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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
DONALD LEE FRY, : No. 698 WDA 2016
:
Appellant :
Appeal from the Judgment of Sentence, December 14, 2015,
in the Court of Common Pleas of McKean County
Criminal Division at No. CP-42-CR-0000435-2014
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND SOLANO, J.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 07, 2017
Donald Lee Fry appeals from the judgment of sentence of
December 14, 2015, following his conviction of one count of driving under
the influence (“DUI”) -- general impairment1 and related summary offenses.
After careful review, we affirm the convictions but vacate appellant’s
sentence for DUI and remand for resentencing.
At a non-jury trial on October 28, 2015, before the Honorable John H.
Pavlock, the Commonwealth adduced the following evidence.
Trooper Jeffrey Walker of the Pennsylvania State Police testified that on
April 12, 2014, he was conducting routine patrol and “running radar” at the
intersection of State Route 219 and Route 6, “just south of Lantz Corner.”
1
75 Pa.C.S.A. § 3802(a)(1).
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(Notes of testimony, 10/28/15 at 5, 8.) At 7:22 p.m., Trooper Walker
observed appellant’s white Pontiac Grand Prix traveling north on Route 219
at a “very high rate of speed.” (Id. at 8, 11.) Trooper Walker activated his
radar unit which showed appellant to be traveling at 109 miles per hour in a
55-mile-per-hour zone. (Id. at 8, 11.) At that time, Trooper Walker pulled
out onto the highway, activated his emergency lights, and effectuated a
traffic stop. (Id. at 12.) Trooper Walker testified that appellant pulled over
approximately one-half mile down the road. (Id.)
Immediately upon approaching the driver’s side window of the vehicle,
Trooper Walker detected a strong odor of an alcoholic beverage coming from
appellant’s breath. (Id. at 13.) Appellant had glassy, bloodshot, and watery
eyes, and slurred speech. (Id. at 14.) Appellant was fumbling for his
documents and had to be asked twice for his vehicle registration card. (Id.
at 14, 54.) Appellant was laughing, which Trooper Walker found to be
unusual. (Id. at 14.) Trooper Walker asked appellant if he had been
drinking, and appellant responded that he had consumed 2 or 3 beers. (Id.
at 15.)
Appellant failed field sobriety tests and was placed under arrest for
suspicion of DUI. (Id. at 35.) Trooper Walker transported appellant to Kane
Community Hospital for a blood draw; however, after being given his implied
consent warnings, appellant refused blood testing. (Id. at 35-36.)
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Appellant signed the DL-26 form2 indicating his refusal. (Id. at 36-37;
Commonwealth’s Exhibit 3.)
At the conclusion of trial, appellant argued that the Commonwealth
had failed to establish jurisdiction in McKean County. (Id. at 87.) The trial
court rejected this argument, taking judicial notice of the fact that the
intersection where appellant was stopped is in McKean County:
The first thing I’m going to address is the
jurisdiction issue. I have to decide the case based
on what’s in the record.
As far as towns and places and are they in
McKean County or not, that -- that’s a tough issue
because I wasn’t asked to take judicial notice.
However, based on all the facts, the trooper testified
he was stationed in this county, that this incident
happened south of Lantz Corner, but more
importantly just south of the Barracks. So there’s
sufficient evidence to establish jurisdiction.
It is an issue though that wouldn’t be an issue
if it was this happened in McKean County. But that
-- that wasn’t in the record. However, I find that
there’s sufficient evidence in the record to
demonstrate that this alleged crime occurred in
McKean County, so I’m denying the request to
dismiss the case based on a jurisdiction issue.
Id. at 109-110.
2
The DL–26 form contains warnings of the potential consequences of a
person’s refusal to consent to a blood test, including that the individual’s
license could be suspended for at least one year, and that if convicted of
violating 75 Pa.C.S.A. § 3802(a), the individual will face more severe
penalties because of the refusal.
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The trial court found appellant guilty of count 1, DUI, as well as the
summary offenses listed in counts 2, 3, and 4.3 (Id. at 116-117; docket
#15.) On December 14, 2015, appellant was sentenced to 20 days’ to
6 months’ incarceration for DUI pursuant to 75 Pa.C.S.A. § 3804(c)(1).4
Appellant received fines on the summary offenses. (Docket #13.) A timely
post-sentence motion was filed on December 21, 2015, and denied on
April 19, 2016, following a hearing. A timely notice of appeal was filed on
May 11, 2016. On May 23, 2016, appellant was ordered to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b)
within 21 days; appellant timely complied on June 10, 2016. On June 13,
2016, the trial court filed a Rule 1925(a) opinion, relying on its opinion and
order of April 19, 2016, denying appellant’s post-sentence motion. (Docket
#6.)
3
75 Pa.C.S.A. §§ 3362(a)(2) (maximum speed limits), 3714(a) (careless
driving), and 3736(a) (reckless driving), respectively.
