J-A14014-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ALFRED DINO PELLEGRINI, JR.,
Appellant No. 1150 MDA 2014
Appeal from the Judgment of Sentence Entered June 17, 2014
In the Court of Common Pleas of Cumberland County
Criminal Division at No(s): CP-21-CR-0000651-2013
BEFORE: BENDER, P.J.E., JENKINS, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED JULY 06, 2015
Appellant, Alfred Dino Pellegrini, Jr., appeals from the judgment of
sentence of ninety (90) days’ to six (6) months’ imprisonment, imposed
after he was convicted of driving under the influence, general impairment,
second offense,1 and driving under the influence, general impairment with
refusal, second offense.2 Appellant challenges the trial court’s denial of his
pretrial motion to suppress and contests the enhanced sentence imposed by
the court. We affirm.
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*
Retired Senior Judge assigned to the Superior Court.
1
Pursuant to 75 Pa.C.S. § 3802(a)(1).
2
Pursuant to 75 Pa.C.S. § 3802(a)(1).
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The trial court set forth the relevant facts and procedural history in its
Rule 1925(a) opinion as follows:
Officer Jason Hall of the Shiremanstown Borough Police
Department was on duty on December 16, 2012, monitoring
traffic in the 200 block of West Main Street in Shiremanstown,
Cumberland County, Pennsylvania. At approximately 2:55 a.m.,
Officer Hall observed a black Mercedes Benz sedan, later
determined to be driven by [Appellant], approach the
intersection of South Rupp and West Main Street. The vehicle
then pulled over to the side of the road, but was not parked
parallel to the curb. Officer Hall decided to pull in behind the
vehicle and make sure everything was okay. Officer Hall noticed
that the vehicle was stopped in an unusual position in the street.
One end of the vehicle was 4 feet from the curb [and] the other
end was 5 feet from the curb. [Appellant’s] vehicle was only 20
feet from the intersection and was in the roadway such that it
constituted a safety hazard.
Officer Hall pulled in behind [Appellant’s] vehicle and
started to approach the driver’s side. [Appellant] began to get
out of the vehicle and Officer Hall instructed him to stay inside
the vehicle. When Officer Hall was by the left rear quarter panel
of the vehicle, he noticed [Appellant] was talking on his cell
phone and he also smelled an odor of an alcoholic beverage
emanating from the vehicle. Officer Hall approached [Appellant]
and asked him to hang up the phone and [Appellant] complied.
Officer Hall then identified himself to [Appellant] and
began talking to him. He told [Appellant] that he had stopped
him because he had made a left turn without using his turn
signal. [Appellant] told him that his mother had died and he was
having a rough day. [Appellant] also informed Officer Hall that
he was on his way to his girlfriend’s house and knew he was
close, but was not sure where he was going from there. Officer
Hall noticed that [Appellant] had glassy and bloodshot eyes and
that his speech was slurred. Officer Hall received [Appellant’s]
information and then asked if [Appellant] would be willing to
perform some field sobriety tests. [Appellant] agreed and got
out of the vehicle. After getting out of the vehicle for field
sobriety tests, [Appellant] reminded Officer Hall that he was
having a rough day and that his mother was on life support.
Officer Hall asked [Appellant] about this because previously
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[Appellant] said his mother had died. [Appellant] replied that he
meant he had taken her off life support that day and she would
die soon.
After this conversation, Officer Hall first performed the
HGN test and said that “it took a while for [Appellant] to follow
the instructions, mainly keeping his head still.” Next, Officer Hall
performed the walk and turn test and had to remind [Appellant]
to get into the starting position several times. [Appellant] was
frustrated with Officer Hall and accused him of making the test
too tough for him. Then [Appellant] mentioned he was just on
his way to a friend’s house. Officer Hall responded that he
understood [Appellant] was going to his girlfriend’s house.
[Appellant] then stated in a defiant tone that he never said he
was going to his girlfriend’s house. Officer Hall pointed out the
inconsistencies in [Appellant’s] stories and [Appellant] got quiet.
Following this exchange, [Appellant] was unwilling to complete
the walk and turn test.
Finally, Officer Hall performed the one-leg stand test.
[Appellant] could not keep his foot up and almost fell into Officer
Hall. [Appellant] was unable to complete this test either. Officer
Hall then asked if [Appellant] would complete a portable breath
test (“PBT”) test. [Appellant] voluntarily did the PBT and the
results “did confirm [Officer Hall’s] observations that there was a
presence of alcohol on [Appellant’s] breath.” This confirmed
Officer Hall’s opinion that [Appellant] was incapable of safe
operations and was DUI. Thereafter, Officer Hall placed
[Appellant] under arrest for DUI.
Officer Hall transported [Appellant] to Cumberland County
Prison for booking. After arriving, Officer Hall read [Appellant]
the DL-26 form, which informed [Appellant] about the
consequences of refusing to submit to the blood draw, and then
asked him to submit to a blood draw. [Appellant] ultimately
refused to submit to the blood draw. Based on his refusal, no
blood was drawn from [Appellant].
