Com. v. Halgash, P. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PATRICIA HALGASH :
:
Appellant : No. 1617 MDA 2019
Appeal from the PCRA Order Entered September 18, 2019
in the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0004545-2015
BEFORE: BOWES, J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED OCTOBER 15, 2020
Patricia Halgash (“Halgash”) appeals from the Order denying her first
Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1
We affirm.
The PCRA court summarized the history underlying the instant appeal
as follows:
On March 13, 2014[,] at 2:15 p.m., [Halgash] met Rob
Klatter at Tobias Frogg, a bar and restaurant in Lancaster, for an
“employee review.” She stayed there for approximately 3 hours,
eating and drinking[,] before driving to meet her friend, Stacey
Gissinger at the Brasserie, a bar and restaurant in East Lampeter
Township. [Halgash] sat at the bar in the Brasserie for the next
3 or so hours[,] during which time she claims she drank 3 beers.
Her bar receipt, however, show[ed] that she paid for six highly
alcoholic beers. Shortly before 8:20 p.m.[,] and after the
consumption of several potent drinks on a now[-]empty stomach,
[Halgash] left the bar, got behind the wheel of her car, and began
driving home.
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1 See 42 Pa.C.S.A. §§ 9541-9546.
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A few moments later, on a relatively straight roadway,
[Halgash] drifted right and struck a curb, swerved back through
her lane and over the center line, and struck a vehicle head-on.
[Halgash] testified that her phone vibrated, distracting her[,] and
causing the crash. At trial, an expert demonstrated that no
incoming, or outgoing messages or notifications had appeared on
[Halgash’s] phone[,] which would have caused this claimed
buzzing….
The driver of the [other] vehicle, Sharon Mulhatten [(“Ms.
Mulhatten”)], was killed as a result of her injuries from the
collision. The passenger, Troy Mulhatten, was seriously injured
with impairments that persisted even after two years from the
date of the collision. Ms. Mulhatten’s car left skid marks on the
road, indicating [that] she had braked and attempted to swerve
to avoid [Halgash’s] car. There were no skid marks left by
[Halgash’s] car.
….
Officers from the East Lampeter Police Department arrived
on the scene [at] around 8:30 p.m. Sergeant Randy Shrom
[(“Sergeant Shrom”)] spoke with [Halgash]. [Halgash] told
Sergeant Shrom [that] she had been at a friend’s house for dinner
and had one beer at 5:00 p.m. She also told him that she was
not on any medication. Later, [Halgash] admitted to taking a
“cocktail of prescription medication,” including hydrocodone. …
[Halgash] repeatedly complained of knee pain, for which she was
eventually transported to the hospital. While in the hospital,
[Halgash] again spoke with Sergeant Shrom and, after a reading
of a DL-26[b], [Halgash] refused a blood alcohol [content (“BAC”)]
test….
Trial commenced on July 11, 2016. After a 4-day trial, the
jury found [Halgash] guilty of[] Count 1, homicide by vehicle
while driving under the influence of alcohol [(“DUI”)]; Count 2,
aggravated assault by vehicle while [DUI]; Count 3, homicide by
vehicle; Count 4, aggravated assault by vehicle. [See 18
Pa.C.S.A. §§ 3735(a), 3735.1(a), 3732, 3732.1(a). The trial
court] sentenced [Halgash] to 4 years to 14½ years [in prison].
[Halgash] filed a timely Notice of Appeal…. The Superior
Court affirmed [Halgash’s] conviction[ on direct appeal]. [See
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Commonwealth v. Halgash, 179 A.3d 531 (Pa. Super. 2017)
(unpublished memorandum).2] She thereafter filed a timely
[PCRA] Petition on July 9, 2018.
PCRA Court Opinion, 9/18/19, at 1-4 (footnotes omitted; footnote added).
After a hearing, the PCRA court dismissed Halgash’s Petition.
Thereafter, Halgash filed the instant timely appeal, followed by a court-
ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of on
appeal.
