Com. v. Melograna, F.

J-A24022-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
FRANK DAVID MELOGRANA, JR.
Appellant No. 3170 EDA 2014
Appeal from the Judgment of Sentence of October 20, 2014
In the Court of Common Pleas of Montgomery County
Criminal Division at No.: CP-46-CR-0005737-2013
BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*
MEMORANDUM BY WECHT, J.: FILED NOVEMBER 09, 2015
Frank Melograna, Jr. appeals the October 20, 2014 judgment of
sentence, which the trial court imposed following Melograna’s conviction of
driving under the influence of alcohol (“DUI”), 75 Pa.C.S. § 3802(d)(2).
Herein, Melograna challenges, inter alia, the trial court’s denial of his pre-
trial suppression motion, as well as the sufficiency of the Commonwealth’s
evidence against him. For the reasons set forth below, we affirm the
judgment of sentence.
The trial court has summarized the factual history of this case as
follows:
On April 16, 2013, Officer William Lion (“Officer Lion”) of the
Upper Dublin Police Department was on duty, in full uniform,
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*
Retired Senior Judge assigned to the Superior Court.
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driving a marked patrol car. At approximately 12:51 P.M.,
Officer Lion observed a Ford pick-up truck, operated by
[Melograna], stopped in the middle of a two-lane public roadway
on Susquehanna Road in Upper Dublin Township, Montgomery
County, Pennsylvania. Although the truck was stopped, the
truck was not disabled. The truck’s brake lights were on, which
indicated that [Melograna’s] foot was on the brake and the truck
was still running with the key in the ignition. As Officer Lion
approached the driver[’s] side of the vehicle, he observed a
semiconscious [Melograna] shaking in a manner similar to a
seizure with his eyes open. [Melograna] was unresponsive to
Officer Lion’s questions. Because [Melograna] appeared
incapable of turning off his truck, Officer Lion attempted to turn
off the truck but was dragged backwards when the truck began
rolling in reverse. Officer Lion eventually managed to employ
the emergency brakes and turn off the vehicle.
Officer Lion requested Emergency Medical Services (“EMS”) to
aid [Melograna]. Officer Lion monitored [Melograna] until EMS
arrived at the scene. When EMS transported [Melograna] inside
the ambulance, Officer Lion noticed three prescription medication
bottles inside [Melograna’s] car in plain view. Officer Lion
inspected the medication bottles. The medication labels listed
the three prescription bottles as: (1) Soma; (2) Percocet (trade
name Oxycodone and Acetaminophen); and (3) Alprazolam
(trade name Xanax). Officer Lion noticed that [Melograna’s]
Percocet prescription for 120 pills was filled on April 1, 2013,
fifteen days prior, but the bottle only contained 1.5 pills. Upon
Officer Lion’s inspection of the Alprazolam prescription, he
noticed that the bottle contained two differently colored pills.
Although [Melograna] was not placed under arrest at the scene,
Officer Lion followed [Melograna] to Abington Hospital for the
purpose of administering a blood test based on his belief that
[Melograna] was driving under the influence of the three
prescribed medications to a degree which rendered [Melograna]
incapable of safe driving.
[Melograna] arrived at Abington Hospital via EMS at
approximately 1:32 P.M. Officer Lion noticed that [Melograna]
was now able to respond to the hospital staff’s questions.
However, his responses were delayed, mumbled and unclear.
Officer Lion read the O’Connell Warnings1 to [Melograna], who
nodded his head in a manner that Officer Lion deemed as his
consent to undergo a chemical blood test. [Melograna] never
signed the DL-26 Implied Consent Form. Officer Lion indicated
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that [Melograna] was “unable to sign the form due to the fact
that [Melograna] was shaking.” [Melograna’s] medical report
evidences that at about 1:50 P.M., [Melograna’s] blood was
drawn by a hospital technician at the direction and request of
Officer Lion. At about 1:54 P.M., [Melograna’s] medical report
shows that [Melograna] was cognizant enough to respond to the
medical staff’s questions by providing them with accurate and
coherent information regarding his name and birthdate.
[Melograna] was later charged with [DUI].
