J-A26018-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA 

Appellant

v.

KIRK JACOB HAYS

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1787 MDA 2016

Appeal from the Order Entered October 31, 2016

In the Court of Common Pleas of Lycoming County Criminal Division at 

No(s): CP-41-CR-0001083-2014

BEFORE: BOWES, J., OLSON, J., and RANSOM, J.

MEMORANDUM BY OLSON, J.: FILED JANUARY 19, 2018

The Commonwealth of Pennsylvania appeals from the order entered on 

October 31, 2016. The subject order granted the post-sentence motion filed 

by Kirk Jacob Hays (hereinafter “Defendant”) and granted Defendant a new 

trial. We vacate and remand.

At approximately 2:00 a.m. on April 11, 2014, Pennsylvania State 

Police Trooper Ryan Golla and his partner, Trooper Adam Kirk, observed a 

blue Toyota truck make a right-hand turn without using a turn signal. N.T. 

Trial, 6/22/16, at 11. Because of this violation, the troopers conducted a 

traffic stop of the vehicle. Id.

As Trooper Kirk testified at trial, he approached the driver’s side of the 

vehicle and saw that Defendant was the driver of the vehicle; Trooper Kirk 

testified that he immediately smelled “a strong odor of alcoholic beverage 

coming from the vehicle.” Id. at 35. Since there was a passenger in 
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Defendant’s vehicle, Trooper Kirk testified that he asked Defendant to exit 

the vehicle; the trooper testified that he then “smell[ed] an odor of alcohol 

coming from” Defendant. Id. Further, Trooper Kirk testified, he requested 

that Defendant perform several field sobriety tests; Trooper Kirk testified 

that Defendant’s performance on those tests caused him to “believe [that 

Defendant] was under the influence [of alcohol] to a degree that rendered 

him incapable of safely operating the vehicle.” Id. at 38-39. Trooper Kirk 

thus arrested Defendant and transported him to the Williamsport DUI Center 

for processing. Id.

Old Lycoming Police Officer Matthew McCormick testified that, at the 

Williamsport DUI Center, he requested that Defendant submit to a blood 

draw to test whether alcohol was present in Defendant’s blood. Id. at 64-

65. In accordance with this request, Officer McCormick read Defendant 

Pennsylvania’s DL-26 form. See id. At the time, the DL-26 form declared

(among other things): “it is the officer’s duty to inform the licensee that, if 

the licensee refuses to submit to the chemical test, the licensee’s operating 

privileges will be suspended for at least one year, that if the licensee refuses 

and is convicted [of] or pleads guilty to violating Section 3802(a) of the 

Vehicle Code (related to impaired driving), the licensee is subject to more 

severe penalties, the same as [if] he [were] convicted of driving with the 

highest rate of alcohol.” See id.; see also Sitoski v. Commonwealth, 

Dep’t of Transp., 11 A.3d 12, 15 n.2 (Pa. Cmwlth. 2010).
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Defendant then submitted to the blood draw. Subsequent testing 

revealed that Defendant’s blood alcohol content was 0.192. N.T. Trial, 

6/22/16, at 89-90.

On July 17, 2014, the Commonwealth filed an information against 

Defendant and charged him with committing a number of crimes, including 

driving under the influence of alcohol (“DUI”) (general impairment), DUI 

(highest rate of alcohol), and turning movements and required signals.

1

 

On January 21, 2015, Defendant filed an omnibus pre-trial motion. 

Within this pre-trial motion, Defendant requested that the trial court 

suppress the evidence against him because: 1) the initial stop of his vehicle 

was illegal and 2) the Commonwealth “failed to preserve evidence of the 

[Pennsylvania State Police] dash cam video” relating to his vehicle stop. 

Defendant’s Pre-Trial Motion, 1/21/15, at 1-4. Of note, within Defendant’s

pre-trial motion, Defendant never claimed that his consent to the blood draw 

was involuntary or coerced and Defendant never requested that the trial 

court suppress the evidence of his blood alcohol content as the result of an 

alleged involuntary consent. See id.

