J-S28041-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MARIA ALANA MCELROY 

Appellant

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N THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1811 MDA 2017

Appeal from the Judgment of Sentence October 19, 2017

in the Court of Common Pleas of Luzerne County,

Criminal Division at No(s): CP-40-CR-0000909-2017

BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:

Maria Alana McElroy (“McElroy”) appeals from the judgment of sentence 

entered following her guilty plea to driving under the influence of alcohol

(DUI)-highest rate of alcohol (third offense). See 75 Pa.C.S.A. § 3802(c). 

We affirm.

The guilty plea colloquy is not part of the certified record. The Affidavit 

of probable cause indicates that on November 19, 2016, at about 3:00 a.m., 

Dupont Police Officer Cassandra Marie Kudzinowski (“Officer Kudzinowski”) 

observed McElroy drive her vehicle the wrong way on a one-way road. 

Affidavit of Probable Cause (Officer Kudzinowski), 12/30/16, at 1. After 

stopping McElroy’s vehicle, Officer Kudzinowski noticed that McElroy’s eyes 

were bloodshot, and her speech was slurred. Id. When asked, McElroy 

indicated that she had traveled from a bar in Scranton. Id. At Officer 

Kudzinowski’s request, McElroy agreed to take a Preliminary Breath Test 
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(“PBT”), which showed a .16% level of alcohol on McElroy’s breath. Id. 

Officer Kudzinowski asked if McElroy would go to Geisinger Hospital and give 

blood for an alcohol test, and McElroy replied “yes.” Id. At the request of 

Officer Kudzinowski, McElroy contacted friends to retrieve her vehicle. Id.

Officer Kudzinowski asked McElroy for her keys, and advised McElroy that she 

could wait for her friends in McElroy’s vehicle. Id. As McElroy reached for her 

purse containing the keys, Officer Kudzinowski observed a box of alcohol on 

the front seat. Id. As Officer Kudzinowski bent to retrieve the box, she 

observed drug paraphernalia on the front passenger seat. Searching 

McElroy’s vehicle, Officer Kudzinowski discovered additional paraphernalia, as 

well as a small plastic bag containing marijuana. Id. 

At the hospital, Officer Kudzinowski read McElroy the O’Connell 

warnings,1indicating increased criminal penalties for refusing to consent to a 

blood draw. Id. at 2. McElroy signed the form and submitted to blood testing. 

Id. The test revealed McElroy’s blood alcohol content to be .179%. Id. 

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1 “O’Connell warnings” refer to the obligation of police officers to inform 

motorists, of whom the officer requests chemical testing, that the Miranda

rights are inapplicable to such tests under the Pennsylvania Implied Consent 

Law. See Commonwealth, Dep’t of Transp. v. O’Connell, 555 A.2d 873 

(Pa. 1989). Critical to this case, the officer informed McElroy that she would 

suffer legal consequences if she refused her consent to the blood draw.
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McElroy subsequently was charged with two counts each of DUI-highest 

rate of alcohol and DUI-general impairment,

2 and one count each of driving 

the wrong way on a one-way street,

3 possession of a small amount of 

marijuana4 and possession of drug paraphernalia.5 On August 2, 2017, 

McElroy entered a negotiated guilty plea to the charge of DUI-highest rate of 

alcohol (third offense), in exchange for a recommended sentence of 1-2 years 

of incarceration, to be served in house arrest. Thereafter, the trial court 

sentenced McElroy to 1-2 years in jail, after which McElroy filed the instant, 

timely appeal,6followed by a court-ordered Pa.R.A.P. 1925(b) Concise 

Statement of matters complained of on appeal. 

McElroy presents the following claim for our review:

Was [] McElroy sentenced illegally, by being sentenced under the 

highest tier of the DUI statute[,] after being read implied consent 

warnings which were found unconstitutional in Birchfield [v. 

North Dakota, 136 S. Ct. 2160 (2016)], a United States Supreme 

Court decision which invalidated Pennsylvania’s implied consent 

contained in DL-26B[?]

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2 75 Pa.C.S.A. § 3802(a)(1).

3 Id. § 3308(b).

4 75 P.S. § 780-113(a)(31)(i).

