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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ROGER ALLEN MCCONNELL, II
Appellant No. 163 EDA 2016
Appeal from the Judgment of Sentence December 16, 2015
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0001320-2015
BEFORE: PANELLA, J., LAZARUS, J., FITZGERALD, J.*
MEMORANDUM BY PANELLA, J. FILED JANUARY 25, 2017
Appellant, Roger Allen McConnell, II, appeals from the judgment of
sentence entered December 16, 2015, in the Monroe County Court of
Common Pleas. McConnell contests the sufficiency of the Commonwealth’s
evidence and the constitutionality of 75 Pa.C.S.A. § 1543(b)(2). After careful
review, we affirm.
The trial court summarized the relevant facts and procedural history as
follows.
On May 11, 2015, Pennsylvania State Trooper Matthew
Borger responded to a call involving an ATV that rolled over on
the driver at 516 Bottom Road in Polk Township. Upon arrival,
Trooper Borger observed [McConnell] refusing medical attention
from responding EMS for lacerations and brush burns caused by
the accident. [McConnell] and witnesses who saw the crash told
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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Trooper Borger that [McConnell] was driving the four-wheeler
when he lost control and it landed on top of him.
When Trooper Borger spoke with [McConnell], he noticed a
strong odor of alcohol coming from [McConnell’s] breath. In
addition, Trooper Borger observed [McConnell] had slurred
speech and bloodshot eyes. When Trooper Borger asked
[McConnell] how much he had to drink, [McConnell] responded,
“Enough.” [McConnell] also testified that he consumed two beers
on the day of the incident. [McConnell] refused to participate in
field sobriety tests, and signed a waiver refusing to submit to a
blood test.
[McConnell] informed Trooper Borger that he did not have
a driver’s license. Trooper Borger obtained a copy of
[McConnell’s] driving record indicating [McConnell’s] license was
suspended as of the date of the accident as the result of a
February 23, 2013 [Driving under the Influence (“DUI”) charge]
for which he received [Accelerated Rehabilitative
Disposition(“ARD”)]. As part of the ARD, [McConnell’s] driver’s
license was suspended for sixty days effective May 31, 2013.
[McConnell] was present when he was admitted into the ARD
program, and therefore, was well aware of the suspension.
Additionally, PennDot mailed an official suspension notice on May
31, 2013. [McConnell] never took steps to restore his license.
Moreover, more than four months prior to the accident,
[McConnell] was charged with [d]riving under DUI [s]uspension.
The Commonwealth charged [McConnell] with [DUI] under
75 Pa.C.S.A. Section 3802(a)(1)(General Impairment) and two
summary offenses – [d]riving under DUI [s]uspension (75
Pa.C.S.A. Section 1543(b)(1)[)] and [c]areless [d]riving (75
Pa.C.S.A. Section 3714(a)). On October 14, 2015, a bifurcated
trial took place whereby the DUI charge was presented to a jury
and the [court] decided the summary offenses. During the trial,
Trooper Borger testified that [McConnell’s] son told Trooper
Borger that [McConnell] was traveling on Serfass Road, a public
road, and tried to turn onto Bottom Road, a private road, when
the accident occurred. Moreover, Trooper Borger observed skid
marks on Serfass Road indicating [McConnell] was driving on
Serfass Road at the time of the accident.
[McConnell] admitted crossing Serfass Road to get to dirt
roads; however, [McConnell] denied operating his ATV on
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Serfass Road at the time of the accident. [McConnell] testified
that he used Bottom Road. Bottom Road is a service road off of
Serfass Road into a mobile home park. [McConnell’s] son
testified that Bottom Road is frequently traveled by many people
in order to get to their homes. It is also used by visitors, delivery
persons, and others. [McConnell’s] investigator, Wilson Miller,
witnessed cars traveling on Bottom Road during his
investigation.
