J-A24022-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

FRANK DAVID MELOGRANA, JR.

                            Appellant                No. 3170 EDA 2014


           Appeal from the Judgment of Sentence of October 20, 2014
             In the Court of Common Pleas of Montgomery County
               Criminal Division at No.: CP-46-CR-0005737-2013


BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY WECHT, J.:                        FILED NOVEMBER 09, 2015

       Frank Melograna, Jr. appeals the October 20, 2014 judgment of

sentence, which the trial court imposed following Melograna’s conviction of

driving under the influence of alcohol (“DUI”), 75 Pa.C.S. § 3802(d)(2).

Herein, Melograna challenges, inter alia, the trial court’s denial of his pre-

trial suppression motion, as well as the sufficiency of the Commonwealth’s

evidence against him.         For the reasons set forth below, we affirm the

judgment of sentence.

       The trial court has summarized the factual history of this case as

follows:

       On April 16, 2013, Officer William Lion (“Officer Lion”) of the
       Upper Dublin Police Department was on duty, in full uniform,
____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
J-A24022-15


     driving a marked patrol car. At approximately 12:51 P.M.,
     Officer Lion observed a Ford pick-up truck, operated by
     [Melograna], stopped in the middle of a two-lane public roadway
     on Susquehanna Road in Upper Dublin Township, Montgomery
     County, Pennsylvania. Although the truck was stopped, the
     truck was not disabled. The truck’s brake lights were on, which
     indicated that [Melograna’s] foot was on the brake and the truck
     was still running with the key in the ignition. As Officer Lion
     approached the driver[’s] side of the vehicle, he observed a
     semiconscious [Melograna] shaking in a manner similar to a
     seizure with his eyes open. [Melograna] was unresponsive to
     Officer Lion’s questions.       Because [Melograna] appeared
     incapable of turning off his truck, Officer Lion attempted to turn
     off the truck but was dragged backwards when the truck began
     rolling in reverse. Officer Lion eventually managed to employ
     the emergency brakes and turn off the vehicle.

     Officer Lion requested Emergency Medical Services (“EMS”) to
     aid [Melograna]. Officer Lion monitored [Melograna] until EMS
     arrived at the scene. When EMS transported [Melograna] inside
     the ambulance, Officer Lion noticed three prescription medication
     bottles inside [Melograna’s] car in plain view.       Officer Lion
     inspected the medication bottles. The medication labels listed
     the three prescription bottles as: (1) Soma; (2) Percocet (trade
     name Oxycodone and Acetaminophen); and (3) Alprazolam
     (trade name Xanax). Officer Lion noticed that [Melograna’s]
     Percocet prescription for 120 pills was filled on April 1, 2013,
     fifteen days prior, but the bottle only contained 1.5 pills. Upon
     Officer Lion’s inspection of the Alprazolam prescription, he
     noticed that the bottle contained two differently colored pills.
     Although [Melograna] was not placed under arrest at the scene,
     Officer Lion followed [Melograna] to Abington Hospital for the
     purpose of administering a blood test based on his belief that
     [Melograna] was driving under the influence of the three
     prescribed medications to a degree which rendered [Melograna]
     incapable of safe driving.

     [Melograna] arrived at Abington Hospital via EMS at
     approximately 1:32 P.M. Officer Lion noticed that [Melograna]
     was now able to respond to the hospital staff’s questions.
     However, his responses were delayed, mumbled and unclear.
     Officer Lion read the O’Connell Warnings1 to [Melograna], who
     nodded his head in a manner that Officer Lion deemed as his
     consent to undergo a chemical blood test. [Melograna] never
     signed the DL-26 Implied Consent Form. Officer Lion indicated

