J. S02009/17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

JARROD LaMONTE PENN, : No. 536 EDA 2016

:

 Appellant :

Appeal from the Judgment of Sentence, January 21, 2016,

in the Court of Common Pleas of Delaware County

Criminal Division at No. CP-23-CR-0004623-2015

BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MOULTON, JJ. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 28, 2017

Jarrod LaMonte Penn appeals from the judgment of sentence of 

January 21, 2016, following his conviction of driving under the influence 

(“DUI”) – general impairment.1 We vacate and remand for resentencing.

The trial court summarized the facts of this matter as follows:

On May 2, 2015, at approximately 1:55 a.m. 

Officers Dave Ford and Shane Laird of the Marcus 

Hook Police Department were on duty in a marked 

patrol vehicle. At or about that time, they were 

behind a maroon Chevy Impala bearing a Delaware 

State registration in the area of 10th and Church 

Streets in Marcus Hook, Delaware County, 

Pennsylvania. Both vehicles were traveling in the 

eastbound lane of traffic. Officer Ford testified that 

he observed the subject vehicle swerve to the left 

crossing over the double yellow line into the 

oncoming westbound lane of traffic. Shortly 

thereafter it swerved back to the right and 

 

1 75 Pa.C.S.A. § 3802(a)(1).
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subsequently on two (2) occasions swerved to the 

right and crossed over the solid white line that the 

officer referred to as the fog line on the right side of 

the roadway onto the shoulder. (N.T. 1/21/16 p. 7.) 

At that time, the officer activated his emergency 

lights and conducted a traffic stop of the vehicle. 

The driver and sole occupant of the vehicle was the 

Appellant, Jared Penn. (N.T. 1/21/16 p. 8.)

Subsequently, the officer testified that when he 

approached the Appellant, who rolled down his 

window, he immediately detected an odor of 

alcoholic beverages coming from the breath and 

person of the Appellant, that the Appellant had 

glassy, bloodshot eyes, spoke with slurred speech 

and appeared lethargic. (N.T. 1/21/16 p. 9.) The 

officer testified that he asked the Appellant to exit 

the vehicle and conducted three (3) field sobriety 

tests all of which the Appellant failed. (N.T. 1/21/16 

pp. 9-12.) While the Appellant was standing outside 

of the car, the officer noticed additionally that the 

Appellant’s “coordination was off” and his 

“comprehension wasn’t there” and he then asked the 

Appellant to submit to a preliminary breath test 

(PBT)[2] and he refused. (N.T. 1/21/16 p. 12.) The 

 

2

(k) Prearrest breath test authorized.--A police 

officer, having reasonable suspicion to believe 

a person is driving or in actual physical control 

of the movement of a motor vehicle while 

under the influence of alcohol, may require 

that person prior to arrest to submit to a 

preliminary breath test on a device approved 

by the Department of Health for this purpose. 

The sole purpose of this preliminary breath test 

is to assist the officer in determining whether 

or not the person should be placed under 

arrest. The preliminary breath test shall be in 

addition to any other requirements of this title. 

No person has any right to expect or demand a 

preliminary breath test. Refusal to submit to 

the test shall not be considered for purposes of 

subsections (b) and (e) [(relating to refusal)].

75 Pa.C.S.A. § 1547(k).
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officer subsequently testified that based on his 

training, experience, and observations of the 

defendant that evening, he felt that the Appellant 

was under the influence of alcohol at that time to 

such a degree wherein he could not safely operate a 

motor vehicle. The Appellant was subsequently 

placed under arrest and transported to the police 

station. (N.T. 1/21/16 p. 13.) At the station, 

Appellant was given his implied consent warning and 

he refused the chemical test. (N.T. 1/21/16 pp. 14-

16.)

The Appellant subsequently testified that he 

had advised the police officers that he was not 

drinking (N.T. 1/21/16 p. 51), that he could not 

properly perform the field sobriety tests due to his 

medical issues including lower back arthritis, retina 

issues, and prior surgery wherein a rod was 

implanted in his leg. (N.T. 1/21/16 pp. 53-54.) He 

further testified that he refused the PBT test because 

the officer took it out of his trunk, it was not 

wrapped up and he felt it was not sanitary. (N.T. 