5 Id. § 780-113(a)(32).

6 The 30-day time period for McElroy to file her direct appeal expired on 

Saturday, November 18, 2017. McElroy filed her Notice of Appeal on Monday, 

November 20, 2017, the first business day following the expiration of the 

appeal period. Accordingly, McElroy’s appeal was timely filed. See 1 

Pa.C.S.A. § 908 (“Computation of time”). 
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Brief for Appellant at 5. 

McElroy contends that her sentence for DUI-highest rate of alcohol is 

illegal, as it relied upon a blood draw that was the result of the O’Connell 

warnings, which were declared unconstitutional by the United States Supreme 

Court in Birchfield.

7

 Id. at 9. McElroy points out that the police obtained no 

warrant for a blood draw, and that her consent to the blood draw was the 

direct result of the threat of greater jail time should she not consent to the 

blood draw. Id. According to McElroy, her sentence was based on “something 

it could not have been based upon, on proof which was legally unavailable to 

the trial court.” Id. at 10. 

This Court has summarized the holding in Birchfield, and its application 

to Pennsylvania’s implied consent statutes, as follows:

In Birchfield, the United States Supreme Court recognized that 

“[t]here 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.” Birchfield, 136 S. Ct. at 2185. Of particular 

significance, Birchfield held that “motorists cannot be deemed to 

have consented to submit to a blood test on pain of committing a 

criminal offense.” Id. at ... 2186. 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 

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7 “[A]n appellant may raise legality of sentencing claims for the first time on 

direct appeal.” Commonwealth v. Lankford, 164 A.3d 1250, 1252 n.5 (Pa. 

Super. 2017).
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threat of such enhanced penalties”); Commonwealth v. Evans, 

153 A.3d 323, 330-31 (Pa. Super. 2016).

Commonwealth v. Kurtz, 172 A.3d 1153, 1157 (Pa. Super. 2017).

Our review of the record discloses that McElroy did not dispute the 

admissibility of the blood test results, or the validity of her consent to undergo 

blood testing, at any point prior to filing her Notice of Appeal; the first time 

she raised the issue was in her Pa.R.A.P 1925(b) Concise Statement. 

Furthermore, McElroy pled guilty to the DUI charge in question. Thus, McElroy 

has waived any challenge to the admissibility of her blood test results based 

upon Birchfield. See, e.g., Commonwealth v. Singleton, 169 A.3d 79, 81 

(Pa. Super. 2017) (stating that “a plea of guilty constitutes a waiver of all 

non[-]jurisdictional defects and defenses[,] and waives the right to challenge 

anything but the legality of the sentence and the validity of the plea.”) 

(internal quotation marks omitted). 

McElroy attempts to avoid waiver by casting her Birchfield claim as a 

challenge to the legality of her sentence. As set forth above, McElroy contends 

that her sentence was based on “something it could not have been based 

upon, on proof which was legally unavailable to the trial court.” Brief for 

Appellant at 10. 

This Court has rejected a similar argument, explaining that 

“while Birchfield issues may raise a question regarding the legality of 

sentence, that principle applies only if the defendant received an increased 

punishment due to a refusal. In this case, where [the defendant] did not 
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refuse and did not seek suppression of the blood evidence, there is no illegality 

to correct.” Commonwealth v. Kehr, 180 A.3d 754, 759 n.2 (Pa. Super. 

2018) (citation omitted).

Here, McElroy did not receive an increased punishment due to a refusal 

to submit to chemical testing, nor did she seek suppression of her blood test 

results. Accordingly, McElroy’s sentence is not rendered illegal by Birchfield. 

See id. Consequently, we cannot grant McElroy relief on this claim.

McElroy also asserts that, because her sentence is illegal, her plea was 

involuntary, because she was not advised that “the law prohibited the 

introduction of her blood test results, and that the sentence being offered was 

above the range of those offered for a general impairment violation of the DUI 

statute.” Brief for Appellant at 11. McElroy argues that the trial court had the 

obligation to inquire into the facts surrounding the plea, including the blood 

draw forming the basis of her plea. Id. According to McElroy, “a plea to the 

highest tier [was] unknowing, unintelligent, and probably involuntary.”8 Id.

