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- A23012

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2021 PA Super 234

COMMONWEALTH OF PENNSYLVANIA

v.

ELINY ELIZA GRAJALES

Appellant :

:

:

:

:

:

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: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 171 MDA 2021

Appeal from the Judgment of Sentence Entered January 20, 2021 In the Court of Common Pleas of Schuylkill County

Criminal Division at CP

- 54

- CR

- 0000198

- 2020

BEFORE: BENDER , P.J.E., MURRAY, J., and STEVENS, P.J.E. *

OPINION BY MURRAY, J.: FILED : DECEMBER 3, 2021

Eliny Eliza Grajales (Appellant) appeals from the judgment of sentence

imposed after the trial court convicted her of driving under the influence of

controlled substances (DUI)

, driving while operating privileg e is suspended or

revoked

, periods requiring lighted lamps

, and possession of a small amount

of marijuana

. 1 After careful review, we affirm.

The trial court summarized the facts adduced at Appellant’s non

- jury

trial:

On December 28, 2019, at 8:45 p.m., Corporal Matthew Hartung of the Pe nnsylvania State Police (hereinafter “Hartung”), was on routine patrol in an unmarked State Police vehicle in Mahanoy City, Pennsylvania. As [] Hartung was travelling in a westerly direction on West Centre Street, he noticed a sedan passing by him going i n the opposite direction (east) on West Centre Street without its headlights on. Hartung reversed

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* Former Justice specially assigned to the Superior Court.

1 75 Pa.C.S.A. §§ 3802(d)

, 1543(a) , and 4302(a) ; 35 P.S. § 780

- 113(a)(31).J

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direction with his vehicle, and thereafter pulled over the vehicle being operated by [Appellant].

Hartung searched [Appellant’s] registration and discovered that her Pennsylvania driver’s license was suspended. Upon approaching [Appellant’s] vehicle and informing her that the reason he had pulled her over was for her failure to have her headlights on while driving at night, Hartung immediately smelled

the od or of marijuana emanating from inside the vehicle. Hartung also observed symptoms of [Appellant] being under the influence of marijuana, based on her eye pupil s being dilated while seated

in the vehicle.

... When asked whether she had been using marijua na, [Appellant] denied doing so. [Appellant] informed Hartung that a friend had smoked marijuana in her vehicle a day or two earlier. At this time Hartung asked [Appellant] to exit the vehicle. [Appellant] refused to do so. After a minor physical
scuff le, Hartung detained [Appellant] and conducted a probable cause search of [Appellant’s] vehicle[, without a warrant].

Upon searching [Appellant’s] vehicle, Hartung found a plastic bag, and discovered inside the bag the “guts” of a blunt cigar. In additio n, Hartung observed what he thought was marijuana residue on the floor of the passenger side, as well as a

water bottle in the center console that contained ashes and what

looked like

... the remnants of a marijuana blunt inside the bottle. Upon finding the se items and observing outward physical manifestation of marijuana use by [Appellant], Hartung performed field sobriety testing. He initially checked for eyelid tremors which, based on his experience, is indicative of marijuana use. After observing [Appe llant’s] eyelid tremors during this sobriety testing, Hartung continued to administer additional tests to [Appellant]. He eventually concluded that [Appellant] was likely under the influence of marijuana and then placed [Appellant]
under arrest for DUI. Hartung testified that he presumed [Appellant] had used marijuana based on a totality of the circumstances: the odor of marijuana, dilated pupils, eyelid tremors, lack of eye convergence, and overall performance during field sobriety testing. Upon being p laced under arrest, Hartung asked [Appellant] to go for a blood test [; Hartung also] read her

the PennDot Form DL

- 26B, Chemical Testing Warnings and Refusal to Submit to a Blood Test. After reviewing this form with [Appellant], she indicated she would not submit to a blood test;

thereafter [, Appellant signed] form DL

- 26B in the presence of Hartung.J

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Trial Court Opinion, 4/9/21, at 2

- 3 (citations to record omitted). 2

T he Commonwealth charged Appellant with the abovementioned

offenses

. Appellant did not file an omnibus pretrial motion ( nor did s he

make an oral motion to suppress evidence )

. See Pa.R.Crim.P. 579(A)

( providing a defendant must generally file an omnibus pretrial motion within

30 days of his or her arraignment).

The matter proceeded to a non

- jury trial on December 21, 2020.

Appellant testified on her own behalf. T he Commonwealth presented the

testimony of Hartung and Brendan McCann (McCann) , a forensic scientist with

the Pennsy lvania State Police Crime Lab. McCann testified that the blunt cigar

fragment inside the water bottle recovered from Appellant’s vehicle contained

tetrahydrocannabinol (THC), a Schedule 1 controlled substance. N.T.,

12/21/20, at 40. The trial court foun d Appellant guilty at all counts

. Appellant

did not file any post

- verdict motions.