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        that [Melograna] was “unable to sign the form due to the fact
        that [Melograna] was shaking.” [Melograna’s] medical report
        evidences that at about 1:50 P.M., [Melograna’s] blood was
        drawn by a hospital technician at the direction and request of
        Officer Lion. At about 1:54 P.M., [Melograna’s] medical report
        shows that [Melograna] was cognizant enough to respond to the
        medical staff’s questions by providing them with accurate and
        coherent information regarding his name and birthdate.
        [Melograna] was later charged with [DUI].
          1
           The phrase “O’Connell Warnings” means the officer must
          specifically inform a motorist that his driving privileges will
          be suspended for one year if he refuses chemical testing
          and that the rights provided by the United States Supreme
          Court’s decision in Miranda v. Arizona, 384 U.S. 436
          (1966), do not apply to chemical testing.                 See
          Commonwealth, Dept. of Transp., Bureau of Traffic
          Safety v. O’Connell, 555 A.2d 873, 877-78 (Pa. 1989);
          see also Commonwealth, Dept. of Transp. v. Ingram,
          648 A.2d 285, 290 (Pa. 1994); Commonwealth, Dept. of
          Transp. v. Scott, 684 A.2d 539, 540-41 (Pa. 1996).

Trial Court Opinion (“T.C.O.”), 1/22/2015, at 1-3 (some citations modified).

The blood tests revealed the presence of the prescription medications in

higher than expected amounts in Melograna’s bloodstream.

        Prior to trial, Melograna filed a motion seeking, inter alia, the

suppression of the evidence resulting from what Melograna contended was

an unconstitutional blood draw.      On July 1, 2014, following a suppression

hearing, the trial court denied the motion. On September 3, 2014, following

a bench trial, the trial court convicted Melograna of DUI.       On October 20,

2014, the trial court sentenced Melograna to seven days to six months in

jail.

        Thereafter, Melograna filed a notice of appeal, prompting the trial

court to issue an order directing Melograna to file a concise statement of

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errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).               On

November 24, 2014, Melograna timely complied with the court’s directive.

On January 22, 2015, the trial court issued an opinion pursuant to Pa.R.A.P.

1925(a).

      Melograna raises the following three questions for our review:

      I.     Whether the trial court erred in denying [Melograna’s]
             motion to suppress where police drew [Melograna’s] blood,
             in contravention to the dictates of the Constitutions of the
             United States and of the Commonwealth of Pennsylvania,
             without [Melograna’s] consent, without obtaining a
             warrant, and without exigent circumstances?

      II.    Whether the evidence at trial was insufficient to prove
             [Melograna] guilty beyond a reasonable doubt where the
             substances found in [Melograna’s] blood were medications
             prescribed to him at stable, chronic doses and the forensic
             toxicologist for the Commonwealth’s witnesses testified
             only that there was a possibility that [Melograna] was
             unable to safely drive, operate, or be in actual physical
             control of the movement of the vehicle?

      III.   Whether 75 Pa.C.S. § 3802(d)(2) is unconstitutionally void
             for vagueness as it criminalizes the taking of prescribed
             medication in the manner in which they were prescribed?

Brief for Melograna at 4 (some capitalization and punctuation altered for

consistency and clarity).

      In his first issue, Melograna challenges the trial court’s denial of his

suppression motion. Our standard of review for such claims is as follows:

      [An appellate court’s] standard of review in addressing a
      challenge to the denial of a suppression motion is limited to
      determining whether the 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

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     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, [the appellate court
     is] bound by [those] 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
     plenary review.

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (internal citations

and quotation marks omitted).

     Melograna argues that the results from the blood test should have

been suppressed because the blood draw, itself, was unconstitutional.

Melograna maintains that the United States Supreme Court’s recent decision

in Missouri v. McNeely, 133 S.Ct. 1552 (2013), fundamentally altered the

manner in which law enforcement may secure blood from a suspected

intoxicated motorist.   According to Melograna, McNeely held that implied

consent laws, such as the one that is codified in Pennsylvania at 75 Pa.C.S.

§ 1547(a)(1), are not per se exceptions to the constitutional warrant

requirements.   Hence, Melograna argues that post-McNeely blood draws

may only occur upon the knowing and intelligent consent of the motorist, or

with a valid search warrant. Here, Melograna’s argument goes, because the

police did not secure a warrant, the blood draw was only constitutional if

Melograna validly consented. He contends that he did not.




