J-S16010-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

JAMIE R. LIPCHIK

                            Appellant                   No. 556 WDA 2016


               Appeal from the Judgment of Sentence April 1, 2016
                   In the Court of Common Pleas of Erie County
               Criminal Division at No(s): CP-25-CR-0002184-2015


BEFORE: MOULTON, J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY MOULTON, J.:                       FILED: OCTOBER 24, 2017

       Jamie R. Lipchik appeals from the April 1, 2016 judgment of sentence

entered in the Erie County Court of Common Pleas following his jury trial

conviction for driving under the influence of alcohol–general impairment

(“DUI”), 75 Pa.C.S. § 3802(a)(1).1 We vacate the judgment of sentence and

remand.

       The trial court set forth the following factual history:

               On February 15, 2015, at approximately 1:15 a.m.,
            Patrolman Herman Lucas of the Millcreek Police
            Department responded to a reported fight. Lucas arrived
____________________________________________


       *
           Retired Senior Judge assigned to the Superior Court.
       1
         The trial court further found Lipchik guilty of the summary offenses
of driving while operating privilege is suspended or revoked and general
lighting requirements. 75 Pa.C.S. §§ 1543(a) and 4303(a), respectively.
J-S16010-17


            on the scene and observed [Lipchik] drive away at a high
            rate of speed and, at one point, spin in a complete one–
            eighty. Lucas followed [Lipchik] until he pulled into a
            driveway. After both exited their vehicles, Lucas detected
            a strong odor of alcoholic beverage emanating from
            [Lipchik]. [Lipchik] also had bloodshot, glassy eyes and
            slurred speech.

               Based on the poor weather, Patrolman Lucas
            transported [Lipchik] to Millcreek Community Hospital to
            perform field sobriety tests. While there, [Lipchik] refused
            to complete the field sobriety tests and also refused a
            blood test.

               [Lipchik] was found guilty of the aforementioned
            offenses. [Lipchik] was sentenced on April 1, 2016, to a
            term of 1 to 5 years’ imprisonment. [Lipchik] did not file a
            post-sentence motion.

1925(a) Op. at 1-2 (citations to record omitted). On April 15, 2016, Lipchik

filed a timely notice of appeal.

       Lipchik raises the following issues on appeal:

            A. Whether the trial court committed an abuse of
            discretion and/or error of law when it denied, in part,
            [Lipschik’s motion] to suppress certain statements made
            by [Lipchik] that were made during the time of arrest and
            in response to questions meant to elicit an incriminating
            response and without being properly notified of his rights
            under Miranda.[2]

            B. Whether the trial court committed an abuse of
            discretion and/or error of law when it denied the motion
            for mistrial after statements made by the court, sua
            sponte, during the cross-examination of the arresting
            police, were prejudicial towards [Lipchik].

Lipchik’s Br. at 3 (full capitalization and suggested answers omitted).


____________________________________________


       2
           Miranda v. Arizona, 384 U.S. 436 (1966).



                                           -2-
J-S16010-17



      We first address Lipchik’s claim that the trial court erred in denying his

motion for a mistrial.   He argues that, during cross-examination of Officer

Lucas and again at the end of the first day of trial, the trial court incorrectly

informed the jury that Lipchik did not have a right to refuse the blood test

and that Lipchik’s refusal was “wrongful.”        According to Lipchik, these

statements improperly prejudiced the jury and required that the trial court

grant his motion for a mistrial.

      Our standard of review for an order denying a motion for a mistrial is

as follows:

            In criminal trials, declaration of a mistrial serves to
         eliminate the negative effect wrought upon a defendant
         when prejudicial elements are injected into the case or
         otherwise discovered at trial. By nullifying the tainted
         process of the former trial and allowing a new trial to
         convene, declaration of a mistrial serves not only the
         defendant’s interest but, equally important, the public’s
         interest in fair trials designed to end in just judgments.
         Accordingly, the trial court is vested with discretion to
         grant a mistrial whenever the alleged prejudicial event
         may reasonably be said to deprive the defendant of a fair
         and impartial trial. In making its determination, the court
         must discern whether misconduct or prejudicial error
         actually occurred, and if so, . . . assess the degree of any
         resulting prejudice. Our review of the resulting order is
         constrained to determining whether the court abused its
         discretion. Judicial discretion requires action in conformity
         with the law on facts and circumstances before the trial
         court after hearing and consideration. Consequently, the
         court abuses its discretion if, in resolving the issue for
         decision, it misapplies the law or exercises its discretion in
         a manner lacking reason.

