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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
BRANDON MICHAEL SCOTT, : No. 1485 MDA 2016
:
Appellant :
Appeal from the Judgment of Sentence, September 1, 2016,
in the Court of Common Pleas of Bradford County
Criminal Division at No. CP-08-CR-0000463-2015
BEFORE: OLSON, J., MOULTON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 08, 2017
Brandon Michael Scott appeals from the judgment of sentence of
September 1, 2016, following his conviction of one count of driving under
the influence (“DUI”) -- general impairment and summary offenses. We
affirm the convictions, but vacate the judgment of sentence and remand for
resentencing.
This case was submitted on stipulated facts, as follows:
STIPULATION OF FACTS
1. On April 25, 2015 at approximately 2:38 AM,
[appellant] was driving a motor vehicle on
SR 6 in Wysox Township, Bradford County,
Pennsylvania.
2. Trooper Christopher Schelling initiated a traffic
stop after he observed [appellant]’s motor
vehicle swerve multiple times over the center
yellow line, observed the motor vehicle almost
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strike the curb, and observed a cigarette
littered out of the driver’s side window.
3. Upon making contact with [appellant],
Trooper Schelling detected a strong odor of an
alcoholic beverage emanating from
[appellant]’s breath. He also observed that
[appellant] had blood shot eyes, and that
[appellant]’s speech was slurred.
4. During the traffic stop [appellant] admitted to
consuming alcohol earlier in the night.
5. During the traffic stop [appellant] consented to
participate in multiple Standard Field Sobriety
Tests: (1) The Horizontal Gaze Nystagmus
Test, (2) the Walk and Turn Test, and (3) the
One-Leg Stand Test. [Appellant]’s
performance on these tests indicated to
Trooper Schelling that [appellant] was
intoxicated.
6. Based on his observations of [appellant],
[appellant]’s admission to drinking alcohol, and
[appellant]’s performance of the Standard Field
Sobriety Tests, Trooper Schelling concluded
[that appellant] had imbibed a sufficient
amount of alcohol such that he could not safely
operate a motor vehicle. [Appellant] was then
arrested under probable cause of DUI.
7. After placing [appellant] under arrest,
Trooper Schelling transported him to the
emergency room of Towanda Memorial
Hospital for a blood draw.
8. At 3:10 AM Trooper Schelling read [appellant]
his Implied Consent and O’Connell
1
Warnings,[ ] and [appellant] refused to submit
to Blood Alcohol Concentration testing.
1
See Com., Dept. of Transp., Bureau of Traffic Safety v. O’Connell,
555 A.2d 873 (Pa. 1989).
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9. Trooper Schelling then transported [appellant]
to the Towanda Barracks of the Pennsylvania
State Police, where [appellant] refused to be
fingerprinted or processed, and where
[appellant] was verbally combative with
another member of the Pennsylvania State
Police, Trooper William McDermott.
Docket No. 32.
Appellant filed an omnibus pre-trial motion, alleging, inter alia, that
the Commonwealth withheld exculpatory Brady2 material in the form of the
audio component of the audio/video recording generated by the patrol unit
during the traffic stop. According to appellant, an audio recording of his
interaction with the troopers would have demonstrated racial bias.
Appellant’s omnibus pre-trial motion was denied on February 3, 2016,
following an evidentiary hearing.3
Appellant agreed to a bench trial on stipulated facts, and was found
guilty on June 9, 2016, of all four counts in the information: count 1, DUI --
general impairment, graded as a first-degree misdemeanor; count 2,
disregarding traffic lanes, a summary offense; count 3, depositing waste on
highways, a summary offense; and count 4, careless driving, a summary
offense.4 Appellant filed a post-trial motion on July 5, 2016, which was
2
Brady v. Maryland, 373 U.S. 83 (1963).
3
Appellant also claimed that the police lacked probable cause to stop his
vehicle; however, he has abandoned that claim on appeal.
4
75 Pa.C.S.A. §§ 3802(a)(1), 3309(1), 3709(a), and 3714(a), respectively.
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denied by order entered August 16, 2016; however, the trial court amended
its June 9, 2016 order to change the grading of count 1, DUI -- general
impairment, to an ungraded misdemeanor. (Docket No. 36.) The trial court
also indicated that appellant would be sentenced at the Tier 3 level for DUI
and would be given credit for 20 days’ time served. (Id.)
On September 1, 2016, appellant was sentenced to 72 hours to
6 months’ incarceration for count 1, DUI -- general impairment, and a fine of
$1,000. This was a mandatory sentence imposed pursuant to 75 Pa.C.S.A.
