J-S57001-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

JOHN STANFORD

                            Appellant               No. 3508 EDA 2015


           Appeal from the Judgment of Sentence October 27, 2015
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0005497-2015


BEFORE: PANELLA, J., SOLANO, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, J.                        FILED OCTOBER 06, 2017

       The Philadelphia Municipal Court convicted Appellant, John Stanford,1

of driving under the influence of marijuana. Stanford appealed for a trial de

novo to the Court of Common Pleas. He failed to appear for his trial, and the

Court of Common Pleas dismissed his appeal and entered a new judgment of

sentence pursuant to Pa.R.Crim.P. 1010(B). Stanford then filed this timely

pro se appeal.

       In his counseled brief, he argues the Municipal Court erred in denying

his motion to suppress evidence gained from his blood test. Specifically, that
____________________________________________


1 At his sentencing hearing before the Municipal Court, Stanford explained
that he only used the name John Stanford once, when he was approximately
18 years old. See N.T., Sentencing, 6/1/15, at 5-6. At all times during this
proceeding, he identified himself as Robert Waller. For consistency purposes,
we will use the name contained in our caption.
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his consent to the blood draw was unconstitutional pursuant to Birchfield v.

North Dakota, 136 S.Ct. 2160 (2016).

      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.” Id., 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 Stanford, 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 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 Evans, 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.




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      Based on Birchfield, 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 inaccuracy of the

officer’s warning after Birchfield invalidated the law imposing higher

penalties for refusing a blood draw. See 153 A.3d at 331.

      Where, as in Birchfield, 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, Stanford 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, Stanford did not challenge consent in the Court of Common Pleas in a

motion for a new trial. See Commonwealth v. Johnson, 146 A.3d 1271,

1274 (Pa. Super. 2016). Thus, his claim is waived for purposes of appeal.


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See id.; 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.”)

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/6/2017




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