J-S60028-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
THOMAS KEN IRWIN, :
:
Appellant : No. 207 WDA 2017
Appeal from the Judgment of Sentence January 25, 2017
In the Court of Common Pleas of Potter County
Criminal Division at No.: CP-53-CR-0000095-2016
BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY DUBOW, J.: FILED JANUARY 18, 2018
Appellant, Thomas Ken Irwin, appeals from the Judgment of Sentence
entered by the Potter County Court of Common Pleas following his conviction
after a jury trial of Driving Under the Influence (General Impairment)
(“DUI”).1 After careful review, we affirm.
In the early morning hours of November 26, 2015, while on patrol in a
marked car, State Troopers Andrea Pelachick (“Trooper Pelachick”) and
James Culvey (“Trooper Culvey”) of the Coudersport station observed
Appellant driving a 1997 Dodge Ram as it slowly weaved, touching and
crossing both the centerline and the fog line several times. Trooper
Pelachick eventually pulled Appellant over.
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1
75 Pa.C.S. § 3802(a)(1).
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* Former Justice specially assigned to the Superior Court.
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Upon stopping his vehicle, Appellant exited the truck while the
Troopers were running Appellant’s registration in their patrol car. When
Appellant put his right hand into his back pocket while approaching the
patrol car, Trooper Pelachick ordered Appellant to show his hands and stand
by the back of his vehicle for officer safety. Appellant appeared unsteady on
his feet and swayed while standing, he was very slow and sluggish, he
slurred and stuttered while speaking, and he used his hands to steady
himself on the side of his vehicle. Appellant’s eyes were glassy and
bloodshot, and both Troopers smelled a very strong odor of alcohol on his
breath from a few feet away.
Appellant could not produce a valid driver’s license, despite telling
Trooper Pelachick twice that he had a license. Appellant would not submit to
any field sobriety tests, despite four offers, and would not answer some of
Trooper Pelachick’s questions about his suspected alcohol consumption.
Twice, Appellant told Trooper Pelachick to “just put the cuffs on me.” N.T.
Trial, 12/15/16, at 74-75.
Trooper Pelachick arrested Appellant, patted him down, placed him in
the patrol car, and drove him to the hospital for a blood test. Appellant
refused to consent to the blood test after Trooper Pelachick gave the
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O’Connell warnings2 provided in the DL-26 form and refused to sign the
form acknowledging that he had received the warnings. After Trooper
Pelachick read Miranda3 warnings, Appellant refused to answer any
questions.
The Commonwealth charged Appellant with DUI, as well as summary
offenses. Appellant proceeded to a jury trial, representing himself. During a
pre-trial hearing on the day of trial, Appellant presented five distinct issues
addressing evidence he sought to admit at trial: (1) his request to present a
copy of the video footage from the patrol car; (2) his request to “reserve an
opening;” (3) his desire to present a “blood alcohol content chart” with an
easel; (4) his request to admit blood testing kits, breathalyzers, and
information from the manufacturers to show their inaccuracies; and (5)
evidence regarding why he did not present a valid driver’s license. He also
sought paperwork completed by Trooper Pelachick, and moved to strike
Trooper Pelachick’s testimony for failure to provide this statement. The trial
court denied the motion because Appellant did not request that specific
discovery and Trooper Pelachick had not prepared any paperwork or
statements. N.T. Trial, 12/15/16, at 9-23. Trial proceeded immediately
thereafter.
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2
See Commonwealth, Dep’t of Transp., Bureau of Traffic Safety v.
O’Connell, 555 A.2d 873 (Pa. 1989).
3
Miranda v. Arizona, 384 U.S. 436 (1966).
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At trial, the Commonwealth presented testimony from Trooper
Pelachick and Trooper Culvey. Both Troopers testified about Appellant’s
behavior the night of his arrest and opined that Appellant had been under
the influence of alcohol to a sufficient degree that rendered him incapable of
driving safely. The court admitted into evidence video footage from the
Troopers’ patrol car showing Appellant driving erratically, as well as
Appellant’s behavior during the stop and the short drive to the hospital.
Appellant presented testimony from Todd Williams, his regular bartender,
and Charles Chappell, the owner of the vehicle. Appellant also testified in
his own defense, and admitted that he had been drinking alcohol the night
the Troopers had pulled him over.
The jury convicted Appellant of DUI.4 On January 25, 2017, the trial
court sentenced Appellant to 3 to 24 months’ incarceration. The trial court
did not impose a mandatory minimum sentence of incarceration based on
Appellant’s refusal to consent to a blood test.
