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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                   :
                                          :
JARROD LaMONTE PENN,                      :          No. 536 EDA 2016
                                          :
                          Appellant       :


           Appeal from the Judgment of Sentence, January 21, 2016,
              in the Court of Common Pleas of Delaware County
               Criminal Division at No. CP-23-CR-0004623-2015


BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MOULTON, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED FEBRUARY 28, 2017

        Jarrod LaMonte Penn appeals from the judgment of sentence of

January 21, 2016, following his conviction of driving under the influence

(“DUI”) – general impairment.1 We vacate and remand for resentencing.

        The trial court summarized the facts of this matter as follows:

                    On May 2, 2015, at approximately 1:55 a.m.
              Officers Dave Ford and Shane Laird of the Marcus
              Hook Police Department were on duty in a marked
              patrol vehicle. At or about that time, they were
              behind a maroon Chevy Impala bearing a Delaware
              State registration in the area of 10th and Church
              Streets in Marcus Hook, Delaware County,
              Pennsylvania. Both vehicles were traveling in the
              eastbound lane of traffic. Officer Ford testified that
              he observed the subject vehicle swerve to the left
              crossing over the double yellow line into the
              oncoming westbound lane of traffic.            Shortly
              thereafter it swerved back to the right and

1
    75 Pa.C.S.A. § 3802(a)(1).
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           subsequently on two (2) occasions swerved to the
           right and crossed over the solid white line that the
           officer referred to as the fog line on the right side of
           the roadway onto the shoulder. (N.T. 1/21/16 p. 7.)
           At that time, the officer activated his emergency
           lights and conducted a traffic stop of the vehicle.
           The driver and sole occupant of the vehicle was the
           Appellant, Jared Penn. (N.T. 1/21/16 p. 8.)

                  Subsequently, the officer testified that when he
           approached the Appellant, who rolled down his
           window, he immediately detected an odor of
           alcoholic beverages coming from the breath and
           person of the Appellant, that the Appellant had
           glassy, bloodshot eyes, spoke with slurred speech
           and appeared lethargic. (N.T. 1/21/16 p. 9.) The
           officer testified that he asked the Appellant to exit
           the vehicle and conducted three (3) field sobriety
           tests all of which the Appellant failed. (N.T. 1/21/16
           pp. 9-12.) While the Appellant was standing outside
           of the car, the officer noticed additionally that the
           Appellant’s     “coordination  was      off”  and   his
           “comprehension wasn’t there” and he then asked the
           Appellant to submit to a preliminary breath test
           (PBT)[2] and he refused. (N.T. 1/21/16 p. 12.) The
2
           (k)   Prearrest breath test authorized.--A police
                 officer, having reasonable suspicion to believe
                 a person is driving or in actual physical control
                 of the movement of a motor vehicle while
                 under the influence of alcohol, may require
                 that person prior to arrest to submit to a
                 preliminary breath test on a device approved
                 by the Department of Health for this purpose.
                 The sole purpose of this preliminary breath test
                 is to assist the officer in determining whether
                 or not the person should be placed under
                 arrest. The preliminary breath test shall be in
                 addition to any other requirements of this title.
                 No person has any right to expect or demand a
                 preliminary breath test. Refusal to submit to
                 the test shall not be considered for purposes of
                 subsections (b) and (e) [(relating to refusal)].
75 Pa.C.S.A. § 1547(k).


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            officer subsequently testified that based on his
            training, experience, and observations of the
            defendant that evening, he felt that the Appellant
            was under the influence of alcohol at that time to
            such a degree wherein he could not safely operate a
            motor vehicle.    The Appellant was subsequently
            placed under arrest and transported to the police
            station.  (N.T. 1/21/16 p. 13.)     At the station,
            Appellant was given his implied consent warning and
            he refused the chemical test. (N.T. 1/21/16 pp. 14-
            16.)

                  The Appellant subsequently testified that he
            had advised the police officers that he was not
            drinking (N.T. 1/21/16 p. 51), that he could not
            properly perform the field sobriety tests due to his
            medical issues including lower back arthritis, retina
            issues, and prior surgery wherein a rod was
            implanted in his leg. (N.T. 1/21/16 pp. 53-54.) He
            further testified that he refused the PBT test because
            the officer took it out of his trunk, it was not
            wrapped up and he felt it was not sanitary. (N.T.
            1/21/16 pp. 54-55.) He further testified that he
            never was shown the DL26[3] refusal form (N.T.
            1/21/16 p. 59) and that he did in fact wish to have a
            blood test conducted. (N.T. 1/21/16 pp. 61-62.)

Trial court opinion, 6/7/16 at 1-3.

      On January 21, 2016, following a non-jury trial, appellant was found

guilty of one count of DUI – general impairment.         Appellant waived a

pre-sentence investigation and received the mandatory sentence of 72 hours

to 6 months’ imprisonment and a $1,000 fine pursuant to 75 Pa.C.S.A.



3
   The DL–26 form contains warnings of the potential consequences of a
person’s refusal to consent to a blood test, including that the individual’s
license could be suspended for at least one year, and that if convicted of
violating 75 Pa.C.S.A. § 3802(a), the individual will face more severe
penalties because of the refusal.


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§ 3804(c)(1).4       No    post-sentence    motions   were   filed;   however,   on

February 19, 2016, appellant filed a timely notice of appeal. Appellant was

ordered to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b) within 21 days and timely complied on

March 10, 2016, challenging the sufficiency of the evidence to support his

conviction of DUI – general impairment under 75 Pa.C.S.A. § 3802(a)(1).