Halgash presents the following claims for our review:
I. At [] Halgash’s trial, the Commonwealth elicited evidence
regarding her refusal to submit to a warrantless blood draw
pursuant to 75 Pa.C.S.[A.] § 1547(e). Was [Halgash’s]
conviction in violation of Article One, Section Eight of the
Pennsylvania Constitution[,] because it provides greater
protection than that afforded by the Federal Constitution?
II. The trial court gave the jury a verdict slip, which did not
accurately reflect either the court’s charge or the law
regarding homicide by vehicle while [DUI]. The trial court
conceded the error and corrected the verdict slip, but issued
no further instructions on the subject. Was [] Halgash’s trial
counsel ineffective for failing to object to the initial verdict
sheet or seek clarifying instructions?
Brief for Appellant at 4.
As our Supreme Court has explained,
[u]pon reviewing an order in a PCRA matter, we must determine
whether the findings of the PCRA court are supported by the
record and whether the court’s legal conclusions are free from
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2 Halgash had failed to file a Pa.R.A.P. 1925(b) concise statement of matters
complained of on appeal. Consequently, this Court concluded that all issues
were waived on appeal. See Halgash, 179 A.3d 531 (Pa. Super. 2017)
(unpublished memorandum at 2).
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error. The findings of the PCRA court and the evidence of record
are viewed in a light most favorable to the prevailing party. The
PCRA court’s credibility determinations, when supported by the
record, are binding; however, this court applies a de novo
standard of review to the PCRA court’s legal conclusions. We must
keep in mind that the petitioner has the burden of persuading this
Court that the PCRA court erred and that such error requires relief.
Finally, this Court may affirm a valid judgment or order for any
reason appearing of record.
Commonwealth v. Montalvo, 205 A.3d 274, 286 (Pa. 2019).
Under the PCRA, a petitioner is entitled to relief when she demonstrates
that the conviction was the result of “[a] violation of the Constitution … which,
in the circumstances of the particular case, so undermined the truth-
determining process that no reliable adjudication of guilt or innocence could
have taken place[.]” 42 Pa.C.S.A. § 9543(a)(2)(i). In order to establish
eligibility for relief under the PCRA, a petitioner must demonstrate that, inter
alia, the claim has not been waived.3 See 42 Pa.C.S.A. § 9543(b)(3).
Halgash first claims that her conviction was the result of the
unconstitutional admission of evidence regarding her refusal to take a BAC
test. Brief for Appellant at 11. Halgash argues that, at the time of her arrest,
Pennsylvania’s implied consent law punished a refusal to submit to a
warrantless blood draw with criminal and civil penalties. Id. (citing 75
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3 Under the PCRA, “an issue is waived if the petitioner could have raised it but
failed to do so before trial, at trial, during unitary review, on appeal or in a
prior state postconviction proceeding.” 42 Pa.C.S.A. § 9544(b).
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Pa.C.S.A. §§ 1547(b), (b.1); 3804(b)(2) (2014) (effective 10/27/14-
12/23/18) (providing for increased statutory maximum penalties for refusing
to submit to testing); 3804(c) (2012) (effective 7/9/12-7/19/17) (providing
for increased mandatory minimum sentences for refusing to submit to a BAC
test)). According to Halgash, the United States Supreme Court’s decision in
Birchfield v. North Dakota, 136 S. Ct. 2160 (2016),4 rendered pertinent
parts of Pennsylvania’s implied consent law unconstitutional. Brief for
Appellant at 14.
In this appeal, Halgash challenges whether, post Birchfield, Article I,
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4 In Birchfield, the United States Supreme Court held that under the Fourth
Amendment, “[t]here must be a limit to the consequences to which motorists
may be deemed to have consented by virtue of a decision to drive on public
roads” and “motorists cannot be deemed to have consented to submit to a
blood test on pain of committing a criminal offense.” Birchfield, 136 S. Ct. at
2185-86.
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Section 8 of the Pennsylvania Constitution5 prohibits the admission of
evidence of a driver’s refusal to submit to chemical testing as consciousness
of guilt. Id. at 16. Specifically, Halgash challenges the constitutionality of
Motor Vehicle Code section 1547(e), which provides that “the fact that the
defendant refused to submit to chemical testing … may be introduced in
evidence along with other testimony concerning circumstances of the refusal.”
