J-S61029-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
DANIEL JOHN PATTON :
: No. 3288 EDA 2016
Appellant
Appeal from the Judgment of Sentence September 8, 2016
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0006940-2015
BEFORE: LAZARUS, RANSOM, and PLATT,* JJ.
MEMORANDUM BY RANSOM, J.: FILED NOVEMBER 14, 2017
Appellant, Daniel John Patton, appeals from the judgment of sentence
of six months of probation, imposed September 8, 2016, following a bench
trial resulting in his conviction for driving under the influence (DUI) - general
impairment.1 We affirm.
The relevant facts and procedural history are as follows. On May 3,
2015, around 10:30 p.m., a patron of a Sunoco gas station saw Appellant park
his vehicle diagonally in front of the gas pump and was talking on his cellphone
loudly about being at a bar. Trial Ct. Op., 1/12/2017, at 1. Appellant exited
his vehicle, stumbled around, and appeared to be flushed. Id. at 2. The
patron called 911 to report a suspected intoxicated person at the gas station
because he was concerned for the safety of others. Id. at 1-2.
____________________________________________
1 75 Pa.C.S. § 3802(a)(1).
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S61029-17
Officer Peter Kondan (“the Officer”), who had experience in making DUI
arrests, responded to the 911 call. When the Officer arrived at the gas station,
he observed Appellant sitting in the vehicle and driving away with the
passenger door open. The Officer followed Appellant onto the roadway to
advise him about the open passenger door. Appellant was driving at a slow
rate of speed of 7 miles per hour. The Officer activated his emergency lights;
he followed Appellant’s vehicle until Appellant pulled into a driveway. See id.
When the Officer approached Appellant’s vehicle, Appellant “was
speaking in unintelligible comments while raising his arms in the air.” Id. at
2. The Officer asked Appellant about the passenger door. Before Appellant
answered, the Officer smelled a strong odor of alcohol coming from inside the
vehicle. Id. at 2-3. The Officer asked how much Appellant had to drink that
evening; Appellant answered that he only had one drink. Id. at 3. The Officer
observed Appellant’s “bloodshot and glassy” eyes, as well as his “extremely
slurred and at times unintelligible” speech, and his “slow and lethargic”
gestures and movements. Id.
The Officer proceeded to administer standard field sobriety tests,
including the Alphabet Test, Number Test and Romburg Balance Test.
Appellant performed poorly on all tests, despite attempting some tests
numerous times. Id. at 3. Based on Appellant’s performance and his other
observations of Appellant’s demeanor, it was the Officer’s opinion that
Appellant was incapable of safe driving due to a chemical or alcohol-related
impairment. Id. at 4.
-2-
J-S61029-17
In addition, Officer Daniel Monroe responded to this incident. Officer
Monroe described Appellant’s demeanor as “belligerent,” exhibiting slurred
speech, signs of intoxication, glassy eyes, and the smell of alcohol from his
person. See Notes of Testimony (N.T.), 9/8/2016, at 53. After observing
Appellant’s performance on the field sobriety tests, Officer Monroe also
concluded that Appellant was incapable of safely operating a motor vehicle.
Id. at 54. Officer Monroe accompanied Appellant to the hospital for a blood
draw to test blood alcohol content. Id. Appellant refused to consent to the
test and did not sign the DL-26 implied consent form. Id. at 55.
Over Appellant’s objection, his refusal to submit to a blood draw was
admitted into evidence. See id. at 55-56. Following a bench trial, the trial
court found the evidence sufficient to sustain Appellant’s conviction for DUI –
general impairment. Appellant was sentenced as described above.
On September 19, 2016, Appellant timely filed a post-sentence motion
for acquittal or, in the alternative, a new trial. Appellant’s post-sentence
motion was denied on September 21, 2016.
Appellant timely filed a notice of appeal. The trial court did not order
Appellant to file a concise statement pursuant to Pa.R.A.P. 1925(b). The court
issued an opinion assessing the sufficiency and weight of the evidence claims
raised in Appellant’s post-sentence motion.
On appeal, Appellant raises a single issue for review:
1. Did the court err in allowing the Commonwealth to introduce
evidence that [Appellant] refused to undergo a blood test that
-3-
J-S61029-17
was in violation of the 4th and 14th Amendment to the United
States Constitution?
Appellant’s Br. at 3.
Appellant contends that the court erred in admitting testimony of his
refusal as substantive evidence of guilt. Id. at 7. Appellant seeks relief in
the form of a new trial. Id. at 6. Appellant contends that the admission of
his refusal was not harmless error insofar as the evidence of refusal impacted
the outcome of his trial. Id. at 9-10. Appellant did not seek a new trial on
the basis of the alleged evidentiary error at trial or in his post-sentence
memorandum. Appellant does not challenge the sufficiency or weight of the
evidence on appeal.