On June 7, 2016, the trial court filed a Rule 1925(a) opinion addressing the

sufficiency issue.



4
            (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

                           (iv)    comply with all drug and
                                   alcohol         treatment
                                   requirements      imposed
                                   under sections 3814 and
                                   3815.


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      On appeal, appellant raises the following issue for this court’s review:

                I)      Whether the sentence was illegal where the
                        trial court relied on [appellant]’s refusal of a
                        blood test to impose the tier three mandatory
                        minimum of 72 hours for a first offense DUI
                        which is in direct contravention to the ruling in
                        the recent United States Supreme Court case
                        of Birchfield v. North Dakota[,        U.S.     ,
                        136 S.Ct. 2160 (2016)] which invalidates any
                        criminal sanction assessed for refusing to take
                        a blood test[?]

Appellant’s brief at 7 (unnecessary capitalization deleted).

      Initially, we note that appellant did not raise this issue in the court

below; in his Rule 1925(b) statement, he only challenged the sufficiency of

the evidence to support the conviction.            However, the issue goes to the

legality   of        appellant’s   sentence,     which   is   non-waivable.   See

Commonwealth v. Barnes,                   A.3d      , 2016 WL 7449232 at *5 (Pa.

Dec. 28, 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. 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). In

addition, Birchfield was decided on June 23, 2016, after appellant’s

sentence but during the pendency of the instant appeal.             Where a United


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States Supreme Court decision “results in a ‘new rule,’ that rule applies to all

criminal cases still pending on direct review.” Schriro v. Summerlin, 542

U.S. 348, 351 (2004).

        In Birchfield, as in this case, the defendant refused a blood test after

being read his implied consent warnings.5 He was advised that his refusal to

undergo blood alcohol content (“BAC”) testing would expose him to criminal

penalties.    Birchfield, 136 S.Ct. at 2170.       Birchfield pled guilty to a

misdemeanor violation of the North Dakota refusal statute but argued that

the Fourth Amendment prohibited criminalizing his refusal to submit to the

test.   Id. at 2170-2171.     The United States Supreme Court agreed and

reversed Birchfield’s conviction, holding that a State may not criminalize a

motorist’s refusal to comply with a demand to submit to blood testing.

        The Birchfield Court distinguished between breath and blood tests,

which it found to be significantly more intrusive.    Id. at 2184. The Court

determined that with regard to blood tests, the police must either seek a

warrant or show exigent circumstances. Id. The Court in Birchfield also

rejected the argument that warrantless blood tests are justified based on the

driver’s legally implied consent to submit to them:



5
  As recounted above, appellant testified that he was never given his implied
consent warnings and, in fact, wanted to submit to a blood test. The trial
court, sitting as finder-of-fact, found appellant’s testimony to be not
credible. The trial court determined that the officers complied with the
implied consent law and that appellant refused to submit to chemical testing.
(Notes of testimony, 1/21/16 at 71.)


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              Our prior opinions have referred approvingly to the
              general concept of implied-consent laws that impose
              civil penalties and evidentiary consequences on
              motorists who refuse to comply. Petitioners do not
              question the constitutionality of those laws, and
              nothing we say here should be read to cast doubt on
              them.

              It is another matter, however, for a State not only to
              insist upon an intrusive blood test, but also to
              impose criminal penalties on the refusal to submit to
              such a test.      There must be a limit to the
              consequences to which motorists may be deemed to
              have consented by virtue of a decision to drive on
              public roads.

Id. at 2185 (citations omitted).

      The Commonwealth concedes that appellant’s mandatory minimum

sentence   under     Section   3804(c)(1)(i)   for   refusal   was   illegal   under

Birchfield.    We agree.    Appellant cannot be subject to enhanced criminal

penalties for refusal to submit to a blood test. See also Commonwealth v.

Evans,        A.3d      , 2016 WL 7369120 at *8 (Pa.Super. Dec. 20, 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).6 Therefore, it is necessary to remand for resentencing without

consideration of the mandatory minimum sentence in Section 3804(c)(1)(i).


6
  The Supreme Court in Birchfield consolidated three separate cases, one of
which was petitioner Steve Michael Beylund’s case. After Beylund’s arrest
for DUI, the officer informed him of North Dakota’s implied consent advisory


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      Judgment    of   sentence   vacated.   Remanded     for   resentencing.

Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/28/2017




and that “test refusal in these circumstances is itself a crime.” Birchfield,
136 S.Ct. at 2172. Beylund then agreed to the requested blood draw, and
testing revealed a BAC of 0.250%, more than three times the legal limit.
Id. Beylund appealed, principally arguing that his consent to the blood test
was coerced by the officer’s warning that refusing to consent would itself be
a crime. The North Dakota Supreme Court found that Beylund’s consent
was valid, emphasizing that North Dakota’s implied consent advisory was not
misleading because it truthfully related the penalties for refusal.      The
Birchfield Court rejected this rationale:

            The North Dakota Supreme Court held that Beylund’s
            consent was voluntary on the erroneous assumption
            that the State could permissibly compel both blood
            and breath tests. Because voluntariness of consent
            to a search must be determined from the totality of
            all the circumstances, we leave it to the state court
            on remand to reevaluate Beylund’s consent given the
            partial inaccuracy of the officer’s advisory.

Id. at 2186 (citation and quotation marks omitted).


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