§ 3804(c)(1) (providing for mandatory penalties for DUI where the
defendant refused testing of blood or breath).5 Appellant was sentenced to
5
(c) Incapacity; highest blood alcohol;
controlled substances.--An individual who
violates section 3802(a)(1) and refused testing
of blood or breath or an individual who violates
section 3802(c) or (d) shall be sentenced as
follows:
(1) For a first offense, to:
(i) undergo imprisonment
of not less than
72 consecutive hours;
(ii) pay a fine of not less
than $1,000 nor more
than $5,000;
(iii) attend an alcohol
highway safety school
approved by the
department; and
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pay fines on counts 2 and 3, the summary offenses.6 A timely notice of
appeal was filed on September 6, 2016. On September 14, 2016, the trial
court ordered appellant to file a concise statement of errors complained of
on appeal within 21 days pursuant to Pa.R.A.P. 1925(b); appellant timely
complied on September 19, 2016. On September 29, 2016, the trial court
filed a Rule 1925(a) opinion, relying on the February 3, 2016 opinion and
order denying appellant’s omnibus pre-trial motion. (Docket No. 5.) On
June 5, 2017, appellant filed a “motion to file supplemental record on
appeal,” seeking to include the June 16, 2015 preliminary hearing transcript.
On appeal, appellant argues that the Commonwealth violated Brady
by withholding exculpatory evidence, i.e., the audio portion of the automatic
recording made when the troopers stopped his vehicle. Appellant alleges
that the audio recording would have revealed that Trooper McDermott made
certain racially biased statements against appellant, an African-American.
Appellant claims that this evidence was relevant to attack the trooper’s
(iv) comply with all drug
and alcohol treatment
requirements imposed
under sections 3814
and 3815.
6
Count 4, careless driving, merged with count 1, DUI -- general impairment.
(Docket No. 31.)
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credibility as well as to show why appellant became combative and
uncooperative.7
In order to succeed on a Brady claim, a defendant
must establish that the evidence withheld was
favorable to him, i.e., that it was exculpatory or had
impeachment value; the evidence was suppressed by
the prosecution; and prejudice resulted.
Commonwealth v. Sattazahn, 597 Pa. 648, 952
A.2d 640, 658 n. 12 (2008). In order to establish
prejudice, a defendant is obliged to show that “the
evidence in question was material to guilt or
punishment, and that there is a reasonable
probability that the result of the proceeding would
have been different but for the alleged suppression
of the evidence.” Commonwealth v. James
Dennis, 597 Pa. 159, 950 A.2d 945, 966 (2008)
(citing Brady, 373 U.S. at 87, 83 S.Ct. 1194; Kyles
v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131
L.Ed.2d 490 (1995)).
Commonwealth v. Miller, 987 A.2d 638, 655 (Pa. 2009). “The
Commonwealth does not violate [Pa.R.Crim.P.] Rule 573 when it fails to
disclose to the defense evidence that it does not possess and of which it is
unaware.” Commonwealth v. Collins, 957 A.2d 237, 253 (Pa. 2008)
(citations omitted).
7
Appellant has failed to include a statement of questions involved, as
required by Pa.R.A.P. 2111 and 2116(a). However, because that failure
does not hamper our review, we will address appellant’s substantive
argument. Appellant only raises one issue for this court’s review, the
purported Brady violation, which was raised in his pre-trial motion and in
his Rule 1925(b) statement. See Savoy v. Savoy, 641 A.2d 596, 598
(Pa.Super. 1994) (where failure to provide a separate statement of
questions involved does not impede this court’s ability to review the issues,
we may address the merits of the appeal).
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Here, appellant testified that Trooper McDermott told him, “[L]ong
way, what cha [sic] doing here[,] you don’t belong here anyway[.]” (Notes
of testimony, 11/24/15 at 51.)8 Appellant interpreted this as a racist
comment. (Id.) However, appellant’s vehicle had out-of-state South
Carolina plates, and Trooper McDermott denied making any racist
comments. (Id. at 7, 55.) The trial court found the trooper’s testimony to
be credible. (Trial court opinion, 2/3/16 at 7.)9
Furthermore, Corporal Norman Strauss, III, patrol supervisor of
Troop P in Towanda, testified that he is responsible for the Motor Vehicle
Recordings (“MVRs”). (Notes of testimony, 11/24/15 at 27.) He
downloaded the video of the traffic stop and saved it. (Id. at 29.) However,
there was no audio. (Id. at 30.) Corporal Strauss testified that he has had
technical difficulties with audio recordings in the past. (Id.)
Corporal Strauss explained,
[O]ne possible reason would be if the microphone
was not turned on, there’s a switch[,] an on and off
switch, [] if it was off that would be one reason,
another reason would be [] if say the microphone
was damaged that could be a reason[,] a third
reason would be if there was a technical difficulty[,]
these occur from time to time where the microphone
is turned on for whatever reason [] there’s a
8
In his Rule 1925(b) statement, appellant alleged that the trooper stated,
“We don’t like your kind here.” (Docket No. 40.) This was not reflected in
appellant’s testimony, and appellant does not make any such allegation in
his brief on appeal.
9
The trial court’s opinion is unpaginated; page numbers are by our own
count.
