J-S49043-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

KEITH ROBERT CALAMAN,

                        Appellant                   No. 2162 MDA 2014


         Appeal from the Judgment of Sentence of August 12, 2014
           In the Court of Common Pleas of Cumberland County
           Criminal Division at No(s): CP-21-CR-0000634-2014

BEFORE: BENDER, P.J.E., ALLEN AND OLSON, JJ.

MEMORANDUM BY OLSON, J.:                          FILED AUGUST 11, 2015

      Appellant, Keith Robert Calaman, appeals from the judgment of

sentence entered on August 12, 2014, as made final by the denial of his

post-sentence motion on December 10, 2014. We affirm.

      The trial court accurately summarized the factual background of this

case as follows:

      On November 14, 2013, Corporal Chester Dabrowski was
      operating a marked patrol car traveling north on Interstate 81.
      At approximately 1:20 [a.m.,] he observed [Appellant]’s vehicle
      exiting a rest area and ultimately reaching a speed of 85 miles
      per hour as determined by the Corporal’s speedometer. As the
      Corporal was following [Appellant]’s vehicle in an effort to
      accurately ascertain the vehicle’s speed, he observed [Appellant]
      go off the shoulder of the highway and nearly strike the guardrail
      and then drift back over across the center line and then back
      again to the shoulder. At that point the Corporal initiated a
      traffic stop as he was concerned [Appellant] would crash.
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        When the Corporal approached [Appellant]’s vehicle and began
        to speak to him, he immediately noticed the strong odor of
        alcohol. The Corporal asked him how much he had to drink that
        night and [Appellant] replied, “too much.” The Corporal did not,
        however, conduct a field sobriety test, as [Appellant] is a
        paraplegic who is unable to walk. Based on his many years of
        experience with intoxicated drivers, his observation of
        [Appellant], the strong odor of alcohol, and [Appellant]’s
        admission that he had had too much to drink, Corporal
        Dabrowski arrested [Appellant] on suspicion of driving under the
        influence.

        Subsequent to arrest, Corporal Dabrowski transported
        [Appellant] to Carlisle Regional Medical Center to conduct a
        blood draw to determine [Appellant]’s blood alcohol level. At the
        hospital, the Corporal read [Appellant] the DL-26 form [i]mplied
        [c]onsent warnings regarding the consequences of a refusal of
        chemical testing.     During his testimony on his own behalf,
        [Appellant] admitted he was read the warning[s]. [Following
        receipt of the warnings, Appellant refused to submit to chemical
        testing.] … Though it was never clearly articulated, the claimed
        basis for his refusal of chemical testing was due to [Appellant’s]
        paralysis, he had problems with his veins that would prevent a
        normal blood draw.

Trial Court Opinion, 3/6/15, at 3-4 (internal alteration and footnotes

omitted).

        The relevant procedural history is as follows.     On May 16, 2014,

Appellant was charged via criminal information with two counts of DUI-

general impairment1 and seven summary offenses. The criminal information

also alleged, as to one of the DUI charges, that Appellant refused chemical

testing. On July 8, 2014, Appellant was convicted of all nine offenses. The

jury also found that he refused chemical testing.


1
    75 Pa.C.S.A. § 3502(a).



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      On August 12, 2014, Appellant was sentenced to an aggregate term of

one to five years’ imprisonment. On August 21, 2014, Appellant filed a post-

sentence motion. On December 10, 2014, the trial court denied Appellant’s

post-sentence motion. This timely appeal followed.2

      Appellant presents one issue for our review:

      Did the [trial] court err in not instructing the jury to also
      consider whether law[]enforcement informed [Appellant] of the
      requisite warnings and consequences [of refusing chemical
      testing]?

Appellant’s Brief at 3.

      In his lone issue on appeal, Appellant argues that the trial court erred

by not instructing the jury properly regarding refusal to submit to chemical

testing. Specifically, he argues that the trial court was required to instruct

the jury that, in order to find that Appellant refused chemical testing, it must

find that he was read the DL-26 form, which outlines the increased penalties

for refusing to submit to chemical testing.        Appellant argues that this

presents a claim under Apprendi v. New Jersey, 530 U.S. 466 (2000),

which held that “any fact that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to a jury, and proved

beyond a reasonable doubt.”      Id. at 490.    Framing this contention as a

2
  On December 19, 2014, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b).    On January 5, 2015, Appellant filed his concise
statement. On March 6, 2015, the trial court issued its Rule 1925(a)
opinion. Appellant’s lone issue on appeal was included in his concise
statement.