Commonwealth v. Baldwin, 158 A.3d 1287, 1293 (Pa.Super. 2017)

(quoting Commonwealth v. Jaynes, 135 A.3d 606, 615 (Pa. Super.), app.


                                      -3-
J-S16010-17



denied, 145 A.3d 724 (Pa. 2016) (citation omitted)). Further, “[a] mistrial is

not necessary where cautionary instructions are adequate to overcome

prejudice.”   Commonwealth v. Fortenbaugh, 69 A.3d 191, 193 (Pa.

2013) (citation omitted).

      During cross-examination of Officer Lucas, the following exchange

occurred in the presence of the jury:

         Q. There’s no [blood alcohol content (“BAC”)], right, no
         chemical test?

         A. He refused.

         Q. Right, I understand that. He exercised his right to take
         the test or not.

         THE COURT: No, he didn’t have a right not to take the
         test once he was placed under arrest, right?

         [DEFENSE COUNSEL]: You can exercise that right.

         THE COURT: It’s a power you have but he’s required
         to take the test when he’s asked once he’s placed
         under arrest, he didn’t do that.

         THE WITNESS: That’s one of the –

         [DEFENSE COUNSEL]: That’s the information.

         THE COURT: I’ll give them instructions on that, but,
         ladies and gentlemen, I don’t agree with that
         statement – that that’s a correct statement of the
         law.

         BY [DEFENSE COUNSEL]:

         Q. Well you can either agree to take the test or disagree
         to take the test, right? You can’t force someone to take
         the test.

         THE COURT: Don’t go there because that’s my legal
         instruction on the law. It’s different he has a power to
         refuse and right to refuse. Leave that subject alone.

                                    -4-
J-S16010-17


         It’s now you’re asking him what the law is and that’s for
         me.

N.T., 2/10/16, at 67-68 (emphasis added).      At the end of the first day of

trial, the trial court further stated:

             The second matter that came up today is this question
         of whether this refusal to take – provide blood was
         justified.    Here’s my instruction on the law.        The
         Commonwealth’s view is that driving is a privilege and
         when you drive in the Commonwealth, by virtue of driving
         you consent to have your blood or breath tested for alcohol
         if you’re placed under arrest. And here it’s uncontroverted
         that the defendant was, in fact, placed under arrest and
         was told by the officer that he needed to take, provide
         blood. He didn’t do it.

             The defense says that’s – that was his right. I’ll be
         clear. A person has the power to refuse. That is, we as a
         society aren’t so – I don’t know what word to use –
         aggressive that when they refuse, we hold them down and
         stick a needle in their arm and take the blood. The
         Supreme Court says we have a right of personal
         autonomy. So the government doesn’t have a right to just
         take the blood out of your arm but the law is clear that by
         virtue of having a driv[ers’] license in Pennsylvania, you
         consented to that.

            In the Court’s view, when you fail to give that
         test, where you fail to provide that blood, that
         refusal is wrongful. I’ll tell you more about how you can
         use that tomorrow. It doesn’t settle this case but it’s a
         factor for you to consider.

            What I don’t want you left with is a belief that
         was the suggestion that somehow the defendant
         was exercising some right that’s protected, because
         in my view his refusal was wrongful. I’ll talk more
         about that tomorrow.




                                         -5-
J-S16010-17



Id. at 87-88 (emphasis added). The following day, Lipchik filed a motion for

a mistrial,3 which the trial court denied.

       The trial court included the following charge in the jury instructions:

               Normally in these cases or often you have a blood
           alcohol. Here you don’t have that. And the parties take
           different positions about this blood alcohol test. Let me
           talk about it. First of all, sometimes there’s a dispute
           about refusal.     It seems to me there’s no dispute.
           Although the officer didn’t initially place [Lipchik] under
           arrest, later, after he didn’t take the field sobriety test,
           which I’ll say he had no duty to take, you just don’t have
           to take those, he was placed under arrest, all right, and
           asked to submit to a [blood]. And at that time he refused.
           And again I say, it[] appears there’s no dispute about
           whether he refused or not. But I say again, that’s for you
           to determine because you have absolute control over what
           the facts are.     The Commonwealth’s view is that he
           refused. If he refused, then you can take that refusal into
           account.

              What to do with it? Well, it’s a factor to consider. The
           refusal doesn’t establish [Lipchik’s] guilt, certainly not.
           Okay? And even though I said he had no right to refuse,
           I’m not implying that either. I’m simply saying he had
           a duty to take the test in the circumstance he was in.