On January 26, 2017, Appellant filed a timely Notice of Appeal. Both
Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant presents two issues for our review:
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4
The trial court found Appellant guilty of the summary offenses of Driving
Without a License, Driving While Operating Privilege Suspended or Revoked,
Disregarding Traffic Lanes (Single Lane), and Careless Driving after a bench
trial. 75 Pa.C.S. § 1501; 75 Pa.C.S. § 1543; 75 Pa.C.S. § 3309(1); and 75
Pa.C.S. § 3714(a), respectively.
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I. Did the Commonwealth taint the verdict by repeatedly making
improper references to [Appellant’s] post-arrest silence and by
asking the jury “What is he hiding from you? What is he not
wanting you to know?”
II. Was the introduction of [Appellant’s] refusal to submit to an
unlawful warrantless blood test as substantive evidence of guilt
an improper penalty for the exercise of his constitutional rights?
Appellant’s Brief at 5.
Appellant’s first issue involves allegations of prosecutorial misconduct
at trial for commenting on Appellant’s post-arrest silence during testimony,
opening statements, and closing arguments. Before we address the merits
of Appellant’s issue, we must first determine whether Appellant preserved
any aspect of this issue in the court below.
“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 defendant’s failure to object
contemporaneously constitutes a waiver of any claim regarding improper
police testimony about his silence, as well as prosecutorial commentary
about his silence during closing argument. Commonwealth v. Adams, 39
A.3d 310, 319-20 (Pa. Super. 2012). See also Commonwealth v. Rivera,
983 A.2d 1211, 1229-30 (Pa. 2009) (same).
While this Court is willing to construe materials filed by a pro se
appellant liberally, “pro se status confers no special benefit upon an
appellant.” Commonwealth v. Adams, 882 A.2d 496, 498 (Pa. Super.
2005). “To the contrary, any person choosing to represent himself in a legal
proceeding must, to a reasonable extent, assume that his lack of expertise
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and legal training will be his undoing.” Id. Appellant’s pro se status does
not relieve Appellant of his duty to raise properly and develop his appealable
claims. Smathers v. Smathers, 670 A.2d 1159, 1160 (Pa. Super. 1996).
Our review of the trial transcript shows that Appellant failed to
preserve the instant issue at trial. Appellant did not object to any aspect of
the prosecutor’s opening or closing statements. See N.T. Trial, 12/15/16, at
33-42, 218-22. Appellant did not object to any of the pertinent testimony
by Trooper Pelachick or Trooper Culvey that he now challenges for the first
time on appeal. In fact, Appellant himself specifically asked numerous
questions about his silence during his cross-examination of both Trooper
Pelachick and Trooper Culvey. Id. at 101-04, 115-16, 127-30, 212-13.5
Appellant argues that he preserved this claim during a pre-trial
hearing, at which he purportedly objected to any testimony about his refusal
to answer questions or submit to a blood test. Appellant’s Brief at 13-14.
Although he acknowledges the trial court never “directly rule[d] on the
objection,” Appellant essentially avers that raising the issue pre-trial relieved
him of any further obligation to preserve the issue for appeal. Id. at 14.
Appellant further avers that he “attempted to object throughout his trial,
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5
Appellant discussed his own silence during his testimony and in his opening
and closing arguments. See N.T. Trial, 12/15/16, at 45-48 (“My refusal of
everything. I refused the breathalyzer. I refused roadside sobriety test. . . .
[S]o I exercised the [F]ifth [A]mendment right that every American has in
the [C]onstitution to refrain from convicting myself on the roadside.”); 182-
85 (testifying regarding his silence).
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despite being admonished to cease doing so[,]” specifically during his own
opening statement and during his own testimony. Id. We disagree.
At the pre-trial hearing on the day of trial, Appellant requested the
admission of blood testing kits, breathalyzers, and information from the
manufacturers to show their inaccuracies in the event that the prosecutor
planned to rely on the evidence of Appellant’s refusal to submit to blood
testing to suggest he was guilty. N.T. Trial, 12/15/16, at 13-18. Appellant
mentioned the Fifth Amendment and his right to remain silent in explaining
why he wanted to introduce this evidence. Id. at 17-18. At no point in the
pre-trial proceeding did Appellant seek to preclude any of the
Commonwealth’s evidence, lodge a specific objection regarding such
evidence, or otherwise preserve the instant issue on appeal.
