J-S24037-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    DANIEL CHARLES TOY                         :
                                               :
                      Appellant                :   No. 1616 WDA 2016

            Appeal from the Judgment of Sentence of June 10, 2016
               In the Court of Common Pleas of Venango County
             Criminal Division at No(s): CP-61-CR-0000528-2015


BEFORE:      PANELLA, STABILE, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                            FILED JUNE 07, 2017

        Daniel Charles Toy (“Appellant”) appeals from the judgment of

sentence entered in the Court of Common Pleas of Venango County after a

jury convicted him of Driving Under the Influence (“DUI”) of alcohol, Public

Drunkenness, and Disorderly Conduct.1              Sentenced to three to twelve

months’ incarceration, fines, and costs, Appellant contends that the trial

court erred in denying his post-sentence motion seeking vacation of

judgment of sentence and remand for a new suppression hearing.                We

affirm.



____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
  75 Pa.C.S. § 3802(a)(1), 18 Pa.C.S. § 5505, and 18 Pa.C.S. § 5503(a)(1),
respectively.
J-S24037-17



      The trial court aptly summarizes the factual and procedural history of

the case as follows:

      On July 19, 2015, police responded to a call of an active fight at
      the Country Fair, a gas/convenience store…. Patrolman Karns,
      along with two other officers, responded to the call around 2:45
      AM. Upon arrival at the Country Fair, Patrolman Karns saw the
      Defendant (hereinafter “Appellant”) toss an object to the ground,
      which was recovered and found to be a knife. Patrolman Karns
      also took notice of blood on Appellant’s face. These factors led
      him to believe Appellant was involved in the fight to which
      Patrolman Karns was responding. Further, Patrolman Karns
      noticed a strong odor of alcohol emanating from Appellant, along
      with glassy eyes.

      In the course of investigating the fight and who was involved…,
      Patrolman Karns went into the Country Fair to view surveillance
      footage. In the course of sorting out what happened at the
      scene relative to the fight, the officers responding to the scene,
      including Patrolman Karns, questioned the individuals there at
      Country Fair’s parking lot. While Patrolman Karns was standing
      next to Appellant, Appellant spontaneously relayed he had been
      involved in the fight, and volunteered that prior to that he had
      been drinking at a local bar after which he had driven to the
      Country Fair parking lot. At that point, per the parties’ factual
      stipulations, Appellant was placed under arrest.

      Patrolman Karns admitted Appellant was “detained” while police
      on the scene questioned him and other people at the scene when
      responding to the call regarding an active fight scene. While
      Patrolman Karns was viewing the surveillance footage, he had
      another officer with Appellant to ensure that Appellant did not
      leave. However, it was not until after Patrolman Karns had
      viewed the video surveillance footage and Appellant
      spontaneously     and     voluntarily relayed   the  inculpatory
      statements to the officer that Appellant was placed under arrest
      for driving under the influence.

      ***
      The Information was filed October 16, 2015, charging Appellant
      with [DUI]/General Impairment/Refusal (Second Offense), a
      misdemeanor of the first degree; public drunkenness/similar

                                    -2-
J-S24037-17


       misconduct, a summary offense; and disorderly conduct, a
       summary offense. The Preliminary Hearing was held September
       30, 2015, after which the charges were bound over to the Court
       of Common Pleas.

       Appellant filed an Omnibus Pre-Trial Motion [“OPTM”] to
       Suppress Evidence [on] December 10, 2015.[2] A hearing on the
       OPTM was held January 26, 2016. The motion sought to dismiss
       inculpatory statements made by Appellant while in what
       Appellant characterized as a “custodial interrogation” at the
       Country Fair parking lot. The OPTM was, thereafter, denied in
       [the trial court’s] Order of Court dated January 29, 2016.

       Appellant was thereafter tried and convicted on March 18, 2016,
       of [DUI], where Appellant did refuse testing of blood.[]
       Subsequently, Appellant was sentenced [as noted above]. [The
       trial court] held argument on [Appellant’s] Post Sentence Motion
       on September 27, 2016, at which time [the trial court] denied
       said motion per [its] Order of Court dated that same day. On
       October 19, 2016, Appellant[, through new counsel,] filed his
       Notice of Appeal relative to his Post Sentence Motion. [The trial
       court] directed, by Order of Court dated October 20, 2016, that
       Appellant file his [Pa.R.A.P.] 1925(b) Concise Statement, which
       Appellant did on November 7, 2016.

Trial Court Opinion, at 2-4.

       Appellant presents the following question for our review:

       [DID] THE POST SENTENCE COURT ERR[] AS A MATTER OF
       LAW OR ABUSE[] ITS DISCRETION IN DENYING
       [APPELLANT’S] POST SENTENCE MOTION?

Appellant’s brief at 5.

       At the hearing on Appellant’s post-sentence motion, counsel for

Appellant asked the trial court to vacate judgment of sentence with respect
____________________________________________


2
   At the suppression hearing, neither the Commonwealth nor Appellant
presented witnesses but, instead, stipulated to the Preliminary Hearing
transcript. See Trial Court Opinion, November 21, 2016, at 1-2.