75 Pa.C.S.A. § 1547(e). According to Halgash,
[u]sing a defendant’s refusal as evidence of [her] consciousness
of guilt penalizes [her] for exercising [her] right to refuse illegal
searches. Pennsylvania’s continued allowance of that evidence
clashes with its historical elevation of personal privacy rights and
established policy.
Brief for Appellant at 16.
Halgash directs our attention to case law holding that the assertion of a
constitutional right is inadmissible as evidence of guilt. Id. at 16-17 (citing
Commonwealth v. Welch, 585 A.2d 517, 519 (Pa. Super. 1991), which
stated that “it is philosophically repugnant to the extension of constitutional
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5 Article I, Section 8 provides as follows:
The people shall be secure in their persons, houses, papers and
possessions from unreasonable searches and seizures, and no
warrant to search any place or to seize any person or things shall
issue without describing them as nearly as may be, nor without
probable cause, supported by oath or affirmation subscribed to by
the affiant.
PA. CONST. art. I, § 8.
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rights that assertion of that right be somehow used against the individual
asserting it”); Commonwealth v. Chapman, 136 A.3d 126, 131 (Pa. 2016)
(stating that a defendant’s refusal to submit to a warrantless DNA test is
inadmissible to show consciousness of guilt). In this appeal, Halgash
challenges the “long-standing exception to that general rule[,]” Vehicle Code
section 1547(e). Brief for Appellant at 17. Because Birchfield held that the
implied consent warnings are unconstitutionally coercive, Halgash argues,
evidence of a refusal resulting from the coercive warning should be deemed
inadmissible under the Pennsylvania Constitution. Id. at 18-19.
Before addressing Halgash’s claim, we first must determine whether
she has preserved it for our review. In her PCRA Petition, Halgash asserted
the following challenge to the constitutionality of Section 1547(e):
The conviction and imposition of sentence upon Defendant
resulted from a violation of the Constitution of the Commonwealth
of Pennsylvania[,] or laws of the United States pursuant to Title
42 Pa.C.S.[A.] § 9543(a)(2)(i)[,] as Section 1547(e) of the Vehicle
Code, 75 Pa.C.S.[A.] § 1547(e) is violative of Article 1[,] Section
8 of the Pennsylvania Constitution and the Fourth Amendment to
the United States Constitution.
PCRA Petition, 7/9/18, at 3. Halgash additionally claimed that her counsel
rendered ineffective assistance because counsel
failed to object to the admission of Defendant’s refusal to submit
a sample of blood for testing without a search warrant as proof of
consciousness of guilt during Defendant’s trial[,] as Section
1547(e) of the Vehicle Code, 75 Pa. C.S.[A.] § 1547(e)[,] is
violative of Article I[,] Section 8 of the Pennsylvania Constitution
and the Fourth Amendment to the United States Constitution.
Id. at 4 (citation to record omitted).
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In her brief in support of her PCRA Petition, Halgash challenged the
admissibility of refusal evidence based upon Birchfield and case law
interpreting the Fourth Amendment to the United States Constitution. See
Brief in Support of PCRA Petition, 3/27/19, at 3-6. Developing her Fourth
Amendment argument, Halgash asserted that this Court erred in deciding
Commonwealth v. Bell, 167 A.3d 744 (Pa. Super. 2017):
The Superior Court in Bell relies upon Birchfield’s statement that
“nothing we say here should be read to cast doubt” on the
“general concept of implied-consent laws that impose civil
penalties and evidentiary consequences on motorists who refuse
to comply.” Birchfield, 136 S. Ct. at 2185. The introduction of
the refusal, however, results in a penalty which is evidentiary in
nature. Further, it is submitted that an independent right
under Article I[,] Section 8 of the Pennsylvania Constitution
exists, despite the implied consent statute to refuse to
consent to a warrantless seizure of blood even upon a
probable cause arrest for [DUI].
Finally, the state may not penalize the right to refuse a blood
draw by using evidence of consciousness of guilt in a criminal
case. In Commonwealth v. Chapman, 136 A.3d 126 (Pa.