On January 20, 2021, the trial court sentenced Appellant to serve 6 days

of incarceration in county jail and one month of probation. Appellant did not

file post

- sentence motion s . Appellant timely appealed. Both Appellant and

the trial court have complied with Pa.R.A.P. 1925.

Appellant presents two issues :

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2 There is no indication in the record that Appellant had a Pennsylvania medical marijuana patient identification card, pursuant to the Medical Marijuana Act

, 35 P.S. § 10231.101 et seq

.J

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1. Did the police lack probable cause to search based on the smell of marijuana?

2. Did the police lack probable cause to request a blood test or conduct field sobriety tests?

Appellant’s Brief at 4.

Preliminarily, Appellant argues

– in connection with her first issue

– that

she should benefit from the Pennsylvania Supreme Court’s recent landmark

decision in Commonwealth v. Alexander , 243 A.3d 177 (Pa. 2020) , which

was decided the day after the trial court rendered the guilty verdicts in th is

case

. Appellant’s Brief at 9. A lexander announced a new rule of criminal

law mandating probable cause and exigent circumstances for a warrantless

search of an automobile. See Alexander , 243 A.3d at 181, 207

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(overruling Commonwealth v. Gary , 91 A.3d 102 (Pa. 2014) ( adopting

federal “automobile exception” to the warrant requirement and h olding that

police may conduct a warrantless vehicle search based solely on probable

cause, with no exigency required beyond the inherent mobility of a motor

vehicle)).

Appellant assert s , “ B ecause the Alexander decision was decided after

[A ppellant’s ] trial, it created new law which could not have been raised in a

suppression motion prior to the trial.” Appellant’s Brief at 9. T he

Commonwealth counters, “ Appellant did not properl y preserve any challenge

pursuant to

... Alexander , and therefore the holding of Alexander cannot be

applied retroactively to her case. ” Commonwealth Brief at 2. TheJ

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Commonwealth emphasizes that Appellant did not challenge the

constitutionality of the warrantless search of her vehicle in an omnibus pretrial

motion , even though the Pennsylvania Supreme Court had granted allocatur

in Alexander several months before Appellant’s arraignment

. Id. at 4 . The

Commonwealth also stresses that after Alexander was decided, Appellant

failed to f ile a post

- verdict motion or post

- sentence motion invoking

Alexander

. I

d.

The trial court agrees with Appellant

, conclud ing in its opinion that :

. . . i t appears this [c]ourt’s determination of guilt on December 21, 2020

. . . became in conflict the very next day with the December 22, 2020, Supreme Court decision of Commonwealth

v. Alexander . For the foregoing reasons, it is respectfully suggested that thi s matter should be remanded for further proceedings consistent with Alexander

. 2

2 The Supreme Court in Alexander concluded that it was appropriate to remand to the lower court for further proceedings on probable cause to search, where “the testimony was not particularly directed at the exigencies

of the situation

, ” a nd “further development” was

warranted. Alexander

, supra , at 2 0 9

.

Trial Court Opinion, 4/9/21, at 6 (footnote in original).

The trial court, however, failed to recognize that appellant s are not

automatically entitled to retroactive application of Alexander

. 3 See

Commonwealth v. Grooms , 247 A.3d 31, 37 n.8 (Pa. Super. 2021) (“[I] n

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3 T his Court may affirm on any basis and is not limited by a trial court’s

rationale

. Commonwealth v. Katona , 191 A.3d 8, 16 (Pa. Super. 2018) ( en banc )

.J

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order for a new rule of law to apply retroactively to a case

. . ., the issue

[ must ] be preserved at all stages of adjudication up to and including the

direct appeal.” ( emphasis added; citation and quotation marks omitted)) . The

Grooms Court held that the appellant had waived any claim under Alexander

because he only disputed the existence of probable cause and did not raise

the issue of exigent circumstances or challenge the continuing validity

of Gary in the trial court

. I d. at 37

.

Here, Appellant is not entitled to the a pplication of Alexander , as she

failed to preserve the claim. Unlike the defendant in Alexander

, Appellant

never challenge d Hartung’s warrantless search of her vehicle in the trial

court

. Cf. Alexander

, 243 A.3d at 193 n.8 (finding defendant sufficiently

preserved issue in a motion to suppress and at the suppression hearing)

.

Appellant b riefly rais ed Alexander for the first time in her Rule 1925(b)

statement

, 4 but did not reference either exigent circumstances or the

overruling of Gary

. See Pa.R.A.P. 302(a) (providing issues may not be raised

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4 Appellant’s Rule 1925(b) statement rea ds:

Police lack ed probable cause to search based on smell of marijuana ( Com. v. Alexander , 2020 WL 7567601 (Pa. 2020) )

.

Police lacked probable cause to request blood test or conduct field sobriety tests.

