J-A26018-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                   Appellant             :
                                         :
                                         :
             v.                          :
                                         :
                                         :
KIRK JACOB HAYS                          :   No. 1787 MDA 2016

             Appeal from the Order Entered October 31, 2016
   In the Court of Common Pleas of Lycoming County Criminal Division at
                     No(s): CP-41-CR-0001083-2014


BEFORE: BOWES, J., OLSON, J., and RANSOM, J.

MEMORANDUM BY OLSON, J.:                          FILED JANUARY 19, 2018

      The Commonwealth of Pennsylvania appeals from the order entered on

October 31, 2016. The subject order granted the post-sentence motion filed

by Kirk Jacob Hays (hereinafter “Defendant”) and granted Defendant a new

trial. We vacate and remand.

      At approximately 2:00 a.m. on April 11, 2014, Pennsylvania State

Police Trooper Ryan Golla and his partner, Trooper Adam Kirk, observed a

blue Toyota truck make a right-hand turn without using a turn signal. N.T.

Trial, 6/22/16, at 11.   Because of this violation, the troopers conducted a

traffic stop of the vehicle. Id.

      As Trooper Kirk testified at trial, he approached the driver’s side of the

vehicle and saw that Defendant was the driver of the vehicle; Trooper Kirk

testified that he immediately smelled “a strong odor of alcoholic beverage

coming from the vehicle.”      Id. at 35.    Since there was a passenger in
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Defendant’s vehicle, Trooper Kirk testified that he asked Defendant to exit

the vehicle; the trooper testified that he then “smell[ed] an odor of alcohol

coming from” Defendant. Id. Further, Trooper Kirk testified, he requested

that Defendant perform several field sobriety tests; Trooper Kirk testified

that Defendant’s performance on those tests caused him to “believe [that

Defendant] was under the influence [of alcohol] to a degree that rendered

him incapable of safely operating the vehicle.” Id. at 38-39. Trooper Kirk

thus arrested Defendant and transported him to the Williamsport DUI Center

for processing. Id.

      Old Lycoming Police Officer Matthew McCormick testified that, at the

Williamsport DUI Center, he requested that Defendant submit to a blood

draw to test whether alcohol was present in Defendant’s blood. Id. at 64-

65.   In accordance with this request, Officer McCormick read Defendant

Pennsylvania’s DL-26 form. See id. At the time, the DL-26 form declared

(among other things): “it is the officer’s duty to inform the licensee that, if

the licensee refuses to submit to the chemical test, the licensee’s operating

privileges will be suspended for at least one year, that if the licensee refuses

and is convicted [of] or pleads guilty to violating Section 3802(a) of the

Vehicle Code (related to impaired driving), the licensee is subject to more

severe penalties, the same as [if] he [were] convicted of driving with the

highest rate of alcohol.”   See id.; see also Sitoski v. Commonwealth,

Dep’t of Transp., 11 A.3d 12, 15 n.2 (Pa. Cmwlth. 2010).




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        Defendant then submitted to the blood draw.       Subsequent testing

revealed that Defendant’s blood alcohol content was 0.192.            N.T. Trial,

6/22/16, at 89-90.

        On July 17, 2014, the Commonwealth filed an information against

Defendant and charged him with committing a number of crimes, including

driving under the influence of alcohol (“DUI”) (general impairment), DUI

(highest rate of alcohol), and turning movements and required signals.1

        On January 21, 2015, Defendant filed an omnibus pre-trial motion.

Within this pre-trial motion, Defendant requested that the trial court

suppress the evidence against him because: 1) the initial stop of his vehicle

was illegal and 2) the Commonwealth “failed to preserve evidence of the

[Pennsylvania State Police] dash cam video” relating to his vehicle stop.

Defendant’s Pre-Trial Motion, 1/21/15, at 1-4. Of note, within Defendant’s

pre-trial motion, Defendant never claimed that his consent to the blood draw

was involuntary or coerced and Defendant never requested that the trial

court suppress the evidence of his blood alcohol content as the result of an

alleged involuntary consent. See id.

