J-S18010-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ROGER ALLEN MCCONNELL II

                            Appellant                 No. 1825 EDA 2016


              Appeal from the Judgment of Sentence March 1, 2016
                 In the Court of Common Pleas of Monroe County
               Criminal Division at No(s): CP-45-CR-0001121-2015


BEFORE: PANELLA, J., SOLANO, J., and FITZGERALD, J. 

MEMORANDUM BY PANELLA, J.                             FILED APRIL 18, 2017

        Appellant, Roger Allen McConnell II, appeals from the judgment of

sentence entered March 1, 2016, in the Monroe County Court of Common

Pleas. Appellant contests the court’s denial of his motion to suppress the

results of his blood alcohol content (“BAC”) test, and challenges the

constitutionality of 75 Pa.C.S.A. § 1543(b)(2). We affirm.

        The relevant facts and procedural history of this case are as follows.

Pennsylvania State Police Trooper Wood was responding to the reported

theft of an all-terrain vehicle (“ATV”) when he was notified that the

complainant had stopped the alleged thief on a nearby road. When Trooper

Wood arrived, Appellant was standing next to an ATV in the roadway. The

____________________________________________



    Retired Justice assigned to the Superior Court.
J-S18010-17



complainant was in a truck parked behind Appellant’s ATV, and two other

state troopers were also present.

      The trooper asked Appellant for identification, and inquired about what

had occurred. Appellant replied that he and his son had taken an ATV from

the complainant’s residence as collateral for money the complainant owed

Appellant’s son. However, Trooper Wood determined that the ATV on the

roadway actually belonged to Appellant, and not the complainant. The

trooper smelled a moderate odor of alcohol emanating from Appellant, and

indicated Appellant slurred his speech and appeared to be stumbling.

Trooper Wood asked Appellant if he had been drinking, and Appellant replied

he consumed beer that day. Appellant also stated he had been operating the

ATV on the roadway.

      Trooper Wood then administered the Horizontal Gaze Nystagmus test,

a field sobriety test. Based on the above observations, Trooper Wood placed

Appellant under arrest on suspicion of DUI. Appellant thereafter had his

blood drawn, and the lab results indicated Appellant had a BAC of 0.140.

      Procedurally, the Commonwealth charged Appellant with driving under

the influence, a misdemeanor, and related summary offenses. Appellant filed

an omnibus pretrial motion, seeking to suppress the results of the BAC test.

After argument, the court denied the motion. Appellant proceeded to a

bifurcated trial. The jury found Appellant not guilty of DUI, while the court

convicted Appellant of the following offenses: driving with BAC .02 or greater

while operating privilege is suspended or revoked; driving while license

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suspended; driving an unregistered vehicle; operation of a motor vehicle

without required financial responsibility; operating an ATV on streets and

highways; failure to register ATV; no registration plate; operation of an ATV

while under the influence of alcohol; and no ATV liability insurance. 1. The

court sentenced Appellant to 90 days’ incarceration and a fine. 2 Appellant

timely filed post-sentence motions, which the court denied. This timely

appeal followed.3

        Appellant raises two issues for our review:4

        WHETHER THE TRIAL COURT COMMITTED AN ERROR OF LAW IN
        FINDING THAT SECTION 1543(b)(2) OF THE VEHICLE CODE
        DOES NOT VIOLATE DUE PROCESS?
____________________________________________


1
 75 Pa.C.S.A. §§ 1543(b)(1.1)(i); 1543(b)(1);1301(a); 1786(f); 7721(a);
7711.1(a)(1); 7711.1(a)(2); 7726(a)(3); 7730(a), respectively.
2
  Appellant’s unfortunate penchant for drinking and driving his ATV triggered
additional legal difficulties for him in the case of Commonwealth v.
McConnell, No. 163 EDA 2016 (Pa. Super., filed January 25, 2017)
(unpublished memorandum) (Panella, J.).
3
  We note with extreme displeasure that Assistant District Attorney Curtis J.
Rogers requested and was granted an extension, but failed to file a brief on
the Commonwealth’s behalf.

  “An appellee is required to file a brief that at minimum must contain ‘a
summary of argument and the complete argument for appellee.’”
Commonwealth v. Pappas, 845 A.2d 829, 835 (Pa. Super. 2004) (quoting
Pa.R.A.P. 2112). In Pappas, the panel referred to the Commonwealth’s
failure to file a proper appellee’s brief as “unacceptable.” Id. We echo that
opinion. And we remind Attorney Rogers of his obligation to file an appellee’s
brief on the Commonwealth’s behalf in future appeals.
4
    We have reordered Appellant’s issues for ease of disposition.



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      WHETHER, PRIOR TO TRIAL, THE TRIAL COURT COMMITTED AN
      ERROR OF LAW WHEN IT DENIED [] APPELLANT’S MOTION TO
      SUPPRESS?

Appellant’s Brief, at 9.

      In Appellant’s first question for our review, he argues that §

1543(b)(2) of the Vehicle Code is unconstitutional. Appellant contends he

preserved this issue by raising it at trial in an unrelated case (his other ATV

case, see footnote two, supra) and in the direct appeal from that

conviction. We disagree.

