J-S18010-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROGER ALLEN MCCONNELL II
Appellant No. 1825 EDA 2016
Appeal from the Judgment of Sentence March 1, 2016
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0001121-2015
BEFORE: PANELLA, J., SOLANO, J., and FITZGERALD, J.
MEMORANDUM BY PANELLA, J. FILED APRIL 18, 2017
Appellant, Roger Allen McConnell II, appeals from the judgment of
sentence entered March 1, 2016, in the Monroe County Court of Common
Pleas. Appellant contests the court’s denial of his motion to suppress the
results of his blood alcohol content (“BAC”) test, and challenges the
constitutionality of 75 Pa.C.S.A. § 1543(b)(2). We affirm.
The relevant facts and procedural history of this case are as follows.
Pennsylvania State Police Trooper Wood was responding to the reported
theft of an all-terrain vehicle (“ATV”) when he was notified that the
complainant had stopped the alleged thief on a nearby road. When Trooper
Wood arrived, Appellant was standing next to an ATV in the roadway. The
____________________________________________
Retired Justice assigned to the Superior Court.
J-S18010-17
complainant was in a truck parked behind Appellant’s ATV, and two other
state troopers were also present.
The trooper asked Appellant for identification, and inquired about what
had occurred. Appellant replied that he and his son had taken an ATV from
the complainant’s residence as collateral for money the complainant owed
Appellant’s son. However, Trooper Wood determined that the ATV on the
roadway actually belonged to Appellant, and not the complainant. The
trooper smelled a moderate odor of alcohol emanating from Appellant, and
indicated Appellant slurred his speech and appeared to be stumbling.
Trooper Wood asked Appellant if he had been drinking, and Appellant replied
he consumed beer that day. Appellant also stated he had been operating the
ATV on the roadway.
Trooper Wood then administered the Horizontal Gaze Nystagmus test,
a field sobriety test. Based on the above observations, Trooper Wood placed
Appellant under arrest on suspicion of DUI. Appellant thereafter had his
blood drawn, and the lab results indicated Appellant had a BAC of 0.140.
Procedurally, the Commonwealth charged Appellant with driving under
the influence, a misdemeanor, and related summary offenses. Appellant filed
an omnibus pretrial motion, seeking to suppress the results of the BAC test.
After argument, the court denied the motion. Appellant proceeded to a
bifurcated trial. The jury found Appellant not guilty of DUI, while the court
convicted Appellant of the following offenses: driving with BAC .02 or greater
while operating privilege is suspended or revoked; driving while license
-2-
J-S18010-17
suspended; driving an unregistered vehicle; operation of a motor vehicle
without required financial responsibility; operating an ATV on streets and
highways; failure to register ATV; no registration plate; operation of an ATV
while under the influence of alcohol; and no ATV liability insurance. 1. The
court sentenced Appellant to 90 days’ incarceration and a fine. 2 Appellant
timely filed post-sentence motions, which the court denied. This timely
appeal followed.3
Appellant raises two issues for our review:4
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?
____________________________________________
1
75 Pa.C.S.A. §§ 1543(b)(1.1)(i); 1543(b)(1);1301(a); 1786(f); 7721(a);
7711.1(a)(1); 7711.1(a)(2); 7726(a)(3); 7730(a), respectively.
2
Appellant’s unfortunate penchant for drinking and driving his ATV triggered
additional legal difficulties for him in the case of Commonwealth v.
McConnell, No. 163 EDA 2016 (Pa. Super., filed January 25, 2017)
(unpublished memorandum) (Panella, J.).
3
We note with extreme displeasure that Assistant District Attorney Curtis J.
Rogers requested and was granted an extension, but failed to file a brief on
the Commonwealth’s behalf.
“An appellee is required to file a brief that at minimum must contain ‘a
summary of argument and the complete argument for appellee.’”
Commonwealth v. Pappas, 845 A.2d 829, 835 (Pa. Super. 2004) (quoting
Pa.R.A.P. 2112). In Pappas, the panel referred to the Commonwealth’s
failure to file a proper appellee’s brief as “unacceptable.” Id. We echo that
opinion. And we remind Attorney Rogers of his obligation to file an appellee’s
brief on the Commonwealth’s behalf in future appeals.
4
We have reordered Appellant’s issues for ease of disposition.
-3-
J-S18010-17
WHETHER, PRIOR TO TRIAL, THE TRIAL COURT COMMITTED AN
ERROR OF LAW WHEN IT DENIED [] APPELLANT’S MOTION TO
SUPPRESS?
Appellant’s Brief, at 9.
In Appellant’s first question for our review, he argues that §
1543(b)(2) of the Vehicle Code is unconstitutional. Appellant contends he
preserved this issue by raising it at trial in an unrelated case (his other ATV
case, see footnote two, supra) and in the direct appeal from that
conviction. We disagree.
Appellant’s failure to raise this issue before the trial court in this
specific case precludes our review. See Pa.R.A.P. 302(a). Moreover, even if
Appellant had properly preserved this issue, we previously found it to be
without merit. See Commonwealth v. McConnell, No. 163 EDA 2016, at
6-9 (Pa. Super., filed January 25, 2017) (unpublished memorandum).
