Com. v. Brown, F.

J-S26043-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
FREDRICK T. BROWN :
:
Appellant : No. 2267 EDA 2018
Appeal from the PCRA Order Entered July 5, 2018
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-CR-0000466-2015
BEFORE: PANELLA, P.J., GANTMAN, P.J.E., and PELLEGRINI*, J.
MEMORANDUM BY PELLEGRINI, J.: FILED JUNE 04, 2019
Fredrick T. Brown (Brown) appeals from the order denying his petition
filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541-
9546, in the Court of Common Pleas of Monroe County (PCRA court). Brown
argues that trial counsel was ineffective for failing to file a motion to suppress
his blood test results on the basis of Birchfield v. North Dakota, 136 S.Ct.
2160 (2016)1 or to object to the admission of evidence related to his field
sobriety tests. We affirm.
____________________________________________
1 On June 23, 2016, the Supreme Court decided Birchfield, holding that
criminalizing a suspect’s refusal to consent to a blood test violates the Fourth
Amendment to the United States Constitution. See Birchfield, supra at
2186.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S26043-19
We take the following pertinent factual and procedural background from
our independent review of the certified record and the PCRA court’s July 5,
2018 and September 24, 2018 opinions. On July 22, 2014, Pennsylvania State
Police Trooper Andrew Depew stopped Brown after running his vehicle’s
license plate through the NCIC system and discovering that the car insurance
had been cancelled and the registration suspended. (See N.T. Trial,
12/05/18, at 10). When he approached the vehicle, he could smell marijuana
and saw that Brown’s “eyes were red, glossy and bloodshot.” (Id. at 11).
Based on his observations, Trooper Depew administered field sobriety tests
on Brown. As a result of Trooper Depew’s interaction with and observations
of Brown, he believed Brown to have marijuana in his system, read him the
DL-26 Form, and asked him to submit to chemical testing of his blood. Brown
did so. (See id. at 12, 14). The results of the blood test revealed the presence
of a marijuana metabolite. (See id. at 17, 28; Commonwealth’s Exhibit 3,
NMS Toxicology Report).
The jury convicted Brown of Driving Under the Influence—Metabolite
(DUI), 75 Pa.C.S. § 3802(d)(1)(iii), second offense, and the trial court
convicted him of two summary offenses. The court sentenced him to an
aggregate term of incarceration of not less than 18 nor more than 60 months
and, after a hearing, denied Brown’s post-sentence motion. We affirmed his
judgment of sentence on April 6, 2017.
-2-
J-S26043-19
Brown then filed a PCRA petition alleging the ineffective assistance of
counsel for failing to file a motion to suppress the blood test results based on
Birchfield as well as not objecting to testimony about the field sobriety tests.
The court denied the petition and Brown timely appealed.2 Both he and the
court complied with Rule 1925. See Pa.R.A.P. 1925.
To establish the ineffective assistance of counsel, the petitioner must
prove that “the underlying claim is of arguable merit; counsel had no
reasonable basis for the act or omission in question; and he suffered prejudice
as a result, i.e., there is a reasonable probability that, but for counsel’s error,
the outcome of the proceeding would have been different.” Commonwealth
v. Laird, 119 A.3d 972, 978 (Pa. 2015) (citations omitted). “Appellant bears
the burden of proving all three prongs; failure to prove any of these prongs is
sufficient to warrant dismissal of the claim without discussion of the other
two.” Commonwealth v. Robinson, 877 A.2d 433, 439 (Pa. 2005) (citations
omitted).
Brown argues first that trial counsel was ineffective for failing to file a
motion to suppress the results of his blood test on the basis of Birchfield.
(See Brown’s Brief, at 9-11). He acknowledges that Birchfield was not
____________________________________________
2“Our standard of review for issues arising from the denial of PCRA relief is
well-settled. We must determine whether the PCRA court’s ruling is supported
by the record and free of legal error.” Commonwealth v. Bush, 197 A.3d
285, 286 (Pa. Super. 2018) (citation omitted).
-3-
J-S26043-19
decided until after his sentencing, but maintains that because the issue raised
in Birchfield had been raised in other cases, counsel was ineffective for failing
to file the motion. This claim lacks merit.
As observed by the PCRA Court:
“[W]e cannot impose upon trial counsel the qualities of a
seer and fault him for not foreseeing future decisions of the
[United States and Pennsylvania Supreme] Court[s].”