        The trial court denied Defendant’s pre-trial motion on May 26, 2015

and, on June 22, 2016, Defendant proceeded to a jury trial on the charges.

At the conclusion of the trial, the jury found Defendant guilty of DUI (general


____________________________________________


1   75 Pa.C.S.A. §§ 3802(a)(1), 3802(c), and 3334(a), respectively.



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impairment) and DUI (highest rate of alcohol).2 N.T. Trial, 6/22/16, at 130.

On August 23, 2016, the trial court sentenced Defendant to serve a term of

five days to six months in jail for the DUI (general impairment) conviction;

in   accordance      with    an    agreement     between   Defendant   and   the

Commonwealth, the trial court imposed no further penalty for the DUI

(highest rate of alcohol) conviction. N.T. Sentencing, 8/23/16, at 6.

       On September 1, 2016, Defendant filed a post-sentence motion where

he claimed – for the first time – that his consent to the blood draw was

involuntary. Defendant’s Post-Sentence Motion, 9/1/16, at 2-4. Specifically,

Defendant claimed, on the day after his jury trial (or, June 23, 2016), the

United States Supreme Court decided Birchfield v. North Dakota, ___

U.S. ___, 136 S.Ct. 2160 (2016). In Birchfield, the Supreme Court held

that a state may not “impose criminal penalties on the refusal to submit to

[a warrantless blood] test.” Birchfield, 136 S.Ct. at 2185-2186. Further,

the Supreme Court held, where the petitioner only consented to a

warrantless blood test after being told by the police that “test refusal in

these circumstances is itself a crime,” the petitioner’s consent to the test

was potentially involuntary.        Id.    The Birchfield Court thus vacated the

petitioner’s judgment of sentence and remanded the case to the state court,

so that the court could “reevaluate [the petitioner’s] consent . . . [, based

____________________________________________


2The trial court found Defendant guilty of the summary offense of turning
movements and required signals. N.T. Trial, 6/22/15, at 133.



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on] the totality of all the circumstances . . . [and] given the partial

inaccuracy of the officer’s advisory.” Id. at 2186.

      Within   Defendant’s   post-sentence   motion,   Defendant    relied   on

Birchfield and essentially claimed that he only consented to the blood draw

after the police informed him that, if he refused the blood draw, he would be

subject to enhanced criminal penalties upon conviction.      See Defendant’s

Post-Sentence Motion, 9/1/16, at 2-4.      Defendant requested that the trial

vacate his judgment of sentence and schedule a “hearing [] to determine if

[Defendant’s] consent [to the blood draw] was voluntary.” Id. at 4.

      The Commonwealth opposed Defendant’s motion and argued that

Defendant was not entitled to post-sentence relief because Defendant did

not properly preserve the issue at, or before, trial.        Commonwealth’s

Answer, 10/4/16, at 2.

      On October 31, 2016, the trial court entered an order granting

Defendant’s post-sentence motion and granting Defendant a new trial. Trial

Court Order, 10/31/16, at 1-2. The Commonwealth filed a timely notice of

appeal and now raises one claim to this Court:

        Did the trial court commit an error of law by holding that
        [Birchfield] applies retroactively to [Defendant], even
        though [Defendant] failed to properly preserve the
        suppression argument that his consent for a blood draw was
        coerced, and granting [Defendant] a new trial?

Commonwealth’s Brief at 7 (some internal capitalization omitted).

      We agree with the Commonwealth and conclude that, since Defendant

did not raise any claim at, or before, trial that his consent to the blood draw

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was involuntary, the trial court erred in granting Defendant’s post-sentence

motion. Indeed, our recent opinion in Commonwealth v. Moyer, 171 A.3d

849 (Pa. Super. 2017) requires that we vacate the trial court’s order in this

case.

        In Moyer, Ms. Moyer was found guilty of DUI and homicide by vehicle.

On June 21, 2016 (or, two days before the United States Supreme Court

decided Birchfield), the trial court imposed its judgment of sentence. Id.

at 851-852. While the trial court retained jurisdiction of the case, Ms. Moyer

filed a nunc pro tunc post-sentence motion and claimed that, in accordance

with Birchfield, her consent to the blood draw was involuntary.      Id.   Ms.

