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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JARAD A. ANGOTTI
Appellant No. 966 WDA 2016
Appeal from the Judgment of Sentence May 23, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0006569-2015
BEFORE: BOWES, J., LAZARUS, J., and OTT, J.
CONCURRING MEMORANDUM BY BOWES, J.: FILED JANUARY 30, 2018
I agree that the evidence, when taken in the light most favorable to
the Commonwealth, circumstantially established that Appellant was driving
under the influence of a controlled substance.1 I write separately to address
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1
On the day of Appellant’s non-jury trial, the trial court ordered a urine
screen. In rendering its verdict, the trial court noted that Appellant tested
positive for methamphetamines, in contradiction to his trial testimony. N.T.,
5/5/16, at 50. The trial court’s opinion notes that this result “further called
into question” Appellant’s credibility. Trial Court Opinion, 11/30/16, at 8.
Relying on that evidence was improper. While the results of the drug screen
were properly considered with respect to the trial court’s decision regarding
bond, credibility findings must be made in light of the evidence presented by
the parties and cannot encompass extra-record investigations by the
factfinders. Juries are commonly instructed to refrain from conducting their
own investigations, and the same principle equally applies in a non-jury
proceeding.
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the learned Majority’s discussion of the fact that Appellant consented to a
blood draw.2
Appellant was convicted on May 5, 2016. On June 23, 2016, the
United States Supreme Court issued Birchfield v. North Dakota, 136 S.Ct.
2160 (2016), which held that a warrantless blood draw cannot be justified as
a search incident to an arrest. The Majority opines that Birchfield could
raise a question as to the legality of Appellant’s sentence.
[W]e are not constrained to implicate Birchfield only where a
defendant receives an enhanced penalty for refusing a blood
draw. Rather, Birchfield is also implicated where a defendant
consents to a blood draw subsequent to receiving DL-26
warnings; however, such cases do not necessarily raise legality
of sentence questions that this Court may address sua sponte.
Here, Angotti voluntarily consented to a blood draw after
admitting to using heroin. There is no indication in the record
that Officer McDaniel informed Angotti that he would face
enhanced criminal penalties for failing to do so or that Officer
McDaniel administered a DL-26 form prior to Angotti giving
consent. See Commonwealth v. Wolfe, 106 A.3d 800, 802
(Pa.Super. 2014) (standard and scope of review over questions
involving the legality of sentence is de novo and scope of review
is plenary). Moreover, Angotti does not argue in his brief that his
consent was involuntary. Therefore, we deem it inappropriate to
sua sponte raise this issue and, instead, chose to address only
the claim Angotti raised on appeal.
Majority memorandum at 6, n.4. I agree that we cannot sua sponte raise
any Birchfield issue in this case, but that is because Birchfield is not
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2
For ease of reference I will refer to our memorandum as the Majority;
however, Judge Ott has concurred only in the result.
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implicated where a defendant consents to a blood draw and fails to file a
motion to suppress that evidence as involuntary.
In my view, the Majority overlooks the distinction between convictions
and sentences. Assuming arguendo that Birchfield rendered Appellant’s
consent involuntary under the rationale expressed in Birchfield, then the
blood evidence must be suppressed and we would be required to grant a
new trial. Whatever the contours of the illegality of sentence construct, it
clearly limits this Court to correcting defects regarding sentences, not
convictions.3 Assuming arguendo that Birchfield did apply in this case, I
fail to see what action we could take with respect to Appellant’s sentence.
There is no illegality to correct, and we clearly cannot vacate the conviction.
Birchfield would present a legality of sentence question in this case
only if Appellant received an enhanced sentence as the result of refusing a
blood draw, where the issue of consent was properly preserved.4 As we
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3
I note that Appellant does not address Birchfield in his brief. Appellant’s
Pa.R.A.P. 1925 statement, however, did raise Birchfield. Unlike the
Majority, Appellant did not assert to the trial court that his sentence was
illegal, but rather that his conviction was: “[R]etroactive application entitles
Mr. Angotti to a new trial, as Mr. Angotti's blood was drawn without a
warrant and the results of the blood draw were admitted as substantive
evidence of guilt at his trial.” Concise statement, 11/27/16, at unnumbered
3.
4
We recently held in Commonwealth v. Napold, 2017 WL 4105733
(Pa.Super. September 15, 2017), that an appellant who seeks application of
Birchfield to a claim that the Commonwealth cannot introduce evidence of
refusal as substantive evidence of guilt is required to preserve the issue at
(Footnote Continued Next Page)
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explained in Commonwealth v. Evans, 153 A.3d 323, 324 (Pa.Super.
2016), Birchfield precludes the imposition of enhanced criminal penalties
when a driver refuses to provide blood.
Thus, even though Pennsylvania's implied consent law does not
make the refusal to submit to a blood test a crime in and of
itself, the law undoubtedly “impose[s] criminal penalties on the
refusal to submit to such a test.” Birchfield, 136 S.Ct. at 2185–
2186. To be sure, Section 3804(c) provides that an “individual
who violates section 3802(a)(1)[, DUI, general impairment] and
refused testing of blood” is punished more severely than an
individual who commits the stand-alone DUI, general impairment
offense under Section 3802(a)(1)—and to the same extent as an
individual who violates Section 3802(c), relating to DUI, highest
rate of alcohol. 75 Pa.C.S.A. § 3804(c).
Id. at 331.
Herein, Appellant was not subjected to any criminal penalty due to a
refusal, as he did not refuse. Therefore, Birchfield has no applicability
whatsoever to the legality of the instant sentence, and there is simply no
action we could take with respect to his sentence even if we were permitted
to reach the issue sua sponte. See Commonwealth v. Giron, 155 A.3d
635, 639 (Pa.Super. 2017) (“Accordingly, we must determine if Appellant
received criminal penalties for his refusal to submit to a warrantless blood
test. If he did, his sentence was illegal.”) (footnote omitted).
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(Footnote Continued)
the trial court level. I filed a concurring memorandum expressing my
skepticism that Birchfield would have applied to that particular claim.
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Therefore, I do not join the portions of the memorandum addressing
Birchfield.
Judge Ott joins the concurring memorandum.
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