J-A23012-21

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 privilege 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 Pennsylvania 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 in 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).
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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 odor of marijuana emanating from inside the vehicle. Hartung 

also observed symptoms of [Appellant] being under the influence 

of marijuana, based on her eye pupils being dilated while seated 

in the vehicle. ... When asked whether she had been using 

marijuana, [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 

scuffle, 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 addition, 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 these 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 [Appellant’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 placed 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.
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Trial Court Opinion, 4/9/21, at 2-3 (citations to record omitted).2

The Commonwealth charged Appellant with the abovementioned 

offenses. Appellant did not file an omnibus pretrial motion (nor did she 

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. The Commonwealth presented the 

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

the Pennsylvania 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 found 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 motions. 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.
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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 this

case. Appellant’s Brief at 9. Alexander 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, 207-08

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

federal “automobile exception” to the warrant requirement and holding 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 asserts, “Because the Alexander decision was decided after 

[Appellant’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. The 

Commonwealth counters, “Appellant did not properly preserve any challenge 

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

applied retroactively to her case.” Commonwealth Brief at 2. The 
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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 file a post-verdict motion or post-sentence motion invoking 

Alexander. Id. 

The trial court agrees with Appellant, concluding in its opinion that:

. . . it 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 this 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,” and “further development” was 

warranted. Alexander, supra, at 209.

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

The trial court, however, failed to recognize that appellants 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 This 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).
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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. Id. at 37.

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

failed to preserve the claim. Unlike the defendant in Alexander, Appellant

never challenged 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 briefly raised 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 reads:

Police lacked 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. 
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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 search

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 claim. See, e.g.,

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5 Appellant, for the first time in her appellate brief, summarily claims “no 

exigent circumstances existed.” Appellant’s Brief at 9. This bald claim is 

waived. See Pa.R.A.P. 302(a).
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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 Commonwealth v.

Baumhammers, 960 A.2d 59, 76 (Pa. 2006) (same). Further, though 

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

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

filed 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 *14 (despite finding 
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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 failure 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: 12/03/2021

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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 threat of criminal charge for failure to 

consent). Appellant has also waived any claim under Birchfield because she

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

v. Hays, 218 A.3d 1260, 1266 (Pa. 2019) (“[a]ppellant is not entitled to 

retroactive application of Birchfield based on his failure to preserve the issue 

below.”).