1
The phrase “O’Connell Warnings” means the officer must
specifically inform a motorist that his driving privileges will
be suspended for one year if he refuses chemical testing
and that the rights provided by the United States Supreme
Court’s decision in Miranda v. Arizona, 384 U.S. 436(1966), do not apply to chemical testing. See
Commonwealth, Dept. of Transp., Bureau of Traffic
Safety v. O’Connell, 555 A.2d 873, 877-78 (Pa. 1989);
see also Commonwealth, Dept. of Transp. v. Ingram,
648 A.2d 285, 290 (Pa. 1994); Commonwealth, Dept. of
Transp. v. Scott, 684 A.2d 539, 540-41 (Pa. 1996).
Trial Court Opinion (“T.C.O.”), 1/22/2015, at 1-3 (some citations modified).
The blood tests revealed the presence of the prescription medications in
higher than expected amounts in Melograna’s bloodstream.
Prior to trial, Melograna filed a motion seeking, inter alia, the
suppression of the evidence resulting from what Melograna contended was
an unconstitutional blood draw. On July 1, 2014, following a suppression
hearing, the trial court denied the motion. On September 3, 2014, following
a bench trial, the trial court convicted Melograna of DUI. On October 20,
2014, the trial court sentenced Melograna to seven days to six months in
jail.
Thereafter, Melograna filed a notice of appeal, prompting the trial
court to issue an order directing Melograna to file a concise statement of
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errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On
November 24, 2014, Melograna timely complied with the court’s directive.
On January 22, 2015, the trial court issued an opinion pursuant to Pa.R.A.P.
1925(a).
Melograna raises the following three questions for our review:
I. Whether the trial court erred in denying [Melograna’s]
motion to suppress where police drew [Melograna’s] blood,
in contravention to the dictates of the Constitutions of the
United States and of the Commonwealth of Pennsylvania,
without [Melograna’s] consent, without obtaining a
warrant, and without exigent circumstances?
II. Whether the evidence at trial was insufficient to prove
[Melograna] guilty beyond a reasonable doubt where the
substances found in [Melograna’s] blood were medications
prescribed to him at stable, chronic doses and the forensic
toxicologist for the Commonwealth’s witnesses testified
only that there was a possibility that [Melograna] was
unable to safely drive, operate, or be in actual physical
control of the movement of the vehicle?
III. Whether 75 Pa.C.S. § 3802(d)(2) is unconstitutionally void
for vagueness as it criminalizes the taking of prescribed
medication in the manner in which they were prescribed?
Brief for Melograna at 4 (some capitalization and punctuation altered for
consistency and clarity).
In his first issue, Melograna challenges the trial court’s denial of his
suppression motion. Our standard of review for such claims is as follows:
[An appellate court’s] standard of review in addressing a
challenge to the denial of a suppression motion is limited to
determining whether the suppression court’s factual findings are
supported by the record and whether the legal conclusions
drawn from those facts are correct. Because the Commonwealth
prevailed before the suppression court, we may consider only
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the evidence of the Commonwealth and so much of the evidence
for the defense as remains uncontradicted when read in the
context of the record as a whole. Where the suppression court’s
factual findings are supported by the record, [the appellate court
is] bound by [those] findings and may reverse only if the court’s
legal conclusions are erroneous. Where . . . the appeal of the
determination of the suppression court turns on allegations of
legal error, the suppression court’s legal conclusions are not
binding on an appellate court, whose duty it is to determine if
the suppression court properly applied the law to the facts.
Thus, the conclusions of law of the courts below are subject to
plenary review.
Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (internal citations
and quotation marks omitted).
Melograna argues that the results from the blood test should have
been suppressed because the blood draw, itself, was unconstitutional.
Melograna maintains that the United States Supreme Court’s recent decision
in Missouri v. McNeely, 133 S.Ct. 1552 (2013), fundamentally altered the
manner in which law enforcement may secure blood from a suspected
intoxicated motorist. According to Melograna, McNeely held that implied
consent laws, such as the one that is codified in Pennsylvania at 75 Pa.C.S.
§ 1547(a)(1), are not per se exceptions to the constitutional warrant
requirements. Hence, Melograna argues that post-McNeely blood draws
may only occur upon the knowing and intelligent consent of the motorist, or
with a valid search warrant. Here, Melograna’s argument goes, because the
police did not secure a warrant, the blood draw was only constitutional if
Melograna validly consented. He contends that he did not.
