J-A22036-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                             Appellee

                        v.

    ALLEN PIPPEN,

                             Appellant                 No. 2112 EDA 2016


             Appeal from the Judgment of Sentence June 13, 2016
             in the Court of Common Pleas of Philadelphia County
               Criminal Division at No.: CP-51-CR-0009346-2014


BEFORE: BOWES, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                           FILED OCTOBER 31, 2017

        Appellant, Allen Pippen, appeals from the judgment of sentence imposed

following the trial court’s denial of his petition for a writ of certiorari

challenging his municipal court conviction of driving under the combined

influence of alcohol and a drug or combination of drugs.1 We affirm.

        The trial court aptly set forth the relevant facts and procedural history

of this case as follows:

             On December 1, 2013, officers arrested Appellant and
        subsequently charged him with Driving Under the Influence
        (“DUI”) pursuant to 75 Pa.C.S. § 3802(a)(1), 75 Pa.C.S. §
        3802(d)(1), 75 Pa.C.S. § 3802(d)(2), and 75 Pa.C.S. §
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   75 Pa.C.S.A. § 3802(d)(3).
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       3802(d)(3), as well as summary traffic offenses including: Driving
       With a Suspended License and Disregarding a Steady Red Light.[2]
       On March 7, 2014, Appellant was found guilty of both summary
       offenses in Traffic Court; the DUI charge was not adjudicated on
       that date. On March 10, 2014, Appellant filed a summary appeal
       of the Driving With a Suspended License charge.

              On May 2, 2014, Appellant moved to dismiss the DUI charge
       in Municipal Court before the Honorable Joyce Eubanks, arguing
       that the Commonwealth was barred from prosecuting him under
       the compulsory joinder provisions of 18 Pa.C.S. § 110(1)(ii)
       because he was previously prosecuted for and convicted of two
       traffic violations in the Traffic Division. Judge Eubanks denied
       Appellant’s motion. Appellant additionally argued a motion to
       suppress any statements made and the blood test results under
       the Fourth and Fourteenth Amendments of the United States
       Constitution and Article One, Section Eight of the Pennsylvania
       Constitution.[3] Judge Eubanks denied Appellant’s motion to
       suppress. Judge Eubanks subsequently found Appellant guilty
       solely of 75 Pa.C.S. § 3802(d)(3). On May 21, 2014, Appellant’s
       summary appeal of Driving With a Suspended License was granted
       and the charge was withdrawn by the Commonwealth.

             On August 18, 2014, Appellant filed an appeal to the Court
       of Common Pleas for a trial de novo for his DUI conviction in
       Municipal Court.      On September 2, 2014, Appellant filed a
       summary appeal for the Disregarding a Steady Red charge. On
       October 27, 2014, the summary appeal was granted and the
       Commonwealth withdrew the Disregarding a Steady Red Light
       charge. On March 21, 2016, Appellant filed a Writ of Certiorari for
       his DUI conviction [in the trial court]. On April 8, 2016, [the trial
       court] permitted Appellant to withdraw his request for a trial de
       novo. After argument on the Writ, [the trial court] denied
       Appellant’s Petition.



____________________________________________


2 Laboratory analysis showed a blood alcohol content of .0173 and the
presence of marijuana.

3 Specifically, Appellant argued that the police lacked reasonable suspicion to
stop his vehicle and had no probable cause to arrest him. (See N.T. Motions
and Waiver Trial, 5/02/14, at 8-9, 22-26).

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(Trial Court Opinion, 10/26/16, at 1-2) (record citations and some italics

omitted).

       On June 13, 2016, the trial court sentenced Appellant to a term of not

less than ninety nor more than 180 days’ incarceration in county prison.

Appellant timely appealed, and filed a timely, court-ordered concise statement

of errors complained of on appeal on August 31, 2016.           See Pa.R.A.P.

