 Pa.C.S.A. §§ 3803(b)(4) and 3804(c)] and the

legality, in general, of his sentence, because his sentence constituted

criminal punishment for his refusal to provide a sample of his blood without

a warrant. (Appellant’s brief at 11.)

      Appellant begins with a lengthy discussion of the majority/plurality

opinion in McNeely.7 His reliance on McNeely is misplaced. The issue in

McNeely was limited to whether natural dissipation of alcohol in the

bloodstream over time creates a “per se exigency that suffices on its own to

justify an exception to the warrant requirement for nonconsensual blood

testing in drunk-driving investigations.” McNeely, 133 S.Ct. at 1558. The

Court made a very limited observation regarding states’ implied consent

laws in which the plurality noted that all 50 states have implied consent laws

that “impose significant consequences when a motorist withdraws consent,”



7
  Parts I, II-A, II-B, and IV of the majority/plurality opinion McNeely set
forth the opinion of the Court. Id. at 1556.


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such a suspension or revocation of the motorist’s driver’s license or the

admission of evidence of the motorist’s refusal to consent to chemical testing

in subsequent criminal proceedings. Id. at 1566.8

        We now address appellant’s challenge to 75 Pa.C.S.A. §§ 3803(b)(4)

and 3804(c).       Section 3803(b)(4) provides: “An individual who violates

section 3802(a)(1) where the individual refused testing of blood or breath,

or who violates section 3802(c) or (d) and who has one or more prior

offenses commits a misdemeanor of the first degree.[9]”             75 Pa.C.S.A.

§ 3803(b)(4). Section 3804(c) provides for an enhanced sentencing scheme

for individuals who refuse to consent to chemical testing.

        A similar challenge came before this court in Commonwealth v.

Mobley, 14 A.3d 887 (Pa.Super. 2011). In Mobley, we stated:

              Hence, it is evident that a breath/blood test refusal is
              not an element of DUI--general impairment.
              Nevertheless, Apprendi v. New Jersey, 530 U.S.
              466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and its
              progeny maintain that any fact which increases the
              maximum penalty, except a prior conviction, requires
              proof beyond a reasonable doubt, regardless of
              whether the fact is labeled as an element of the
              offense or a sentencing factor.             See also
              Commonwealth v. Aponte, 579 Pa. 246, 855 A.2d
              800, 811 (2004) (“in cases where the fact which
              increases the maximum penalty is not a prior
              conviction and requires a subjective assessment,
              anything less than proof beyond a reasonable doubt
              before a jury violates due process.”). Certainly, a

8
  The discussion of implied consent laws is found only in a plurality part of
the opinion. Id. at 1556.
9
    These sections relate to driving while under the influence of alcohol.


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            refusal can result in changing both the grading of the
            general impairment offense and the sentence a
            person may receive; thus, a defendant must be put
            on notice of these possible enhancements.         See
            Aponte, supra at 807-809; Commonwealth v.
            Reagan, 348 Pa.Super. 589, 502 A.2d 702, 705
            (1985) (en banc); see also Commonwealth v.
            Kearns, 907 A.2d 649 (Pa.Super. 2006).

Id. at 893 (emphasis added).

      Appellant does not aver that he was not provided with warnings

relating to his refusal to consent to chemical testing.   Indeed, the record

indicates that appellant received O’Connell warnings on two separate

occasions while in police custody. (Notes of testimony, 7/23/14 at 46, 47.)

Based on this court’s previous finding in Mobley, we therefore find that

appellant’s first issue is without merit.

      In his second issue, appellant avers that his constitutional right to

refuse to consent to chemical testing was violated, and as a result, evidence

of his refusal should have been suppressed by the trial court. (Appellant’s

brief at 29.)    As discussed above at length, appellant did not have a

constitutional right to refuse to consent to chemical testing, and therefore

his second issue has no merit.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/16/2016




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