Prior to the non-jury trial, [Appellant] filed a Motion to
Suppress on February 5, 2014. [Appellant] argued that the
evidence of his refusal to submit to chemical testing should be
suppressed because the Commonwealth did not have a warrant
to conduct a “search” of [Appellant’s] blood when [Appellant]
was asked to consent to the blood test. The basic logic of
[Appellant’s] motion was that after the U.S. Supreme Court case
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of Missouri v. McNeely, 569 U.S. ___, 133 S.Ct. 1552 (2013),
implied consent laws have no validity and that a[n] [Appellant’s]
refusal to submit to a blood test is an exercise of a
constitutionally protected right when the Commonwealth has not
obtained a warrant to draw blood for a test prior to asking
[Appellant] to consent. Appellant also argued that it was
unconstitutional to impose a greater penalty on him for refusing
the chemical test. [Appellant’s] Motion to Suppress was denied
on March 10, 2014, following [Appellant’s] stipulation that he
was read the DL-26 implied consent form and that he refused
the chemical test.
A non-jury trial was held on May 7, 2014, where [the trial
court] found [Appellant] guilty beyond a reasonable doubt of the
above-captioned offenses. [Appellant] was found not guilty of
DUI Highest Rate, as there was no evidence presented that
showed [Appellant’s] BAC was above .16. On June 17, 2014,
[Appellant] was sentenced at Count 2, DUI, second offense, with
Refusal, to a period of incarceration in Cumberland County
Prison for a period of 90 days to 6 months. Count 1 merged
with Count 2 for sentencing.
Trial Court Opinion (TCO), dated 9/10/14, at 2-5.
On July 11, 2014, Appellant filed a notice of appeal, followed by a
timely Rule 1925(b) statement. Appellant now presents the following issues
for our review:
[I.] Did the trial court err in denying Appellant’s omnibus pre-
trial motion without a hearing?
[II.] Did the trial court err in sentencing Appellant to enhanced
penalties based on his refusal to submit to chemical test
demands?
Appellant’s Brief, at 6.
We review Appellant’s challenge to the denial of his motion to suppress
pursuant to the following standard and scope of review:
Our standard of review in addressing a challenge to the denial of
a suppression motion is limited to determining whether the
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suppression court’s factual findings are supported by the record
and whether the legal conclusions drawn from those facts are
correct. Because the Commonwealth prevailed before the
suppression court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the defense as
remains uncontradicted when read in the context of the record
as a whole. Where the suppression court’s factual findings are
supported by the record, we are bound by these findings and
may reverse only if the court’s legal conclusions are erroneous.
Where … the appeal of the determination of the suppression
court turns on allegations of legal error, the suppression court’s
legal conclusions are not binding on an appellate court, whose
duty it is to determine if the suppression court properly applied
the law to the facts. Thus, the conclusions of law of the courts
below are subject to our plenary review.
Commonwealth v. Farnan, 55 A.3d 113, 115 (Pa. Super. 2012).
Appellant argues that the trial court erred in denying his suppression
motion without first conducting a hearing, alleviating the Commonwealth of
its burden to establish that the challenged evidence was not obtained in
violation of Appellant’s rights. Appellant’s Brief, at 10-11. In support of his
argument, Appellant cites Commonwealth v. Long, 753 A.2d 272 (Pa.
Super. 2000), where the judgment of sentence was vacated and the case
was remanded to the trial court for the purposes of conducting a full
suppression hearing. Appellant is requesting similar relief here. The
reliance on Long is misplaced, however, and Appellant’s claim is without
merit.
In Long, the defendant was first made aware of the existence of a
videotape of a traffic stop taken from the inside of the arresting officer’s
police cruiser the night of the defendant’s arrest, just prior to the start of the
trial. Id. After viewing the videotape, defense counsel orally moved at trial
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to suppress evidence obtained during the traffic stop. Id. Typically, “a
motion to suppress must be made pretrial, unless ‘the opportunity did not
previously exist, or the interests of justice otherwise require.’” Id. at 279
(quoting Commonwealth v. Barnyak, 639 A.2d 40, 45 (Pa. Super. 1994)).
Given the unique circumstances, this Court concluded that, in the interest of
justice, a suppression hearing was warranted and remanded the case for a
hearing. Long, 753 A.2d at 282. No such extenuating circumstances exist
in the case before us.
