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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
FREDERICK T. BROWN,
APPELLANT
No. 1256 EDA 2016
Appeal from the Judgment of Sentence December 29, 2015
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0000466-2015
BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY DUBOW, J.: FILED APRIL 06, 2017
Appellant, Frederick T. Brown, appeals from the December 29, 2015
Judgment of Sentence entered in the Monroe County Court of Common Pleas
following his jury conviction of Driving Under the Influence: Controlled
Substance-Meta bolite.1
The trial court summarized the facts as elicited at trial as follows:
On July 22, 2014, at approximately 1:00 p.m., Trooper
Andrew Depew, while on routine patrol, ran Appellant's
vehicle registration through his in -car NCIC systenn.E21 The
NCIC system indicated that Appellant's vehicle registration
had been suspended due to his insurance being cancelled.
Trooper Depew followed Appellant off the interstate to
1 75 Pa.C.S. § 3802(d)(1)(iii).
2 The NCIC system is the National Crime Information Center's computerized
index of criminal justice information such as criminal record history
information, fugitives, stolen properties, and missing persons.
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effectuate a safe traffic stop on Lower Main Street in
Stroudsburg, Pennsylvania, to address the suspended
registration and insurance cancellation issues.
Trooper Depew made contact with Appellant and related
the reason he was being stopped. Upon making contact,
Trooper Depew noted that Appellant was not wearing his
seat belt. Trooper Depew also observed the odor of
marijuana emanating from Appellant's person and that
Appellant's eyes were red, glossy, and bloodshot. Under
suspicion of DUI, Trooper Depew administered three field
sobriety tests: the Horizontal Gaze Nystagmus Test ("HGN
Test"), the Rhomberg Balance Test, and the Lack of
Convergence Test.
The Commonwealth elicited some specifics regarding the
HG[N] and other field sobriety tests, however, Trooper
Depew did not testify as to the results. At trial, defense
counsel[] did not object to the Commonwealth's questions
on the field sobriety tests and even mentioned some of
these tests on cross examination ("Now, when you talk
about the HGN, the Walk -and -Turn and the One -Leg
Stand, those tests were actually not designed to test for a
controlled substance intoxication; is that correct?").
Based on his observations, Trooper Depew placed
Appellant under arrest for suspicion of DUI and requested
Appellant submit to a blood draw. Appellant signed an
O'Connell Warnings form [DL -26] and submitted to a
blood draw at the DUI Center. The results of the blood
test indicate that Appellant had 6.4 nanograms per
milliliter of Delta -9 Carboxy THC, a metabolite of THC, or
marijuana, in his system. Based on the above events,
Appellant was charged with various DUI crimes and Vehicle
Code Violations.[3]
Trial Ct. Op., 6/17/16, at 1-2 (footnote in original omitted, citations to Notes
of Testimony omitted, paragraph breaks added).
3
Prior to trial, the Commonwealth dropped Counts 1 and 3 of the Criminal
Information, so that the jury only considered Count 2.
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On December 4, 2015, following a one -day trial, the jury convicted
Appellant of the above charge.4 The trial court also convicted Appellant of
two summary offenses: Vehicle Registration Suspended and Failure to Use
Safety Belt.5 The court ordered the preparation of a Pre -Sentence
Investigation Report, and on December 29, 2015, the court sentenced
Appellant to a standard -range term of 18 to 60 months' incarceration, a
$1,000.00 fine, and an 18 -month driver's license suspension.
On January 7, 2016, Appellant's counsel filed a Motion for Extension of
Time to File a Post -Sentence Motion, which the trial court granted on
January 8, 2016.6 On March 8, 2016, Appellant filed a Post -Sentence
Motion, alleging that the verdict was against the weight of the evidence
and/or unsupported by sufficient evidence, that the court erred in allowing
the Commonwealth to present testimony regarding Appellant's failure of field
sobriety tests, and claiming that his sentence was excessive. On April 12,
2016, the trial court denied Appellant's Motion. Appellant filed a timely
4 At the time of trial, Noelle Wilkinson, Esq. of the Public Defender's Office
represented Appellant. Following trial, the court appointed current counsel
Brian S. Gaglione, Esq. to represent Appellant.
5 75 Pa.C.S. § 1371 (a) and 75 Pa.C.S. § 4581(a)(2)(ii), respectively.
6 On January 8, 2016, the court entered an Order extending the time for
Appellant to file a Post -Sentence Motion until March 8, 2016. This Order
also extended the time for Appellant to file a Notice of Appeal until "within
30 days from the denial of any Post -Sentencing Motions that may be filed in
these matters or 30 days from March 8, 2016[,] if no Post-[S]entencing
Motions are filed." Order, 1/8/16.
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Notice of Appeal.' Both Appellant and the trial court complied with Pa.R.A.P.
1925.
Appellant raises three issues on appeal:
1.Whether the Mower [c]ourt abused its discretion at the
time of [s]entencing in this matter[?]