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      In light of Melograna’s argument, we necessarily begin by determining

whether McNeely applies to the instant case. In McNeely,

      at approximately 2:08 a.m., a Missouri police officer stopped
      McNeely’s truck after observing it exceed the posted speed limit
      and repeatedly cross the centerline. The officer noticed several
      signs that McNeely was intoxicated, including McNeely’s
      bloodshot eyes, his slurred speech, and the smell of alcohol on
      his breath. McNeely acknowledged to the officer that he had
      consumed “a couple of beers” at a bar, and he appeared
      unsteady on his feet when he exited the truck. After McNeely
      performed poorly on a battery of field-sobriety tests and declined
      to use a portable breath-test device to measure his blood alcohol
      concentration (BAC), the officer placed him under arrest.

      The officer began to transport McNeely to the station house. But
      when McNeely indicated that he would again refuse to provide a
      breath sample, the officer changed course and took McNeely to a
      nearby hospital for blood testing. The officer did not attempt to
      secure a warrant. Upon arrival at the hospital, the officer asked
      McNeely whether he would consent to a blood test. Reading
      from a standard implied consent form, the officer explained to
      McNeely that under state law refusal to submit voluntarily to the
      test would lead to the immediate revocation of his driver’s
      license for one year and could be used against him in a future
      prosecution. McNeely nonetheless refused. The officer then
      directed a hospital lab technician to take a blood sample, and the
      sample was secured at approximately 2:35 a.m. Subsequent
      laboratory testing measured McNeely’s BAC at 0.154 percent,
      which was well above the legal limit of 0.08 percent.

133 S.Ct. at 1556-57 (citations omitted).          McNeely attempted to suppress

the   results   of   the   blood   test,   which   he   contended   were   secured

unconstitutionally because he did not consent to the draw, and because the

police did not obtain a search warrant.          The case meandered through the

court system until the United States Supreme Court granted certiorari on the

question of “whether the natural dissipation of alcohol in the bloodstream


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establishes 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.” Id. at 1568.

       The Court first recognized that the Fourth Amendment mandates that,

when reasonably practicable, police must obtain a valid search warrant

before they can conduct an involuntary blood draw. Of course, in McNeely,

the blood draw was involuntary, and the police did not obtain a warrant.

The Court, therefore, had to determine whether the police could obtain the

blood via the exigent circumstance exception to the warrant mandate. Id.

at 1558.1 Specifically, the Court considered whether the natural dissipation

of alcohol within the bloodstream created a per se exigency that would

permit police officers to conduct warrantless blood draws, regardless of

whether the suspected driver consented to the draw.

       Ultimately, the Court elected not to adopt a categorical approach,

instead requiring courts to evaluate similar situations on a case-by-case

basis and to employ a totality of the circumstances approach. Id. at 1561.

The Court offered the following explanation for rejecting a per se exception

in DUI cases:


____________________________________________


1
      As the Court explained, “[o]ne well-recognized exception . . . applies
when the exigencies of the situation make the needs of law enforcement so
compelling that a warrantless search is objectively reasonable under the
Fourth Amendment.” McNeely, 133 S.Ct at 1558 (quoting Kentucky v.
King, 131 S.Ct. 1849, 1856 (2011)).



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      Regardless of the exact elimination rate, it is sufficient for our
      purposes to note that because an individual’s alcohol level
      gradually declines soon after he stops drinking, a significant
      delay in testing will negatively affect the probative value of the
      results. This fact was essential to our holding in [Schmerber v.
      California, 384 U.S. 757 (1966)], as we recognized that, under
      the circumstances, further delay in order to secure a warrant
      after the time spent investigating the scene of the accident and
      transporting the injured suspect to the hospital to receive
      treatment would have threatened the destruction of evidence.

      But it does not follow that we should depart from careful case-
      by-case assessment of exigency and adopt the categorical rule
      proposed by the State and its amici. In those drunk-driving
      investigations where police officers can reasonably obtain a
      warrant before a blood sample can be drawn without significantly
      undermining the efficacy of the search, the Fourth Amendment
      mandates that they do so.          We do not doubt that some
      circumstances will make obtaining a warrant impractical such
      that the dissipation of alcohol from the bloodstream will support
      an exigency justifying a properly conducted warrantless blood
      test. That, however, is a reason to decide each case on its facts,
      as we did in Schmerber, not to accept the “considerable
      overgeneralization” that a per se rule would reflect.