4
(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[.]
75 Pa.C.S.A. § 3804(c)(1).
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Appellant has raised the following issues for this court’s review:
I. Should judgement of sentence be reversed by
operation of law under the circumstances of
this case because the Commonwealth failed to
present sufficient evidence in the record that
appellant drove in McKean County, the
Commonwealth only establishing that the stop
occurred “just south of” a known intersection
which is extremely close to the next county?
II. Should the case be remanded for resentencing
in light of the fact that the arresting officer did
not receive and execute a search warrant
before demanding that appellant submit to a
blood test?
Appellant’s brief at 5 (capitalization omitted).
In his first issue on appeal, appellant claims that the Commonwealth
failed to present sufficient evidence of where the offense occurred to
establish jurisdiction. We disagree.
A court has no jurisdiction over an offense unless the
offense occurred within the county in which the trial
takes place. Commonwealth v. Thomas, 305
Pa.Super. 158, 451 A.2d 470 (1982). The burden to
establish the court’s jurisdiction is on the
Commonwealth. Commonwealth ex rel. Chatary
v. Nailon, 416 Pa. 280, 285, 206 A.2d 43 (1965).
Commonwealth v. Sestina, 546 A.2d 109, 112 (Pa.Super. 1988), appeal
denied, 554 A.2d 508 (Pa. 1989).
“The doctrine of judicial notice is intended to avoid
the necessity for the formal introduction of evidence
in certain cases when there is no real need for it,
where a fact is so well established as to be a matter
of common knowledge.” Albert Appeal, 372 Pa.
13, 20, 92 A.2d 663, 666 (1952); See
Commonwealth ex rel. Duff v. Keenan, 347 Pa.
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574, 582-83, 33 A.2d 244, 249 (1943) (“so well
known as to be incontestable.”). Included in the
subjects appropriate for judicial notice is the county
in which a town or city is located, [s]ee Emert v.
Larami Corp., 414 Pa. 396, 200 A.2d 901 (1964);
Commonwealth v. Kaiser, 184 Pa. 493, 39 A. 299
(1898), and the location of roads and highways.
See Schmidt v. Allegheny County, 303 Pa. 560,
154 A. 803 (1931); Commonwealth v. Ball, 277
Pa. 301, 121 A. 191 (1923).
Commonwealth v. Varner, 401 A.2d 1235, 1236 (Pa.Super. 1979).
In Varner, the offense occurred in the parking lot of the Shippensburg
Fair Grounds and on Possum Hollow Road near the Fair Grounds. Id. While
the appellant never alerted the prosecution that the county of the offense
was in issue, he argued on post-trial motions and on appeal that
Shippensburg is near the border of Cumberland and Franklin counties and
that the prosecution never specifically established that the situs of the
offense was in Franklin County. Id. at 1235-1236. This court held that the
trial court did not err in taking judicial notice that the offense occurred in
Franklin County where the locality of the offense was only technically in
issue. Id. at 1236. In overruling post-trial motions, the trial court took
judicial notice that “it is a well-known geographical fact that” the area near
the Fair Grounds where the appellant was arrested is in Franklin County. Id.
at 1235. See also Sestina, 546 A.2d at 112 (where the Commonwealth
established a specific street and intersection location, the trial court would
have been entitled to take judicial notice of the fact that the site of the
offense was in Warren County).
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Here, Trooper Walker testified that he was situated “just south” of the
intersection of State Route 219 and Route 6 when he clocked appellant’s
vehicle at 109 miles per hour. (Notes of testimony, 10/28/15 at 8.) There
does not appear to be any dispute that the intersection of State Route 219
and Route 6 is in McKean County, and the trial court took judicial notice of
this fact. (Trial court opinion, 4/19/16 at 1.) Furthermore, Trooper Walker
testified that appellant’s vehicle came to a stop approximately one-half mile
after Trooper Walker pulled out and activated his emergency equipment.
(Notes of testimony, 10/28/15 at 12.) Trooper Walker also testified that
appellant’s vehicle came to a sudden stop, pulling quickly onto the berm of
the highway. (Id. at 51-52.) The trial court took judicial notice of the fact
that the McKean County/Elk County line is approximately 6 miles south of
the intersection of State Route 219 and Route 6. (Trial court opinion,
4/19/16 at 1-2.) This was sufficient to establish that the crime occurred in
McKean County, and therefore, the trial court had jurisdiction.
We now turn to appellant’s second issue on appeal. Appellant basically
argues that his sentence was illegal under the recent United States Supreme
Court case of Birchfield v. North Dakota, U.S. , 136 S.Ct. 2160
(2016), which invalidates any criminal sanction assessed for refusing to take
a blood test. We are constrained to agree.
