J

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DANIEL CHARLES TOY

Appellant :
:
:
:
:
:
:
:
: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1616 WDA 2016
Appeal from the Judgment of Sentence of June 10, 2016 In the Court of Common Pleas of Venango County Criminal Division at No(s): CP

- 61

- CR

- 0000528

- 2015

BEFORE: PANELLA, STABILE, JJ., and STEVENS, P.J.E. *

MEMORANDUM BY STEVENS, P.J.E.: FILED JUNE 07, 2017

Daniel Charles Toy (“Appellant”) appeals from the judgment of

sentence entered in the Court of Common Pleas of Venango County after a

jury convicted him of Driving Under the Influence (“DUI”) of alcohol, Public

Drunkenness, and Disorderly Conduct. 1 Sentenced to three to twelve

months’ incarceration, fines, and costs, Appellant contends that the trial

court erred in denying his post

- sentence motion seeking vacation of

judgment of sente nce and remand for a new suppression hearing. We

affirm.

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* Former Justice specially assigned to the Superior Court.

1 75 Pa.C.S. § 3802(a)(1) , 18 Pa.C.S. § 5505, and 18 Pa.C.S. § 5503(a)(1), respectively.J

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The trial court aptly summarizes the factual and procedural history of

the case as follows:

On July 19, 2015, police responded to a call of an active fight at the Country Fair, a gas/convenience st ore.... Patrolman Karns, along with two other officers, responded to the call around 2:45 AM. Upon arrival at the Country Fair, Patrolman Karns saw the Defendant (hereinafter “Appellant”) toss an object to the ground, which was recovered and found to be a knife. Patrolman Karns also took notice of blood on Appellant’s face. These factors led him to believe Appellant was involved in the fight to which Patrolman Karns was responding. Further, Patrolman Karns noticed a strong odor of alcohol emanating from Appellant, along with glassy eyes.

In the course of investigating the fight and who was involved..., Patrolman Karns went into the Country Fair to view surveillance footage. In the course of sorting out what happened at the scene relative to the fight, the officers responding to the scene, including Patrolman Karns, questioned the individuals there at Country Fair’s parking lot. While Patrolman Karns was standing next to Appellant, Appellant spontaneously relayed he had been involved in the fight, and volu nteered that prior to that he had been drinking at a local bar after which he had driven to the Country Fair parking lot. At that point, per the parties’ factual stipulations, Appellant was placed under arrest.

Patrolman Karns admitted Appellant was “det ained” while police on the scene questioned him and other people at the scene when responding to the call regarding an active fight scene. While Patrolman Karns was viewing the surveillance footage, he had another officer with Appellant to ensure that App ellant did not leave. However, it was not until after Patrolman Karns had viewed the video surveillance footage and Appellant spontaneously and voluntarily relayed the inculpatory statements to the officer that Appellant was placed under arrest for drivin g under the influence.

*** The Information was filed October 16, 2015, charging Appellant with [DUI]/General Impairment/Refusal (Second Offense), a misdemeanor of the first degree; public drunkenness/similarJ

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misconduct, a summary offense; and disorderl y conduct, a summary offense. The Preliminary Hearing was held September 30, 2015, after which the charges were bound over to the Court of Common Pleas.

Appellant filed an Omnibus Pre

- Trial Motion [“OPTM”] to Suppress Evidence [on] December 10, 2015. [ 2 ] A hearing on the OPTM was held January 26, 2016. The motion sought to dismiss inculpatory statements made by Appellant while in what Appellant characterized as a “custodial interrogation” at the Country Fair parking lot. The OPTM was, thereafter, denied in [the trial court’s] Order of Court dated January 29, 2016.

Appellant was thereafter tried and convicted on March 18, 2016, of [DUI], where Appellant did refuse testing of blood. [] Subsequently, Appellant was sentenced [as noted above]. [The trial court] held argument on [Appellant’s] Post Sentence Motion on September 27, 2016, at which time [the trial court] denied said motion per [its] Order of Court dated that same day. On October 19, 2016, Appellant[, through new counsel,] filed his Notice of A ppeal relative to his Post Sentence Motion. [The trial court] directed, by Order of Court dated October 20, 2016, that Appellant file his [Pa.R.A.P.] 1925(b) Concise Statement, which Appellant did on November 7, 2016.
Trial Court Opinion, at 2

- 4.

Appellan t presents the following question for our review:

[DID] THE POST SENTENCE COURT ERR[] AS A MATTER OF LAW OR ABUSE[] ITS DISCRETION IN DENYING [APPELLANT’S] POST SENTENCE MOTION?
Appellant’s brief at 5.