At trial, both the Commonwealth and [McConnell] provided
evidence that [McConnell] drove carelessly at the time of the
accident. Based on his extensive experience in investigating over
1,000 vehicle accidents, Trooper Borger concluded that
[McConnell] was operating the vehicle at a high rate of speed
when he lost control. In addition, Investigator Miller testified that
[McConnell] told Miller he was driving 80 mph at the time of the
accident. [McConnell], in turn, testified he was attempting to do
a wheelie when he lost control of the vehicle, and that he had
consumed two alcoholic beverages at some time on the day of
the accident. [Further, McConnell testified that he did not recall
Trooper Borger asking him to submit to a blood test, but did
recall refusing a breath test].
The jury acquitted [McConnell] of the DUI charge. The
[court] found [McConnell] guilty of [d]riving under DUI
[s]uspension and [c]areless [d]riving.
On December 16, 2015, the [court] sentenced [McConnell]
to ninety days incarceration and a fine of $500 on the [d]riving
under DUI [s]uspension count and fined [McConnell] $25 for
[c]areless [d]riving.
Trial Court Opinion, 3/14/16, at 1-4. McConnell filed post-sentence motions,
which the trial court denied. Subsequently, McConnell filed a timely notice of
appeal and a court-ordered Rule 1925(b) statement of errors complained of
on appeal.
Appellant raises two issues for our review.
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I. WHETHER THE TRIAL COURT COMMITTED AN ERROR OF
LAW WHEN IT FOUND THAT THE EVIDENCE WAS
SUFFICIENT TO PROVE EVERY ELEMENT OF THE SUMMARY
VEHICLE CODE VIOLATIONS BEYOND A REASONABLE
DOUBT.
II. WHETHER THE TRIAL COURT COMMITTED AN ERROR OF
LAW IN FINDING THAT SECTION 1543(b)(2) OF THE
VEHICLE CODE DOES NOT VIOLATE DUE PROCESS.
Appellant’s Brief, at 6.
As a preliminary matter, we must determine whether McConnell has
preserved his issues for our review. Through his appellate brief, McConnell
challenges the sufficiency of the evidence for his summary conviction of
driving under DUI suspension. Specifically, he contends that the evidence
was insufficient to support the trial court’s finding that McConnell operated
his ATV on a “highway” or “trafficway” and the finding that McConnell
refused blood testing. Appellant’s Brief, at 14. However, McConnell failed to
preserve this issue in his court-ordered Rule 1925(b) statement.
We have previously outlined the requirements necessary to preserve a
sufficiency of the evidence argument on appeal. In Commonwealth v.
Williams, 959 A.2d 1252 (Pa. Super. 2008), we found that an appellant
waived the claim in his Rule 1925(b) statement that there was insufficient
evidence to sustain Murder, Robbery, and related charges. In explaining our
rationale for finding that appellant waived this claim, we stated that:
[i]f [an a]ppellant wants to preserve a claim that the evidence
was insufficient, then the 1925(b) statement needs to specify
the element or elements upon which the evidence was
insufficient. This Court can then analyze the element or elements
on appeal. The instant 1925(b) statement simply does not
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specify the allegedly unproven elements. Therefore, the
sufficiency issue is waived.
Before leaving this issue, we note that the Commonwealth
failed to object to the aforementioned defect in the 1925(b)
statement. We also see that the trial court’s opinion addressed
the topic of sufficiency. The Commonwealth’s failure and the
presence of a trial court opinion are of no moment to our
analysis because we apply Pa.R.A.P. 1925(b) in a predictable,
uniform fashion, not in a selective manner dependent on an
appellee’s argument or a trial court’s choice to address an
unpreserved claim. [See Commonwealth v.] Castillo, 888
A.2d [775,] 779,780; Commonwealth v. Butler, 571 Pa. 441,
812 A.2d 631, 634 (2002). Thus, we find 1925(b) waiver where
appropriate despite the lack of objection by an appellee and
despite the presence of a trial court opinion. Castillo, 888 A.2d
at 779, 780; Butler, 812 A.2d at 634.
