J-S60028-17

____________________________________

* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

THOMAS KEN IRWIN,

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 207 WDA 2017

Appeal from the Judgment of Sentence January 25, 2017

In the Court of Common Pleas of Potter County

Criminal Division at No.: CP-53-CR-0000095-2016

BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY DUBOW, J.: FILED JANUARY 18, 2018

Appellant, Thomas Ken Irwin, appeals from the Judgment of Sentence 

entered by the Potter County Court of Common Pleas following his conviction

after a jury trial of Driving Under the Influence (General Impairment) 

(“DUI”).1 After careful review, we affirm.

In the early morning hours of November 26, 2015, while on patrol in a 

marked car, State Troopers Andrea Pelachick (“Trooper Pelachick”) and 

James Culvey (“Trooper Culvey”) of the Coudersport station observed 

Appellant driving a 1997 Dodge Ram as it slowly weaved, touching and 

crossing both the centerline and the fog line several times. Trooper 

Pelachick eventually pulled Appellant over.

____________________________________________

1 75 Pa.C.S. § 3802(a)(1).
J-S60028-17

- 2 -

Upon stopping his vehicle, Appellant exited the truck while the 

Troopers were running Appellant’s registration in their patrol car. When 

Appellant put his right hand into his back pocket while approaching the 

patrol car, Trooper Pelachick ordered Appellant to show his hands and stand

by the back of his vehicle for officer safety. Appellant appeared unsteady on 

his feet and swayed while standing, he was very slow and sluggish, he 

slurred and stuttered while speaking, and he used his hands to steady 

himself on the side of his vehicle. Appellant’s eyes were glassy and 

bloodshot, and both Troopers smelled a very strong odor of alcohol on his 

breath from a few feet away.

Appellant could not produce a valid driver’s license, despite telling 

Trooper Pelachick twice that he had a license. Appellant would not submit to 

any field sobriety tests, despite four offers, and would not answer some of 

Trooper Pelachick’s questions about his suspected alcohol consumption. 

Twice, Appellant told Trooper Pelachick to “just put the cuffs on me.” N.T. 

Trial, 12/15/16, at 74-75.

Trooper Pelachick arrested Appellant, patted him down, placed him in 

the patrol car, and drove him to the hospital for a blood test. Appellant 

refused to consent to the blood test after Trooper Pelachick gave the 
J-S60028-17

- 3 -

O’Connell warnings2 provided in the DL-26 form and refused to sign the 

form acknowledging that he had received the warnings. After Trooper 

Pelachick read Miranda3 warnings, Appellant refused to answer any 

questions.

The Commonwealth charged Appellant with DUI, as well as summary 

offenses. Appellant proceeded to a jury trial, representing himself. During a 

pre-trial hearing on the day of trial, Appellant presented five distinct issues 

addressing evidence he sought to admit at trial: (1) his request to present a 

copy of the video footage from the patrol car; (2) his request to “reserve an 

opening;” (3) his desire to present a “blood alcohol content chart” with an 

easel; (4) his request to admit blood testing kits, breathalyzers, and 

information from the manufacturers to show their inaccuracies; and (5) 

evidence regarding why he did not present a valid driver’s license. He also 

sought paperwork completed by Trooper Pelachick, and moved to strike 

Trooper Pelachick’s testimony for failure to provide this statement. The trial

court denied the motion because Appellant did not request that specific 

discovery and Trooper Pelachick had not prepared any paperwork or 

statements. N.T. Trial, 12/15/16, at 9-23. Trial proceeded immediately 

thereafter.

____________________________________________

2 See Commonwealth, Dep’t of Transp., Bureau of Traffic Safety v.

O’Connell, 555 A.2d 873 (Pa. 1989).

3 Miranda v. Arizona, 384 U.S. 436 (1966).
J-S60028-17

- 4 -

At trial, the Commonwealth presented testimony from Trooper

Pelachick and Trooper Culvey. Both Troopers testified about Appellant’s 

behavior the night of his arrest and opined that Appellant had been under 

the influence of alcohol to a sufficient degree that rendered him incapable of 

driving safely. The court admitted into evidence video footage from the 

Troopers’ patrol car showing Appellant driving erratically, as well as 

Appellant’s behavior during the stop and the short drive to the hospital. 

Appellant presented testimony from Todd Williams, his regular bartender, 

and Charles Chappell, the owner of the vehicle. Appellant also testified in 

his own defense, and admitted that he had been drinking alcohol the night 

the Troopers had pulled him over.

The jury convicted Appellant of DUI.

4

 On January 25, 2017, the trial 

court sentenced Appellant to 3 to 24 months’ incarceration. The trial court 

did not impose a mandatory minimum sentence of incarceration based on 

Appellant’s refusal to consent to a blood test.

On January 26, 2017, Appellant filed a timely Notice of Appeal. Both 

Appellant and the trial court complied with Pa.R.A.P. 1925.