2016), this Court held that a defendant’s refusal to consent to a
warrantless search of his blood for DNA purposes was not
admissible to prove consciousness of guilt. The Court held that
admission of evidence of refusal to consent burdened an accused’s
right to refuse consent. Now that the Supreme Court has held
that a warrant is required for the seizure of blood in a DUI case
without consent, the Superior Court has erred in determining that
[Halgash] did not have a constitutional right under the Fourth
Amendment to the United States Constitution and under Article I,
[S]ection 8 of the Pennsylvania Constitution and that the use of
such evidence at trial unlawfully burdens the Defendant’s right to
refuse to consent.
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Id. at 5-6 (citation and footnote omitted, emphasis added). Halgash
presented no separate argument supporting her claim that Section 1547(e)
violates Article I, Section 8 of the Pennsylvania Constitution.
Halgash acknowledged that the issue was, at that time, pending before
the Pennsylvania Supreme Court. Brief in Support of PCRA Petition, 3/27/19,
at 4. Subsequently, the Pennsylvania Supreme Court issued its decision in
Commonwealth v. Bell, 211 A.3d 761 (Pa. 2019). Affirming this Court, the
Pennsylvania Supreme Court held that, under the Fourth Amendment to the
United States Constitution, Section 1547(e)’s evidentiary consequence “for
refusing to submit to a warrantless blood test — the admission of that refusal
at a subsequent trial for DUI — remains constitutionally permissible post-
Birchfield.” Id. at 769. The Supreme Court deemed the appellant’s
challenge to the constitutionality of Section 1547(e), under Article I, Section
8 of the Pennsylvania Constitution, waived. Id. at 768.
Thus, before the PCRA court, Halgash challenged the admission of
evidence regarding her refusal to submit to a BAC test, focusing on the Fourth
Amendment to the United States Constitution. Halgash did not develop a
separate challenge to Section 1547(e) under Article I, Section 8 of the
Pennsylvania Constitution. Halgash presented her current Article I, Section 8
argument for the first time on appeal to this Court, following our Supreme
Court’s decision in Bell. As our Supreme Court has explained, “it is both
important and necessary that we undertake an independent analysis of the
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Pennsylvania Constitution, each time a provision of that fundamental
document is implicated[.]” Commonwealth v. Edmunds, 586 A.2d 887,
894-95 (Pa. 1991). “For this reason, in particular, those litigants wishing to
advance lines of departure, under Article I, Section 8, from Fourth Amendment
doctrine, must bring the matter into sharp focus in their advocacy.”
Commonwealth v. Au, 42 A.3d 1002, 1009 (Pa. 2012).
Because Halgash did not present her present constitutional argument
under Article I, Section 8 before the PCRA court, we deem that claim to be
waived.6, 7 See Pa.R.A.P. 302(a) (stating that a claim cannot be raised for the
first time on appeal); see also 42 Pa.C.S.A. 9545(b)(3); Bell, 211 A.3d 761,
769 (Pa. 2019) (wherein the Pennsylvania Supreme Court deemed a challenge
to the constitutionality of Section 1547(a), under the Pennsylvania
Constitution, to be waived because, in raising the claim before the trial court,
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6 Even if Halgash had preserved her present claim, we would conclude that it
lacks merit. “[W]e are to construe the Pennsylvania Constitution as providing
greater rights to its citizens than the federal constitution ‘only where there is
a compelling reason to do so.’” Commonwealth v. Crouse, 729 A.2d 588,
596 (Pa. Super. 1999) (emphasis added) (quoting Commonwealth v. Gray,
503 A.2d 921, 926 (Pa. 1985)). Halgash has failed to establish compelling
reasons why the additional privacy protections afforded by Article I, Section 8
are served by diverging from Fourth Amendment jurisprudence, as applied in
Bell. See Bell, 211 A.3d 769-76 (analyzing applicable law and finding “ample
support to conclude the [United States Supreme] Court would approve this
particular evidentiary consequence [provided for in section 1547(e)] in the
context of a Fourth Amendment challenge.”).
7 Additionally, in this appeal, Halgash failed to challenge the PCRA court’s
rejection of her claim of ineffective assistance of counsel, based upon the
failure to raise this claim before the trial court.