Commonwealth v. Roach, 388 A.2d 1056, 1059 (Pa. 1978)
(citation omitted). To that end, “an attorney cannot be held
responsible for knowing the inner workings of any appellate
court,” and such a demand upon counsel would go “beyond
rational limits.” Commonwealth v. Smith, 417 A.2d 729, 732
(Pa. Super. 1979). As such trial counsel [] was not ineffective for
failing to predict the ruling in Birchfield and filing an Omnibus
Pretrial Motion predicated on the results of a case not decided until
after [Brown] had been sentenced.
Furthermore, [Brown] is not entitled to retroactive
application of Birchfield. The Pennsylvania Superior Court put
quite plainly that “Birchfield does not apply retroactively in
Pennsylvania to cases pending on collateral review.”
Commonwealth v. Olson, 179 A.3d 1134, 1139 (Pa. Super.
2018). . . .
(PCRA Court Opinion, 7/05/18) (case citation formatting provided).
We agree with the sound reasoning of the PCRA Court. It properly found
that Brown’s claim of counsel’s ineffectiveness for failing to file a motion to
suppress based on Birchfield lacks merit. See Laird, supra at 978;
Robinson, supra at 439.
Brown next argues that trial counsel was ineffective for failing to object
to irrelevant trial testimony about his field sobriety tests. (See Brown’s Brief,
at 4, 10-11). He maintains that because the only issue was whether he drove
-4-
J-S26043-19
with an illegal metabolite in his blood, evidence regarding his field sobriety
tests was irrelevant.3 (See id. at 10-11).
Pursuant to 75 Pa.C.S. § 3802(d)(1), “[a]n individual may not drive,
operate or be in actual physical control of the movement of a vehicle [if]
[t]here is in the individual’s blood any amount of a . . . metabolite of a
[controlled] substance . . .” 75 Pa.C.S. § 3802(d)(1). Under this provision,
the Commonwealth was required to establish that Brown operated a motor
vehicle with a metabolite in his blood. Officer Depew requested the blood
draw based on his observations of Brown, which included the field sobriety
tests. His mention of the tests4 explained why he ordered the blood test. This
is not irrelevant.
Moreover, even if the testimony was irrelevant, its admission was
harmless. “[A]n error may be considered harmless . . . when the
Commonwealth proves beyond a reasonable doubt that the error could not
have contributed to the verdict.” Commonwealth v. Brooker, 103 A.3d
325, 332 (Pa. Super. 2014) (citation omitted).
Here, Trooper Depew testified that Brown was driving a motor vehicle,
which was corroborated by his vehicle’s camera recording. (See N.T. Trial, at
____________________________________________
3 Brown waived this issue by failing to cite any pertinent law or discussion
thereof in support of his argument. (See Brown’s Brief, at 10-11); Pa.R.A.P.
2119(a). However, for the sake of completeness, we will review the claim.
4 The Commonwealth did not elicit the results of the field tests.
-5-
J-S26043-19
11, 22; Commonwealth’s Exhibit 1, DVD of Motor Vehicle Record). Forensic
scientist Donna Papsun testified that the minimum reporting amount of the
marijuana metabolite that must be present in an individual’s blood is one
nanogram per millimeter. (See N.T. Trial, at 29). Papsun stated that Brown
had 6.4 nanograms of a marijuana metabolite in his blood and the lab report
entered into evidence corroborated this testimony. (See N.T. Trial, at 28;
Commonwealth’s Trial Exhibit 3, Laboratory Report). This evidence
sufficiently established Brown’s violation of the DUI statute. All of this make
the evidence presented at trial “so overwhelming and the prejudicial effect of
the error was so insignificant by comparison that the error could not have
contributed to the verdict.” Commonwealth v. Robinson, 721 A.2d 344,
350 (Pa. 1998); see Brooker, supra at 332. Brown’s allegation of counsel’s
ineffectiveness for failing to object to the admission of testimony about the
field sobriety tests, even if it was irrelevant, lacks merit.
Accordingly, we affirm the PCRA court’s order denying Brown’s petition
because its “ruling is supported by the record and free of legal error.” Bush,
supra at 286.
Order affirmed.
-6-
J-S26043-19
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/4/19
-7-