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8 McElroy also argues that there was a chance to suppress significant evidence 

and her plea counsel rendered ineffective assistance for not filing a pre-trial 

suppression motion. Brief for Appellant at 11. We decline to address 

McElroy’s ineffectiveness claim without prejudice for her to raise it in postconviction collateral proceedings. See Commonwealth v. Woeber, 174 

A.3d 1096, 1109 n.16 (Pa. Super. 2017) (recognizing that, as a general rule, 

a defendant should wait to raise claims of ineffective assistance of trial counsel 

until collateral review). Such claims are within the purview of the Post 

Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. 
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The trial court and the Commonwealth agree with McElroy’s assertion. 

See Brief for the Commonwealth at 3 (stating that “McElroy appears to be 

correct that the blood draw that provided the factual basis for her plea and 

sentence under 3802(c) ... would have been suppressed under Birchfield v. 

North Dakota.”); Trial Court Opinion, 1/25/18, at 2 (stating that “McElroy[] 

should have been [s]entenced pursuant to 3802[(A)(1)], 3rd offense, resulting 

in a sentence of 10 days to 2 years.”). 

Our review of the record discloses that McElroy did not raise this claim 

by filing a post-sentence motion. 

[A] request to withdraw a guilty plea on the grounds that it was 

involuntary is one of the claims that must be raised by motion in 

the trial court in order to be reviewed on direct appeal. ... 

Moreover, for any claim that was required to be preserved, this 

Court cannot review a legal theory in support of that claim unless 

that particular legal theory was presented to the trial court....

Commonwealth v. Rush, 959 A.2d 945, 949 (Pa. Super. 2008) (citations 

omitted). Thus, the claim is not preserved for our review.

Even if McElroy had preserved this claim, it is not clear, based upon the 

record before us, whether McElroy would be entitled to relief. In the Affidavit 

of Probable Cause, Officer Kudzinowski stated that at the scene of the vehicle 

stop, she “asked [McElroy] if [McElroy] would go to Geisenger Hospital with 

[her] and give blood for an alcohol test. She said yes.” Affidavit of Probable 

Cause (Officer Kudzinowski), 12/30/16, at 1. Officer Kudzinowski further 

stated that “[m]yself and [McElroy] arrived at the hospital at approximately 

03:50 hrs. I then read her the chemical testing warnings (DL-26B)[,] which 
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she signed agreeing to submit a sample of blood, which she did so at 

approximately 04:01 hrs.” Id. at 1-2. 

In Commonwealth v. Haines, 168 A.3d 231 (Pa. Super. 2017), this 

Court addressed a situation in which it was unclear as to whether the 

defendant had consented to the blood test before or after having been read 

the DL-26 form, which improperly threatened criminal penalties for refusal to 

submit to the blood test, in violation of Birchfield and its progeny. This Court 

explained that,

[i]f [the defendant] validly consented before being informed that 

he faced enhanced criminal penalties for failure to [submit to a 

blood draw], then his consent would not be tainted by the warning 

and the blood test results would be admissible. If, however, he 

did not consent until after [the officer] informed him that he would 

face enhanced criminal penalties if he refused to consent, then the 

trial court did not necessarily err in granting his motion to 

suppress the test results.

Haines, 168 A.3d at 236 (emphasis omitted). 

Here, as in Haines, the trial court’s Opinion does not address the 

important temporal distinction between the O’Connell warning and McElroy’s 

consent to the blood draw. The trial court states instead that “[a] review of 

the [A]ffidavit of [P]robable [C]ause reflects that [McElroy] was arrested on 

November 19, 2016, and a blood draw was completed on that date.” Trial 

Court Opinion, 1/25/18, at 2. However, the Affidavit of Probable Cause 

indicates that McElroy consented to the blood draw before being wrongfully 

informed of increased penalties for refusing the blood draw. Affidavit of 

Probable Cause (Officer Kudzinowski), 12/30/16, at 1. By not filing a motion 
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to withdraw her guilty plea, McElroy has deprived the trial court of the 

opportunity to address the issue regarding the timing of McElroy’s consent, 

and whether Birchfield is implicated in this case. We therefore conclude that, 

because McElroy did not raise this issue before the trial court, it is not 

preserved for our review. See Rush, 959 A.2d at 949; Pa.R.A.P. 302(a) 

(stating that a claim cannot be raised for the first time on appeal). 

Accordingly, we affirm McElroy’s judgment of sentence.

Judgment of sentence affirmed.

Judge Kunselman joins the Memorandum.

Judge Olson concurs in the result. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/2/18