1/21/16 pp. 54-55.) He further testified that he 

never was shown the DL26[3] refusal form (N.T. 

1/21/16 p. 59) and that he did in fact wish to have a 

blood test conducted. (N.T. 1/21/16 pp. 61-62.)

Trial court opinion, 6/7/16 at 1-3.

On January 21, 2016, following a non-jury trial, appellant was found 

guilty of one count of DUI – general impairment. Appellant waived a 

pre-sentence investigation and received the mandatory sentence of 72 hours 

to 6 months’ imprisonment and a $1,000 fine pursuant to 75 Pa.C.S.A. 

 

3 The DL–26 form contains warnings of the potential consequences of a 

person’s refusal to consent to a blood test, including that the individual’s 

license could be suspended for at least one year, and that if convicted of 

violating 75 Pa.C.S.A. § 3802(a), the individual will face more severe 

penalties because of the refusal.
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§ 3804(c)(1).4 No post-sentence motions were filed; however, on 

February 19, 2016, appellant filed a timely notice of appeal. Appellant was 

ordered to file a concise statement of errors complained of on appeal 

pursuant to Pa.R.A.P. 1925(b) within 21 days and timely complied on 

March 10, 2016, challenging the sufficiency of the evidence to support his 

conviction of DUI – general impairment under 75 Pa.C.S.A. § 3802(a)(1). 

On June 7, 2016, the trial court filed a Rule 1925(a) opinion addressing the 

sufficiency issue.

 

4

(c) Incapacity; highest blood alcohol; 

controlled substances.--An individual who 

violates section 3802(a)(1) and refused testing 

of blood or breath or an individual who violates 

section 3802(c) or (d) shall be sentenced as 

follows:

(1) For a first offense, to:

(i) undergo imprisonment of 

not less than 72 

consecutive hours;

(ii) pay a fine of not less than 

$1,000 nor more than 

$5,000;

(iii) attend an alcohol highway 

safety school approved by 

the department; and 

(iv) comply with all drug and 

alcohol treatment 

requirements imposed 

under sections 3814 and 

3815.
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On appeal, appellant raises the following issue for this court’s review:

I) Whether the sentence was illegal where the 

trial court relied on [appellant]’s refusal of a 

blood test to impose the tier three mandatory

minimum of 72 hours for a first offense DUI 

which is in direct contravention to the ruling in 

the recent United States Supreme Court case 

of Birchfield v. North Dakota[, U.S. , 

136 S.Ct. 2160 (2016)] which invalidates any 

criminal sanction assessed for refusing to take 

a blood test[?]

Appellant’s brief at 7 (unnecessary capitalization deleted).

Initially, we note that appellant did not raise this issue in the court 

below; in his Rule 1925(b) statement, he only challenged the sufficiency of 

the evidence to support the conviction. However, the issue goes to the 

legality of appellant’s sentence, which is non-waivable. See 

Commonwealth v. Barnes, A.3d , 2016 WL 7449232 at *5 (Pa. 

Dec. 28, 2016) (“[W]here the mandatory minimum sentencing authority on 

which the sentencing court relied is rendered void on its face, and no 

separate mandatory authority supported the sentence, any sentence entered 

under such purported authority is an illegal sentence for issue preservation 

purposes on direct appeal.”); Commonwealth v. Edrington, 780 A.2d 721, 

723 (Pa.Super. 2001), citing Commonwealth v. Vasquez, 744 A.2d 1280 

(Pa. 2000) (application of a mandatory sentencing provision implicates the 

legality of the sentence, not the discretionary aspects of the sentence). In 

addition, Birchfield was decided on June 23, 2016, after appellant’s 

sentence but during the pendency of the instant appeal. Where a United 
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States Supreme Court decision “results in a ‘new rule,’ that rule applies to all 

criminal cases still pending on direct review.” Schriro v. Summerlin, 542 

U.S. 348, 351 (2004).