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In light of Melograna’s argument, we necessarily begin by determining
whether McNeely applies to the instant case. In McNeely,
at approximately 2:08 a.m., a Missouri police officer stopped
McNeely’s truck after observing it exceed the posted speed limit
and repeatedly cross the centerline. The officer noticed several
signs that McNeely was intoxicated, including McNeely’s
bloodshot eyes, his slurred speech, and the smell of alcohol on
his breath. McNeely acknowledged to the officer that he had
consumed “a couple of beers” at a bar, and he appeared
unsteady on his feet when he exited the truck. After McNeely
performed poorly on a battery of field-sobriety tests and declined
to use a portable breath-test device to measure his blood alcohol
concentration (BAC), the officer placed him under arrest.
The officer began to transport McNeely to the station house. But
when McNeely indicated that he would again refuse to provide a
breath sample, the officer changed course and took McNeely to a
nearby hospital for blood testing. The officer did not attempt to
secure a warrant. Upon arrival at the hospital, the officer asked
McNeely whether he would consent to a blood test. Reading
from a standard implied consent form, the officer explained to
McNeely that under state law refusal to submit voluntarily to the
test would lead to the immediate revocation of his driver’s
license for one year and could be used against him in a future
prosecution. McNeely nonetheless refused. The officer then
directed a hospital lab technician to take a blood sample, and the
sample was secured at approximately 2:35 a.m. Subsequent
laboratory testing measured McNeely’s BAC at 0.154 percent,
which was well above the legal limit of 0.08 percent.
133 S.Ct. at 1556-57 (citations omitted). McNeely attempted to suppress
the results of the blood test, which he contended were secured
unconstitutionally because he did not consent to the draw, and because the
police did not obtain a search warrant. The case meandered through the
court system until the United States Supreme Court granted certiorari on the
question of “whether the natural dissipation of alcohol in the bloodstream
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establishes a per se exigency that suffices on its own to justify an exception
to the warrant requirement for nonconsensual blood testing in drunk-driving
investigations.” Id. at 1568.
The Court first recognized that the Fourth Amendment mandates that,
when reasonably practicable, police must obtain a valid search warrant
before they can conduct an involuntary blood draw. Of course, in McNeely,
the blood draw was involuntary, and the police did not obtain a warrant.
The Court, therefore, had to determine whether the police could obtain the
blood via the exigent circumstance exception to the warrant mandate. Id.
at 1558.1 Specifically, the Court considered whether the natural dissipation
of alcohol within the bloodstream created a per se exigency that would
permit police officers to conduct warrantless blood draws, regardless of
whether the suspected driver consented to the draw.
Ultimately, the Court elected not to adopt a categorical approach,
instead requiring courts to evaluate similar situations on a case-by-case
basis and to employ a totality of the circumstances approach. Id. at 1561.
The Court offered the following explanation for rejecting a per se exception
in DUI cases:
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1
As the Court explained, “[o]ne well-recognized exception . . . applies
when the exigencies of the situation make the needs of law enforcement so
compelling that a warrantless search is objectively reasonable under the
Fourth Amendment.” McNeely, 133 S.Ct at 1558 (quoting Kentucky v.
King, 131 S.Ct. 1849, 1856 (2011)).
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Regardless of the exact elimination rate, it is sufficient for our
purposes to note that because an individual’s alcohol level
gradually declines soon after he stops drinking, a significant
delay in testing will negatively affect the probative value of the
results. This fact was essential to our holding in [Schmerber v.
California, 384 U.S. 757 (1966)], as we recognized that, under
the circumstances, further delay in order to secure a warrant
after the time spent investigating the scene of the accident and
transporting the injured suspect to the hospital to receive
treatment would have threatened the destruction of evidence.
But it does not follow that we should depart from careful case-
by-case assessment of exigency and adopt the categorical rule
proposed by the State and its amici. In those drunk-driving
investigations where police officers can reasonably obtain a
warrant before a blood sample can be drawn without significantly
undermining the efficacy of the search, the Fourth Amendment
mandates that they do so. We do not doubt that some
circumstances will make obtaining a warrant impractical such
that the dissipation of alcohol from the bloodstream will support
an exigency justifying a properly conducted warrantless blood
test. That, however, is a reason to decide each case on its facts,
as we did in Schmerber, not to accept the “considerable
overgeneralization” that a per se rule would reflect.