Id. at 1561 (citations omitted).

      The Court’s holding, that the Fourth Amendment is better served by a

case-by-case totality of the circumstances evaluation, was based upon the

fact that a categorical approach both would include situations where police

reasonably could have gotten a warrant, as well as situations where exigent

circumstances truly required the police to act immediately without a warrant.

A case-by-case approach best balanced the suspected driver’s Fourth

Amendment rights with the realities that law enforcement officials face when

attempting to collect evidence that naturally dissipates.




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       Having set forth McNeely’s basic holding and underpinnings, we now

must ascertain how McNeely impacts the case sub judice.         Contrary to

Melograna’s contentions, McNeely has no bearing upon his case.2 McNeely

only implicates the Fourth Amendment’s requirements when the police

command a medical professional to draw blood when the motorist has not

consented and when the police have not secured a warrant.          When a

motorist consents to the blood draw, as Melograna did, or when a motorist

refuses the draw and the police do not compel the draw anyway, McNeely

simply is not applicable.

       McNeely also did not render implied consent laws unconstitutional.

Melograna contends that, post-McNeely, implied consent laws cannot

function as a per se exception to the warrant and probable cause

requirements of the Fourth Amendment.            The fault with Melograna’s

argument lies in his continued misinterpretation of the impact that McNeely

has on his case. McNeely simply does not extend to situations in which a

____________________________________________


2
       Recently, in Commonwealth v. Myers, 118 A.3d 1122 (Pa. Super.
2015), we held that McNeely does apply in certain situations. In Myers,
the motorist, who was suspected of DUI, was taken to a hospital, and was
given medication that rendered him unconscious and unresponsive. The
motorist could not respond to police questioning regarding consent to a
blood draw. Without a response, the police ordered the blood draw without
consent and without a warrant. Relying upon McNeely, we held that the
warrantless draw was unconstitutional. The factual circumstances of Myers
clearly fell within the purview of McNeely. Obviously, in the case sub
judice, Melograna was not unconscious and could respond to the police, and
neither Myers nor McNeely controls.



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driver has consented to a blood draw or where the driver has refused

consent and where a police officer abides by the refusal and does not pursue

the blood draw.     In those situations, Pennsylvania’s implied consent law

applies with full force.

        The McNeely Court did not address the validity of implied consent

laws.    The Court only rejected the State’s argument that any person who

refuses a blood test automatically subjects himself to a nonconsensual blood

draw.    McNeely, 133 S.Ct. at 1568.      Pennsylvania’s implied consent law

does not work that way. Under the implied consent law, a person, by virtue

of operating a motor vehicle, impliedly consents to chemical testing, which

the police officer may request if he or she has probable cause to believe that

the motorist is driving under the influence of alcohol or a controlled

substance. Section 1547 in no way authorizes a nonconsensual blood draw

if a person refuses. There is a penalty for refusing, to be sure. But, it is not

a blood draw against the refusing driver’s will.      McNeely does not impact

the validity of our implied consent law in any way.

        The crux of Melograna’s first argument is that McNeely altered the

manner in which we must view blood draws that are conducted based upon

suspicion of DUI.      He argues that, post-McNeely, there are only two

choices: a valid consent or a warrant.        However, as discussed in detail

above, that argument is an inaccurate portrayal of McNeely’s impact upon

this case. McNeely requires, in situations in which a person does not, or

cannot, consent and the police nonetheless do not obtain a warrant, that

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courts determine whether the totality of the circumstances created an

exigent circumstance such that the warrant requirement is excused. That is

not what occurred here.         Therefore, we do not need to consider whether

exigent circumstances justified the draw in this case, we need only to review

this case under our traditional approach, considering the validity of the

consent under our implied consent statute and case law.

       Pursuant to subsection 1547(a)(1):

       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. § 1547.3        To request chemical testing “under § 1547(a)(1), a

police officer need only have reasonable grounds to believe that a person

was driving under the influence of alcohol [or controlled substances].

____________________________________________


3
      Subsection (a)(2), which permitted a warrantless blood draw without
probable cause of DUI when a motorist was in an accident that caused injury
or death to himself or another, was ruled unconstitutional in
Commonwealth v. Kohl, 615 A.2d 308 (Pa. 1992). That subsection is not
at issue in this case, and Kohl has no bearing upon our decision. Notably,
subsection (a)(1) has never been ruled unconstitutional.