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technical difficulty where it won’t work sporadically
and then sometimes it will work. Often times if you
turn it off and then start it back up again that will
resolve some of the issues [] as occurs with
computer[s] or appliances.
Id. at 31. Corporal Strauss could not determine why the MVR failed to
record the audio in this case. (Id. at 31-32.)
Appellant has failed to prove any Brady violation. It is unclear why
the audio component of the MVR failed. The Commonwealth does not have
any audio recordings of the traffic stop in its possession. There is no
evidence whatsoever that the MVR was tampered with; the failure to record
the trooper’s verbal interaction with appellant appears to have been the
result of a technical malfunction. Furthermore, the trial court believed
Trooper McDermott’s testimony that he never made any racist comments as
appellant alleged.
Appellant has also failed to demonstrate how the audio recording
would be exculpatory. The undisputed facts are that appellant was stopped
after the troopers observed multiple Vehicle Code violations. Appellant failed
field sobriety tests and admitting drinking that night. Appellant exhibited
classic symptoms of excessive alcohol consumption, including slurred speech
and bloodshot eyes. Appellant’s Brady claim fails.
Finally, we are constrained to vacate appellant’s judgment of sentence
and remand for resentencing in light of the recent United States Supreme
Court case of Birchfield v. North Dakota, U.S. , 136 S.Ct. 2160
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(2016), which invalidates any criminal sanction assessed for refusing to
submit to a blood test in the absence of a warrant. Appellant cannot be
subject to enhanced criminal penalties for refusal to submit to a blood test.
See also Commonwealth v. Giron, 155 A.3d 635, 640 (Pa.Super. 2017)
(“[P]ursuant to Birchfield, in the absence of a warrant or exigent
circumstances justifying a search, a defendant who refuses to provide a
blood sample when requested by police is not subject to the enhanced
penalties provided in 75 Pa.C.S.A. §§ 3803-3804.” (footnote omitted));
Commonwealth v. Evans, 153 A.3d 323 (Pa.Super. 2016) (vacating the
judgment of sentence and remanding for a re-evaluation of the appellant’s
purported consent where the appellant only consented to the warrantless
blood draw after being informed, by the police, that refusal to submit to the
test could result in enhanced criminal penalties, in violation of Birchfield).
Therefore, it is necessary to remand for resentencing without consideration
of the mandatory minimum sentence in Section 3804(c).10
Appellant did not raise this issue on appeal and, in fact, explicitly
agreed to waive the issue at sentencing. (Notes of testimony, 9/1/16 at
10
As a first-time DUI offender, appellant would have faced a mandatory
minimum term of 6 months’ probation and a $300 fine. 75 Pa.C.S.A.
§ 3804(a)(1).
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4.)11 However, the issue goes to the legality of appellant’s sentence, which
is non-waivable. See Commonwealth v. Barnes, 151 A.3d 121, 127 (Pa.
2016) (“[W]here the mandatory minimum sentencing authority on which the
sentencing court relied is rendered void on its face, and no separate
mandatory authority supported the sentence, any sentence entered under
such purported authority is an illegal sentence for issue preservation
purposes on direct appeal.”); Commonwealth v. Foster, 17 A.3d 332, 345
(Pa. 2011) (plurality) (“[W]here a sentencing court is required to impose a
mandatory minimum sentence, and that mandatory minimum sentence
affects a trial court’s traditional sentencing authority or the General
Assembly’s intent in fashioning punishment for criminal conduct, a
defendant’s challenge thereto sounds in legality of sentence and is therefore
nonwaivable.”). See also Commonwealth v. Edrington, 780 A.2d 721,
723 (Pa.Super. 2001), citing Commonwealth v. Vasquez, 744 A.2d 1280
(Pa. 2000) (application of a mandatory sentencing provision implicates the
legality of the sentence, not the discretionary aspects of the sentence). It is
well settled that a defendant cannot agree to an illegal sentence, and that
this court may raise issues pertaining to the legality of a defendant’s
sentence sua sponte. See Commonwealth v. Gentry, 101 A.3d 813, 819
11
Even though appellant only had time served of 2 days, the trial court
agreed to give him credit of 20 days in exchange for appellant agreeing not
to raise the Birchfield issue on appeal. (Notes of testimony, 9/1/16 at
1-4.)
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(Pa.Super. 2014) (“Our cases clearly state that a criminal defendant cannot
agree to an illegal sentence . . . .”); Commonwealth v. Snavely, 982 A.2d
1244, 1246 (Pa.Super. 2009) (“Challenges to an illegal sentence cannot be
waived and may be reviewed sua sponte by this Court.” (citation omitted)).
Appellant’s June 5, 2017 motion to file supplemental record on appeal
is granted. Convictions affirmed. Judgment of sentence vacated.
Remanded for resentencing consistent with this memorandum. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/8/2017
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Com. v. Scott, B.
Combined Opinion