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

Appellant

v.

KIRK JACOB HAYS : : : : : : : : : 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 vaca te 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. Bec ause 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 inJ

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Defendant’s vehicle, Trooper Kirk testified that he asked Defendant to exit the vehicle ; the trooper testified that he then “smel l[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 Defend ant ] 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 Po lice 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 penalti es, 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

. S ubsequent testing

reve aled that Defendant’s blood alcohol content was 0.192. N.T. Trial, 6/22/1 6 , 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 omnibu s 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

_________________ __________ ______ ____ _______ 1 75 Pa.C.S.A. § § 3802(a)(1), 3802(c), and 3334(a), respectively.J

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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 Defenda nt to serve a term of f ive 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) conv iction. 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. Specifical ly, 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 s tate court, so that the court could “reevaluate [the petitioner’s] consent . . . [, based

_________________ __________ ______ ____ _______ 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 issu e at , or before , trial . Commonwealth’s Answer, 10/4/16, at 2. On October 31, 2016, the trial court entered an order granting Defe ndant’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 [ Bi rchfield ] applies retroactively to [ Defendant ], even though [ Defendant ] failed to properly preserve th e suppression argument that his consent for a blood draw was coerced, and granting [ Defendant ] a new trial? Commonwealth’s Brief at 7 (some internal capit alization 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 drawJ

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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 an d 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 toJ

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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 ad ded). 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 no t entitled to retroactive application of Bir chfield

. ” 3 See id. The trial court erred in concluding otherwise.

_________________ __________ ______ ____ _______ 3 Within Defendant’s brief and the trial court’s opinion, Defendant and the trial court posit that the Commonwealth wa ived 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)J

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Pursuant to Moyer , we vacate the trial court’s October 31, 2016 order, which grant ed 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 Def endant nor t he 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 tria l. 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.