1925(b). Relevant herein, Appellant alleged for the first time, in his concise

statement, that his blood test results should be suppressed because his

consent to the blood draw was involuntary. (See Rule 1925(b) statement,

8/31/16, at unnumbered page 3) (citing Birchfield v. North Dakota, 136

S.Ct. 2160 (2016)).4 The trial court entered an opinion on October 26, 2016,

in which it stated that Appellant waived his issue regarding the voluntariness

of the blood draw. (See Trial Ct. Op., at 3); see also Pa.R.A.P. 1925(a).

       Appellant raises the following issues for our review:

       1. Did the [trial] court err where it denied Appellant’s motion to
       dismiss pursuant to 18 Pa. C.S. § 110(1)(ii) when the Municipal
       Court, Criminal Division, found Appellant guilty of DUI after the
       Municipal Court, Traffic Division had already found him guilty of
       related traffic charges on an earlier date, in violation of Rule
       110(1)(ii)’s prohibition against multiple convictions for the same
       behavior?

____________________________________________


4 The United States Supreme Court issued Birchfield on June 23, 2016, ten
days after Appellant’s sentencing, and before he filed this direct appeal. The
Birchfield Court analyzed the constitutionality of blood tests under the Fourth
Amendment guarantee against unreasonable searches and seizures, and
found that a blood test, because of its intrusive nature, requires a warrant.
See Birchfield, supra at 2173, 2184-85.


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        2. Did the [trial] court err in denying a new trial in light of
        Birchfield[, supra], because Appellant’s consent to draw blood
        was never voluntary under the totality of the circumstances and
        therefore the results of the blood test should not have been
        admissible at trial against him?

(Appellant’s Brief, at 2) (some capitalization omitted).

        Appellant’s first contention on appeal is that, under the compulsory

joinder statute at 18 Pa.C.S.A. § 110(1)(ii),5 his conviction for summary

offenses before the traffic court precluded the subsequent prosecution of the

DUI charges in the municipal court. (See id. at 6-10). We disagree.
____________________________________________


5   In relevant part, section 110 provides as follows:

        § 110. When prosecution barred by former prosecution for
        different offense

        Although a prosecution is for a violation of a different provision of
        the statutes than a former prosecution or is based on different
        facts, it is barred by such former prosecution under the following
        circumstances:

              (1) The former prosecution resulted in an acquittal or
              in a conviction as defined in section 109 of this title
              (relating to when prosecution barred by former
              prosecution for the same offense) and the subsequent
              prosecution is for:

                                       *       *   *

              (ii) any offense based on the same conduct or arising
              from the same criminal episode, if such offense was
              known to the appropriate prosecuting officer at the
              time of the commencement of the first trial and
              occurred within the same judicial district as the former
              prosecution unless the court ordered a separate trial
              of the charge of such offense[.]

18 Pa.C.S.A. § 110(1)(ii).



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       Initially, we note that because Appellant’s issue presents a question of

law, our standard of review is de novo and our scope of review is plenary.

See Commonwealth v. Dawson, 87 A.3d 825, 826–27 (Pa. Super. 2014),

appeal denied, 102 A.3d 984 (Pa. 2014).

       This Court’s recent en banc decision in Commonwealth v. Perfetto,

2017 WL 3776631 (Pa. Super. filed Aug. 30, 2017) (en banc), is instructive.6

The Perfetto Court addressed similar facts and concluded that a prior

summary conviction before the Philadelphia Municipal Court Traffic Division

did not bar subsequent prosecution of more serious offenses under the

compulsory joinder rule.            Specifically, this Court noted the “unique

jurisdictional organization of the Philadelphia Courts” and held:

              [I]n the context of compulsory joinder, where a defendant
       is charged with a summary traffic violation and a misdemeanor,
       the . . . summary offense must be disposed of in a proceeding in
       the [traffic court], which has jurisdiction exclusive of the Court of
       Common Pleas, and a separate proceeding must be held for the
       remaining, higher offenses.

