Com. v. Pippen, A.

J-A22036-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
ALLEN PIPPEN,
Appellant No. 2112 EDA 2016
Appeal from the Judgment of Sentence June 13, 2016
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0009346-2014
BEFORE: BOWES, J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED OCTOBER 31, 2017
Appellant, Allen Pippen, appeals from the judgment of sentence imposed
following the trial court’s denial of his petition for a writ of certiorari
challenging his municipal court conviction of driving under the combined
influence of alcohol and a drug or combination of drugs.1 We affirm.
The trial court aptly set forth the relevant facts and procedural history
of this case as follows:
On December 1, 2013, officers arrested Appellant and
subsequently charged him with Driving Under the Influence
(“DUI”) pursuant to 75 Pa.C.S. § 3802(a)(1), 75 Pa.C.S. §
3802(d)(1), 75 Pa.C.S. § 3802(d)(2), and 75 Pa.C.S. §
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 75 Pa.C.S.A. § 3802(d)(3).
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3802(d)(3), as well as summary traffic offenses including: Driving
With a Suspended License and Disregarding a Steady Red Light.[2]
On March 7, 2014, Appellant was found guilty of both summary
offenses in Traffic Court; the DUI charge was not adjudicated on
that date. On March 10, 2014, Appellant filed a summary appeal
of the Driving With a Suspended License charge.
On May 2, 2014, Appellant moved to dismiss the DUI charge
in Municipal Court before the Honorable Joyce Eubanks, arguing
that the Commonwealth was barred from prosecuting him under
the compulsory joinder provisions of 18 Pa.C.S. § 110(1)(ii)
because he was previously prosecuted for and convicted of two
traffic violations in the Traffic Division. Judge Eubanks denied
Appellant’s motion. Appellant additionally argued a motion to
suppress any statements made and the blood test results under
the Fourth and Fourteenth Amendments of the United States
Constitution and Article One, Section Eight of the Pennsylvania
Constitution.[3] Judge Eubanks denied Appellant’s motion to
suppress. Judge Eubanks subsequently found Appellant guilty
solely of 75 Pa.C.S. § 3802(d)(3). On May 21, 2014, Appellant’s
summary appeal of Driving With a Suspended License was granted
and the charge was withdrawn by the Commonwealth.
On August 18, 2014, Appellant filed an appeal to the Court
of Common Pleas for a trial de novo for his DUI conviction in
Municipal Court. On September 2, 2014, Appellant filed a
summary appeal for the Disregarding a Steady Red charge. On
October 27, 2014, the summary appeal was granted and the
Commonwealth withdrew the Disregarding a Steady Red Light
charge. On March 21, 2016, Appellant filed a Writ of Certiorari for
his DUI conviction [in the trial court]. On April 8, 2016, [the trial
court] permitted Appellant to withdraw his request for a trial de
novo. After argument on the Writ, [the trial court] denied
Appellant’s Petition.
____________________________________________
2 Laboratory analysis showed a blood alcohol content of .0173 and the
presence of marijuana.
3 Specifically, Appellant argued that the police lacked reasonable suspicion to
stop his vehicle and had no probable cause to arrest him. (See N.T. Motions
and Waiver Trial, 5/02/14, at 8-9, 22-26).
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(Trial Court Opinion, 10/26/16, at 1-2) (record citations and some italics
omitted).
On June 13, 2016, the trial court sentenced Appellant to a term of not
less than ninety nor more than 180 days’ incarceration in county prison.
Appellant timely appealed, and filed a timely, court-ordered concise statement
of errors complained of on appeal on August 31, 2016. See Pa.R.A.P.
1925(b). Relevant herein, Appellant alleged for the first time, in his concise
statement, that his blood test results should be suppressed because his
consent to the blood draw was involuntary. (See Rule 1925(b) statement,
8/31/16, at unnumbered page 3) (citing Birchfield v. North Dakota, 136
S.Ct. 2160 (2016)).4 The trial court entered an opinion on October 26, 2016,
in which it stated that Appellant waived his issue regarding the voluntariness
of the blood draw. (See Trial Ct. Op., at 3); see also Pa.R.A.P. 1925(a).
Appellant raises the following issues for our review:
1. Did the [trial] court err where it denied Appellant’s motion to
dismiss pursuant to 18 Pa. C.S. § 110(1)(ii) when the Municipal
Court, Criminal Division, found Appellant guilty of DUI after the
Municipal Court, Traffic Division had already found him guilty of
related traffic charges on an earlier date, in violation of Rule
110(1)(ii)’s prohibition against multiple convictions for the same
behavior?
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4 The United States Supreme Court issued Birchfield on June 23, 2016, ten
days after Appellant’s sentencing, and before he filed this direct appeal. The
Birchfield Court analyzed the constitutionality of blood tests under the Fourth
Amendment guarantee against unreasonable searches and seizures, and
found that a blood test, because of its intrusive nature, requires a warrant.
See Birchfield, supra at 2173, 2184-85.
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2. Did the [trial] court err in denying a new trial in light of
Birchfield[, supra], because Appellant’s consent to draw blood
was never voluntary under the totality of the circumstances and
therefore the results of the blood test should not have been
admissible at trial against him?
(Appellant’s Brief, at 2) (some capitalization omitted).