      Appellant’s failure to raise this issue before the trial court in this

specific case precludes our review. See Pa.R.A.P. 302(a). Moreover, even if

Appellant had properly preserved this issue, we previously found it to be

without merit. See Commonwealth v. McConnell, No. 163 EDA 2016, at

6-9 (Pa. Super., filed January 25, 2017) (unpublished memorandum).

      In his second issue, Appellant argues Trooper Wood’s investigative

detention took place prior to Appellant’s alleged statement that he drove on

the roadway, meaning the detention occurred before the trooper had

reasonable suspicion to stop him. Appellant repeatedly insists his proximity

to the ATV does not prove he actually operated it, and that without such

proof, the Commonwealth’s case is untenable. He contends Trooper Wood

also lacked probable cause to arrest Appellant, because the trooper failed to

describe the extent of Appellant’s stumbling or slurred speech.

      “Once a motion to suppress evidence has been filed, it is the

Commonwealth’s burden to prove, by a preponderance of the evidence that

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the challenged evidence was not obtained in violation of the defendant’s

rights.” Commonwealth v. Wallace, 42 A.3d 1040, 1047-1048 (Pa. 2012)

(citations omitted).

      Our standard of review in addressing a challenge to a trial
      court’s denial of a suppression motion is whether the factual
      findings are supported by the record and whether the legal
      conclusions drawn from those facts are correct. When reviewing
      the ruling of the suppression court, we must consider only the
      evidence of the prosecution and so much of the evidence of the
      defense as remains uncontradicted when read in the context of
      the record as a whole. Where the record supports the findings of
      the suppression court, we are bound by those facts and may
      reverse only if the legal conclusions drawn therefrom are in
      error.

Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007) (citation

omitted).

      “It is within the suppression court’s sole province as factfinder to pass

on the credibility of witnesses and the weight to be given to their testimony.

The suppression court is free to believe all, some or none of the evidence

presented at the suppression hearing.” Commonwealth v. Elmobdy, 823

A.2d 180, 183 (Pa. Super. 2003) (citation omitted).

      We begin with Appellant’s assertion that the trooper lacked reasonable

suspicion for the investigative detention. The Fourth Amendment of the

United States Constitution and Article I, Section 8 of the Pennsylvania

Constitution protect citizens from unreasonable searches and seizures. See

Commonwealth v. Carter, 105 A.3d 765, 768 (Pa. Super. 2014) (en

banc), appeal denied, 117 A.3d 295 (Pa. 2015). “To secure the right of

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citizens to be free from ... [unreasonable searches and seizures], courts in

Pennsylvania require law enforcement officers to demonstrate ascending

levels of suspicion to justify their interactions with citizens as those

interactions become more intrusive.” Commonwealth v. Beasley, 761

A.2d 621, 624 (Pa. Super. 2000) (citation omitted). Our Supreme Court has

defined three levels of interaction between citizens and police officers: (1) a

mere encounter, (2) an investigative detention, and (3) a custodial

detention. See Commonwealth v. Fuller, 940 A.2d 476, 478 (Pa. Super.

2007).

      “[T]o establish grounds for reasonable suspicion, the officer must

articulate specific observations which, in conjunction with reasonable

inferences derived from those observations, led him reasonably to conclude,

in light of his experience, that criminal activity was afoot and that the person

he stopped was involved in that activity.” Commonwealth v. Reppert, 814

A.2d 1196, 1204 (Pa. Super. 2002) (en banc) (citation omitted). “Therefore,

the fundamental inquiry of a reviewing court must be an objective one,

namely, whether the facts available to the officer at the moment of the

[intrusion] warrant a man of reasonable caution in the belief that the action

taken was appropriate.” Id. (internal quotation marks and citation omitted;

brackets in original).

      Instantly, Trooper Wood testified that he received a dispatch directing

him to report to a nearby road, where the complainant of a theft claimed to


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have stopped the thief. See N.T. Suppression Hearing, 11/23/15, at 7-8.

When the trooper arrived, Appellant admitted to taking an ATV from the

complainant as collateral for a debt owed. See id., at 11. Despite the later

discovery that Appellant was the owner of the ATV at the scene, Trooper

Wood had reasonable suspicion to believe criminal activity was afoot and

that Appellant was a participant in that activity. See Reppert, 814 A.2d at

1204. Though Appellant ultimately was not charged with theft following this

encounter, that does not invalidate the trooper’s reasonable suspicion for

conducting the investigatory detention. Thus, Appellant’s contention that

Trooper Wood lacked the reasonable suspicion necessary to conduct a brief

investigatory detention is without merit.

      We next address Appellant’s claim that the trooper lacked probable

cause to arrest. “Probable cause exists where the officer has knowledge of

sufficient facts and circumstances to warrant a prudent person to believe

that the driver has been driving under the influence of alcohol or a controlled

substance.” Commonwealth v. Hilliar, 943 A.2d 984, 994 (Pa. Super.

2008).