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‘Reasonable grounds' has been interpreted to mean ‘probable cause;’ thus,

the police officer must have ‘knowledge of sufficient facts and circumstances,

gained through trustworthy information, to warrant a prudent man in the

belief that a crime has been committed.’” Commonwealth v. Aiello, 675

A.2d 1278, 1280 (Pa. Super. 1996) (internal citations omitted); see

Commonwealth v. Jones, 121 A.3d 524, 527-28 (Pa. Super. 2015),

reargument denied (Sept. 30, 2015).

      Melograna does not argue that the police did not have probable cause

to request the blood draw. He argues only that his consent was involuntary

and, therefore, invalid.

      In order for consent to be valid, it must be “unequivocal,
      specific, and voluntary.” The appellant must have intentionally
      relinquished or abandoned a known right or privilege.
      Commonwealth v. Gibson, 638 A.2d 203 (Pa. 1994). “The
      burden is upon the Commonwealth to prove by clear and
      convincing evidence that valid consent was given by appellant.”
      Commonwealth v. Blasioli, 685 A.2d 151, 156 (Pa. Super.
      1996) (citations omitted). The determination as to whether
      consent has been given voluntarily is a question of fact which
      must be determined in each case from the totality of the
      circumstances. Commonwealth v. Mancini, 490 A.2d 1377
      (Pa. Super. 1985). This Court has held that the following factors
      should be considered in determining whether consent was given
      voluntarily: “the setting in which the consent was obtained; what
      was said and done by the parties present; and the age,
      intelligence, and educational background of the person
      consenting.” Blasioli, 685 A.2d at 156 (citations omitted).

Commonwealth v. Gorbea-Lespier, 66 A.3d 382, 387 (Pa. Super. 2013)

(citations modified) (quoting Commonwealth v. Dunne, 690 A.2d 1233,

1236 (Pa. Super. 1997)).


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        The trial court in this case held that Melograna’s “self-impairment” was

insufficient to render Melograna incapable of validly consenting to the blood

draw.      We agree with the court’s conclusion, as well as the court’s

description of the relevant facts of this case, which follow:

        In the present case, [Melograna] was initially semiconscious and
        unresponsive due to prior use of his prescription drugs. Even
        though his responses were delayed, unclear and mumbled,
        [Melograna] was able to respond to questions when he arrived at
        the hospital. When Officer Lion read the O’Connell warnings,
        [Melograna] was not unconscious. After hearing the warnings,
        [Melograna] nodded his head in a manner which Officer Lion
        reasonably deemed as his consent to submit to chemical blood
        testing. Although [Melograna] did not sign the DL-26 Implied
        Consent Form, . . . there is no requirement that voluntary
        consent be manifested by a signed written consent form. At
        1:54 P.M., four minutes after [Melograna’s] blood was drawn,
        [Melograna’s] medical report evidences that [Melograna] was
        cognizant enough to accurately respond to the medical staff’s
        questions regarding his name and birthday.

T.C.O. at 9. The trial court’s factual findings were supported by the record,

and its legal conclusion that Melograna validly consented to the blood draw

was correct. Melograna is not entitled to relief.

        In his second issue, Melograna contends that the evidence presented

by the Commonwealth at trial was insufficient as a matter of law to prove

him guilty of DUI.    Our standard of review in a sufficiency challenge is as

follows:

        In evaluating a challenge to the sufficiency of the evidence, we
        must determine whether, viewing the evidence in the light most
        favorable to the Commonwealth as verdict winner, together with
        all reasonable inferences therefrom, the trier of fact could have
        found that each and every element of the crimes charged was


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J-A24022-15


      established beyond a reasonable doubt. We may not weigh the
      evidence and substitute our judgment for the fact-finder. To
      sustain a conviction, however, the facts and circumstances which
      the Commonwealth must prove must be such that every
      essential element of the crime is established beyond a
      reasonable doubt.

      Lastly, the finder of fact may believe all, some or none of a
      witness’s testimony.