Appellant presents two issues for our review:

____________________________________________

4 The trial court found Appellant guilty of the summary offenses of Driving 

Without a License, Driving While Operating Privilege Suspended or Revoked, 

Disregarding Traffic Lanes (Single Lane), and Careless Driving after a bench 

trial. 75 Pa.C.S. § 1501; 75 Pa.C.S. § 1543; 75 Pa.C.S. § 3309(1); and 75 

Pa.C.S. § 3714(a), respectively.
J-S60028-17

- 5 -

I. Did the Commonwealth taint the verdict by repeatedly making 

improper references to [Appellant’s] post-arrest silence and by 

asking the jury “What is he hiding from you? What is he not 

wanting you to know?”

II. Was the introduction of [Appellant’s] refusal to submit to an 

unlawful warrantless blood test as substantive evidence of guilt 

an improper penalty for the exercise of his constitutional rights?

Appellant’s Brief at 5.

Appellant’s first issue involves allegations of prosecutorial misconduct 

at trial for commenting on Appellant’s post-arrest silence during testimony, 

opening statements, and closing arguments. Before we address the merits 

of Appellant’s issue, we must first determine whether Appellant preserved 

any aspect of this issue in the court below.

“Issues not raised in the lower court are waived and cannot be raised 

for the first time on appeal.” Pa.R.A.P. 302. A defendant’s failure to object 

contemporaneously constitutes a waiver of any claim regarding improper 

police testimony about his silence, as well as prosecutorial commentary 

about his silence during closing argument. Commonwealth v. Adams, 39 

A.3d 310, 319-20 (Pa. Super. 2012). See also Commonwealth v. Rivera, 

983 A.2d 1211, 1229-30 (Pa. 2009) (same).

While this Court is willing to construe materials filed by a pro se

appellant liberally, “pro se status confers no special benefit upon an

appellant.” Commonwealth v. Adams, 882 A.2d 496, 498 (Pa. Super. 

2005). “To the contrary, any person choosing to represent himself in a legal 

proceeding must, to a reasonable extent, assume that his lack of expertise 
J-S60028-17

- 6 -

and legal training will be his undoing.” Id. Appellant’s pro se status does 

not relieve Appellant of his duty to raise properly and develop his appealable 

claims. Smathers v. Smathers, 670 A.2d 1159, 1160 (Pa. Super. 1996).

Our review of the trial transcript shows that Appellant failed to 

preserve the instant issue at trial. Appellant did not object to any aspect of 

the prosecutor’s opening or closing statements. See N.T. Trial, 12/15/16, at 

33-42, 218-22. Appellant did not object to any of the pertinent testimony 

by Trooper Pelachick or Trooper Culvey that he now challenges for the first 

time on appeal. In fact, Appellant himself specifically asked numerous 

questions about his silence during his cross-examination of both Trooper 

Pelachick and Trooper Culvey. Id. at 101-04, 115-16, 127-30, 212-13.5

Appellant argues that he preserved this claim during a pre-trial 

hearing, at which he purportedly objected to any testimony about his refusal 

to answer questions or submit to a blood test. Appellant’s Brief at 13-14. 

Although he acknowledges the trial court never “directly rule[d] on the 

objection,” Appellant essentially avers that raising the issue pre-trial relieved 

him of any further obligation to preserve the issue for appeal. Id. at 14. 

Appellant further avers that he “attempted to object throughout his trial, 

____________________________________________

5 Appellant discussed his own silence during his testimony and in his opening 

and closing arguments. See N.T. Trial, 12/15/16, at 45-48 (“My refusal of

everything. I refused the breathalyzer. I refused roadside sobriety test. . . . 

[S]o I exercised the [F]ifth [A]mendment right that every American has in 

the [C]onstitution to refrain from convicting myself on the roadside.”); 182-

85 (testifying regarding his silence).
J-S60028-17

- 7 -

despite being admonished to cease doing so[,]” specifically during his own 

opening statement and during his own testimony. Id. We disagree.

At the pre-trial hearing on the day of trial, Appellant requested the

admission of blood testing kits, breathalyzers, and information from the 

manufacturers to show their inaccuracies in the event that the prosecutor 

planned to rely on the evidence of Appellant’s refusal to submit to blood 

testing to suggest he was guilty. N.T. Trial, 12/15/16, at 13-18. Appellant 

mentioned the Fifth Amendment and his right to remain silent in explaining 

why he wanted to introduce this evidence. Id. at 17-18. At no point in the

pre-trial proceeding did Appellant seek to preclude any of the 

Commonwealth’s evidence, lodge a specific objection regarding such 

evidence, or otherwise preserve the instant issue on appeal.

After careful review of the certified record, we conclude that Appellant 

has waived this first issue on appeal. See Pa.R.A.P. 302; Adams, 39 A.3d 

at 319-20; Rivera, 983 A.2d 1229-30.