Williams, 959 A.2d at 1257 (citing Commonwealth v. Flores, 921 A.2d
517, 522-523 (Pa. Super. 2007)).
Here, in his Rule 1925(b) statement, McConnell claimed that “[t]he
[t]rial [c]ourt committed an error of law when it found that the
Commonwealth’s evidence was sufficient to prove every element of the
[s]ummary [v]ehicle [c]ode violations beyond a reasonable doubt.”
Appellant’s Concise Statement of Matters Complained of on Appeal, 1/22/16,
at ¶ 1. At trial, McConnell was convicted of both careless driving and driving
under DUI suspension. Each of the aforementioned charges involves multiple
elements. It is clear that McConnell completely failed to identify the element
or elements that he alleges the Commonwealth failed to sufficiently prove.
See Williams, 959 A.2d at 1257. Thus, we find that McConnell’s failure to
properly identify his challenge in his Rule 1925(b) statement has resulted in
a waiver of his sufficiency argument.
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In his final issue on appeal, McConnell challenges the trial court’s
finding that § 1543(b)(2) of the Vehicle Code is constitutional. See
Appellant’s Brief, at 14. McConnell, who could have easily sought restoration
of his driving privileges, but did not do so, contends that the “until
restoration” provision of § 1543(b)(2) is unconstitutional because it
arbitrarily lengthens a period of DUI related suspension until a licensee
restores their operating privileges. See id. at 14-15. McConnell argues that
this violates substantive due process under both Article 1, Section 9 of the
Pennsylvania Constitution, and the Fourteenth Amendment to the United
States Constitution. See id. at 23. We disagree.
The constitutionality of a statute is a question of law; therefore the
scope of appellate review is plenary. See Commonwealth v. Moss, 852
A.2d 374, 379 (Pa. Super. 2004). “The constitutional validity of duly enacted
legislation is presumed.” The party seeking to overcome the presumption of
validity must meet a formidable burden.” Commonwealth v. Haughwout,
837 A.2d 480, 487 (Pa. Super. 2003) (citation omitted). “A statute will not
be declared unconstitutional unless it clearly, palpably, and plainly violates
the Constitution; all doubts are to be resolved in favor of a finding of
constitutionality.” Commonwealth v. Mayfield, 832 A.2d 418, 421 (Pa.
2003) (internal citations and quotation marks omitted).
Where an appellant challenges a statute as violating the constitutional
protection to substantive due process, we must first determine the
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appropriate degree of scrutiny to apply. See Commonwealth v.
Etheredge, 794 A.2d 391, 396-397 (Pa. Super. 2002). In situations where
an appellant’s challenge restricts a fundamental right, we examine it under
strict scrutiny. See Smith v. Coyne, 722 A.2d 1022, 1025 (Pa. 1999).
However, “[a]bsent a fundamental right, the standard of review for a
substantive due process challenge is whether the statute at issue has a
reasonable basis.” Commonwealth v. Agnew, 600 A.2d 1265,1268 (Pa.
Super. 1991).
McConnell concedes that his challenge implicates a privilege rather
than a fundamental right. See Appellant’s Brief, at 23; see also
Commonwealth v. Jenner, 681 A.2d 1266, 1273 (Pa. Super. 1996) (“This
Court has often stated that driving is a privilege, not a fundamental right.”)
Thus we will examine § 1543(b)(2) of the Vehicle Code under the rational
basis test.
The rational relationship test evaluates whether a particular
statute is rationally related to furthering a legitimate state
purpose. It is enough that there is an evil at hand for correction,
and that it might be thought that the particular legislative
measure was a rational way to correct it. Thus, the rational
relationship test mandates a two-step analysis. The first step is
to consider whether the challenged statute seeks to promote any
legitimate state interest or public value. The second prong of the
analysis mandates an evaluation of whether the statute is
reasonably related to accomplishing the articulated state interest
or interests.
Commonwealth v. Strunk, 582 A.2d 1326, 1328 (1990) (internal citations
and quotations omitted).
