J-S43024-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

JOHNATHAN DRAKE COUSINS

Appellee No. 1801 WDA 2016

Appeal from the Order Dated November 1, 2016

In the Court of Common Pleas of Butler County

Criminal Division at No(s): CP-10-CR-0000927-2015

BEFORE: STABILE, J., SOLANO, J., and FITZGERALD, J.* MEMORANDUM BY SOLANO, J.: FILED DECEMBEER 1, 2017

The Commonwealth of Pennsylvania, Appellant, appeals from the trial

court order granting the post-sentence motion of Johnathan Drake Cousins

and vacating Cousins’ conviction and sentence for driving under the

influence (DUI), 75 Pa.C.S. § 3802(d). We reverse and remand.

The evidence at Appellant’s trial included the results of chemical tests

on Appellant’s blood, which had been drawn without obtaining a warrant.

The trial court summarized the procedural posture of Cousins’ case as

follows:

Following a bench trial, [Appellant] was found guilty on June

[1]7, 2016 of violating § 3802(d)(1)(i) and § 1301(a) of the

Vehicle Code. On August 18, 2016, the Court sentenced

[Appellant] to pay fines and to undergo a period of county

intermediate punishment. Thereafter[, on August 25, 2016, ____________________________________________

* Former Justice specially assigned to the Superior Court.
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Appellant] filed a post-sentence motion challenging the reliability

of the chemical testing performed in this case. At the time of

the hearing on the motion [on September 26, 2016], in addition

to presenting argument relating to the reliability of the chemical

testing, counsel for [Appellant] argued that under Birchfield [v.

North Dakota, 136 S.Ct. 2160, 195 L.Ed 560 (2016)], which

was decided on June 23, 2016, the warrantless blood draw

performed was unconstitutional. The Court based its decision to

vacate the verdict and sentence on Birchfield, not on the

reliability of the performed chemical testing. Should the

Superior Court of Pennsylvania find that the decision to vacate

was erroneous, this Court found that the Commonwealth put

forth sufficient reliable evidence to sustain [Appellant’s]

conviction for driving under the influence in violation of 75

Pa.C.S.A. § 3802(d)(1)(i).

Trial Court Order Pursuant to Pa.R.A.P. 1925(a), 12/16/16, at 1-2. As we

discuss below, Cousins did not raise any question regarding the

constitutionality of the warrantless blood draw prior to the argument on his

post-sentence motion.

The Commonwealth filed a timely appeal on November 22, 2016, and

presents the following issues for our review:

1. Whether the trial court committed error and/or abused its

discretion in applying Birchfield v. North Dakota, 136 S.Ct.

2160 (U.S. 2016) retroactively and/or in an ex post facto

manner regarding the United States Supreme Court’s holding

surrounding a chemical draw and testing of blood and its

application by Pennsylvania’s courts that the Pennsylvania

DL-26 Form warnings were coercive in nature thus

invalidating a consensual blood draw?

2. Whether the trial court committed error by entertaining a

Birchfield v. North Dakota argument to chemical testing by

defense counsel and applying that case when the issue was

not preserved or raised through pre-trial motion by defense

counsel?
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3. Whether the trial court erred in determining that the drug

levels found in [Cousins’] blood/system as a result of the

chemical testing of [Cousins’] blood fell within the margin of

error thus giving rise to reasonable doubt?

Commonwealth Brief at 3.

In their first two issues, the Commonwealth challenges the trial court’s

retroactive application of Birchfield. The Commonwealth asserts that

Cousins waived any claim under Birchfield because he failed to raise the

issue “at all stages of adjudication,” and “cannot argue that Birchfield didn’t

exist until June 23, 2016 as the claims raised in Birchfield could have been

raised by defense counsel in the case at hand.” Commonwealth Brief at 6.

We agree.

This court recently addressed the retroactive application of Birchfield

in Commonwealth v. Moyer, --- A.3d ----, 2017 WL 4348121, 2017 PA

Super 314 (Oct. 2, 2017). In Moyer, we held that a defendant was not entitled

to retroactive application of Birchfield where the defendant was sentenced

for a DUI conviction on June 21, 2016 – two days prior to the Birchfield

decision – and failed to raise Birchfield in her timely post-sentence motion

filed on July 1, 2016, in which she challenged only the sufficiency of the

evidence. We explained:

Appellant argues that the trial court erred in declining to vacate

her DUI conviction under Birchfield. As explained above, the

United States Supreme Court handed down Birchfield two days

after Appellant's sentence. Appellant never challenged the

warrantless blood draw during trial, and did not raise any issue

under Birchfield until her nunc pro tunc post-sentence motion.

In Pennsylvania, it has long been the rule that criminal
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defendants are not entitled to retroactive application of a new

constitutional rule unless they raise and preserve the issue

during trial. Commonwealth v. Newman, 99 A.3d 86, 90 (Pa.

Super. 2014) (en banc), appeal denied, 632 Pa. 693, 121 A.3d

496 (2014). The Newman Court relied on Commonwealth v.

