J-S24037-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DANIEL CHARLES TOY 

Appellant

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 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 sentence 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.
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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 store.... 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 volunteered 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 “detained” 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 Appellant 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 driving 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/similar 
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misconduct, a summary offense; and disorderly 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 Appeal 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.

Appellant 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, counsel 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.
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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 outlining 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. Additionally, 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 Patrolman 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. 
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without Miranda warnings, when Appellant admitted to driving himself to 

the Country Fair convenient store. This apparent 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, at 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 ability 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).
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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 erroneously 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 Appellant’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 were 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.
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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