Id. at 1561 (citations omitted).
The Court’s holding, that the Fourth Amendment is better served by a
case-by-case totality of the circumstances evaluation, was based upon the
fact that a categorical approach both would include situations where police
reasonably could have gotten a warrant, as well as situations where exigent
circumstances truly required the police to act immediately without a warrant.
A case-by-case approach best balanced the suspected driver’s Fourth
Amendment rights with the realities that law enforcement officials face when
attempting to collect evidence that naturally dissipates.
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Having set forth McNeely’s basic holding and underpinnings, we now
must ascertain how McNeely impacts the case sub judice. Contrary to
Melograna’s contentions, McNeely has no bearing upon his case.2 McNeely
only implicates the Fourth Amendment’s requirements when the police
command a medical professional to draw blood when the motorist has not
consented and when the police have not secured a warrant. When a
motorist consents to the blood draw, as Melograna did, or when a motorist
refuses the draw and the police do not compel the draw anyway, McNeely
simply is not applicable.
McNeely also did not render implied consent laws unconstitutional.
Melograna contends that, post-McNeely, implied consent laws cannot
function as a per se exception to the warrant and probable cause
requirements of the Fourth Amendment. The fault with Melograna’s
argument lies in his continued misinterpretation of the impact that McNeely
has on his case. McNeely simply does not extend to situations in which a
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2
Recently, in Commonwealth v. Myers, 118 A.3d 1122 (Pa. Super.
2015), we held that McNeely does apply in certain situations. In Myers,
the motorist, who was suspected of DUI, was taken to a hospital, and was
given medication that rendered him unconscious and unresponsive. The
motorist could not respond to police questioning regarding consent to a
blood draw. Without a response, the police ordered the blood draw without
consent and without a warrant. Relying upon McNeely, we held that the
warrantless draw was unconstitutional. The factual circumstances of Myers
clearly fell within the purview of McNeely. Obviously, in the case sub
judice, Melograna was not unconscious and could respond to the police, and
neither Myers nor McNeely controls.
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driver has consented to a blood draw or where the driver has refused
consent and where a police officer abides by the refusal and does not pursue
the blood draw. In those situations, Pennsylvania’s implied consent law
applies with full force.
The McNeely Court did not address the validity of implied consent
laws. The Court only rejected the State’s argument that any person who
refuses a blood test automatically subjects himself to a nonconsensual blood
draw. McNeely, 133 S.Ct. at 1568. Pennsylvania’s implied consent law
does not work that way. Under the implied consent law, a person, by virtue
of operating a motor vehicle, impliedly consents to chemical testing, which
the police officer may request if he or she has probable cause to believe that
the motorist is driving under the influence of alcohol or a controlled
substance. Section 1547 in no way authorizes a nonconsensual blood draw
if a person refuses. There is a penalty for refusing, to be sure. But, it is not
a blood draw against the refusing driver’s will. McNeely does not impact
the validity of our implied consent law in any way.
The crux of Melograna’s first argument is that McNeely altered the
manner in which we must view blood draws that are conducted based upon
suspicion of DUI. He argues that, post-McNeely, there are only two
choices: a valid consent or a warrant. However, as discussed in detail
above, that argument is an inaccurate portrayal of McNeely’s impact upon
this case. McNeely requires, in situations in which a person does not, or
cannot, consent and the police nonetheless do not obtain a warrant, that
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courts determine whether the totality of the circumstances created an
exigent circumstance such that the warrant requirement is excused. That is
not what occurred here. Therefore, we do not need to consider whether
exigent circumstances justified the draw in this case, we need only to review
this case under our traditional approach, considering the validity of the
consent under our implied consent statute and case law.
Pursuant to subsection 1547(a)(1):
Any person who drives, operates or is in actual physical control
of the movement of a vehicle in this Commonwealth shall be
deemed to have given consent to one or more chemical tests of
breath, blood or urine for the purpose of determining the
alcoholic content of blood or the presence of a controlled
substance if a police officer has reasonable grounds to believe
the person to have been driving, operating or in actual physical
control of the movement of a vehicle:
(1) in violation of section 1543(b)(1.1) (relating to driving
while operating privilege is suspended or revoked), 3802
(relating to driving under influence of alcohol or controlled
substance) or 3808(a)(2) (relating to illegally operating a
motor vehicle not equipped with ignition interlock)[.]