Initially, we note that appellant did not raise this issue in the court
below; in post-sentence motions and in his Rule 1925(b) statement, he only
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challenged jurisdiction. The Commonwealth contends that the issue is
waived on this basis. (Commonwealth’s brief at 8.) However, the issue
goes to the legality of appellant’s sentence, which is non-waivable. See
Commonwealth v. Barnes, A.3d , 2016 WL 7449232 at *5 (Pa.
Dec. 28, 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).
In addition, Birchfield was decided on June 23, 2016, after
appellant’s sentence but during the pendency of the instant appeal. Where a
United States Supreme Court decision “results in a ‘new rule,’ that rule
applies to all criminal cases still pending on direct review.” Schriro v.
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Summerlin, 542 U.S. 348, 351 (2004). The Commonwealth cites case law
for the proposition that in order for a new rule to apply retroactively to a
case pending on direct appeal, the issue had to be preserved at all stages of
litigation up to and including the direct appeal. (Commonwealth’s brief at 8,
citing Commonwealth v. Tilley, 780 A.2d 649 (Pa. 2001);
Commonwealth v. Cabeza, 469 A.2d 146 (Pa. 1983).) See also
Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and
cannot be raised for the first time on appeal.”). However, the Pennsylvania
Supreme Court in Barnes made clear that “an exception to the
issue-preservation requirement exists where the challenge is one implicating
the legality of the appellant’s sentence.” Barnes, 2016 WL 7449232 at *3,
citing Commonwealth v. Dickson, 918 A.2d 95, 99 (Pa. 2007). Therefore,
the matter is not waived, and appellant is entitled to retroactive benefit of
the new rule.
In Birchfield, as in this case, the defendant refused a blood test after
being read his implied consent warnings. He was advised that his refusal to
undergo blood alcohol content (“BAC”) testing would expose him to criminal
penalties. Birchfield, 136 S.Ct. at 2170. Birchfield pled guilty to a
misdemeanor violation of the North Dakota refusal statute, but argued that
the Fourth Amendment prohibited criminalizing his refusal to submit to the
test. Id. at 2170-2171. The United States Supreme Court agreed and
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reversed Birchfield’s conviction, holding that a State may not criminalize a
motorist’s refusal to comply with a demand to submit to blood testing.
The Birchfield Court distinguished between breath and blood tests,
the latter of which it found to be significantly more intrusive. Id. at 2184.
The Court determined that with regard to blood tests, the police must either
seek a warrant or show exigent circumstances. Id. The Court in Birchfield
also rejected the argument that warrantless blood tests are justified based
on the driver’s legally implied consent to submit to them:
Our 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. Petitioners do not
question the constitutionality of those laws, and
nothing we say here should be read to cast doubt on
them.
It is another matter, however, for a State not only to
insist upon an intrusive blood test, but also to
impose criminal penalties on the refusal to submit to
such a test. There must be a limit to the
consequences to which motorists may be deemed to
have consented by virtue of a decision to drive on
public roads.
Id. at 2185 (citations omitted).
Appellant cannot be subject to enhanced criminal penalties for refusal
to submit to a blood test. See also Commonwealth v. Giron, A.3d
, 2017 WL 410267 (Pa.Super. filed Jan. 31, 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
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by police is not subject to the enhanced penalties provided in 75 Pa.C.S.A.
§§ 3803-3804.” (footnote omitted)); Commonwealth v. Evans, A.3d
, 2016 WL 7369120 at *8 (Pa.Super. Dec. 20, 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).5
Therefore, it is necessary to remand for resentencing without consideration
of the mandatory minimum sentence in Section 3804(c)(1)(i).
5
The Supreme Court in Birchfield consolidated three separate cases, one of
which was petitioner Steve Michael Beylund’s case. After Beylund’s arrest
for DUI, the officer informed him of North Dakota’s implied consent advisory
and that “test refusal in these circumstances is itself a crime.” Birchfield,
136 S.Ct. at 2172. Beylund then agreed to the requested blood draw, and
testing revealed a BAC of 0.250%, more than three times the legal limit.
Id. Beylund appealed, principally arguing that his consent to the blood test
was coerced by the officer’s warning that refusing to consent would itself be
a crime. The North Dakota Supreme Court found that Beylund’s consent
was valid, emphasizing that North Dakota’s implied consent advisory was not
misleading because it truthfully related the penalties for refusal. The
Birchfield Court rejected this rationale:
The North Dakota Supreme Court held that Beylund’s
consent was voluntary on the erroneous assumption
that the State could permissibly compel both blood
and breath tests. Because voluntariness of consent
to a search must be determined from the totality of
all the circumstances, we leave it to the state court
on remand to reevaluate Beylund’s consent given the
partial inaccuracy of the officer’s advisory.
Id. at 2186 (citation and quotation marks omitted).
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Judgment of sentence vacated. Remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/7/2017
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