J-S18009-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                             Appellee

                        v.

    SHAIN WILLIAM FOCHT

                             Appellant                 No. 865 WDA 2017


          Appeal from the Judgment of Sentence imposed May 5, 2017
                  In the Court of Common Pleas of Erie County
               Criminal Division at No: CP-25-CR-0000341-2016


BEFORE: STABILE, J., MUSMANNO, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY STABILE, J.:                               FILED JUNE 12, 2018

        Appellant, Shain William Focht, appeals from the judgment of sentence

imposed on May 5, 2017 in the Court of Common Pleas of Erie County. Relying

on Birchfield v. North Dakota, 136 S.Ct. 2160 (2016),1 Appellant argues

that the trial court erred in not suppressing the results of his warrantless blood

test. We disagree. Accordingly, we affirm.

        The underlying facts are not in dispute. On March 16, 2016, Appellant

was charged with driving under the influence of a drug, second offense. On

February 7, 2017, following a jury trial in absentia, Appellant was convicted

as charged. At no point, before or at trial, did Appellant raise the Birchfield
____________________________________________


1Birchfield held that the Fourth Amendment to the United States Constitution
does not permit warrantless blood tests incident to arrests for drunk driving
and that a state may not criminalize a motorist’s refusal to comply with a
demand to submit to blood testing. Birchfield, 136 S. Ct. at 2185-86.
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issue. On May 5, 2017, Appellant was sentenced to a standard range of nine

months to eighteen months of incarceration, followed by two years of state-

supervised probation.     On May 15, 2017, Appellant filed a motion for

reconsideration, raising for the first time the Birchfield issue. On June 7,

2017, following a hearing, the motion for reconsideration was denied. This

appeal followed.

      As noted, on appeal, Appellant, relying on Birchfield, argues that the

trial court should not have admitted the results of the blood test. Nowhere,

however, does Appellant address the trial court’s finding that Appellant waived

the Birchfield issue.     Indeed, the record shows that Appellant raised

Birchfield for the first time in a motion for reconsideration.          Notably,

Birchfield was decided on June 23, 2016, approximately 7 months before

trial. Yet, Appellant decided to raise the issue in a motion for reconsideration,

only after trial and after the imposition of sentence. We must agree with trial

court, therefore, that Appellant waived the issue. See Pa.R.A.P. 302(a).

      In Commonwealth v. Moyer, 171 A.3d 849 (Pa. Super. 2017), we

noted:

      Appellant never challenged the warrantless blood draw during
      trial, and did not raise any issue under Birchfield until her nunc
      pro tunc post-sentence motion. In Pennsylvania, it has long been
      the rule that criminal defendants are not entitled to retroactive
      application of a new constitutional rule unless they raise and
      preserve the issue during trial. Commonwealth v. Newman, 99
      A.3d 86, 90 (Pa. Super. 2014) (en banc), appeal denied, 632 Pa.
      693, 121 A.3d 496 (2014). The Newman Court relied on
      Commonwealth v. Cabeza, 503 Pa. 228, 469 A.2d 146, 148
      (1983). There, the Supreme Court wrote:


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            [W]here an appellate decision overrules prior law and
            announces a new principle, unless the decision
            specifically declares the ruling to be prospective only,
            the new rule is to be applied retroactively to cases
            where the issue in question is properly preserved at
            all stages of adjudication up to and including any
            direct appeal.

      Id. (emphasis added). Instantly, Appellant failed to challenge the
      warrantless blood draw at any stage of the litigation prior to her
      nunc pro tunc post-sentence motion. Thus, she is not entitled to
      retroactive application of Birchfield.

Moyer, 171 A.3d at 855.

      Similarly, here, Appellant failed to challenge the warrantless blood draw

at any stage of the litigation prior to his motion for reconsideration.

Accordingly, Appellant is not entitled to retroactive application of Birchfield.

See Moyer, supra.

      Even if Appellant had timely raised the issue before the trial court, and

he were otherwise entitled to the application of Birchfield, the issue would

be nonetheless without merit.

      “A search conducted without a warrant is deemed to be
      unreasonable and therefore constitutionally impermissible, unless
      an established exception applies.” Commonwealth v. Strickler,
      563 Pa. 47, 757 A.2d 884, 888 (2000). “Exceptions to the warrant
      requirement include the consent exception, the plain view
      exception, the inventory search exception, the exigent
      circumstances exception, the automobile exception . . ., the stop
      and frisk exception, and the search incident to arrest exception.”
      Commonwealth v. Dunnavant, 63 A.3d 1252, 1257 n.3 (Pa.
      Super. 2013).

      The “administration of a blood test . . . performed by an agent of,
      or at the direction of the government” constitutes a search under
      both the United States and Pennsylvania Constitutions.


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      Commonwealth v. Kohl, 532 Pa. 152, 615 A.2d 308, 315
      (1992); Schmerber v. California, 384 U.S. 757, 770, 86 S.Ct.
      1826, 16 L.Ed.2d 908 (1966). Since the blood test in the case at
      bar was performed without a warrant, the search is presumptively
      unreasonable “and therefore constitutionally impermissible,
      unless an established exception applies.” Strickler, 757 A.2d at
      888.

Commonwealth v. Evans, 153 A.3d 323, 327-28 (Pa. Super. 2016). “One

such exception is consent, voluntarily given.”        Strickler, 757 A.2d 888

(citation omitted).

      In his brief to this Court, Appellant plainly admitted that “Appellant

consented to the blood draw.” Appellant’s Brief at 4 (citing N.T. Trial, 2/7/17,

at 43). There is no indication in the record (or even in his appellate brief) that

Appellant ever challenged the voluntariness of his consent, that the arresting

officer informed him of enhanced penalties for refusing to submit to a blood

draw, or that the blood draw was administered before Appellant gave consent.

Because Appellant unequivocally and voluntarily consented to the blood draw,

Birchfield would be inapposite.

      In light of the foregoing, the trial court correctly admitted the blood test

results into evidence.

       Judgment of sentence affirmed.



Judgment Entered.




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Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/12/2018




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