Cabeza, 503 Pa. 228, 469 A.2d 146, 148 (1983). There, the

Supreme Court wrote:

[W]here an appellate decision overrules prior law and

announces a new principle, unless the decision specifically

declares the ruling to be prospective only, the new rule is

to be applied retroactively to cases where the issue in

question is properly preserved at all stages of

adjudication up to and including any direct appeal.

Id. (emphasis added). Instantly, Appellant failed to challenge

the warrantless blood draw at any stage of the litigation prior to

her nunc pro tunc post-sentence motion. Thus, she is not

entitled to retroactive application of Birchfield. Commonwealth v. Moyer, 2017 WL 4348121, at *4-5, (Pa. Super. Oct. 2,

2017).

Similarly, in Commonwealth v. Napold, --- A.3d ----, 2017 WL

4105733, 2017 PA Super 296 (Sept. 15, 2017), we declined to reach the

merits of an appellant’s Birchfield-based argument, and held that for

Birchfield to apply retroactively in the appellant’s direct appeal, the issue

had to be preserved at all stages of adjudication up to and including the

direct appeal. We stated:

On appeal, Appellant sets forth one issue for our review:

“Whether the trial court erred when it considered the refusal to

submit to a blood test as substantive evidence in violation of her

constitutional rights[.]” Appellant's Brief at 3. Appellant

recognizes that she did not raise this issue in the trial court, but

argues that because Birchfield was not decided until after trial, “the matter was not at issue at the time of trial, and [Appellant]

is entitled to the protection of the rule on appeal.” Id. at 10.
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Before we reach the merits of this issue, we must determine

whether it has been preserved for our review. It is well-settled

that “[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(a).

The decision in Birchfield announced a new criminal rule. When

a United 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, 124 S.Ct.

2519, 159 L.Ed.2d 442 (2004) (citing Griffith v. Kentucky, 479

U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987)). “Case

law is clear, however, that in order for a new rule of law to apply

retroactively to a case pending on direct appeal, the issue had to

be preserved at all stages of adjudication up to and including the

direct appeal.” Commonwealth v. Tilley, 566 Pa. 312, 780

A.2d 649, 652 (2001) (internal citations and quotation marks

omitted); see also Commonwealth v. Newman, 99 A.3d 86,

90 (Pa. Super. 2014) (en banc) (“To be entitled to retroactive

application of a new constitutional rule, a defendant must have

raised and preserved the issue in the court below.”).

Commonwealth v. Napold, 2017 WL 4105733, at *2 (Pa. Super. Sept. 15,

2017).

Instantly, the trial court convicted Cousins of DUI on June 17, 2016.

Six days later, on June 23, 2016, the United States Supreme Court issued its

decision in Birchfield. Our review of the record discloses that Cousins did

not raise the applicability of Birchfield prior to or at his sentencing on

August 18, 2016; nor did he raise it in the post-sentence motion he filed on

August 25, 2016. Cousins raised Birchfield for the first time on September

26, 2016, when he appeared for oral argument on his post-sentence motion.

At the September 26, 2016 argument, Appellant first argued that his “main

point . . . has to do with the deviation and the testimony from the

toxicologist, whereby it was learned that there was an approximate twenty
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percent deviation plus or minus regarding the blood test in this particular

case.” N.T., 9/26/16, at 3-4. Appellant then added, “although it’s not

specifically in our written motion, I would raise a Birchfield issue here, the

blood was taken and that it lacked valid consent.” Id. at 4-5.

Bound by our decisions in Moyer and Napold, we are constrained to

conclude that Cousins failed to properly preserve the Birchfield issue

because he failed to raise it “at all stages of adjudication.” Thus, the

Commonwealth is entitled to relief on its first two issues relating to

Birchfield. In its third issue, the Commonwealth states that that the trial court

erred “in determining that the drug levels found in [Cousins’] blood/system

as a result of the chemical testing of [Cousins’] blood fell within the margin

of error thus giving rise to reasonable doubt.” Commonwealth Brief at 3.

However, the Commonwealth also “concedes the argument surrounding

margin of error” because “the trial court states that it did not grant

[Cousins’] post-sentence motion under the margin of error argument.” Id.

at 6. As noted above, the trial court specifically “found that the

Commonwealth put forth sufficient reliable evidence to sustain [Cousins’]

conviction.” Trial Court Order Pursuant to Pa.R.A.P. 1925(a), 12/16/16, at

2. Thus, despite the confused way in which the Commonwealth has

presented this issue, there is no basis on which to grant relief with respect to
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it. The Commonwealth already prevailed on this issue in the trial court and

therefore is not an aggrieved party on this third issue.

In sum, and for the aforementioned reasons, we reverse the trial

court’s November 1, 2016 order granting Cousins’ post-sentence motion,

and reinstate the June 7, 2016 conviction and August 18, 2016 judgment of

sentence. The case is remanded for proceedings consistent with this

memorandum.

Order reversed. Conviction and judgment of sentence reinstated.

Case remanded with instructions. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/1/2017