The trial court denied Defendant’s pre-trial motion on May 26, 2015 

and, on June 22, 2016, Defendant proceeded to a jury trial on the charges. 

At the conclusion of the trial, the jury found Defendant guilty of DUI (general

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1 75 Pa.C.S.A. §§ 3802(a)(1), 3802(c), and 3334(a), respectively.
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impairment) and DUI (highest rate of alcohol).2 N.T. Trial, 6/22/16, at 130. 

On August 23, 2016, the trial court sentenced Defendant to serve a term of 

five days to six months in jail for the DUI (general impairment) conviction; 

in accordance with an agreement between Defendant and the 

Commonwealth, the trial court imposed no further penalty for the DUI 

(highest rate of alcohol) conviction. N.T. Sentencing, 8/23/16, at 6.

On September 1, 2016, Defendant filed a post-sentence motion where 

he claimed – for the first time – that his consent to the blood draw was 

involuntary. Defendant’s Post-Sentence Motion, 9/1/16, at 2-4. Specifically, 

Defendant claimed, on the day after his jury trial (or, June 23, 2016), the 

United States Supreme Court decided Birchfield v. North Dakota, ___ 

U.S. ___, 136 S.Ct. 2160 (2016). In Birchfield, the Supreme Court held 

that a state may not “impose criminal penalties on the refusal to submit to 

[a warrantless blood] test.” Birchfield, 136 S.Ct. at 2185-2186. Further, 

the Supreme Court held, where the petitioner only consented to a

warrantless blood test after being told by the police that “test refusal in 

these circumstances is itself a crime,” the petitioner’s consent to the test 

was potentially involuntary. Id. The Birchfield Court thus vacated the 

petitioner’s judgment of sentence and remanded the case to the state court, 

so that the court could “reevaluate [the petitioner’s] consent . . . [, based 

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2 The trial court found Defendant guilty of the summary offense of turning 

movements and required signals. N.T. Trial, 6/22/15, at 133. 
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on] the totality of all the circumstances . . . [and] given the partial 

inaccuracy of the officer’s advisory.” Id. at 2186.

Within Defendant’s post-sentence motion, Defendant relied on 

Birchfield and essentially claimed that he only consented to the blood draw 

after the police informed him that, if he refused the blood draw, he would be 

subject to enhanced criminal penalties upon conviction. See Defendant’s

Post-Sentence Motion, 9/1/16, at 2-4. Defendant requested that the trial 

vacate his judgment of sentence and schedule a “hearing [] to determine if 

[Defendant’s] consent [to the blood draw] was voluntary.” Id. at 4.

The Commonwealth opposed Defendant’s motion and argued that 

Defendant was not entitled to post-sentence relief because Defendant did 

not properly preserve the issue at, or before, trial. Commonwealth’s 

Answer, 10/4/16, at 2.

On October 31, 2016, the trial court entered an order granting 

Defendant’s post-sentence motion and granting Defendant a new trial. Trial 

Court Order, 10/31/16, at 1-2. The Commonwealth filed a timely notice of 

appeal and now raises one claim to this Court:

Did the trial court commit an error of law by holding that 

[Birchfield] applies retroactively to [Defendant], even 

though [Defendant] failed to properly preserve the

suppression argument that his consent for a blood draw was 

coerced, and granting [Defendant] a new trial?

Commonwealth’s Brief at 7 (some internal capitalization omitted).

We agree with the Commonwealth and conclude that, since Defendant 

did not raise any claim at, or before, trial that his consent to the blood draw 
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was involuntary, the trial court erred in granting Defendant’s post-sentence 

motion. Indeed, our recent opinion in Commonwealth v. Moyer, 171 A.3d 

849 (Pa. Super. 2017) requires that we vacate the trial court’s order in this 

case.

In Moyer, Ms. Moyer was found guilty of DUI and homicide by vehicle. 

On June 21, 2016 (or, two days before the United States Supreme Court 

decided Birchfield), the trial court imposed its judgment of sentence. Id.

at 851-852. While the trial court retained jurisdiction of the case, Ms. Moyer 

filed a nunc pro tunc post-sentence motion and claimed that, in accordance 

with Birchfield, her consent to the blood draw was involuntary. Id. Ms. 