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challenge to the legality of his sentence, Appellant asserts that his claim is

not subject to waiver, even if he did not object to the jury instructions

submitted to the jury.

      We begin by outlining the legal background relevant to this case. In

Apprendi, the Supreme Court of the United States held that any factor,

other than a previous conviction, that increases the maximum penalty for an

offense must be submitted to the jury and found beyond a reasonable doubt.

Id.   In this case, Appellant had three prior convictions for DUI (although

only two of those counted for sentencing purposes). Therefore, Appellant’s

conviction for DUI would generally be a second degree-misdemeanor.         75

Pa.C.S.A. § 3803(a)(2). A second-degree misdemeanor carries a maximum

penalty of two years’ imprisonment. 18 Pa.C.S.A. § 106(b)(7). As Appellant

was convicted of DUI with refusal, however, his DUI was graded as a first-

degree   misdemeanor.      75   Pa.C.S.A.   §   3803(b)(4).   A   first-degree

misdemeanor carries a maximum penalty of five years’ imprisonment.         18

Pa.C.S.A. § 106(b)(6).   As such, Appellant’s refusal to submit to chemical

testing was an element of the offense for purposes of the Sixth Amendment

of the United States Constitution.      Therefore, the Commonwealth was

required to allege refusal in the criminal information and the jury was

required to find Appellant refused chemical testing beyond a reasonable




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doubt.3 See Commonwealth v. Mobley, 14 A.3d 887 (Pa. Super. 2011).4

In Commonwealth v. Barr, 79 A.3d 668 (Pa. Super. 2013), this Court held

that, in order to find that a defendant refused chemical testing, a jury must

first find that the defendant was provided with the implied consent warnings.

Id. at 672-677.

      With that background in mind, we turn to whether Appellant presents

an Apprendi claim or a jury instruction claim. This distinction is important

in this case because, as Appellant concedes, he did not object to the jury

instructions at trial.   Appellant’s Brief at 18.   In order to preserve a claim

that a jury instruction was erroneously given, the appellant must have

objected to the charge at trial.     See Commonwealth v. Spotz, 84 A.3d

294, 318 n.18 (Pa. 2014) (citations omitted); Pa.R.A.P. 302(b) (“A general

exception to the charge to the jury will not preserve an issue for appeal.

Specific exception shall be taken to the language or omission complained

of.”); Pa.R.Crim.P. 647(B) (“No portions of the charge nor omissions from

the charge may be assigned as error, unless specific objections are made

3
  We note that a jury determination was also required under Alleyne v.
United States, 133 S.Ct. 2151 (2013). As Appellant’s right to a jury
determination is the same under Alleyne and Apprendi, we only reference
Apprendi in this memorandum.
4
  In Mobley, this Court held that DUI-refusal was not a separate crime from
DUI-general impairment.        Mobley, 14 A.3d at 891.           Thus, the
Commonwealth erred by charging Appellant with two counts of DUI – one
with refusal and one without refusal. This error, however, was harmless as
the two charges merged for sentencing. Nonetheless, we remind the parties
of this Court’s holding in Mobley.



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thereto before the jury retires to deliberate.”). Thus, Appellant’s lone issue

on appeal is waived if he raises a jury instruction claim. On the other hand,

an Apprendi claim challenges the legality of a defendant’s sentence.

Commonwealth v. Lawrence, 99 A.3d 116, 122 (Pa. Super. 2014), appeal

denied, 114 A.3d 416 (Pa. 2015) (citation omitted). “Challenges to an illegal

sentence cannot be waived[.]” Commonwealth v. Orie Melvin, 103 A.3d

1, 52 (Pa. Super. 2014) (footnote and citation omitted).        Thus, we may

reach the merits of Appellant’s lone issue if it is an Apprendi claim.

      We conclude that Appellant raises a jury instruction claim and not an

Apprendi claim.    We find our analysis in Barr instructive.      In Barr, the

defendant sought an instruction that required the jury to find that the police

had read the defendant his implied consent warnings in order to find that he

refused chemical testing.      The trial court denied the requested jury

instruction and the jury charge did not instruct the jury that in order to find

that the defendant refused chemical testing, they must find that the

defendant had been read his implied consent warnings.          Thereafter, the

defendant was convicted of DUI – general impairment with refusal.