Moyer thus requested that the trial court vacate her judgment of sentence

and remand for a new trial. Id.

        The trial court accepted Ms. Moyer’s nunc pro tunc post-sentence

motion, but held that Ms. Moyer was “not entitled to retroactive application

of Birchfield because she did not preserve a challenge to the warrantless

blood draw during trial.”   Id. at 852. On appeal to this Court, Ms. Moyer

argued that the trial court “erred in declining to vacate her DUI conviction

under Birchfield.” Id. at 855. We held that the trial court did not err. As

we explained:

          the United States Supreme Court handed down Birchfield
          two days after [Ms. Moyer’s] sentence. [Ms. Moyer] never
          challenged the warrantless blood draw during trial, and did
          not raise any issue under Birchfield until her nunc pro tunc
          post-sentence motion. In Pennsylvania, it has long been
          the rule that criminal defendants are not entitled to


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         retroactive application of a new constitutional rule unless
         they raise and preserve the issue during trial.
         Commonwealth v. Newman, 99 A.3d 86, 90 (Pa. Super.
         2014) (en banc), appeal denied, 121 A.3d 496 (Pa. 2014).
         The Newman Court relied on Commonwealth v. Cabeza,
         469 A.2d 146, 148 (Pa. 1983). There, the Supreme Court
         wrote:

              [W]here an appellate decision overrules prior law and
              announces a new principle, unless the decision
              specifically declares the ruling to be prospective only,
              the new rule is to be applied retroactively to cases
              where the issue in question is properly preserved at all
              stages of adjudication up to and including any direct
              appeal.

         Id. (emphasis added). Instantly, [Ms. Moyer] failed to
         challenge the warrantless blood draw at any stage of the
         litigation prior to her nunc pro tunc post-sentence motion.
         Thus, she is not entitled to retroactive application of
         Birchfield.

Moyer, 171 A.3d at 855.

       In the case at bar, Defendant “failed to challenge the warrantless

blood draw at any stage of the litigation prior to [his] . . . post-sentence

motion.”     See id.      Therefore, as was true in Moyer, Appellant “is not

entitled to retroactive application of Birchfield.”3 See id. The trial court

erred in concluding otherwise.

____________________________________________


3 Within Defendant’s brief and the trial court’s opinion, Defendant and the
trial court posit that the Commonwealth waived any claim that Defendant
“failed to preserve the Birchfield issue.” Trial Court Opinion, 6/19/17, at 5;
see also Defendant’s Brief at 7-9. According to Defendant and the trial
court, this waiver occurred when the Commonwealth and Defendant agreed,
at sentencing, that the trial court should only sentence Defendant on the
DUI (general impairment) conviction and that the trial court should impose
no further penalty on the DUI (highest rate of alcohol) conviction. Id.
(Footnote Continued Next Page)


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      Pursuant to Moyer, we vacate the trial court’s October 31, 2016 order,

which granted Defendant’s post-sentence motion.

      Order vacated. Case remanded. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 01/19/2018




(Footnote Continued) _______________________

Neither Defendant nor the trial court has cited to any      case law or other
authority to support this waiver argument – and we          have found none.
Simply stated, Defendant waived any claim that              his consent was
involuntary by failing to raise the argument at or before   trial. Moyer, 171
A.3d at 855; Cabeza, 469 A.2d at 148.

Moreover, to the extent Defendant and the trial court rely upon Pennsylvania
Rule of Criminal Procedure 581(B) to support the ruling, we note that Rule
581(B) permits a supplemental pretrial suppression motion where “the
opportunity did not previously exist, or the interests of justice otherwise
require.” Pa.R.Crim.P. 581(B). In the case at bar, Defendant did not file a
supplemental pretrial motion seeking the suppression of evidence; rather,
Defendant filed a post-sentence motion, where he sought the vacation of
his judgment of sentence and a remand for a new trial. Therefore, Rule
581(B) has no application to the case at bar.




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