At the hearing on Appellant’s post

- sentence motion, c ounsel for

Appellant asked the trial court to vacate judgment of sentence with respect

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2 At the suppression hearing, neither the Commonwealth nor Appellant presented witnesses but, instead, stipulated to the Preliminary Hearing transcript. See Trial Court Opinion, November 21, 2016, at 1

- 2.J

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to DUI and remand for a new suppression hearing based on Patrolman

Karn’s previously unavailable testimony implicating Appellant’s Miranda

rights. 3 According to both parties and the trial court, Patrolman Karns

testified at trial that he had already placed Appellant in handcuffs, but

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3 We understand Appellant’s motion to re

- open his suppression hearing as akin to that contemplated in the Pennsylvania Supreme Court decision in In re L.J. , 79 A.3d 1073 (Pa. 2013), which, inter alia , “reinforce[d] the procedure required for the review of the denial of a suppression motion and the re

- opening of the suppression hearing to consider previously unavailable evidence.” Id . at 1088.

Among the considerations made by the Supreme Court in o utlining this procedure was whether counsel asked the trial court to reconsider its earlier suppression ruling in light of new testimony adduced at trial and whether counsel sought to scrutinize the new testimony during cross

- examination. Id . Additionall y, In re L.J. identified several salutary purposes to allowing the augmentation of the suppression record, including “giv[ing] the trial court the opportunity to re

- open the suppression hearing to consider the new evidence outside the presence of the jury[ ,]” and “giv[ing] the defendant a meaningful opportunity to formulate and present a defense to the new evidence . . . without concern that such a defense would waive the defendant’s Fifth Amendment right against self

- incrimination [at trial].” Id. at 1088 n.17. Given the Court’s observations, it may reasonably be inferred that a party seeking augmentation of the suppression record must make an appropriate motion at the earliest available opportunity.

As we discuss below, we lack a record of Appellant’s jury trial, so we cannot confirm whether Appellant moved for an immediate hearing to augment the suppression record outside the presence of the jury. We also cannot ascertain whether Appellant attempted to develop the apparent discrepancies between Patrol man Karns’ suppression and trial testimonies to illustrate, inter alia , the need to proceed to a suppression augmentation hearing. Given Appellant’s waiver of his claim for failure to supply a record of his jury trial, see infra , we do not address whether Appellant satisfied procedural requirements to obtaining a suppression augmentation hearing where he apparently waited until post

- trial motions to ask the court for a new suppression hearing.J

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without Miranda warnings, when Appellant admitted to driving himself to

the Country Fair convenient store. This appa rent testimony diverged from

Karns’ prior testimony at the preliminary hearing, stipulated to at the

suppression hearing, that he did not immediately place Appellant in

handcuffs at the outset of his investigation. See N.T. Preliminary Hearing,

9/30/15, a t 10.

As a threshold matter, however, we note that Appellant fails to provide

this Court with a transcript of the jury trial. For this reason alone, we are

constrained to find Appellant’s claim waived, for the absence of a jury trial

transcript impedes our abil ity to review his claim and assess whether the

trial court erred or abused its discretion in denying him a new suppression

hearing and trial. See Commonwealth v. Preston , 904 A.2d 1, 7 (Pa.

Super. 2006) ( en banc ) (“When the appellant [ ] fails to conform to the

requirements of [Pa.R.A.P.] 1911, any claims that cannot be resolved in the

absence of the necessary transcript or transcripts must be deemed waived

for the purpose of appellate review.”). 4

We observe, parenthetically, that Appellant predicates his claim of

prejudice on the argument that “the Commonwealth’s only evidence of the

Appellant having operated a motor vehicle and consumed alcohol was from

the Appellant’s statements.” Appellant’s brief at 10. A central feature to

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4 Rule 1911 has since been amended. See 46 Pa.B. 7801 (Dec. 17, 2016).J

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Patrolman Karns’ testimony at the preliminary hearing was that he based the

DUI arrest on his observation of the convenient store’s surveillance video

depicting Appellant driving into the parking lot and alighting his vehicle just

minutes before the police arrived. 5 While we have no way to discern

whether the Commonwealth and Patrolman Karns neglected to introduce this

critical testimony at trial, we note this Court has previously applied harmless

error analysis to statements obtained in violation of Miranda if, inter alia
,
“the er roneously admitted evidence was merely cumulative of other

untainted evidence which was substantially similar to the erroneously

admitted evidence[.]” Commonwealth v. Cornelius , 856 A.2d 62, 76

(Pa.Super. 2004). Our reliance on waiver doctrine for Appell ant’s failure to

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5 At Appellant’s Preliminary Hearing, Patrolman Karns testified as follows:

Q: Okay. And did you have an estimated time of how long he’d been there [convenience store] before your arrival?

KARNS: It was within minutes.

Q: On that video w ere you able to see his vehicle with him driving it?

A: Yes.

N.T., 9/30/15, at 7.

In addition, Patrolman Karns prepared an Affidavit of Probable Cause in which he stated “[y]our affiant viewed security camera footage that showed [Appellant] operating the vehicle when it was driven into the parking lot and parked which was just minutes before officers arrived on scene. [Appellant] was then placed under arrest for DUI.” Police Criminal Complaint, filed 7/20/15.J

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request the jury trial notes of testimony, however, obviates the need to

discuss this area of decisional law further.

Judgment of sentence is AFFIRMED.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/7/2017