In his second issue, Appellant essentially avers that 75 Pa.C.S. § 

1547(e),6Pennsylvania’s implied consent statute, is unconstitutional in light 

____________________________________________

6

Pennsylvania’s implied consent statute reads, in relevant part, as follows:

(e) Refusal admissible in evidence.--In any summary 

proceeding or criminal proceeding in which the defendant 

is charged with a violation of section 3802 or any other 

violation of this title arising out of the same action, the fact 

that the defendant refused to submit to chemical testing as 

(Footnote Continued Next Page)
J-S60028-17

- 8 -

of Birchfield v. North Dakota, ___ U.S. ___, 136 S.Ct. 2160, 195 L.Ed. 2d 

560 (2016).7 Appellant further argues that under Birchfield, the application 

of Section 1547(e), an evidentiary provision, is unconstitutional because the 

admission of evidence of a defendant’s refusal to submit to a blood test is, in 

essence, an impermissible penalty for the exercise of his constitutional 

rights. Appellant’s Brief at 20-27.

(Footnote Continued) _______________________

required by subsection (a) may be introduced in evidence 

along with other testimony concerning the circumstances 

of the refusal. No presumptions shall arise from this 

evidence but it may be considered along with other factors 

concerning the charge.

75 Pa.C.S. § 1547(e).

7 This Court recently described the Birchfield holding as follows:

In Birchfield, the United States Supreme Court held that 

“motorists cannot be deemed to have consented to submit to a 

blood test on pain of committing a criminal offense.” Id. at 

2185-86. Accordingly, this Court has recognized that 

Pennsylvania’s implied consent scheme was unconstitutional 

insofar as it threatened to impose enhanced criminal penalties 

for the refusal to submit to a blood test. Commonwealth v. 

Ennels, 167 A.3d 716, 724 (Pa. Super. 2017), reargument 

denied (Sept. 19, 2017) (noting that “implied consent to a blood 

test cannot lawfully be based on the threat of such enhanced 

penalties”); Commonwealth v. Evans, 153 A.3d 323, 330-31 

(Pa. Super. 2016).

Commonwealth v. Kurtz, ___ A.3d ___, 2017 PA Super 336 (Pa. Super. 

Filed Oct. 23, 2017). Relevant to Appellant’s claim, the Birchfield Court 

clarified that its holding should not be read to cast doubt on the propriety of 

rules allowing for evidentiary consequences resulting from a motorist’s 

refusal to consent to a blood draw. Birchfield, 136 S.Ct. at 2185.
J-S60028-17

- 9 -

Before we address the merits of Appellant’s issue, we again must 

determine whether Appellant has preserved this issue in the lower court. As 

noted above, “[i]ssues not raised in the lower court are waived and cannot 

be raised for the first time on appeal.” Pa.R.A.P. 302. This Court has held 

that even “issues regarding the constitutionality of a statute can be waived”

if not preserved below. Commonwealth v. Lawrence, 99 A.3d 116, 122 

(Pa. Super. 2014) (citation and quotation marks omitted).

Appellant argues that he preserved this second issue during the pretrial hearing, when he purportedly objected to any testimony about his 

refusal to answer questions and to submit to a blood test. Appellant’s Brief 

at 20-21. As described above, Appellant raised six evidentiary matters at 

the pre-trial hearing, but he did not challenge the constitutionality of 75

Pa.C.S. § 1547(e). See N.T. Trial, 12/15/16, at 9-23. Rather, he 

mentioned the general parameters of Birchfield in the context of his 

explanation about why the trial court should allow his evidence of blood 

testing kits, breathalyzers, and information from the manufacturers. See

N.T. Trial, 12/15/16, at 13-18.

In addition, our review of the certified record shows that Appellant 

never sought to preclude any of the Commonwealth’s evidence regarding his 

refusal to submit to blood testing, and never lodged a specific objection to 

any of the testimony regarding such evidence during trial. In fact, during his 
J-S60028-17

- 10 -

own testimony at trial, Appellant repeatedly discussed his refusal to submit 

to blood testing. See id. at 184-87, 189, 198, 204-05.

Significantly, after the trial court instructed the jury that it could 

consider Appellant’s refusal of blood testing as evidence of his consciousness 

of guilt, the court asked Appellant if he had any questions or objections 

regarding the jury instructions. Appellant responded “No, Your Honor.” Id.

at 231.

After careful review of the certified record, we conclude that Appellant 

has waived this second issue on appeal. See Pa.R.A.P. 302; Lawrence, 99 

A.3d 122.8

Judgment of Sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/18/2018

____________________________________________

8 We reiterate our observation that the trial court did not impose a 

mandatory minimum sentence of incarceration based on Appellant’s refusal 

to consent to a blood test. Thus, there are no concerns regarding the 

legality of Appellant’s sentence under Birchfield.