After careful review of the certified record, we conclude that Appellant
has waived this first issue on appeal. See Pa.R.A.P. 302; Adams, 39 A.3d
at 319-20; Rivera, 983 A.2d 1229-30.
In his second issue, Appellant essentially avers that 75 Pa.C.S. §
1547(e),6 Pennsylvania’s implied consent statute, is unconstitutional in light
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6
Pennsylvania’s implied consent statute reads, in relevant part, as follows:
(e) Refusal admissible in evidence.--In any summary
proceeding or criminal proceeding in which the defendant
is 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
(Footnote Continued Next Page)
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of Birchfield v. North Dakota, ___ U.S. ___, 136 S.Ct. 2160, 195 L.Ed. 2d
560 (2016).7 Appellant further argues that under Birchfield, the application
of Section 1547(e), an evidentiary provision, is unconstitutional because the
admission of evidence of a defendant’s refusal to submit to a blood test is, in
essence, an impermissible penalty for the exercise of his constitutional
rights. Appellant’s Brief at 20-27.
_______________________
(Footnote Continued)
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. § 1547(e).
7
This Court recently described the Birchfield holding as follows:
In Birchfield, the United States Supreme Court held that
“motorists cannot be deemed to have consented to submit to a
blood test on pain of committing a criminal offense.” Id. at
2185-86. Accordingly, this Court has recognized that
Pennsylvania’s implied consent scheme was unconstitutional
insofar as it threatened to impose enhanced criminal penalties
for the refusal to submit to a blood test. Commonwealth v.
Ennels, 167 A.3d 716, 724 (Pa. Super. 2017), reargument
denied (Sept. 19, 2017) (noting that “implied consent to a blood
test cannot lawfully be based on the threat of such enhanced
penalties”); Commonwealth v. Evans, 153 A.3d 323, 330-31
(Pa. Super. 2016).
Commonwealth v. Kurtz, ___ A.3d ___, 2017 PA Super 336 (Pa. Super.
Filed Oct. 23, 2017). Relevant to Appellant’s claim, the Birchfield Court
clarified that its holding should not be read to cast doubt on the propriety of
rules allowing for evidentiary consequences resulting from a motorist’s
refusal to consent to a blood draw. Birchfield, 136 S.Ct. at 2185.
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Before we address the merits of Appellant’s issue, we again must
determine whether Appellant has preserved this issue in the lower court. As
noted above, “[i]ssues not raised in the lower court are waived and cannot
be raised for the first time on appeal.” Pa.R.A.P. 302. This Court has held
that even “issues regarding the constitutionality of a statute can be waived”
if not preserved below. Commonwealth v. Lawrence, 99 A.3d 116, 122
(Pa. Super. 2014) (citation and quotation marks omitted).
Appellant argues that he preserved this second issue during the pre-
trial hearing, when he purportedly objected to any testimony about his
refusal to answer questions and to submit to a blood test. Appellant’s Brief
at 20-21. As described above, Appellant raised six evidentiary matters at
the pre-trial hearing, but he did not challenge the constitutionality of 75
Pa.C.S. § 1547(e). See N.T. Trial, 12/15/16, at 9-23. Rather, he
mentioned the general parameters of Birchfield in the context of his
explanation about why the trial court should allow his evidence of blood
testing kits, breathalyzers, and information from the manufacturers. See
N.T. Trial, 12/15/16, at 13-18.
In addition, our review of the certified record shows that Appellant
never sought to preclude any of the Commonwealth’s evidence regarding his
refusal to submit to blood testing, and never lodged a specific objection to
any of the testimony regarding such evidence during trial. In fact, during his
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own testimony at trial, Appellant repeatedly discussed his refusal to submit
to blood testing. See id. at 184-87, 189, 198, 204-05.
Significantly, after the trial court instructed the jury that it could
consider Appellant’s refusal of blood testing as evidence of his consciousness
of guilt, the court asked Appellant if he had any questions or objections
regarding the jury instructions. Appellant responded “No, Your Honor.” Id.
at 231.
After careful review of the certified record, we conclude that Appellant
has waived this second issue on appeal. See Pa.R.A.P. 302; Lawrence, 99
A.3d 122.8
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/18/2018
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8
We reiterate our observation that the trial court did not impose a
mandatory minimum sentence of incarceration based on Appellant’s refusal
to consent to a blood test. Thus, there are no concerns regarding the
legality of Appellant’s sentence under Birchfield.
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