Com. v. Harris, A. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
ALEXIS HARRIS : No. 2876 EDA 2017
Appeal from the Order August 9, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004696-2017
BEFORE: BOWES, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY BOWES, J.: FILED APRIL 16, 2019
The Commonwealth appeals from the August 9, 2017 order holding that
it presented insufficient evidence to create a prima facie case of driving under
the influence (DUI) with refusal to submit to chemical testing. We reverse
and remand for further proceedings.
We gather the following underlying facts from the trial court’s opinion.
At approximately 3:00 a.m. on May 22, 2016, Harris, who was operating a
vehicle despite the fact that her license was suspended, drove fifty-five miles
per hour in a residential neighborhood, twice failed to stop at red traffic
signals, and nearly collided with a police vehicle. The arresting officers noted
that Harris’s eyes were glassy and bloodshot, her speech was slurred, she
smelled strongly of alcohol, and she was unable to walk unassisted. When in
custody, Harris declined to undergo chemical testing.
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The Commonwealth filed a criminal complaint alleging one count of
DUI—general impairment and one count of driving with a suspended license.
The complaint included allegations that Harris refused chemical testing, and
that, if she was convicted, the Commonwealth would seek imposition of the
enhanced sentencing provisions of 75 Pa.C.S. § 3804. Following a preliminary
hearing, the refusal aspect of the DUI charge was dismissed, but the DUI
charge itself and the charge of driving with a suspended license were held for
court. The Commonwealth withdrew and refiled the charges, again alleging
the refusal enhancement. The trial court held a preliminary hearing on the
refiled charges on August 9, 2017, at which the Commonwealth presented
Officer David Soto to testify about the circumstances surrounding Harris’s
refusal to submit to chemical testing. At the conclusion of the hearing, the
trial court determined that the Commonwealth failed to show by a
preponderance of the evidence that Harris knowingly refused, ordering that
the Commonwealth could not proceed on the sentencing enhancement.
The Commonwealth filed a timely notice of appeal in which it certified
that the trial court’s order substantially terminated or handicapped the
prosecution. Notice of Appeal, 9/7/17, at 1. Although not ordered to do so,
the Commonwealth filed a statement of errors complained of on appeal. The
trial court subsequently filed an opinion in support of its decision.
The Commonwealth presents the following question for our review:
“Properly viewed in the light most favorable to the Commonwealth, did the
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evidence establish a prima facie case of driving under the influence—general
impairment with refusal, where [Harris] drove drunk and then ignored the
officer’s request that she submit to breath testing?”1 Commonwealth’s brief
at 4.
We consider the Commonwealth’s question mindful of the following
principles. “It is well-settled that the evidentiary sufficiency, or lack thereof,
of the Commonwealth’s prima facie case for a charged crime is a question of
law as to which an appellate court’s review is plenary.” Commonwealth v.
Hilliard, 172 A.3d 5, 12 (Pa.Super. 2017) (citation and internal quotation
marks omitted). “[O]ur scope of review is limited to determining whether the
Commonwealth has established a prima facie case.” Id. (citation and internal
quotation marks omitted).
Our Supreme Court has described the Commonwealth’s burden as
follows.
At the preliminary hearing stage of a criminal prosecution,
the Commonwealth need not prove the defendant’s guilt beyond
a reasonable doubt, but rather, must merely put forth sufficient
evidence to establish a prima facie case of guilt. A prima facie
case exists when the Commonwealth produces evidence of each
of the material elements of the crime charged and establishes
probable cause to warrant the belief that the accused committed
the offense. Furthermore, the evidence need only be such that, if
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1 The Commonwealth does not contend that Harris is subject to sentencing
enhancements for refusing to submit to a blood test. Therefore, the holding
of Birchfield v. North Dakota, 136 S. Ct. 2160, 2186 (2016), regarding
Fourth Amendment’s prohibition of warrantless blood draws, is inapplicable to
this appeal.
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presented at trial and accepted as true, the judge would be
warranted in permitting the case to be decided by the jury.
Commonwealth v. Karetny, 880 A.2d 505, 513-14 (Pa. 2005) (citations
omitted, emphasis added).
Pursuant to 75 Pa.C.S. § 3802(a)(1), the crime of DUI—general
impairment contains the following elements: “‘the accused was driving,
operating, or in actual physical control of the movement of a vehicle during
the time when he or she was rendered incapable of safely doing so due to the
consumption of alcohol.’” Commonwealth v. Teems, 74 A.3d 142, 145
(Pa.Super. 2013) (quoting Commonwealth v. Segida, 985 A.2d 871, 879
(Pa. 2009)). Under 75 Pa.C.S. § 3804(c), a person who violates § 3802(a)(1)
and refuses to submit to a breath test is subject to specified heightened
penalties, depending on the number of prior offenses.
This Court has held, both before and after the decision in Alleyne v.
United States, 570 U.S. 99 (2013), that the sentencing enhancements of
§ 3804 are not elements of the crime of DUI. See Commonwealth v.
Farrow, 168 A.3d 207, 218 (Pa.Super. 2017); Commonwealth v. Mobley,
14 A.3d 887, 894 (Pa.Super. 2011). Rather, those who commit DUI and
refuse chemical testing must be charged under § 3802(1)(a), be given notice
of the alleged applicability of the § 3804 enhancement, be found to have
refused beyond a reasonable doubt by the factfinder at trial consistent with
the dictates of Alleyne. Farrow, supra at 218-19.