In his second issue, Appellant argues Trooper Wood’s investigative
detention took place prior to Appellant’s alleged statement that he drove on
the roadway, meaning the detention occurred before the trooper had
reasonable suspicion to stop him. Appellant repeatedly insists his proximity
to the ATV does not prove he actually operated it, and that without such
proof, the Commonwealth’s case is untenable. He contends Trooper Wood
also lacked probable cause to arrest Appellant, because the trooper failed to
describe the extent of Appellant’s stumbling or slurred speech.
“Once a motion to suppress evidence has been filed, it is the
Commonwealth’s burden to prove, by a preponderance of the evidence that
-4-
J-S18010-17
the challenged evidence was not obtained in violation of the defendant’s
rights.” Commonwealth v. Wallace, 42 A.3d 1040, 1047-1048 (Pa. 2012)
(citations omitted).
Our standard of review in addressing a challenge to a trial
court’s denial of a suppression motion is whether the factual
findings are supported by the record and whether the legal
conclusions drawn from those facts are correct. When reviewing
the ruling of the suppression court, we must consider only the
evidence of the prosecution and so much of the evidence of the
defense as remains uncontradicted when read in the context of
the record as a whole. Where the record supports the findings of
the suppression court, we are bound by those facts and may
reverse only if the legal conclusions drawn therefrom are in
error.
Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007) (citation
omitted).
“It is within the suppression court’s sole province as factfinder to pass
on the credibility of witnesses and the weight to be given to their testimony.
The suppression court is free to believe all, some or none of the evidence
presented at the suppression hearing.” Commonwealth v. Elmobdy, 823
A.2d 180, 183 (Pa. Super. 2003) (citation omitted).
We begin with Appellant’s assertion that the trooper lacked reasonable
suspicion for the investigative detention. The Fourth Amendment of the
United States Constitution and Article I, Section 8 of the Pennsylvania
Constitution protect citizens from unreasonable searches and seizures. See
Commonwealth v. Carter, 105 A.3d 765, 768 (Pa. Super. 2014) (en
banc), appeal denied, 117 A.3d 295 (Pa. 2015). “To secure the right of
-5-
J-S18010-17
citizens to be free from ... [unreasonable searches and seizures], courts in
Pennsylvania require law enforcement officers to demonstrate ascending
levels of suspicion to justify their interactions with citizens as those
interactions become more intrusive.” Commonwealth v. Beasley, 761
A.2d 621, 624 (Pa. Super. 2000) (citation omitted). Our Supreme Court has
defined three levels of interaction between citizens and police officers: (1) a
mere encounter, (2) an investigative detention, and (3) a custodial
detention. See Commonwealth v. Fuller, 940 A.2d 476, 478 (Pa. Super.
2007).
“[T]o establish grounds for reasonable suspicion, the officer must
articulate specific observations which, in conjunction with reasonable
inferences derived from those observations, led him reasonably to conclude,
in light of his experience, that criminal activity was afoot and that the person
he stopped was involved in that activity.” Commonwealth v. Reppert, 814
A.2d 1196, 1204 (Pa. Super. 2002) (en banc) (citation omitted). “Therefore,
the fundamental inquiry of a reviewing court must be an objective one,
namely, whether the facts available to the officer at the moment of the
[intrusion] warrant a man of reasonable caution in the belief that the action
taken was appropriate.” Id. (internal quotation marks and citation omitted;
brackets in original).
Instantly, Trooper Wood testified that he received a dispatch directing
him to report to a nearby road, where the complainant of a theft claimed to
-6-
J-S18010-17
have stopped the thief. See N.T. Suppression Hearing, 11/23/15, at 7-8.
When the trooper arrived, Appellant admitted to taking an ATV from the
complainant as collateral for a debt owed. See id., at 11. Despite the later
discovery that Appellant was the owner of the ATV at the scene, Trooper
Wood had reasonable suspicion to believe criminal activity was afoot and
that Appellant was a participant in that activity. See Reppert, 814 A.2d at
1204. Though Appellant ultimately was not charged with theft following this
encounter, that does not invalidate the trooper’s reasonable suspicion for
conducting the investigatory detention. Thus, Appellant’s contention that
Trooper Wood lacked the reasonable suspicion necessary to conduct a brief
investigatory detention is without merit.
We next address Appellant’s claim that the trooper lacked probable
cause to arrest. “Probable cause exists where the officer has knowledge of
sufficient facts and circumstances to warrant a prudent person to believe
that the driver has been driving under the influence of alcohol or a controlled
substance.” Commonwealth v. Hilliar, 943 A.2d 984, 994 (Pa. Super.
2008).
[W]e have held that one “drives” a vehicle when the
Commonwealth proves that the car was in motion at the time in
question. The Commonwealth need not produce direct evidence
of driving, such as testimony that a defendant was seen driving,
but may instead rely on circumstantial evidence creating the
inference that the vehicle had been in motion in order to meet
its evidentiary burden.
-7-
J-S18010-17
Commonwealth v. Costa-Hernandez, 802 A.2d 671, 674 (Pa. Super.
