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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                      :
                                                 :
DONALD LEE FRY,                                  :          No. 698 WDA 2016
                                                 :
                                Appellant        :


          Appeal from the Judgment of Sentence, December 14, 2015,
               in the Court of Common Pleas of McKean County
               Criminal Division at No. CP-42-CR-0000435-2014


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND SOLANO, J.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                          FILED MARCH 07, 2017

        Donald     Lee        Fry   appeals   from   the   judgment   of   sentence   of

December 14, 2015, following his conviction of one count of driving under

the influence (“DUI”) -- general impairment1 and related summary offenses.

After careful review, we affirm the convictions but vacate appellant’s

sentence for DUI and remand for resentencing.

        At a non-jury trial on October 28, 2015, before the Honorable John H.

Pavlock,     the     Commonwealth             adduced      the   following    evidence.

Trooper Jeffrey Walker of the Pennsylvania State Police testified that on

April 12, 2014, he was conducting routine patrol and “running radar” at the

intersection of State Route 219 and Route 6, “just south of Lantz Corner.”



1
    75 Pa.C.S.A. § 3802(a)(1).
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(Notes of testimony, 10/28/15 at 5, 8.)      At 7:22 p.m., Trooper Walker

observed appellant’s white Pontiac Grand Prix traveling north on Route 219

at a “very high rate of speed.” (Id. at 8, 11.) Trooper Walker activated his

radar unit which showed appellant to be traveling at 109 miles per hour in a

55-mile-per-hour zone. (Id. at 8, 11.) At that time, Trooper Walker pulled

out onto the highway, activated his emergency lights, and effectuated a

traffic stop. (Id. at 12.) Trooper Walker testified that appellant pulled over

approximately one-half mile down the road. (Id.)

      Immediately upon approaching the driver’s side window of the vehicle,

Trooper Walker detected a strong odor of an alcoholic beverage coming from

appellant’s breath. (Id. at 13.) Appellant had glassy, bloodshot, and watery

eyes, and slurred speech.     (Id. at 14.)   Appellant was fumbling for his

documents and had to be asked twice for his vehicle registration card. (Id.

at 14, 54.)    Appellant was laughing, which Trooper Walker found to be

unusual.   (Id. at 14.)   Trooper Walker asked appellant if he had been

drinking, and appellant responded that he had consumed 2 or 3 beers. (Id.

at 15.)

      Appellant failed field sobriety tests and was placed under arrest for

suspicion of DUI. (Id. at 35.) Trooper Walker transported appellant to Kane

Community Hospital for a blood draw; however, after being given his implied

consent warnings, appellant refused blood testing.          (Id. at 35-36.)




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Appellant signed the DL-26 form2 indicating his refusal.     (Id. at 36-37;

Commonwealth’s Exhibit 3.)

     At the conclusion of trial, appellant argued that the Commonwealth

had failed to establish jurisdiction in McKean County. (Id. at 87.) The trial

court rejected this argument, taking judicial notice of the fact that the

intersection where appellant was stopped is in McKean County:

                  The first thing I’m going to address is the
           jurisdiction issue. I have to decide the case based
           on what’s in the record.

                  As far as towns and places and are they in
           McKean County or not, that -- that’s a tough issue
           because I wasn’t asked to take judicial notice.
           However, based on all the facts, the trooper testified
           he was stationed in this county, that this incident
           happened south of Lantz Corner, but more
           importantly just south of the Barracks. So there’s
           sufficient evidence to establish jurisdiction.

                  It is an issue though that wouldn’t be an issue
           if it was this happened in McKean County. But that
           -- that wasn’t in the record. However, I find that
           there’s sufficient evidence in the record to
           demonstrate that this alleged crime occurred in
           McKean County, so I’m denying the request to
           dismiss the case based on a jurisdiction issue.

Id. at 109-110.