Although not addressed by the trial court in its opinion, the sole issue
that is properly before us is whether the court erred as a matter of law in
overruling Appellant’s objection to the admission of his refusal at trial. N.T.
at 56; see Pa.R.Crim.P. 720(B)(1)(c) (“Issues raised before or during trial
shall be deemed preserved for appeal whether or not the defendant elects to
file a post-sentence motion on those issues.”). Due to Appellant’s failure to
properly preserve his request for a new trial, we deem the remainder of
Appellant’s argument waived and limit our discussion accordingly. See
Pa.R.A.P. 302, 2119(a), and 2119(e), respectively.
Appellant correctly asserts that the challenged evidentiary ruling
involves the exercise of a constitutional right. See Appellant's Br. at 7. See,
e.g., Schmerber v. California, 384 U.S. 757, 764 (1966) (“To compel a
person to submit to testing in which an effort will be made to determine his
-4-
J-S61029-17
guilt or innocence on the basis of physiological responses, whether willed or
not, is to evoke the spirit and history of the Fifth Amendment.”). Our standard
of review is as follows.
[Ordinarily,] questions concerning the admissibility of evidence
are within the sound discretion of the trial court and will only be
reversed upon a showing that the court abused its discretion.
Commonwealth v. Johnson, 42 A.3d 1017, 1027 (Pa. 2012).
An abuse of discretion occurs where “the law is overridden or
misapplied, or the judgment exercised is manifestly unreasonable,
or the result of partiality, prejudice, bias, or ill will, as shown by
the evidence or the record.” Commonwealth v. Randolph, 873
A.2d 1277, 1281 (Pa. 2005). However, to the extent the question
presents as “an issue involving a constitutional right, it is a
question of law; thus, our standard of review is de novo, and our
scope of review is plenary.” Commonwealth v. Baldwin, 58
A.3d 754, 762 (Pa. 2012).
Commonwealth v. Adams, 104 A.3d 511, 517 (Pa. 2014)
Appellant argues that the blood test he refused was illegal under
Birchfield v. North Dakota, 136 S.Ct. 2160 (2016). See Appellant's Br. at
6-8. Appellant maintains that he had a Fourth Amendment right to refuse
such a test and that such refusal cannot be used against him during trial. See
id. at 7-8. Appellant suggests that the evidentiary admission of refusal to
take a blood test is analogous to imposing a penalty for exercising the Fifth
Amendment right to remain silent. See id. at 8 (citing in support
Commonwealth v. Molina, 104 A.3d 430, 441 (Pa. 2014) (holding that
reference to defendant’s pre-arrest silence violated defendant’s right against
self-incrimination under the Pennsylvania Constitution)).
-5-
J-S61029-17
In response, the Commonwealth contends that Birchfield “is only
concerned with increased criminal penalties for a defendant who does not
submit to a blood draw and the administration of a blood draw without a
search warrant.” Commonwealth's Br. at 4. Further, the Commonwealth
directs our attention to this Court’s recent precedent in Commonwealth v.
Bell, 167 A.3d 744 (Pa. Super. 2017), reargument denied (Sept. 26, 2017),
in which this Court explained that Birchfield does not impact the admissibility
of refusal of a warrantless blood test. The Bell Court rejected the appellee’s
argument that the admission of refusal violated his Fifth Amendment right
against self-incrimination or his Fourteenth Amendment right to due process.
See Bell, 167 A.3d at 748-749. Relying in part on South Dakota v. Neville,
459 U.S. 553 (1983), this Court concluded that “it was constitutionally
permissible for the prosecution to introduce evidence of this refusal at his trial
on DUI charges.” Bell, 167 A.3d at 749; see also Commonwealth v.
Graham, 703 A.2d 510, 513 (Pa. Super. 1997) (rejecting notion that 75
Pa.C.S. § 1547(e) burdens constitutional rights by allowing evidence of refusal
of a chemical test to be admitted at trial).
In the wake of Birchfield, our Supreme Court has explained:
By operation of the implied consent statute, once a police
officer establishes reasonable grounds to suspect that a motorist
has committed a DUI offense, that motorist “shall be deemed to
have given consent to one or more chemical tests of breath or
blood for the purpose of determining the alcoholic content of blood
or the presence of a controlled substance.” 75 Pa.C.S. § 1547(a).