      [W]e have held that one “drives” a vehicle when the
      Commonwealth proves that the car was in motion at the time in
      question. The Commonwealth need not produce direct evidence
      of driving, such as testimony that a defendant was seen driving,
      but may instead rely on circumstantial evidence creating the
      inference that the vehicle had been in motion in order to meet
      its evidentiary burden.




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Commonwealth v. Costa-Hernandez, 802 A.2d 671, 674 (Pa. Super.

2002) (citations omitted).

      As for probable cause to arrest, the trooper smelled a moderate odor

of alcohol emanating from Appellant. See N.T. Suppression Hearing,

11/23/15, at 11. Trooper Wood noted Appellant’s slurred speech and

stumbling. See id. When asked if he had been drinking, Appellant admitted

to drinking beer that day, but refused to state how much beer he had

consumed. See id., at 12. Appellant also admitted he drove the ATV on the

roadway prior to Trooper Wood’s arrival. See id. Trooper Wood administered

a field sobriety test, and Appellant showed signs of intoxication. See id.

Trooper Wood then decided to arrest Appellant on suspicion of DUI.

      Based on the above testimony, we find Trooper Wood had probable

cause to arrest Appellant. See Hilliar, 943 A.2d 984, 994; Costa-

Hernandez, 802 A.2d at 674. Accordingly, we find the suppression court

properly denied Appellant’s motion to suppress for lack of probable cause.

See Eichinger, 915 A.2d at 1134.

      Appellant next protests the warrantless blood draw as having violated

his constitutional rights. Specifically, he argues that his consent to the blood

draw was invalid, relying on Birchfield v. North Dakota, 136 S.Ct. 2160

(2016), a case decided approximately five months prior to the filing of his

opening brief in this case.




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      As it pertains to this case, the Birchfield Court found that “motorists

cannot be deemed to have consented to submit to a blood test on pain of

committing a criminal offense.” 136 S.Ct. at 2186. In so finding, the Court

vacated the conviction of one of the petitioners who had consented to a

blood draw after being informed by police that he must comply with the

blood test, or else face criminal penalties.

      Though refusal to submit to a blood draw is not a separate crime in

Pennsylvania, at the time of this incident involving Appellant, refusal to

submit to a blood draw, paired with a later conviction for or plea to drunk

driving under any section of 75 Pa.C.S.A. § 3802, mandated higher penalties

for the defendant. See 75 Pa.C.S.A. § 3804. Penalties.

      This Court recently interpreted Birchfield as applied to Pennsylvania’s

drunk driving laws in the case of Commonwealth v. Evans, 153 A.3d 323

(Pa. Super. 2016). In that case, the arresting officer warned Evans, who was

suspected of driving under the influence, that he would face higher penalties

for refusing a blood draw. Evans thereafter consented to a blood draw, and

was charged with driving under the influence. Evans later challenged that

consent as involuntary, and filed a motion to suppress. His motion was

denied, and he appealed his drunk driving conviction to this Court.

      Based on the Birchfield decision, the Evans panel vacated the

judgment of sentence and the suppression court’s order, and remanded the

case to the trial court for reevaluation of Evans’s consent, given the


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inaccuracy of the officer’s warning after Birchfield invalidated that law

imposing higher penalties for refusing a blood draw. See Evans, 153 A.3d at

331.

       As noted, the Court decided Birchfield after the sentencing in this

case, but during the pendency of this appeal. And the decision announced a

new criminal rule. 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 (2004). “Case law is

clear, however, 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.’” Commonwealth v.

Tilley, 780 A.2d 649, 652 (Pa. 2001) (quoting Commonwealth v. Cabeza,

469 A.2d 146, 148 (Pa. 1983)). “[A]n exception to the issue-preservation

requirement exists where the challenge is one implicating the legality of the

appellant’s sentence.” Commonwealth v. Barnes, 151 A.3d 121, 124 (Pa.

2016) (citation omitted).

       Here, Appellant does not challenge the legality of his sentence; indeed,

as he consented to the blood draw he was not subject to the higher

sentencing penalty for refusal. See 75 Pa.C.S.A. § 3804. And, fatal to his

claim, Appellant did not challenge consent in the lower court; he does so




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only on direct appeal.5 Appellant’s failure to raise the issue of his consent to

the warrantless blood draw at any time prior to his opening brief in this

appeal precludes our review of the claim.6 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.”); Barnes, 151 A.3d at 124; Tilley, 780 A.2d at 652.

       Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/18/2017




____________________________________________


5
  The record reveals only that Appellant “acknowledged his Implied Consent
and O’Connell Warnings.” Affidavit of Probable Cause, filed 3/23/15, at 1.
Perhaps understandably, given the suppression hearing preceded
Birchfield, neither party elicited testimony about the circumstances of
consent or the phrasing of Trooper Wood’s warnings during any stage of the
proceedings.
6
  In Evans, “[w]ithin the suppression motion, [a]ppellant claimed that the
police coerced his consent by ‘inform[ing him] that if he [did] not submit to
extraction and subsequent testing of his blood, he [would] face[ ] stiffer
criminal penalties.’” 153 A.3d at 324 (quoting [a]ppellant’s Motion to
Suppress, 1/9/14, at 3).



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