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Here, the statute McConnell challenges provides as follows.
This subsection shall apply to any person against whom one of
these suspensions has been imposed whether the person is
currently serving this suspension or whether the effective date of
suspension has been deferred under any of the provisions of
section 1544 (relating to additional period of revocation or
suspension). This provision shall also apply until the person has
had the operating privilege restored. This subsection shall also
apply to any revocation imposed pursuant to section 1542
(relating to revocation of habitual offender’s license) if any of the
enumerated offenses was for a violation of section 3802 or
former section 3731 or for an out-of-State offense that is
substantially similar to a violation of section 3802 or former
section 3731, for which a revocation is imposed under section
1581.
75 Pa.C.S.A. § 1543(b)(2) (emphasis added).
McConnell concedes that the first prong of the rational basis test has
been met because the state has a legitimate interest in protecting “‘the
safety of those who use the Commonwealth’s highways’ from intoxicated
drivers.” Appellant’s Brief, at 24 (quoting Jenner, 681 A.2d at 1273). In
fact, we note that the entirety of the challenged legislation “was enacted in
coordination with the New Drunk Driving Law as part of the legislature’s
broad response to the serious problem of intoxicated drivers.”
Commonwealth v. Hoover, 494 A.2d 1131, 1133 (Pa. Super. 1985).
Further,
As to the second prong of the rational basis test, McConnell argues
that the provision of the statute imposing the penalties “until restoration” of
a party’s operating privileges lacks the required nexus to the identified state
interest of preventing drunk driving. See Appellant’s Brief, at 24. McConnell
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avers that there is “no logical nexus between the need to protect the public
from intoxicated drivers and subjecting individuals who are eligible to have
their operating privileges restored to the heighted penalties set aside for
driving with DUI-related suspension simply because they have not taken the
steps necessary for restoration.” Id. However, despite McConnell’s
contentions, we believe that it is logical for a party who has had their
operating privileges suspended to be required to take affirmative action to
have their privileges restored. Many DUI offenders, including McConnell,
have their licenses suspended more than one time due to DUI offenses.
Requiring a party to affirmatively apply to have their licenses restored allows
the Pennsylvania Department of Transportation the opportunity to review a
party’s driving record and ensure that they are not mistakenly reissuing a
license to a party whose license has been suspended due to an additional
DUI offense.
Because we find that the legislature’s action in requiring a party to
take affirmative action to restore their operating privileges is reasonably
related to the goal of preventing drunk driving, we hold that § 1543(b)(2)
does not deny McConnell substantive due process.
Judgment of sentence affirmed.1
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1
We note that McConnell’s refusal to submit to a warrantless breath and/or
blood test and subsequent conviction under 75 Pa.C.S.A. § 1543(b)(1.1)(i)
implicates the United States Supreme Court’s decision in Birchfield v.
(Footnote Continued Next Page)
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/25/2017
_______________________
(Footnote Continued)
North Dakota, 136 S.Ct. 2160, 2169 (U.S. 2016) (holding that implied
consent laws that impose criminal penalties for refusing to submit to a blood
test violates the Fourth Amendment when such searches are not authorized
by a warrant signed by a magistrate). Because of Birchfield, we have held
that sentences imposing criminal penalties on the refusal to submit to a
warrantless blood test are per se illegal and necessitate resentencing. See
Commonwealth v. Evans, ___ A.3d ___, ___, 2016 WL 7369120, *8 (Pa.
Super., filed 12/20/16). However, the Court also held in Birchfield that a
defendant can be criminally prosecuted for refusing a warrantless breath
test. See id. at 2186. Here, § 1543(b)(1.1)(i) imposes criminal penalties for
refusing to submit to either a breath test or a blood test. McConnell testified
that he recalled refusing to submit to a breath test. Thus, because
McConnell’s actions in refusing a breath test are subject to criminal penalties
under § 1543(b)(1.1)(i), we are not required to vacate McConnell’s sentence
under Birchfield.
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