2
   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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        The trial court found appellant guilty of count 1, DUI, as well as the

summary offenses listed in counts 2, 3, and 4.3      (Id. at 116-117; docket

#15.)     On December 14, 2015, appellant was sentenced to 20 days’ to

6 months’ incarceration for DUI pursuant to 75 Pa.C.S.A. § 3804(c)(1).4

Appellant received fines on the summary offenses. (Docket #13.) A timely

post-sentence motion was filed on December 21, 2015, and denied on

April 19, 2016, following a hearing. A timely notice of appeal was filed on

May 11, 2016.      On May 23, 2016, 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; appellant timely complied on June 10, 2016. On June 13,

2016, the trial court filed a Rule 1925(a) opinion, relying on its opinion and

order of April 19, 2016, denying appellant’s post-sentence motion. (Docket

#6.)


3
  75 Pa.C.S.A. §§ 3362(a)(2) (maximum speed limits), 3714(a) (careless
driving), and 3736(a) (reckless driving), respectively.
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[.]

75 Pa.C.S.A. § 3804(c)(1).


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      Appellant has raised the following issues for this court’s review:

            I.    Should judgement of sentence be reversed by
                  operation of law under the circumstances of
                  this case because the Commonwealth failed to
                  present sufficient evidence in the record that
                  appellant drove in McKean County, the
                  Commonwealth only establishing that the stop
                  occurred “just south of” a known intersection
                  which is extremely close to the next county?

            II.   Should the case be remanded for resentencing
                  in light of the fact that the arresting officer did
                  not receive and execute a search warrant
                  before demanding that appellant submit to a
                  blood test?

Appellant’s brief at 5 (capitalization omitted).

      In his first issue on appeal, appellant claims that the Commonwealth

failed to present sufficient evidence of where the offense occurred to

establish jurisdiction. We disagree.

            A court has no jurisdiction over an offense unless the
            offense occurred within the county in which the trial
            takes place.    Commonwealth v. Thomas, 305
            Pa.Super. 158, 451 A.2d 470 (1982). The burden to
            establish the court’s jurisdiction is on the
            Commonwealth. Commonwealth ex rel. Chatary
            v. Nailon, 416 Pa. 280, 285, 206 A.2d 43 (1965).

Commonwealth v. Sestina, 546 A.2d 109, 112 (Pa.Super. 1988), appeal

denied, 554 A.2d 508 (Pa. 1989).

            “The doctrine of judicial notice is intended to avoid
            the necessity for the formal introduction of evidence
            in certain cases when there is no real need for it,
            where a fact is so well established as to be a matter
            of common knowledge.” Albert Appeal, 372 Pa.
            13, 20, 92 A.2d 663, 666 (1952); See
            Commonwealth ex rel. Duff v. Keenan, 347 Pa.


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              574, 582-83, 33 A.2d 244, 249 (1943) (“so well
              known as to be incontestable.”). Included in the
              subjects appropriate for judicial notice is the county
              in which a town or city is located, [s]ee Emert v.
              Larami Corp., 414 Pa. 396, 200 A.2d 901 (1964);
              Commonwealth v. Kaiser, 184 Pa. 493, 39 A. 299
              (1898), and the location of roads and highways.
              See Schmidt v. Allegheny County, 303 Pa. 560,
              154 A. 803 (1931); Commonwealth v. Ball, 277
              Pa. 301, 121 A. 191 (1923).

Commonwealth v. Varner, 401 A.2d 1235, 1236 (Pa.Super. 1979).

         In Varner, the offense occurred in the parking lot of the Shippensburg

Fair Grounds and on Possum Hollow Road near the Fair Grounds. Id. While

the appellant never alerted the prosecution that the county of the offense

was in issue, he argued on post-trial motions and on appeal that

Shippensburg is near the border of Cumberland and Franklin counties and

that the prosecution never specifically established that the situs of the

offense was in Franklin County. Id. at 1235-1236. This court held that the

trial court did not err in taking judicial notice that the offense occurred in

Franklin County where the locality of the offense was only technically in

issue.    Id. at 1236.   In overruling post-trial motions, the trial court took

judicial notice that “it is a well-known geographical fact that” the area near

the Fair Grounds where the appellant was arrested is in Franklin County. Id.

at 1235.     See also Sestina, 546 A.2d at 112 (where the Commonwealth

established a specific street and intersection location, the trial court would

have been entitled to take judicial notice of the fact that the site of the

offense was in Warren County).