Commonwealth v. Priest, 18 A.3d 1235, 1239 (Pa. Super. 2011) (citations

omitted).

      Pursuant to 75 Pa.C.S. § 3802(d)(2), “[a]n individual may not drive,

operate, or be in actual physical control of the movement of a vehicle . . . [if

the] individual is under the influence of a drug or combination of drugs to a

degree which impairs the individual's ability to safely drive, operate or be in

actual physical control of the movement of the vehicle.”

      Melograna argues that the evidence was insufficient to support his

conviction because his own witness, Dr. Gary Lage, a forensic toxicologist,

testified   that   the   amount   of   prescription   medication   in   Melograna’s

bloodstream was consistent with the dosage prescribed by Dr. John

Telegadis, Melograna’s physician.       Melograna contends that this testimony

provided an alternative interpretation of the evidence, which conflicted with

the Commonwealth’s toxicologist, who only testified that there was a

possibility that the prescription medication could have rendered him

incapable of safely driving his vehicle.

      Although framed as a sufficiency challenge, Melograna’s argument

essentially asks us to second-guess the trial judge’s factual determinations,


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and to reweigh the evidence. Such an argument is a challenge to the weight

of the evidence, not its sufficiency. Melograna did not preserve his weight

challenge at sentencing or in a timely post-sentence motion. Thus, any such

contention is waived. Commonwealth v. Lofton, 57 A.3d 1270, 1273 (Pa.

Super. 2012).

      To the extent that Melograna presents a viable sufficiency challenge, it

is meritless. Melograna was found unresponsive behind the wheel of a truck

that was stopped in the center of a two-lane public road. The key was in the

ignition.   The truck was running, and Melograna’s foot was on the brake

pedal. When Officer Lion approached the truck, Melograna was shaking, and

was unresponsive to Officer Lion’s questions. He undeniably was incapable

of safely operating the truck. Moreover, Officer Lion found two prescription

pill bottles in the vehicle. One bottle contained only one and one-half pills,

even though the prescription for one hundred and twenty pills was filled only

fifteen days prior. In the other pill bottle, Officer Lion found two different

types of pills.   Viewing the evidence in the light most favorable to the

Commonwealth, and granting the Commonwealth all reasonable inferences

drawn from that evidence, the trial court was free to conclude that

Melograna had not taken his medication as directed by his physician, that he

had supplemented his medication with another prescription drug, and that

the combination of substances rendered him incapable of safely driving his

truck. The evidence was sufficient to support the conviction.




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      In his final issue, Melograna attempts to argue that the DUI statute

under which he was convicted was unconstitutional because, according to

Melograna, the statute is unconstitutionally vague in that it criminalizes too

much otherwise legal behavior.          This issue was not preserved in the first

instance before the trial court, and, therefore, is waived.

      Melograna did not challenge the constitutionality of the statute in a

pre-trial motion, or in any other manner before his trial commenced.

Instead, Melograna’s counsel stated during sentencing that “I would suggest

to the Court that this statute is one which I intend to challenge

constitutionally, because what I believe it does, it can criminalize absolutely

any one of us who take any kind of prescribed substance at the time.”

Notes of Testimony, 10/20/2014, at 6-7.             Notably, Melograna also never

pursued the issue in a post-sentence motion.

      It is well-settled that “one must object to errors, improprieties or

irregularities   at   the   earliest   possible   stage   of   the   criminal   or   civil

adjudicatory process to afford the jurist hearing the case the first occasion to

remedy the wrong and possibly avoid an unnecessary appeal to complain of

the matter.”     Commonwealth v. Strunk, 953 A.2d 577, 580 (Pa. Super.

2008) (quoting Commonwealth v. English, 667 A.2d 1123, 1126 (Pa.

Super. 1995)). Melograna did not challenge the constitutionality of the DUI

statute at the earliest possible stage. Instead, he waited to raise the issue

until sentencing, long after the trial court could have responded to a timely-

filed challenge.      A comment in passing about an issue that a defendant

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“intends” to challenge during a sentencing hearing, particularly an issue that

does not pertain to sentencing, simply is insufficient to preserve the

challenge for appellate review.   Consequently, Melograna has waived his

final issue.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/9/2015




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