Com. v. Stanford, J. ( 2017 )

J-S57001-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOHN STANFORD
Appellant No. 3508 EDA 2015
Appeal from the Judgment of Sentence October 27, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005497-2015
BEFORE: PANELLA, J., SOLANO, J., and MUSMANNO, J.
MEMORANDUM BY PANELLA, J. FILED OCTOBER 06, 2017
The Philadelphia Municipal Court convicted Appellant, John Stanford,1
of driving under the influence of marijuana. Stanford appealed for a trial de
novo to the Court of Common Pleas. He failed to appear for his trial, and the
Court of Common Pleas dismissed his appeal and entered a new judgment of
sentence pursuant to Pa.R.Crim.P. 1010(B). Stanford then filed this timely
pro se appeal.
In his counseled brief, he argues the Municipal Court erred in denying
his motion to suppress evidence gained from his blood test. Specifically, that
____________________________________________
1 At his sentencing hearing before the Municipal Court, Stanford explained
that he only used the name John Stanford once, when he was approximately
18 years old. See N.T., Sentencing, 6/1/15, at 5-6. At all times during this
proceeding, he identified himself as Robert Waller. For consistency purposes,
we will use the name contained in our caption.
J-S57001-17
his consent to the blood draw was unconstitutional pursuant to Birchfield v.
North Dakota, 136 S. Ct. 2160 (2016).
The Birchfield Court found that “motorists cannot be deemed to have
consented to submit to a blood test on pain of committing a criminal
offense.” Id., at 2186. In so finding, the Court vacated the conviction of one
of the petitioners who had consented to a blood draw after being informed
by police that he must comply with the blood test, or else face criminal
penalties.
Though refusal to submit to a blood draw is not a separate crime in
Pennsylvania, at the time of this incident involving Stanford, refusal to
submit to a blood draw, paired with a later conviction for or plea to drunk
driving under any section of 75 Pa.C.S.A. § 3802, mandated higher penalties
for the defendant. See 75 Pa.C.S.A. § 3804. Penalties.
This Court interpreted Birchfield as applied to Pennsylvania’s drunk
driving laws in the case of Commonwealth v. Evans, 153 A.3d 323 (Pa.
Super. 2016). In Evans, the arresting officer warned Evans, who was
suspected of driving under the influence, that he would face higher penalties
for refusing a blood draw. Evans thereafter consented to a blood draw, and
was charged with driving under the influence. Evans later challenged that
consent as involuntary, and filed a motion to suppress. His motion was
denied, and he appealed his drunk driving conviction to this Court.
-2-
J-S57001-17
Based on Birchfield, the Evans panel vacated the judgment of
sentence and the suppression court’s order, and remanded the case to the
trial court for reevaluation of Evans’s consent, given the inaccuracy of the
officer’s warning after Birchfield invalidated the law imposing higher
penalties for refusing a blood draw. See 153 A.3d at 331.
Where, as in Birchfield, 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 (2004). “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, 780 A.2d 649, 652 (Pa. 2001) (quoting Commonwealth v. Cabeza,
469 A.2d 146, 148 (Pa. 1983)). “[A]n exception to the issue-preservation
requirement exists where the challenge is one implicating the legality of the
appellant’s sentence.” Commonwealth v. Barnes, 151 A.3d 121, 124 (Pa.
2016) (citation omitted).
Here, Stanford does not challenge the legality of his sentence; indeed,
as he consented to the blood draw he was not subject to the higher
sentencing penalty for refusal. See 75 Pa.C.S.A. § 3804. And, fatal to his
claim, Stanford did not challenge consent in the Court of Common Pleas in a
motion for a new trial. See Commonwealth v. Johnson, 146 A.3d 1271,
1274 (Pa. Super. 2016). Thus, his claim is waived for purposes of appeal.
-3-
J-S57001-17
See id.; Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived
and cannot be raised for the first time on appeal.”)
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/6/2017
-4-