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      Here, Trooper Walker testified that he was situated “just south” of the

intersection of State Route 219 and Route 6 when he clocked appellant’s

vehicle at 109 miles per hour. (Notes of testimony, 10/28/15 at 8.) There

does not appear to be any dispute that the intersection of State Route 219

and Route 6 is in McKean County, and the trial court took judicial notice of

this fact. (Trial court opinion, 4/19/16 at 1.) Furthermore, Trooper Walker

testified that appellant’s vehicle came to a stop approximately one-half mile

after Trooper Walker pulled out and activated his emergency equipment.

(Notes of testimony, 10/28/15 at 12.)     Trooper Walker also testified that

appellant’s vehicle came to a sudden stop, pulling quickly onto the berm of

the highway. (Id. at 51-52.) The trial court took judicial notice of the fact

that the McKean County/Elk County line is approximately 6 miles south of

the intersection of State Route 219 and Route 6.          (Trial court opinion,

4/19/16 at 1-2.) This was sufficient to establish that the crime occurred in

McKean County, and therefore, the trial court had jurisdiction.

      We now turn to appellant’s second issue on appeal. Appellant basically

argues that his sentence was illegal under 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. We are constrained to agree.

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

below; in post-sentence motions and in his Rule 1925(b) statement, he only



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challenged jurisdiction.     The Commonwealth contends that the issue is

waived on this basis.      (Commonwealth’s brief at 8.)      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. Foster, 17 A.3d 332, 345

(Pa. 2011) (plurality) (“[W]here a sentencing court is required to impose a

mandatory minimum sentence, and that mandatory minimum sentence

affects a trial court’s traditional sentencing authority or the General

Assembly’s   intent   in   fashioning    punishment   for   criminal   conduct,   a

defendant’s challenge thereto sounds in legality of sentence and is therefore

nonwaivable.”).   See also 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 States Supreme Court decision “results in a ‘new rule,’ that rule

applies to all criminal cases still pending on direct review.”         Schriro v.



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Summerlin, 542 U.S. 348, 351 (2004). The Commonwealth cites case law

for the proposition that in order for a new rule to apply retroactively to a

case pending on direct appeal, the issue had to be preserved at all stages of

litigation up to and including the direct appeal. (Commonwealth’s brief at 8,

citing     Commonwealth        v.   Tilley,   780     A.2d       649   (Pa.   2001);

Commonwealth v. Cabeza, 469 A.2d 146 (Pa. 1983).)                         See also

Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and

cannot be raised for the first time on appeal.”). However, the Pennsylvania

Supreme       Court   in   Barnes   made   clear    that   “an    exception   to   the

issue-preservation requirement exists where the challenge is one implicating

the legality of the appellant’s sentence.” Barnes, 2016 WL 7449232 at *3,

citing Commonwealth v. Dickson, 918 A.2d 95, 99 (Pa. 2007). Therefore,

the matter is not waived, and appellant is entitled to retroactive benefit of

the new rule.

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

being read his implied consent warnings. 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




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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,

the latter of 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:

            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).

      Appellant cannot be subject to enhanced criminal penalties for refusal

to submit to a blood test.   See also Commonwealth v. Giron,             A.3d

   , 2017 WL 410267 (Pa.Super. filed Jan. 31, 2017) (“[P]ursuant to

Birchfield, in the absence of a warrant or exigent circumstances justifying a

search, a defendant who refuses to provide a blood sample when requested



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by police is not subject to the enhanced penalties provided in 75 Pa.C.S.A.

§§ 3803-3804.” (footnote omitted)); 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).5

Therefore, it is necessary to remand for resentencing without consideration

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




5
  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
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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      Judgment    of   sentence   vacated.   Remanded   for   resentencing.

Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/7/2017




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