2002) (citations omitted).
As for probable cause to arrest, the trooper smelled a moderate odor
of alcohol emanating from Appellant. See N.T. Suppression Hearing,
11/23/15, at 11. Trooper Wood noted Appellant’s slurred speech and
stumbling. See id. When asked if he had been drinking, Appellant admitted
to drinking beer that day, but refused to state how much beer he had
consumed. See id., at 12. Appellant also admitted he drove the ATV on the
roadway prior to Trooper Wood’s arrival. See id. Trooper Wood administered
a field sobriety test, and Appellant showed signs of intoxication. See id.
Trooper Wood then decided to arrest Appellant on suspicion of DUI.
Based on the above testimony, we find Trooper Wood had probable
cause to arrest Appellant. See Hilliar, 943 A.2d 984, 994; Costa-
Hernandez, 802 A.2d at 674. Accordingly, we find the suppression court
properly denied Appellant’s motion to suppress for lack of probable cause.
See Eichinger, 915 A.2d at 1134.
Appellant next protests the warrantless blood draw as having violated
his constitutional rights. Specifically, he argues that his consent to the blood
draw was invalid, relying on Birchfield v. North Dakota, 136 S.Ct. 2160
(2016), a case decided approximately five months prior to the filing of his
opening brief in this case.
-8-
J-S18010-17
As it pertains to this case, the Birchfield Court found that “motorists
cannot be deemed to have consented to submit to a blood test on pain of
committing a criminal offense.” 136 S.Ct. at 2186. In so finding, the Court
vacated the conviction of one of the petitioners who had consented to a
blood draw after being informed by police that he must comply with the
blood test, or else face criminal penalties.
Though refusal to submit to a blood draw is not a separate crime in
Pennsylvania, at the time of this incident involving Appellant, refusal to
submit to a blood draw, paired with a later conviction for or plea to drunk
driving under any section of 75 Pa.C.S.A. § 3802, mandated higher penalties
for the defendant. See 75 Pa.C.S.A. § 3804. Penalties.
This Court recently interpreted Birchfield as applied to Pennsylvania’s
drunk driving laws in the case of Commonwealth v. Evans, 153 A.3d 323
(Pa. Super. 2016). In that case, the arresting officer warned Evans, who was
suspected of driving under the influence, that he would face higher penalties
for refusing a blood draw. Evans thereafter consented to a blood draw, and
was charged with driving under the influence. Evans later challenged that
consent as involuntary, and filed a motion to suppress. His motion was
denied, and he appealed his drunk driving conviction to this Court.
Based on the Birchfield decision, the Evans panel vacated the
judgment of sentence and the suppression court’s order, and remanded the
case to the trial court for reevaluation of Evans’s consent, given the
-9-
J-S18010-17
inaccuracy of the officer’s warning after Birchfield invalidated that law
imposing higher penalties for refusing a blood draw. See Evans, 153 A.3d at
331.
As noted, the Court decided Birchfield after the sentencing in this
case, but during the pendency of this appeal. And the decision announced a
new criminal rule. 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. Summerlin, 542 U.S. 348, 351 (2004). “Case law is
clear, however, that in order for a new rule of law to apply retroactively to a
case pending on direct appeal, the issue had to be preserved at ‘all stages of
adjudication up to and including the direct appeal.’” Commonwealth v.
Tilley, 780 A.2d 649, 652 (Pa. 2001) (quoting Commonwealth v. Cabeza,
469 A.2d 146, 148 (Pa. 1983)). “[A]n exception to the issue-preservation
requirement exists where the challenge is one implicating the legality of the
appellant’s sentence.” Commonwealth v. Barnes, 151 A.3d 121, 124 (Pa.
2016) (citation omitted).
Here, Appellant does not challenge the legality of his sentence; indeed,
as he consented to the blood draw he was not subject to the higher
sentencing penalty for refusal. See 75 Pa.C.S.A. § 3804. And, fatal to his
claim, Appellant did not challenge consent in the lower court; he does so
- 10 -
J-S18010-17
only on direct appeal.5 Appellant’s failure to raise the issue of his consent to
the warrantless blood draw at any time prior to his opening brief in this
appeal precludes our review of the claim.6 See 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.”); Barnes, 151 A.3d at 124; Tilley, 780 A.2d at 652.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/18/2017
____________________________________________
5
The record reveals only that Appellant “acknowledged his Implied Consent
and O’Connell Warnings.” Affidavit of Probable Cause, filed 3/23/15, at 1.
Perhaps understandably, given the suppression hearing preceded
Birchfield, neither party elicited testimony about the circumstances of
consent or the phrasing of Trooper Wood’s warnings during any stage of the
proceedings.
6
In Evans, “[w]ithin the suppression motion, [a]ppellant claimed that the
police coerced his consent by ‘inform[ing him] that if he [did] not submit to
extraction and subsequent testing of his blood, he [would] face[ ] stiffer
criminal penalties.’” 153 A.3d at 324 (quoting [a]ppellant’s Motion to
Suppress, 1/9/14, at 3).
- 11 -