              The Commonwealth argues when you have a refusal,
           that you can view that as consciousness of guilt. That is
____________________________________________


       3
        As the dissent correctly notes, a motion for mistrial must be “made
when the event is disclosed.” Pa.R.Crim.P. 605. Here, the trial court
provided its instruction at the end of the first day of trial, immediately before
permitting the jury to leave for the day. The trial court and Lipchik’s counsel
then discussed the trial court’s comments, after which court recessed for the
day. Counsel made a motion for mistrial the following morning, before the
second day of trial commenced. Where, as here, there were no trial court
proceedings between the court’s instruction and the motion for mistrial, and
where the trial court did not treat the motion as untimely but instead denied
it on the merits, we conclude Lipchik has not waived this issue.



                                           -6-
J-S16010-17


          that he knew if he took the test, that those blood results
          would serve as evidence against him and, therefore, that’s
          why he refused.

             The question isn’t whether that is the Commonwealth’s
          argument. It is. The question is whether that finds
          comport[] with you. The defense argues to the contrary,
          there are other reasons, he was annoyed, he was tired,
          whatever. They have arguments why they ask you not to
          draw an inference for the refusal. And I’m here to tell you
          [that you] may consider the refusal along with all other
          facts and circumstances in the case and give it whatever
          weight you think is appropriate in determining what it says
          about the charge here and whether it’s been proven
          beyond a reasonable doubt.           But it certainly doesn’t
          establish in and of itself [Lipchik’s] guilt, certainly not. It’s
          simply a factor to consider with all the other evidence.
          And I’m expressing when I talked about a duty to
          take the test, no opinion at all on the ultimate
          question here. That’s entirely for you.

N.T., 2/11/16, at 43-44 (emphasis added).

     The Pennsylvania Supreme Court recently re-affirmed that individuals

have a statutory right to refuse to submit to a blood test. Commonwealth

v. Myers, ___ A.3d ____, 2017 WL 3045867, at *6 (Pa. July 19, 2017). In

Myers, the Supreme Court stated that under Pennsylvania’s statutory

scheme:

          [A] motorist placed under arrest for DUI has a critical
          decision to make. The arrestee may submit to a chemical
          test and provide the police with evidence that may be used
          in a subsequent criminal prosecution, or the arrestee may
          invoke the statutory right to refuse testing, which: (i)
          results in a mandatory driver’s license suspension under
          75 Pa.C.S. § 1547(b)(1); (ii) renders the fact of refusal
          admissible as evidence in a subsequent DUI prosecution
          pursuant to 75 Pa.C.S. § 1547(e); and (iii) authorizes




                                        -7-
J-S16010-17


           heightened criminal penalties under 75 Pa.C.S. § 3804(c) if
           the arrestee later is convicted of DUI.[4]

Myers, 2017 WL 3045867, at *6. Accordingly, although individuals have a

statutory right to refuse to submit to a blood test, such refusal may be

admitted as evidence at trial.

       Based on this precedent, we conclude that the trial court erred when it

informed the jury, during the cross-examination of Officer Lucas and at the

end of the first day of trial, that Lipchik had no right to refuse a blood test

and that his refusal was “wrongful.”

       We further conclude that the trial court’s pre-deliberation jury

instruction did not adequately correct this error.            Those instructions did

clarify    that   the   refusal   does     not   establish   guilt;   that   while   the

Commonwealth is free to argue that refusal reflects consciousness of guilt,

the refusal was only one factor to be considered; and it was for the jury to

determine the weight that factor carried. The trial court further instructed

that only the jury could determine whether Lipchik was guilty of DUI. Those

instructions, however, also included the following:           “I’m simply saying he

had a duty to take the test in the circumstances he was in,” and “I’m

expressing when I talked about a duty to take the test.” The jury therefore

deliberated after being informed multiple times that Lipchik had no right to
____________________________________________


       4
        Following Birchfield v. North Dakota, 136 S.Ct. 2160 (2016), a
defendant who refuses to submit to a blood test is no longer subject to
increased criminal penalties if later convicted of DUI. Commonwealth v.
Giron, 155 A.3d 635, 640 (Pa.Super. 2017).



                                           -8-
J-S16010-17



refuse to submit to a blood test. Although a jury is permitted to draw an

adverse inference from a defendant’s refusal to submit to a blood draw, the

instructions taken as a whole not only failed to acknowledge Lipchik’s right

to refuse but also improperly characterized his exercise of that right as

“wrongful.”