75 Pa.C.S. § 1547.3 To request chemical testing “under § 1547(a)(1), a
police officer need only have reasonable grounds to believe that a person
was driving under the influence of alcohol [or controlled substances].
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3
Subsection (a)(2), which permitted a warrantless blood draw without
probable cause of DUI when a motorist was in an accident that caused injury
or death to himself or another, was ruled unconstitutional in
Commonwealth v. Kohl, 615 A.2d 308 (Pa. 1992). That subsection is not
at issue in this case, and Kohl has no bearing upon our decision. Notably,
subsection (a)(1) has never been ruled unconstitutional.
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‘Reasonable grounds' has been interpreted to mean ‘probable cause;’ thus,
the police officer must have ‘knowledge of sufficient facts and circumstances,
gained through trustworthy information, to warrant a prudent man in the
belief that a crime has been committed.’” Commonwealth v. Aiello, 675
A.2d 1278, 1280 (Pa. Super. 1996) (internal citations omitted); see
Commonwealth v. Jones, 121 A.3d 524, 527-28 (Pa. Super. 2015),
reargument denied (Sept. 30, 2015).
Melograna does not argue that the police did not have probable cause
to request the blood draw. He argues only that his consent was involuntary
and, therefore, invalid.
In order for consent to be valid, it must be “unequivocal,
specific, and voluntary.” The appellant must have intentionally
relinquished or abandoned a known right or privilege.
Commonwealth v. Gibson, 638 A.2d 203 (Pa. 1994). “The
burden is upon the Commonwealth to prove by clear and
convincing evidence that valid consent was given by appellant.”
Commonwealth v. Blasioli, 685 A.2d 151, 156 (Pa. Super.
1996) (citations omitted). The determination as to whether
consent has been given voluntarily is a question of fact which
must be determined in each case from the totality of the
circumstances. Commonwealth v. Mancini, 490 A.2d 1377(Pa. Super. 1985). This Court has held that the following factors
should be considered in determining whether consent was given
voluntarily: “the setting in which the consent was obtained; what
was said and done by the parties present; and the age,
intelligence, and educational background of the person
consenting.” Blasioli, 685 A.2d at 156 (citations omitted).
Commonwealth v. Gorbea-Lespier, 66 A.3d 382, 387 (Pa. Super. 2013)
(citations modified) (quoting Commonwealth v. Dunne, 690 A.2d 1233,
1236 (Pa. Super. 1997)).
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The trial court in this case held that Melograna’s “self-impairment” was
insufficient to render Melograna incapable of validly consenting to the blood
draw. We agree with the court’s conclusion, as well as the court’s
description of the relevant facts of this case, which follow:
In the present case, [Melograna] was initially semiconscious and
unresponsive due to prior use of his prescription drugs. Even
though his responses were delayed, unclear and mumbled,
[Melograna] was able to respond to questions when he arrived at
the hospital. When Officer Lion read the O’Connell warnings,
[Melograna] was not unconscious. After hearing the warnings,
[Melograna] nodded his head in a manner which Officer Lion
reasonably deemed as his consent to submit to chemical blood
testing. Although [Melograna] did not sign the DL-26 Implied
Consent Form, . . . there is no requirement that voluntary
consent be manifested by a signed written consent form. At
1:54 P.M., four minutes after [Melograna’s] blood was drawn,
[Melograna’s] medical report evidences that [Melograna] was
cognizant enough to accurately respond to the medical staff’s
questions regarding his name and birthday.
T.C.O. at 9. The trial court’s factual findings were supported by the record,
and its legal conclusion that Melograna validly consented to the blood draw
was correct. Melograna is not entitled to relief.
In his second issue, Melograna contends that the evidence presented
by the Commonwealth at trial was insufficient as a matter of law to prove
him guilty of DUI. Our standard of review in a sufficiency challenge is as
follows:
In evaluating a challenge to the sufficiency of the evidence, we
must determine whether, viewing the evidence in the light most
favorable to the Commonwealth as verdict winner, together with
all reasonable inferences therefrom, the trier of fact could have
found that each and every element of the crimes charged was
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established beyond a reasonable doubt. We may not weigh the
evidence and substitute our judgment for the fact-finder. To
sustain a conviction, however, the facts and circumstances which
the Commonwealth must prove must be such that every
essential element of the crime is established beyond a
reasonable doubt.