Notwithstanding this provision, Subsection 1547(b)(1) confers
upon all individuals under arrest for DUI an explicit statutory right
-6-
J-S61029-17
to refuse chemical testing, the invocation of which triggers
specified consequences. See 75 Pa.C.S. § 1547(b)(1) (“If any
person placed under arrest for [DUI] is requested to submit to
chemical testing and refuses to do so, the testing shall not be
conducted”); [Commonwealth v. Eisenhart, 611 A.2d 681, 683
(Pa. 1992)] (“The statute grants an explicit right to a driver who
is under arrest for [DUI] to refuse to consent to chemical
testing.”).
Under this statutory scheme, a motorist placed under arrest for
DUI has a critical decision to make. The arrestee may submit to
a chemical test and provide the police with evidence that may be
used in a subsequent criminal prosecution, or the arrestee may
invoke the statutory right to refuse testing, which: (i) results in a
mandatory driver's license suspension under 75 Pa.C.S. §
1547(b)(1); (ii) renders the fact of refusal admissible as evidence
in a subsequent DUI prosecution pursuant to 75 Pa.C.S. §
1547(e); and (iii) authorizes heightened criminal penalties under
75 Pa.C.S. § 3804(c) if the arrestee later is convicted of DUI. In
very certain terms, this Court has held that, in requesting a
chemical test, the police officer must inform the arrestee of the
consequences of refusal and notify the arrestee that there is no
right to consult with an attorney before making a decision. See
[Pa. Dep’t of Transp., Bureau of Traffic Safety v. O'Connell,
555 A.2d 873, 877–78 (Pa. 1989)]. “An arrestee is entitled to this
information so that his choice to take a [chemical] test can be
knowing and conscious.” Id. at 878. The choice belongs to the
arrestee, not the police officer.
Commonwealth v. Myers, 164 A.3d 1162, 1170–71 (Pa. 2017).
As we stated in Bell:
The Implied Consent Law sets forth penalties to be imposed
upon a person who is arrested for DUI and refuses to submit to
chemical testing. First, Section 1547(b) requires the Pennsylvania
Department of Transportation to suspend the driver's license for
at least one year. 75 Pa.C.S.A. § 1547(b). Second, Section
1547(e) allows for evidence of the motorist's refusal to submit to
chemical testing to be admitted at his or her criminal trial on DUI
charges:
(e) Refusal admissible in evidence.— In any summary
proceeding or criminal proceeding in which the defendant is
-7-
J-S61029-17
charged with a violation of section 3802 or any other
violation of this title arising out of the same action, 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. No presumptions shall arise from this evidence
but it may be considered along with other factors concerning
the charge.
75 Pa.C.S.A. § 1547(e).
Bell, 167 A.3d at 747.
Appellant’s reliance on Molina is unpersuasive. The Molina Court
recognized that, in Pennsylvania, the right against self-incrimination has
“generally developed in parallel or following the dictates of federal precedent
interpreting the Fifth Amendment, particularly … Griffin [v. California], 380
U.S. 609, 615 (1965).” Molina, 104 A.3d at 444. In Neville, the United
States Supreme Court declined to extend a defendant’s privilege against self-
incrimination, as set forth in Griffin, to a case in involving a defendant’s
refusal to submit to warrantless blood testing pursuant to a state’s implied
consent statute. The Court explained:
Griffin held that a prosecutor's or trial court's comments on a
defendant's refusal to take the witness stand impermissibly
burdened the defendant's Fifth Amendment right to refuse.
Unlike the defendant's situation in Griffin, a person suspected of
drunk driving has no constitutional right to refuse to take a blood-
alcohol test. The specific rule of Griffin is thus inapplicable.
Neville, 459 U.S. at 560 n.10.
Contrary to Appellant’s contention, Birchfield does not create a
constitutional right to refuse a warrantless test and avoid the civil
-8-
J-S61029-17
consequences of such refusal imposed by statute. See Birchfield, 136 S.Ct.
at 2185. The Birchfield Court noted: “[o]ur prior opinions have referred
approvingly to the general concept of implied-consent laws that impose civil
penalties and evidentiary consequences on motorists who refuse to comply.”
Id. (citing Neville, 459 U.S. at 560). The Neville Court held that the
evidentiary admission of a lawful refusal is “unquestionably legitimate.”
Neville, 459 U.S. at 560.
For these reasons, the trial court correctly concluded that Birchfield
does not affect the evidentiary admissibility of refusal authorized by 75 Pa.C.S.
§ 1547(e). See Bell, 167 A.3d at 750. Accordingly, the trial court did not
err. Appellant is entitled to no relief.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/14/2017
-9-