2. Whether the lower [c]ourt erred by allowing the
prosecutor to elicit information relative to field sobriety
tests, including the HGN test[?]
3. Whether the verdict was against the sufficiency of the
evidence, particularly in light of the U.S. Supreme Court's
ruling in Birchfield [v. North Dakota, 136 S.Ct. 2160
(2016)?]
Appellant's Brief at 6.
In his first issue, Appellant claims the trial court abused its discretion
by imposing an allegedly excessive sentence. A claim of this nature
challenges the discretionary aspects of Appellant's sentence.
Commonwealth v. Ahmad, 961 A.2d 884, 886 (Pa. Super. 2008) (citation
omitted). Appellant "must therefore petition for permission to appeal those
issues, as the right to pursue such a claim is not absolute." Commonwealth
7 We note that, generally, a trial court is without authority to extend the
time to file a Post -Sentence Motion or Notice of Appeal, and the Superior
Court may not enlarge the time for filing a Notice of Appeal. See Pa.R.A.P.
105(b); Commonwealth v. Valentine, 928 A.2d 346, 349 (Pa. Super.
2007). However, where a trial court misleads a defendant about an appeal
period, this Court will consider an untimely direct appeal. Commonwealth
v. Coolbaugh, 770 A.2d 788, 791 (Pa. Super. 2001). In the instant matter,
notwithstanding that Appellant did not file his Notice of Appeal within 30
days of his Judgment of Sentence, because the trial court erroneously
extended the time for Appellant to file his appeal, we will consider it.
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v. Finnecy, 135 A.3d 1028, 1031 (Pa. Super. 2016) (citation and internal
quotation marks omitted). In addition, prior to reaching the merits of a
discretionary sentencing issue:
We conduct a four-part analysis to determine: (1) whether
appellant has filed a timely [N]otice of [A]ppeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a [M]otion to [R]econsider
and [M]odify [S]entence, see [Pa.R.Crim.P. 720]; (3)
whether appellant's [B]rief has a fatal defect, Pa.R.A.P.
2119(f); and (4) whether there is a substantial question
that the sentence appealed from is not appropriate under
the Sentencing Code, 42 Pa.C.S.[] § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006) (citations
omitted).
In the instant case, Appellant filed a timely Notice of Appeal and a
timely Post -Sentence Motion. Appellant also included a separate Pa.R.A.P.
2119(f) Statement in his appellate Brief. As to whether Appellant has
presented a substantial question, we must examine the specific sentencing
issue raised by Appellant.
In his Pa.R.A.P. 2119(f) Statement, Appellant alleges "the lower court
abused its discretion by sentencing Appellant in the standard range despite a
lack of competent, credible evidence that Appellant posed a danger to
anyone while driving his vehicle with such a scant amount of a metabolite of
marijuana in his blood. Given the lack of such evidence, the sentence
imposed of 18-16 months, shocks the conscience and constituted a manifest
abuse of discretion." Appellant's Brief at 11.
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It is well settled that:
The determination of what constitutes a substantial
question must be evaluated on a case -by -case basis. A
substantial question exists only when the appellant
advances a colorable argument that the sentencing judge's
actions were either: (1) inconsistent with a specific
provision of the Sentencing Code; or (2) contrary to the
fundamental norms which underlie the sentencing process.
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation,
quotation marks, and quotation omitted).
Ordinarily, absent a showing of manifest injustice, a claim of
excessiveness does not raise a substantial question that justifies review
when the sentence is within the statutory limits. See Commonwealth v.
Mouzon, 812 A.2d 617, 624-25 (Pa. 2002). Similarly, "[a]n allegation that
the sentencing court failed to consider certain mitigating factors generally
does not necessarily raise a substantial question." Moury, 992 A.2d at 171.
We conclude that Appellant's challenge to the excessiveness of his
sentence does not raise a substantial question permitting our review.
Simply, Appellant has not framed and preserved his issue in a way that
suggests that the Appellant's sentence, which he concedes was within the
standard range, was manifestly unreasonable. Moreover, to the extent that
Appellant is attempting to claim that the court did not adequately consider
the mitigating fact of his level of intoxication purportedly not being a danger
to public safety, such does not present a substantial question. Accordingly,
this claim fails.
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In his next issue, Appellant challenges the admission of testimony
regarding Appellant's performance on field sobriety tests, including the HGN
Test. Appellant's Brief at 14-15. Appellant claims that the results of field
sobriety testing is not relevant to prove whether there was evidence of drugs
or a metabolite of drugs in his blood. Id. at 15.
We review a trial court's decision to admit evidence with the following
in mind:
The admission of evidence is a matter vested within the
sound discretion of the trial court, and such a decision
shall be reversed only upon a showing that the trial court
abused its discretion. In determining whether evidence
should be admitted, the trial court must weigh the relevant
and probative value of the evidence against the prejudicial
impact of the evidence. Evidence is relevant if it logically
tends to establish a material fact in the case or tends to
support a reasonable inference regarding a material fact.