      Our Court has noted that “[t]he judge occupies an exalted and

dignified position; he is the one person to whom the jury, with rare

exceptions, looks for guidance, and from whom the litigants expect absolute

impartiality.” Commonwealth v. Claiborne, 102 A.2d 900, 904 (Pa.Super.

1953); see also Commonwealth v. Burwell, 42 A.3d 1077, 1083

(Pa.Super. 2012) (“[W]e cannot underestimate the weight that a jury would

afford the opinion of a trial judge who opines that the element of serious

bodily injury was proven in a case.”). Here, the trial court informed the jury

not only that Lipchik had no right to refuse to submit to the blood test but

that his refusal was “wrongful.” Such instructions impaired the jury’s ability

to render a fair and impartial verdict; the instructions informed the jury that

Lipchik did something wrong beyond the offenses for which he was charged

and could have caused the jury to place greater weight on the refusal than

warranted by the evidence presented at trial.        See Burwell, 42 A.3d at

1083 (finding that trial court committed reversible error when it instructed

the jury that “under the circumstances it appears that the injuries suffered .

. . constitute serious bodily injury. But that is a decision for you”).




                                      -9-
J-S16010-17



      Because we conclude that the trial court erred in denying the motion

for a mistrial, we vacate the judgment of sentence and remand this matter

for a new trial.

      Lipchik also claims that the trial court erred in denying his suppression

motion. Because this evidentiary issue likely will re-occur at a new trial, we

address it now.    Lipchik maintains that he was in custody when he was

handcuffed and placed in the police car. He argues that, because the police

officers did not read him his Miranda rights, the trial court should have

suppressed his refusal to take field sobriety tests and refusal to consent to a

blood test.

      When reviewing the denial of a suppression motion, we must

determine whether the record supports the trial court’s factual findings and

“whether the legal conclusions drawn from those facts are correct.”

Commonwealth v. Brown, 64 A.3d 1101, 1104 (Pa.Super. 2013) (quoting

Commonwealth v. Cauley, 10 A.3d 321, 325 (Pa.Super. 2010)). We may

only consider evidence presented at the suppression hearing. In re L.J., 79

A.3d 1073, 1085-87 (Pa. 2013).      In addition, because the Commonwealth

prevailed on this issue before the suppression court, we consider only the

Commonwealth’s evidence and so much of the defendant’s evidence “as

remains uncontradicted when read in the context of the record as a whole.”

Brown, 64 A.3d at 1104 (quoting Cauley, 10 A.3d at 325).              We may

reverse only if the legal conclusions drawn from the facts are in error. Id.




                                    - 10 -
J-S16010-17



     The trial court found that Lipchik was in custody at the time he was

taken to Millcreek Community Hospital and that the police officers did not

advise him of his Miranda rights. Order, 12/14/15. It further found that a

custodial interrogation occurred when Officer Lucas asked Lipchik why he

was refusing to participate in the field sobriety tests. Id. The trial court,

therefore, granted the motion to suppress Lipchik’s response. Id. The trial

court, however, denied the motion to suppress in all other respects. Id.

     Lipchik contends that his refusal to perform the field sobriety tests was

inadmissible because he was subject to a custodial interrogation and not

provided Miranda warnings.     Our Supreme Court has held that the right

against self-incrimination in the Fifth Amendment of the United States

Constitution and Article I, Section 9 of the Pennsylvania Constitution does

not apply to field sobriety tests, which are non-testimonial in nature.

Commonwealth v. Hayes, 674 A.2d 677, 679, 683 (Pa. 1996). Because

field sobriety tests are non-testimonial, the police officers did not need to

provide Miranda warnings prior to requesting that Lipchik perform the tests.

Commonwealth v. Stewart, 846 A.2d 738, 741-42 (Pa.Super. 2004); see

also Hayes, 674 A.2d at 679, 683. Therefore, his statement of refusal to

perform the tests was properly admitted.

     Lipchik also contends that the fact of his refusal to submit to a blood

test was inadmissible.   This Court recently reaffirmed that a defendant’s

refusal to submit to a blood test is admissible at a trial for DUI.

Commonwealth v. Bell, ___ A.3d ____, 2017 WL 3046937, at *5

                                   - 11 -
J-S16010-17



(Pa.Super. July 19, 2017). Accordingly, we conclude the trial court did not

err in denying Lipchik’s motion to suppress his refusal to perform field

sobriety tests and his refusal to submit to a blood test.

      Judgment of sentence vacated.           Case remanded.    Jurisdiction

relinquished.

Judge Ransom joins the memorandum.

Judge Platt files a concurring/dissenting memorandum.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/24/2017




                                     - 12 -