Moyer thus requested that the trial court vacate her judgment of sentence

and remand for a new trial. Id.

The trial court accepted Ms. Moyer’s nunc pro tunc post-sentence

motion, but held that Ms. Moyer was “not entitled to retroactive application 

of Birchfield because she did not preserve a challenge to the warrantless 

blood draw during trial.” Id. at 852. On appeal to this Court, Ms. Moyer

argued that the trial court “erred in declining to vacate her DUI conviction 

under Birchfield.” Id. at 855. We held that the trial court did not err. As 

we explained: 

the United States Supreme Court handed down Birchfield

two days after [Ms. Moyer’s] sentence. [Ms. Moyer] never 

challenged the warrantless blood draw during trial, and did 

not raise any issue under Birchfield until her nunc pro tunc

post-sentence motion. In Pennsylvania, it has long been 

the rule that criminal defendants are not entitled to 
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retroactive application of a new constitutional rule unless 

they raise and preserve the issue during trial. 

Commonwealth v. Newman, 99 A.3d 86, 90 (Pa. Super. 

2014) (en banc), appeal denied, 121 A.3d 496 (Pa. 2014). 

The Newman Court relied on Commonwealth v. Cabeza, 

469 A.2d 146, 148 (Pa. 1983). There, the Supreme Court 

wrote:

[W]here an appellate decision overrules prior law and 

announces a new principle, unless the decision 

specifically declares the ruling to be prospective only, 

the new rule is to be applied retroactively to cases 

where the issue in question is properly preserved at all 

stages of adjudication up to and including any direct 

appeal.

Id. (emphasis added). Instantly, [Ms. Moyer] failed to 

challenge the warrantless blood draw at any stage of the 

litigation prior to her nunc pro tunc post-sentence motion.

Thus, she is not entitled to retroactive application of 

Birchfield.

Moyer, 171 A.3d at 855.

In the case at bar, Defendant “failed to challenge the warrantless 

blood draw at any stage of the litigation prior to [his] . . . post-sentence

motion.” See id. Therefore, as was true in Moyer, Appellant “is not

entitled to retroactive application of Birchfield.”

3 See id. The trial court 

erred in concluding otherwise.

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3 Within Defendant’s brief and the trial court’s opinion, Defendant and the 

trial court posit that the Commonwealth waived any claim that Defendant 

“failed to preserve the Birchfield issue.” Trial Court Opinion, 6/19/17, at 5; 

see also Defendant’s Brief at 7-9. According to Defendant and the trial 

court, this waiver occurred when the Commonwealth and Defendant agreed, 

at sentencing, that the trial court should only sentence Defendant on the 

DUI (general impairment) conviction and that the trial court should impose 

no further penalty on the DUI (highest rate of alcohol) conviction. Id. 

(Footnote Continued Next Page)
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Pursuant to Moyer, we vacate the trial court’s October 31, 2016 order, 

which granted Defendant’s post-sentence motion.

Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 01/19/2018

(Footnote Continued) _______________________

Neither Defendant nor the trial court has cited to any case law or other 

authority to support this waiver argument – and we have found none. 

Simply stated, Defendant waived any claim that his consent was 

involuntary by failing to raise the argument at or before trial. Moyer, 171 

A.3d at 855; Cabeza, 469 A.2d at 148.

Moreover, to the extent Defendant and the trial court rely upon Pennsylvania 

Rule of Criminal Procedure 581(B) to support the ruling, we note that Rule 

581(B) permits a supplemental pretrial suppression motion where “the 

opportunity did not previously exist, or the interests of justice otherwise 

require.” Pa.R.Crim.P. 581(B). In the case at bar, Defendant did not file a 

supplemental pretrial motion seeking the suppression of evidence; rather, 

Defendant filed a post-sentence motion, where he sought the vacation of 

his judgment of sentence and a remand for a new trial. Therefore, Rule 

581(B) has no application to the case at bar.