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the appellant failed “to develop an argument that the Pennsylvania
Constitution provided any independent grounds for relief.”).
Halgash next claims that her trial counsel rendered ineffective
assistance by not objecting to the trial court’s initial verdict slip, which was
inconsistent with its jury charge. Brief for Appellant at 23. Halgash
acknowledges that, upon being told of this error by the Commonwealth, the
trial court corrected the jury verdict slip. Id. at 24-25. On this basis, Halgash
asserts that the issue has arguable merit, and counsel had no reasonable basis
for failing to object to the verdict slip. Id. at 25-26. Halgash argues that she
suffered prejudice caused by counsel’s omission, as “[t]he jury was so
confused that they sent two questions about it.” Id. at 26. Halgash further
claims that the amended verdict slip did not alleviate the jury’s confusion. Id.
Consequently, Halgash argues that her counsel rendered ineffective
assistance by not requesting an additional instruction to alleviate the jury’s
confusion. Id. at 26-27.
Counsel is presumed to be effective and “the burden of demonstrating
ineffectiveness rests on [the] appellant.” Commonwealth v. Rivera, 10
A.3d 1276, 1279 (Pa. Super. 2010).
To satisfy this burden, an appellant must plead and prove by a
preponderance of the evidence that[] “(1) his underlying claim is
of arguable merit; (2) the particular course of conduct pursued by
counsel did not have some reasonable basis designed to effectuate
his interests; and, (3) but for counsel’s ineffectiveness, there is a
reasonable probability that the outcome of the challenged
proceeding would have been different.” Commonwealth v.
Fulton, [] 830 A.2d 567, 572 (2003). Failure to satisfy any prong
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of the test will result in rejection of the appellant’s ineffective
assistance of counsel claim. Commonwealth v. Jones, [] 811
A.2d 994, 1002 (2002).
Commonwealth v. Holt, 175 A.3d 1014, 1018 (Pa. Super. 2017).
In its Opinion, the PCRA court addressed Halgash’s claim as follows:
The mistake in the original verdict slip was the order in which the
charges were placed, appearing as if the jury should determine
[Halgash’s] guilt on [h]omicide by [v]ehicle while DUI before
determining guilt as to DUI. However, [the trial court’s]
instructions given on this were perfectly clear. [The court]
outlined the elements of each charge twice[,] stating specifically:
“In order to convict [Halgash] of homicide by vehicle while driving
under the influence, you must find … that [Halgash] caused the
death of [Ms.] Mulhatten as a result of her driving under the
influence[,] as defined by either or both of the terms that I just
outline[d] for you.” [N.T., 7/14/16,] at 524 (emphasis added).
Prior to this instruction, [the trial court] had defined driving under
the influence and given the jury all [of] the elements of that crime.
While the verdict slip may have been ordered incorrectly, the
instructions given to the jury were proper. It is presumed that
the jury followed the verbal instructions that were given. [8] As
there is no merit to the underlying claim, [Halgash] cannot prove
prejudice by [t]rial [c]ounsel’s failure to object to the charge on
the original verdict slip. The [trial c]ourt provided the jury with
the proper verdict slip, with the charges correctly ordered, and it
was using that corrected slip that [Halgash] was found guilty.
[Halgash] also claim[s] [that t]rial [c]ounsel was ineffective
for failing to object when no verbal explanation was provided
along with the new verdict slip. While [the trial court] did not re-
explain each element of all the charges, [the court] reminded the
jury to follow [its] prior verbal instructions when they were
provided [with] the new verdict slip. [See N.T., 542-43.] As they
are assumed to have followed [the trial court’s] verbal
instructions, [Halgash’s] claim does not have merit.
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8 See Commonwealth v. Chmiel, 30 A.3d 1111, 1184 (Pa. 2011) (stating,
“[t]he law presumes that the jury will follow the instructions of the court.”).
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PCRA Court Opinion, 9/18/19, at 9 (some citations added). We agree with
the reasoning and conclusion reached by the PCRA court, as set forth above,
and affirm on this basis. Accordingly, we affirm the Order of the PCRA court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/15/2020
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