In Birchfield, as in this case, the defendant refused a blood test after 

being read his implied consent warnings.5 He was advised that his refusal to 

undergo blood alcohol content (“BAC”) testing would expose him to criminal 

penalties. Birchfield, 136 S.Ct. at 2170. Birchfield pled guilty to a 

misdemeanor violation of the North Dakota refusal statute but argued that 

the Fourth Amendment prohibited criminalizing his refusal to submit to the 

test. Id. at 2170-2171. The United States Supreme Court agreed and 

reversed Birchfield’s conviction, holding that a State may not criminalize a 

motorist’s refusal to comply with a demand to submit to blood testing.

The Birchfield Court distinguished between breath and blood tests, 

which it found to be significantly more intrusive. Id. at 2184. The Court 

determined that with regard to blood tests, the police must either seek a 

warrant or show exigent circumstances. Id. The Court in Birchfield also 

rejected the argument that warrantless blood tests are justified based on the 

driver’s legally implied consent to submit to them:

 

5 As recounted above, appellant testified that he was never given his implied 

consent warnings and, in fact, wanted to submit to a blood test. The trial 

court, sitting as finder-of-fact, found appellant’s testimony to be not 

credible. The trial court determined that the officers complied with the 

implied consent law and that appellant refused to submit to chemical testing. 

(Notes of testimony, 1/21/16 at 71.)
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Our prior opinions have referred approvingly to the 

general concept of implied-consent laws that impose 

civil penalties and evidentiary consequences on 

motorists who refuse to comply. Petitioners do not 

question the constitutionality of those laws, and 

nothing we say here should be read to cast doubt on 

them.

It is another matter, however, for a State not only to 

insist upon an intrusive blood test, but also to 

impose criminal penalties on the refusal to submit to 

such a test. There must be a limit to the 

consequences to which motorists may be deemed to 

have consented by virtue of a decision to drive on 

public roads.

Id. at 2185 (citations omitted).

The Commonwealth concedes that appellant’s mandatory minimum 

sentence under Section 3804(c)(1)(i) for refusal was illegal under 

Birchfield. We agree. Appellant cannot be subject to enhanced criminal 

penalties for refusal to submit to a blood test. See also Commonwealth v. 

Evans, A.3d , 2016 WL 7369120 at *8 (Pa.Super. Dec. 20, 2016) 

(vacating the judgment of sentence and remanding for a re-evaluation of the 

appellant’s purported consent where the appellant only consented to the 

warrantless blood draw after being informed, by the police, that refusal to 

submit to the test could result in enhanced criminal penalties, in violation of 

Birchfield).6 Therefore, it is necessary to remand for resentencing without 

consideration of the mandatory minimum sentence in Section 3804(c)(1)(i).

 

6 The Supreme Court in Birchfield consolidated three separate cases, one of 

which was petitioner Steve Michael Beylund’s case. After Beylund’s arrest 

for DUI, the officer informed him of North Dakota’s implied consent advisory 
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Judgment of sentence vacated. Remanded for resentencing. 

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/28/2017

 

and that “test refusal in these circumstances is itself a crime.” Birchfield, 

136 S.Ct. at 2172. Beylund then agreed to the requested blood draw, and 

testing revealed a BAC of 0.250%, more than three times the legal limit. 

Id. Beylund appealed, principally arguing that his consent to the blood test 

was coerced by the officer’s warning that refusing to consent would itself be 

a crime. The North Dakota Supreme Court found that Beylund’s consent 

was valid, emphasizing that North Dakota’s implied consent advisory was not 

misleading because it truthfully related the penalties for refusal. The 

Birchfield Court rejected this rationale:

The North Dakota Supreme Court held that Beylund’s 

consent was voluntary on the erroneous assumption 

that the State could permissibly compel both blood 

and breath tests. Because voluntariness of consent 

to a search must be determined from the totality of 

all the circumstances, we leave it to the state court 

on remand to reevaluate Beylund’s consent given the 

partial inaccuracy of the officer’s advisory.

Id. at 2186 (citation and quotation marks omitted).