Lastly, the finder of fact may believe all, some or none of a
witness’s testimony.
Commonwealth v. Priest, 18 A.3d 1235, 1239 (Pa. Super. 2011) (citations
omitted).
Pursuant to 75 Pa.C.S. § 3802(d)(2), “[a]n individual may not drive,
operate, or be in actual physical control of the movement of a vehicle . . . [if
the] individual is under the influence of a drug or combination of drugs to a
degree which impairs the individual's ability to safely drive, operate or be in
actual physical control of the movement of the vehicle.”
Melograna argues that the evidence was insufficient to support his
conviction because his own witness, Dr. Gary Lage, a forensic toxicologist,
testified that the amount of prescription medication in Melograna’s
bloodstream was consistent with the dosage prescribed by Dr. John
Telegadis, Melograna’s physician. Melograna contends that this testimony
provided an alternative interpretation of the evidence, which conflicted with
the Commonwealth’s toxicologist, who only testified that there was a
possibility that the prescription medication could have rendered him
incapable of safely driving his vehicle.
Although framed as a sufficiency challenge, Melograna’s argument
essentially asks us to second-guess the trial judge’s factual determinations,
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and to reweigh the evidence. Such an argument is a challenge to the weight
of the evidence, not its sufficiency. Melograna did not preserve his weight
challenge at sentencing or in a timely post-sentence motion. Thus, any such
contention is waived. Commonwealth v. Lofton, 57 A.3d 1270, 1273 (Pa.
Super. 2012).
To the extent that Melograna presents a viable sufficiency challenge, it
is meritless. Melograna was found unresponsive behind the wheel of a truck
that was stopped in the center of a two-lane public road. The key was in the
ignition. The truck was running, and Melograna’s foot was on the brake
pedal. When Officer Lion approached the truck, Melograna was shaking, and
was unresponsive to Officer Lion’s questions. He undeniably was incapable
of safely operating the truck. Moreover, Officer Lion found two prescription
pill bottles in the vehicle. One bottle contained only one and one-half pills,
even though the prescription for one hundred and twenty pills was filled only
fifteen days prior. In the other pill bottle, Officer Lion found two different
types of pills. Viewing the evidence in the light most favorable to the
Commonwealth, and granting the Commonwealth all reasonable inferences
drawn from that evidence, the trial court was free to conclude that
Melograna had not taken his medication as directed by his physician, that he
had supplemented his medication with another prescription drug, and that
the combination of substances rendered him incapable of safely driving his
truck. The evidence was sufficient to support the conviction.
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In his final issue, Melograna attempts to argue that the DUI statute
under which he was convicted was unconstitutional because, according to
Melograna, the statute is unconstitutionally vague in that it criminalizes too
much otherwise legal behavior. This issue was not preserved in the first
instance before the trial court, and, therefore, is waived.
Melograna did not challenge the constitutionality of the statute in a
pre-trial motion, or in any other manner before his trial commenced.
Instead, Melograna’s counsel stated during sentencing that “I would suggest
to the Court that this statute is one which I intend to challenge
constitutionally, because what I believe it does, it can criminalize absolutely
any one of us who take any kind of prescribed substance at the time.”
Notes of Testimony, 10/20/2014, at 6-7. Notably, Melograna also never
pursued the issue in a post-sentence motion.
It is well-settled that “one must object to errors, improprieties or
irregularities at the earliest possible stage of the criminal or civil
adjudicatory process to afford the jurist hearing the case the first occasion to
remedy the wrong and possibly avoid an unnecessary appeal to complain of
the matter.” Commonwealth v. Strunk, 953 A.2d 577, 580 (Pa. Super.
2008) (quoting Commonwealth v. English, 667 A.2d 1123, 1126 (Pa.
Super. 1995)). Melograna did not challenge the constitutionality of the DUI
statute at the earliest possible stage. Instead, he waited to raise the issue
until sentencing, long after the trial court could have responded to a timely-
filed challenge. A comment in passing about an issue that a defendant
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“intends” to challenge during a sentencing hearing, particularly an issue that
does not pertain to sentencing, simply is insufficient to preserve the
challenge for appellate review. Consequently, Melograna has waived his
final issue.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/9/2015
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