Although a court may find that evidence is relevant, the
court may nevertheless conclude that such evidence is
inadmissible on account of its prejudicial impact.
Commonwealth v. Antidormi, 84 A.3d 736, 749 (Pa. Super. 2014)
(citation omitted).
Where a defendant claims error in the admission of evidence, he must
have made a timely objection, stating the specific ground of objection.
Commonwealth v. Willis, 552 A.2d 682, 690 (Pa. Super. 1988); see also
Pa.R.E. 103(a)(1). Defense counsel's failure to object to the admission of
evidence results in waiver of that issue on appeal. Commonwealth v.
Benson, 421 A.2d 383, 389 (Pa. 1980).
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Here, as noted by the trial court, Appellant's trial counsel, Attorney
Wilkinson, "did not object to the Commonwealth's questions regarding the
HGN Test, or any field sobriety test. Moreover, Attorney Wilkinson
questioned Trooper Depew specifically about the HGN Test during cross[-]
examination." Trial Ct. Op. at 6 (citations to the Notes of Testimony
omitted). Our review of the Notes of Testimony confirms that Appellant's
trial counsel failed to object to the admission of this evidence. Accordingly,
Appellant has waived this issue.8
In his last issue, Appellant claims that the Commonwealth's evidence
was insufficient to support his conviction, particularly in light of the holding
in Birchfield, supra. Appellant's Brief at 15. Appellant is not entitled to
relief.
When reviewing sufficiency of evidence challenges:
[O]ur standard whether, viewing all the evidence and
is
reasonable inferences in the light most favorable to the
Commonwealth, the factfinder reasonably could have
determined that each element of the crime was established
beyond a reasonable doubt. This Court considers all the
evidence admitted, without regard to any claim that some
of the evidence was wrongly allowed. We do not weigh the
evidence or make credibility determinations. Moreover,
any doubts concerning a defendant's guilt were to be
resolved by the factfinder unless the evidence was so weak
and inconclusive that no probability of fact could be drawn
from that evidence.
8 To the extent that within this issue Appellant attempts to raise a claim of
ineffective assistance of trial counsel, we note that such claims are properly
raised on collateral review. See Commonwealth v. Holmes, 79 A.3d 562,
598 (Pa. 2013).
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Commonwealth v. Kane, 10 A.3d 327, 332 (Pa. Super. 2010) (citation
omitted).
The jury convicted Appellant of Driving Under the Influence, 75 Pa.C.S.
§ 3802(d)(1)(iii). That statute provides, in relevant part, as follows:
(d) Controlled substances. --An individual may not
drive, operate or be in actual physical control of the
movement of a vehicle under any of the following
circumstances:
(1) There is in the individual's blood any amount of
a:
(iii) metabolite of a [Schedule I, II, or III
controlled] substance.
75 Pa.C.S. § 3802(d)(1)(iii).
As a prefatory matter, we note that Appellant, relying on Birchfield,
avers that this Court should vacate his Judgment of Sentence on sufficiency
of the evidence grounds, and remand to allow Appellant the opportunity to
challenge the admissibility of the result of his blood test. Id. at 16.
Although Appellant presents this issue as a challenge to the sufficiency of
the evidence, it is clear that the gravamen of his argument is a challenge to
the trial court's admission of his blood test results, in the absence of which,
he claims, incidentally, the Commonwealth could not have sustained a
conviction. Thus, to the extent Appellant purports to challenge the
sufficiency of the evidence, we find this issue waived, as Appellant failed to
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develop an argument in support of this claim.9 See Pa.R.A.P. 2119;
Commonwealth v. Perez, 93 A.3d 829, 838 (Pa. 2014) ("[T]o the extent
appellant's claims fail to contain developed argument or citation to
supporting authorities and the record, they are waived[.]")
Moreover, we find Appellant's reliance on Birchfield misplaced. In
Birchfield, the United States Supreme Court concluded that because "the
taking of a blood sample" is a search within the meaning of the Fourth
Amendment of the United States Constitution, absent an applicable
exception, police officers may not compel the taking a blood sample of a
defendant without a search warrant. Birchfield, 136 S.Ct. at 2185. One
exception to the warrant requirement occurs where a person voluntarily
consents to the search. Id. at 2185.
In the instant matter, Appellant did not challenge the admissibility of
the blood test result at any time; he did not file a Motion to Suppress, and
did not raise the issue of the voluntariness of his consent at trial or in his
Post -Sentence Motion. Accordingly, because Appellant is raising this issue
for the first time on appeal, it is waived. See Willis, supra at 690.
Judgment of Sentence affirmed.
9 Moreover, our review of the record indicates that the Commonwealth met
its burden of proving every element of this charge beyond a reasonable
doubt where Trooper Depew testified at trial that Appellant was driving a
motor vehicle (N.T., 12/4/15, at 11, 22), and the Commonwealth's expert
witness testified that the nanograms per milliliter of Delta -0 Carboxy THC in
Appellant's blood sample exceeded the maximum allowable legal limit (N.T.
at 27).
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Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 4/6/2017