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As noted above, the Commonwealth’s burden at a preliminary hearing
is to present evidence of each element of the crimes charged. Karetny,
supra at 514. Since refusal is not an element of the crime of DUI—general
impairment, we see no basis for the trial court to have required the
Commonwealth present evidence of Harris’s refusal at the preliminary
hearing. Accord Commonwealth v. Orrs, 640 A.2d 911 (Pa.Super. 1994)
(holding prior offenses affecting the grading of the crime of retail theft are not
elements of the crime, and thus need not be proven at the preliminary
hearing; Commonwealth need only place accused on notice of its intent to
seek sentence based upon higher grading). As the court held the DUI charge
for court upon determining that the Commonwealth produced evidence that
would allow the jury to find each element of that crime, there was no reason
to address, let alone preclude the Commonwealth from pursuing at trial, the
applicability of the § 3804 enhancement.
Moreover, assuming arguendo that evidence of Harris’s refusal was
required to be shown at the preliminary hearing as part of a prima facie case,
we have no hesitation in concluding that the Commonwealth satisfied that
burden. For driver’s refusal to submit to breath testing to result in penalties,
“the police must tell the arrestee of the consequences of a refusal to take the
test so that he can make a knowing and conscious choice.” Com., Dep't of
Transp., Bureau of Traffic Safety v. O'Connell, 555 A.2d 873, 877 (Pa.
1989). Once advised of the consequences, “‘anything less than an unqualified,
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unequivocal assent constitutes a refusal[.]’” Commonwealth v. Myers, 164
A.3d 1162, 1181 n.21 (Pa. 2017); see also Commonwealth v. Hunsinger,
549 A.2d 973, 976 (Pa.Super. 1988).
At the preliminary hearing, Officer Soto testified that Harris was placed
in a cell, rather than in the testing room, “because she was very hostile[.]”
N.T. Preliminary Hearing, 8/9/17, at 12, 16. Three separate times, Officer
Soto requested that Harris take a breath test and warned her of the
consequences of her refusal, and all three times she declined. Id. at 11-15.
Harris remained “belligerent the whole time,” laying on the floor and declining
to stand up, asking for a nurse then rejecting the nurse when she was offered.
Id. at 16-17. Officer Soto indicated that Harris “didn’t listen to anything [he]
was saying.” Id. at 16. Instead, Harris was hostile and argumentative:
“Everything we said, she didn’t want.” Id.
The trial court found that the circumstances did not evidence “a
meaningful opportunity or reasonable and sufficient opportunity to either
refuse or consent.” Trial Court Opinion, 11/29/17, at 6. Specifically, it pointed
to the testimony that Harris did not listen to Officer Soto’s requests, that she
was on the floor of a cell rather than in the testing room, and that she
requested medical attention. Id. at 5-6.
We disagree. Importantly, contrary to what was argued by Harris at the
hearing, Officer Soto indicated that Harris did not listen to him, not that she
was unable to hear him. Compare N.T. Preliminary Hearing, 8/9/17, at 16
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(“[S]he didn’t listen to anything I was saying.”), with id. at 28 (“He said she
couldn’t hear me. He said that.”). Indeed, the trial court appeared to have
formed a mental image of the events that was not supported by the evidence,
such that Harris was face down on the floor of the cell and crying. See id. at
29, 32 (“[H]e said she didn’t hear me, she wasn’t listening. . . . He said she
was in her cell, face down on the floor, asking for medical help, belligerent --
okay, belligerent -- crying? I’m not sure if I heard crying.”).
Officer Soto testified that, on three distinct occasions, he requested that
Harris undergo a breath test and read her warnings of the consequences of
her refusal. Hence, this is not a case in which the officer did not even try to
administer warnings based upon the unruliness of the motorist. Cf.
Commonwealth v. Xander, 14 A.3d 174, 180 (Pa.Super. 2011) (holding
refusal enhancements were not applicable because the officer never
attempted to administer warnings to highly-uncooperative detainee). Nor is
this a situation in which the officer sought consent from a motorist who was
physically incapable of consenting or knowingly refusing, as Officer Soto’s
testimony suggests that Harris was conscious and communicative throughout
the episode. Cf. Myers, supra at 1172 (holding motorist did not have the
opportunity to make knowing and conscious choice whether to refuse testing
where warnings had been read to motorist while he was unconscious following
the administration of Haldol)
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The fact that Harris declined to pay attention to what Officer Soto said,
instead choosing to argue and act out in defiance, doing the opposite of what
was asked of her about everything (e.g., requesting a nurse then rejecting
the services of the nurse who was on site, electing to lay down rather than
stand), does not necessitate the finding that Harris did not make a knowing
and conscious choice to refuse chemical testing. See Commonwealth v.
Olsen, 82 A.3d 1041, 1048 (Pa.Super. 2013) (holding evidence was sufficient
to allow jury to conclude beyond a reasonable doubt that the defendant’s
refusal was knowing where the officer “attempted to administer the refusal
warnings to [her], but her obnoxious behavior prevented him from completing
the recitation and obtaining a knowing waiver”). If a jury accepted Officer
Soto’s testimony as true, it could reasonably conclude that Harris had a
meaningful opportunity to consent to chemical testing or make a knowing
refusal, yet she did not avail herself of that opportunity. Therefore, we hold
that the trial court erred in ruling that the Commonwealth was precluded from
pursuing at Harris’s trial § 3804(c)’s enhanced penalty for refusal.
Order reversed. Case remanded for further proceedings. Jurisdiction
relinquished.
Judge Stabile joins the memorandum.
Judge McLaughlin concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/16/19
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