                                           -3-
J-S24037-17



to DUI and remand for a new suppression hearing based on Patrolman

Karn’s previously unavailable testimony implicating Appellant’s Miranda

rights.3   According to both parties and the trial court, Patrolman Karns

testified at trial that he had already placed Appellant in handcuffs, but
____________________________________________


3
  We understand Appellant’s motion to re-open his suppression hearing as
akin to that contemplated in the Pennsylvania Supreme Court decision in In
re L.J., 79 A.3d 1073 (Pa. 2013), which, inter alia, “reinforce[d] the
procedure required for the review of the denial of a suppression motion and
the re-opening of the suppression hearing to consider previously unavailable
evidence.” Id. at 1088.

      Among the considerations made by the Supreme Court in outlining this
procedure was whether counsel asked the trial court to reconsider its earlier
suppression ruling in light of new testimony adduced at trial and whether
counsel sought to scrutinize the new testimony during cross-examination.
Id. Additionally, In re L.J. identified several salutary purposes to allowing
the augmentation of the suppression record, including “giv[ing] the trial
court the opportunity to re-open the suppression hearing to consider the
new evidence outside the presence of the jury[,]” and “giv[ing] the
defendant a meaningful opportunity to formulate and present a defense to
the new evidence . . . without concern that such a defense would waive the
defendant’s Fifth Amendment right against self-incrimination [at trial].” Id.
at 1088 n.17. Given the Court’s observations, it may reasonably be inferred
that a party seeking augmentation of the suppression record must make an
appropriate motion at the earliest available opportunity.

       As we discuss below, we lack a record of Appellant’s jury trial, so we
cannot confirm whether Appellant moved for an immediate hearing to
augment the suppression record outside the presence of the jury. We also
cannot ascertain whether Appellant attempted to develop the apparent
discrepancies between Patrolman Karns’ suppression and trial testimonies to
illustrate, inter alia, the need to proceed to a suppression augmentation
hearing. Given Appellant’s waiver of his claim for failure to supply a record
of his jury trial, see infra, we do not address whether Appellant satisfied
procedural requirements to obtaining a suppression augmentation hearing
where he apparently waited until post-trial motions to ask the court for a
new suppression hearing.



                                           -4-
J-S24037-17



without Miranda warnings, when Appellant admitted to driving himself to

the Country Fair convenient store. This apparent testimony diverged from

Karns’ prior testimony at the preliminary hearing, stipulated to at the

suppression hearing, that he did not immediately place Appellant in

handcuffs at the outset of his investigation. See N.T. Preliminary Hearing,

9/30/15, at 10.

        As a threshold matter, however, we note that Appellant fails to provide

this Court with a transcript of the jury trial. For this reason alone, we are

constrained to find Appellant’s claim waived, for the absence of a jury trial

transcript impedes our ability to review his claim and assess whether the

trial court erred or abused its discretion in denying him a new suppression

hearing and trial.      See Commonwealth v. Preston, 904 A.2d 1, 7 (Pa.

Super. 2006) (en banc) (“When the appellant [ ] fails to conform to the

requirements of [Pa.R.A.P.] 1911, any claims that cannot be resolved in the

absence of the necessary transcript or transcripts must be deemed waived

for the purpose of appellate review.”).4

        We observe, parenthetically, that Appellant predicates his claim of

prejudice on the argument that “the Commonwealth’s only evidence of the

Appellant having operated a motor vehicle and consumed alcohol was from

the Appellant’s statements.”        Appellant’s brief at 10.   A central feature to

____________________________________________


4
    Rule 1911 has since been amended. See 46 Pa.B. 7801 (Dec. 17, 2016).




                                           -5-
J-S24037-17



Patrolman Karns’ testimony at the preliminary hearing was that he based the

DUI arrest on his observation of the convenient store’s surveillance video

depicting Appellant driving into the parking lot and alighting his vehicle just

minutes before the police arrived.5            While we have no way to discern

whether the Commonwealth and Patrolman Karns neglected to introduce this

critical testimony at trial, we note this Court has previously applied harmless

error analysis to statements obtained in violation of Miranda if, inter alia,

“the erroneously admitted evidence was merely cumulative of other

untainted evidence which was substantially similar to the erroneously

admitted evidence[.]”        Commonwealth v. Cornelius, 856 A.2d 62, 76

(Pa.Super. 2004). Our reliance on waiver doctrine for Appellant’s failure to
____________________________________________


5
    At Appellant’s Preliminary Hearing, Patrolman Karns testified as follows:

        Q: Okay. And did you have an estimated time of how long he’d
        been there [convenience store] before your arrival?

        KARNS: It was within minutes.

        Q: On that video were you able to see his vehicle with him
        driving it?

        A: Yes.

N.T., 9/30/15, at 7.

      In addition, Patrolman Karns prepared an Affidavit of Probable Cause
in which he stated “[y]our affiant viewed security camera footage that
showed [Appellant] operating the vehicle when it was driven into the parking
lot and parked which was just minutes before officers arrived on scene.
[Appellant] was then placed under arrest for DUI.”          Police Criminal
Complaint, filed 7/20/15.



                                           -6-
J-S24037-17



request the jury trial notes of testimony, however, obviates the need to

discuss this area of decisional law further.

      Judgment of sentence is AFFIRMED.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/7/2017




                                      -7-