                                      *        *   *

              . . . [42 Pa.C.S.A. § 1302 (relating to jurisdiction)] carves
       out an exception to compulsory joinder and directs that the
       summary traffic offense is within the exclusive jurisdiction of the
       traffic court. A prior disposition of a summary traffic offense in a
       traffic court does not bar the later prosecution of other criminal
       charges which arose in the same judicial district and at the same
       time as the summary traffic offense.

                                      *        *   *
____________________________________________


6 The Commonwealth recognizes that the outcome of Perfetto is dispositive
to this issue. (See Commonwealth’s Brief, at 7).

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            . . . [I]n those judicial districts which have a separate traffic
      court, the summary traffic offenses may reach disposition in a
      single, prior proceeding without precluding subsequent
      prosecution of higher offenses. . . .

Id. at *8-9.

      Applying our holding in Perfetto to the instant case, we conclude that

the compulsory joinder rule did not bar Appellant’s prosecution on the DUI

charges. See id. Therefore, there is no merit to his first issue on appeal.

      Appellant next argues that he is entitled to remand to the trial court for

a new trial or a hearing in light of Birchfield, supra, because his consent to

the blood draw was involuntary. (See Appellant’s Brief, at 2, 12). Appellant

further maintains that the trial court erred in determining that he waived this

claim. (See id. at 10-12). We disagree.

      As noted, Birchfield was decided on June 23, 2016, shortly after

Appellant’s    sentencing, and before he filed this direct appeal.                In

Commonwealth v. Grays, 2017 WL 3139993 (Pa. Super. filed July 25,

2017), a panel of this Court recently discussed the waiver of a Birchfield

claim under similar circumstances. The Grays Court explained:

              . . . [T]he High Court decided Birchfield after [Grays’] trial
      and sentencing in this case but during the pendency of this appeal.
      The decision announced a new criminal rule of law. 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. Summerlin, 542 U.S. 348, 351, 124 S.Ct. 2519, 2522,
      159 L.Ed.2d 442 (2004) (citation omitted). However, “[c]ase law
      is clear . . . that in order for a new rule of law to apply retroactively
      to a case pending on direct appeal, the issue had to be preserved
      at ‘all stages of adjudication up to and including the direct appeal.’



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     ” Commonwealth v. Tilley, 566 Pa. 312, 318, 780 A.2d 649,
     652 (2001).

     . . . [A]lthough [Grays] filed several pre-trial motions seeking to
     suppress and/or preclude his pre-arrest BAC, [he] did not
     challenge or present any claim that his pre-arrest blood
     draw/testing was involuntary, performed without his consent,
     and/or was coerced. Rather, as the trial court indicates in its Rule
     1925(a) opinion, [he] presented this specific claim for the first
     time in his court-ordered Rule 1925(b) statement. Consequently,
     [his] failure to raise the issue of his consent to the blood draw and
     testing in the trial court precludes our review of the claim. See
     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.”);
     Commonwealth v. Watson, 835 A.2d 786 (Pa. Super. 2003)
     (holding the failure to raise an issue in the trial court may not be
     cured by submitting the issue for the first time in a Rule 1925(b)
     statement).

Id. at *13 (footnotes and one case citation omitted).

     Here, similarly, Appellant did not challenge the voluntariness of the

blood draw in the Municipal or Common Pleas court. He instead raised the

claim for the first time in his Rule 1925(b) statement. Based on the foregoing

legal authority, we agree with the trial court and the Commonwealth that he

waived it. See id.; (see also Trial Ct. Op., at 3; Commonwealth’s Brief, at

4-5, 12).   Therefore, Appellant’s second issue on appeal merits no relief.

Accordingly, we affirm the judgment of sentence.

     Judgment of sentence affirmed.

     Judge Bowes joins the Memorandum.

     Judge Lazarus files a Concurring and Dissenting Memorandum.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/31/2017




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