Rule 1925(b) Statement, 3/19 /21.J

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for the first time on appeal ); 5 Commonwealth v. Melendez

- Rodriguez , 856

A.2d 1278, 1288 (Pa. Super. 2004) ( en banc ) (“ A party cannot rectify the

failure to preserve an issue by proffering it in response to a Rule 1925(b)

order.” (citation omitted) )

. Accordingly, Alexander is inapplicable

. See

Grooms

, 247 A.3d at 37 n.8 & n.9 ; Commonwealth v. Moore

, 2021 PA

Super 202, at *10, 11 (Pa. Super. Oct. 12, 2021) (appellant waived

Alexander claim, pursuant to Grooms , where appellant (a) “ did not raise the

issue of exigent circumstances, contend that a warrant was required to sea rch

the vehicle, or argue that Gary should be overruled”; and (b) “ did not raise

an issue with respect to exigent circumstances or challenge Gary in his Rule

1925(b) statement”) ; see also Commonwealth v. Aursby

, 2021 WL

2826473, at *6 (Pa. Super. July 7, 2021) (unpublished memorandum)

( declining to apply Alexander , pursuant to Grooms , where appellant failed

to preserve the issue)

.

Appellant further argues that the warrantless search of her vehicle was

unlawful because the only indicia of criminality was an odor of marijuana

,

which is insufficient to establish probable cause

. Appellant’s Brief at 9

.

As noted above, Appellant did not file a pretrial motion to suppress,

which was the proper procedure for raising this cla im. S ee , e.g. ,

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5 Appellant, for the first time in her appellate brief, s ummarily claims “no exigent circumstances existed.” Appellant’s Brief at 9. This bald claim is

waived. See Pa.R.A.P. 302(a).J

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Commonwealth v. Gibson , 638 A.2d 203, 206

- 07 (Pa. 1994) (“The remedy

for an illegal search is [] exclusion of all the evidence derived from the illegal

search.”). Pennsylvania Rule of Criminal Procedure 581 provides, in relevant

part:

Rule 581. Suppression of Evidence

(A) The defendant ’ s attorney, or the defendant if unrepresented,

may make a motion to the court to suppress any evidence alleged

to have been obtained in violation of the defendant ’ s rights.

(B) Unless the opportunity did not previously exist, or the

interests of justice otherwise require, such motion shall be made only after a case has been returned to court and shall be contained

in the omnibus pretrial motion set forth in Rule 578. If timely

motion is not made hereunder, the issue of suppression of

such evidence shall be deemed to be waived

.

Pa.R.Crim.P. 581(A), (B ) (emphasis added )

. Our appellate courts have

consistently affirmed the principle that “ the failure to raise a suppression issue

prior to trial precludes its litigation for the first time at trial, in post

- trial

motions or on appeal .” Commonwealth v. Collazo , 654 A.2d 1174, 1176

(Pa. Super. 1995) (citation omitted) ; see also C ommonwealth v.

Baumhammers , 960 A.2d 5 9, 76 (Pa. 2006) (same). Further, t hough

Appellant is correct that she could not have filed a n omnibus pretrial motion

invoking Alexander (decided after Appellant’s conviction), she could have

fil ed a pretrial suppression motion on other grounds, such as the purported

absence of probable cause to conduct a lawful warrantless search of her

vehicle. Accordingly, Appellant waived this claim

. See Pa.R.Crim.P. 581(B ) ;

Pa.R.A.P. 302(a); Cf. Moore

, 2021 PA Super 202, at *1 4 (despite findingJ

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waiver of appellant’s claim invoking Alexander , addressing appellant’s

challenge to warrantless search of vehicle where he preserved claim in a

pretrial motion to suppress) ; Aursby

, 2021 WL 2826473, at *6 (same).

In Appellant’s second issue

, she argues “the police lacked probable

cause to request a blood test or conduct field sobriety tests.” Appellant’s Brief

at 10 (capitalization omitted). For the same reasons discussed above, we find

waiver based on Appellant’s f ailure to raise her issue before the trial court.

See

, e.g. , Pa.R.A.P. 302(a); Pa.R.Crim.P. 581(B); Collazo

, supra

. 6

As no relief is due, we affirm Appellant’s judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12 / 0 3 /2021

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6 Appellant repeatedly references the United States Supreme Court decision

in Birchfield v. North Dakota , 579 U.S. 438, 136 S.Ct. 2160, 2186 (2016) (holding warrantless blood test cannot be deemed valid by virtue of implied consent law when accompanied by t hreat of criminal charge for failure to consent)

. Appellant has also waived any claim under Birchfield because she

raise s it for the first time on appeal. See Pa.R.A.P. 302(a) ; Commonwealth

v. Hays , 218 A.3d 1260, 12 66 (Pa. 2019) (“[a] ppellant is not entitled to retroactive application of Birchfield based on his failure to preserve the issue below.”).