Appellant objects to the trial court’s denial of his motion to suppress
without first conducting a hearing, asserting that his stipulation to the
implied consent and refusal of the blood test, “did not alleviate the
Commonwealth of [its] burden to prove that this information could be used
against him….” Appellant’s Brief, at 11. Appellant’s assertions are
perplexing, as the Commonwealth filed an answer and new matter in
response to the suppression motion, and a suppression hearing was held on
March 10, 2014.3 TCO, at 8. After meeting with counsel in chambers,
Appellant stipulated at the hearing that implied consent was given in
accordance with Pennsylvania law and that he refused to submit to a blood
test. Id. at 8-9. Accordingly, the trial court entered an order denying the
motion to suppress. Appellant made no objections to the entry of the order
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3
The trial court allocated 2½ hours for the purposes of Appellant’s
suppression hearing. Id.
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during the suppression hearing, nor did he request a full hearing at the time.
Id. “Issues not raised in the lower court are waived and cannot be raised
for the first time on appeal.” Pa.R.A.P. 302(a). Therefore, we are
constrained to conclude that Appellant’s claim regarding the denial of his
motion to suppress has been waived. Nevertheless, were we to reach
Appellant’s claim, it is without merit.
Appellant alleges that the request for a blood test violated his Fourth
Amendment rights and, therefore, should have been suppressed.
Appellant’s Brief, at 13-15. In support of his argument and as noted by the
trial court, Appellant cites McNeely, where the Supreme Court held “the
natural dissipation of alcohol in the bloodstream does not constitute an
exigency in every case sufficient to justify conducting a blood test without a
warrant.” McNeely, 133 S.Ct. at 1568. Appellant mistakenly concludes
that, based on McNeely, evidence of his refusal should be suppressed
because the officer did not obtain a warrant prior to requesting Appellant’s
consent to a blood test. McNeely is not applicable here, as Appellant was
never subjected to a blood test, unlike in McNeely, where the defendant
was forced to submit to a blood test despite his refusal. We agree with the
trial court that it is clear there was no unreasonable search and seizure here,
as no evidence was seized, and that it is unreasonable for Appellant to
suggest that police must have a warrant to simply ask for consent to draw
blood. TCO, at 7.
The Supreme Court recognized in McNeely that:
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[A]ll 50 states have adopted implied consent laws that require
motorists, as a condition of operating a motor vehicle within the
State, to consent to BAC testing if they are arrested or otherwise
detained on suspicion of a drunk-driving offense…. Such laws
impose significant consequences when a motorist withdraws
consent … and most States allow the motorist’s refusal to take a
BAC test to be used as evidence against him in a subsequent
criminal prosecution.
Id. at 1566. Moreover, Pennsylvania has recognized that there is no
constitutional right to refusal of a blood test. Commonwealth v. Beshore,
916 A.2d 1128, 1141-42 (Pa. Super. 2007) (citing Commonwealth v.
Graham, 703 A.2d 510 (Pa. Super. 1997)). See also Commonwealth v.
Stair, 699 A.2d 1250 (1997). Appellant’s claim that the mere request for
his consent to a blood test violated his constitutional rights is wholly without
merit.
Next, we address Appellant’s challenge to the sentence imposed,
applying the following standard of review:
A claim that the court improperly graded an offense for
sentencing purposes implicates the legality of a sentence. A
challenge to the legality of a sentence may be raised as a matter
of right, is not subject to waiver, and may be entertained as long
as the reviewing court has jurisdiction…. When we address the
legality of a sentence, our standard of review is plenary and is
limited to determining whether the trial court erred as a matter
of law.
Commonwealth v. Bowers, 25 A.3d 349, 352 (Pa. Super. 2011) (citations
omitted).
Appellant avers that the trial court erred by taking into consideration
his refusal of the blood test at the time of sentencing. Appellant’s Brief, at
13. We disagree. Section 1547(e) of the Vehicle Code provides that, “[i]n
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any … criminal proceeding in which the defendant is charged with a violation
of section 3802 … the fact that the defendant refused to submit to chemical
testing as required by subsection (a) may be introduced in evidence along
with other testimony concerning the circumstances of the refusal.” 75
Pa.C.S. § 1547(e). Additionally, section 1547(b)(2)(ii) expressly states, “if
[a] person refuses to submit to chemical testing, upon conviction or plea for
violating section 3802(a)(1), the person will be subject to the penalties
provided in section 3804(c) ….” 75 Pa.C.S. § 1547(b)(2)(ii). Thus, the trial
court did not err by taking into consideration Appellant’s refusal of the blood
test at the time of sentencing. Having already determined that Appellant’s
constitutional rights have not been violated, it is noted that Appellant
stipulated on the record to his refusal of the blood test. We conclude that
Appellant was properly sentenced in compliance with section 3804(c).4
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4
Section 3804(c) provides as follows:
(c) Incapacity; highest blood alcohol; controlled
substances.—An individual who violates section 3802(a)(1) and
refused testing of blood or breath … shall be sentenced as
follows:
…
(2) For a second offense, to:
(i) undergo imprisonment of not less than 90 days;
(ii) pay a fine of not less than $1,500;
75 Pa.C.S. § 3804(c).
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/6/2015
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