      On appeal, this Court treated the defendant’s claim as a challenge to

the jury instructions and not a challenge to the legality of the defendant’s

sentence.   Barr, 79 A.3d at 672.      This Court ultimately found that the

defendant was entitled to his requested jury charge under Apprendi.         As

noted, however, this Court viewed the issue through the lens of a challenge



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to the trial court’s jury instructions. Barr had preserved the issue by timely

objecting to the trial court’s jury instructions.

      This characterization of the issue is consistent with this Court and our

Supreme Court’s treatment of similar issues.        As noted in the procedural

history of this case, the jury found that Appellant refused chemical testing.

As such, the jury found, beyond a reasonable doubt, every element of DUI-

general impairment with refusal.      Appellant’s argument is merely that the

trial court’s instruction on one element – the refusal element – was

erroneous.     This argument is essentially the same as when a defendant

argues that the trial court’s instruction on any element of an offense was

legally incorrect.   In both situations the jury finds that the element was

satisfied   beyond   a   reasonable    doubt,   thereby    satisfying   the   Sixth

Amendment’s right to a jury trial.      Also, in both situations the defendant

argues that the jury’s determination was flawed because of an incorrect jury

instruction.   In this latter case, when a defendant argues that the trial

court’s instruction on any element of an offense was legally incorrect, courts

analyze the claim as a challenge to the trial court’s jury instructions and not

a challenge to the legality of the defendant’s sentence.

      For example, in Commonwealth v. Thur, 906 A.2d 552 (Pa. Super.

2006), appeal denied, 946 A.2d 687 (Pa. 2008), the defendant argued that

the jury was incorrectly instructed regarding an element of the offense.

Specifically, the jury was instructed that it was required to find that the



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defendant had a blood alcohol concentration of at least .08.       Id. at 568.

This instruction, however, was patently erroneous. See id. The defendant

argued that this erroneous instruction deprived him of the right to a jury

determination on every element of the offense. See id. Nonetheless, this

Court held that the defendant waived his claim because he failed to object to

the jury instruction at trial. Id.

      Similarly, in Commonwealth v. Burwell, 58 A.3d 290 (Pa. Super.

2012), appeal denied, 69 A.3d 242 (Pa. 2013), the trial court incorrectly

instructed the jury regarding serious bodily injury. Id. at 795. Specifically,

the trial court did not permit the jury to determine if the victim’s injuries

amounted to serious bodily injury as it instructed the jury that “under the

circumstances, it appears that the injuries suffered by the victim constitute

serious bodily injury.”      Id. (internal alteration and citation omitted;

emphasis removed). On appeal, the defendant argued that this instruction

was flawed and deprived him of the right to a jury determination regarding

serious bodily injury. Nonetheless, this Court found the issue waived as the

defendant failed to object to the jury instruction at trial. Id.

      Finally, in Commonwealth v. Diggs, 949 A.2d 873 (Pa. 2008), the

defendant argued that the trial court erred by not re-instructing the jury on

the elements of first-degree murder. Id. at 881. Therefore, he essentially

argued that the jury was not required to find every element of first-degree

murder beyond a reasonable doubt.           Nonetheless, our Supreme Court



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deemed his challenge waived because he failed to object to the jury

instruction at trial. See id.

      Thur, Burwell, and Diggs all indicate that an Apprendi claim is not

raised when a jury finds, beyond a reasonable doubt, that a defendant

committed every element of an offense based on incorrect jury instructions.

Instead, Thur, Burwell, and Diggs all indicate that such a claim is a

challenge to the trial court’s jury instructions which must be raised at trial.

This case is no different.      The jury found every element of DUI-general

impairment with refusal even if the jury charge on refusal may have been

erroneous.

      For these reasons, we conclude that Appellant’s lone issue on appeal is

a challenge to the trial court’s jury instructions and not an Apprendi claim.

The jury found, beyond a reasonable doubt, that Appellant refused chemical

testing thereby satisfying Apprendi. Appellant merely challenges the trial

court’s instruction regarding refusal. As such, in order to preserve the issue

for our review, Appellant was required to object to the jury instruction at

trial. As Appellant failed to object to the trial court’s jury instruction at trial,

he has waived his lone issue on appeal.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/11/2015




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