Appellant’s first contention on appeal is that, under the compulsory
joinder statute at 18 Pa.C.S.A. § 110(1)(ii),5 his conviction for summary
offenses before the traffic court precluded the subsequent prosecution of the
DUI charges in the municipal court. (See id. at 6-10). We disagree.
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5 In relevant part, section 110 provides as follows:
§ 110. When prosecution barred by former prosecution for
different offense
Although a prosecution is for a violation of a different provision of
the statutes than a former prosecution or is based on different
facts, it is barred by such former prosecution under the following
circumstances:
(1) The former prosecution resulted in an acquittal or
in a conviction as defined in section 109 of this title
(relating to when prosecution barred by former
prosecution for the same offense) and the subsequent
prosecution is for:
* * *
(ii) any offense based on the same conduct or arising
from the same criminal episode, if such offense was
known to the appropriate prosecuting officer at the
time of the commencement of the first trial and
occurred within the same judicial district as the former
prosecution unless the court ordered a separate trial
of the charge of such offense[.]
18 Pa.C.S.A. § 110(1)(ii).
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Initially, we note that because Appellant’s issue presents a question of
law, our standard of review is de novo and our scope of review is plenary.
See Commonwealth v. Dawson, 87 A.3d 825, 826–27 (Pa. Super. 2014),
appeal denied, 102 A.3d 984 (Pa. 2014).
This Court’s recent en banc decision in Commonwealth v. Perfetto,
2017 WL 3776631 (Pa. Super. filed Aug. 30, 2017) (en banc), is instructive.6
The Perfetto Court addressed similar facts and concluded that a prior
summary conviction before the Philadelphia Municipal Court Traffic Division
did not bar subsequent prosecution of more serious offenses under the
compulsory joinder rule. Specifically, this Court noted the “unique
jurisdictional organization of the Philadelphia Courts” and held:
[I]n the context of compulsory joinder, where a defendant
is charged with a summary traffic violation and a misdemeanor,
the . . . summary offense must be disposed of in a proceeding in
the [traffic court], which has jurisdiction exclusive of the Court of
Common Pleas, and a separate proceeding must be held for the
remaining, higher offenses.
* * *
. . . [42 Pa.C.S.A. § 1302 (relating to jurisdiction)] carves
out an exception to compulsory joinder and directs that the
summary traffic offense is within the exclusive jurisdiction of the
traffic court. A prior disposition of a summary traffic offense in a
traffic court does not bar the later prosecution of other criminal
charges which arose in the same judicial district and at the same
time as the summary traffic offense.
* * *
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6 The Commonwealth recognizes that the outcome of Perfetto is dispositive
to this issue. (See Commonwealth’s Brief, at 7).
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. . . [I]n those judicial districts which have a separate traffic
court, the summary traffic offenses may reach disposition in a
single, prior proceeding without precluding subsequent
prosecution of higher offenses. . . .
Id. at *8-9.
Applying our holding in Perfetto to the instant case, we conclude that
the compulsory joinder rule did not bar Appellant’s prosecution on the DUI
charges. See id. Therefore, there is no merit to his first issue on appeal.
Appellant next argues that he is entitled to remand to the trial court for
a new trial or a hearing in light of Birchfield, supra, because his consent to
the blood draw was involuntary. (See Appellant’s Brief, at 2, 12). Appellant
further maintains that the trial court erred in determining that he waived this
claim. (See id. at 10-12). We disagree.
As noted, Birchfield was decided on June 23, 2016, shortly after
Appellant’s sentencing, and before he filed this direct appeal. In
Commonwealth v. Grays, 2017 WL 3139993 (Pa. Super. filed July 25,
2017), a panel of this Court recently discussed the waiver of a Birchfield
claim under similar circumstances. The Grays Court explained:
. . . [T]he High Court decided Birchfield after [Grays’] trial
and sentencing in this case but during the pendency of this appeal.
The decision announced a new criminal rule of law. Where 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, 2522,
159 L.Ed.2d 442 (2004) (citation omitted). However, “[c]ase law
is clear . . . 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.’
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” Commonwealth v. Tilley, 566 Pa. 312, 318, 780 A.2d 649,
652 (2001).
. . . [A]lthough [Grays] filed several pre-trial motions seeking to
suppress and/or preclude his pre-arrest BAC, [he] did not
challenge or present any claim that his pre-arrest blood
draw/testing was involuntary, performed without his consent,
and/or was coerced. Rather, as the trial court indicates in its Rule
1925(a) opinion, [he] presented this specific claim for the first
time in his court-ordered Rule 1925(b) statement. Consequently,
[his] failure to raise the issue of his consent to the blood draw and
testing in the trial court precludes our review of the claim. See
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.”);
Commonwealth v. Watson, 835 A.2d 786 (Pa. Super. 2003)
(holding the failure to raise an issue in the trial court may not be
cured by submitting the issue for the first time in a Rule 1925(b)
statement).
Id. at *13 (footnotes and one case citation omitted).
Here, similarly, Appellant did not challenge the voluntariness of the
blood draw in the Municipal or Common Pleas court. He instead raised the
claim for the first time in his Rule 1925(b) statement. Based on the foregoing
legal authority, we agree with the trial court and the Commonwealth that he
waived it. See id.; (see also Trial Ct. Op., at 3; Commonwealth’s Brief, at
4-5, 12). Therefore, Appellant’s second issue on appeal merits no relief.
Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judge Bowes joins the Memorandum.
Judge Lazarus files a Concurring and Dissenting Memorandum.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/31/2017
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