Com. v. Horsey, D.

J. S08016/17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DAVID M. HORSEY, : No. 558 WDA 2016
:
Appellant :
Appeal from the Judgment of Sentence, March 10, 2016,
in the Court of Common Pleas of McKean County
Criminal Division at No. CP-42-CR-0000608-2014
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND SOLANO, J.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 09, 2017
David M. Horsey appeals from the judgment of sentence of March 10,
2016, following his conviction of one count of driving under the influence
(“DUI”) -- incapable of safe driving1 and related summary offenses. We
affirm appellant’s convictions, but vacate the judgment of sentence and
remand for resentencing.
The factual and procedural history of this case can be briefly
summarized as follows. Pennsylvania state trooper Frederick W. Burns, III,
testified that at the time of this offense, he was assigned to the Kane
barracks. (Notes of testimony, 11/16/15 at 65.) On the evening of
August 9, 2014, he was called to the site of a one-vehicle accident on State
1
75 Pa.C.S.A. § 3802(a)(1).
J. S08016/17
Route 146, Cleremont Road. (Id. at 66-67.) When he arrived on scene, he
observed a vehicle pulled off to the right-hand side of the road, with the rear
tires elevated off the road. (Id. at 67.) Firefighters directed him to
appellant’s location further down the road. (Id.)
When he encountered appellant, he noticed that his eyes were
bloodshot, watery, and glassy. (Id. at 69.) There was an odor of alcohol
emanating from appellant’s breath and person. (Id.) Appellant related that
he was heading home when he hit a deer. (Id. at 71.) Trooper Burns asked
appellant how much he had to drink that day, and appellant replied,
“nothing.” (Id.)
Trooper Burns transported appellant back to the scene of the accident.
(Id. at 72.) Trooper Burns asked appellant for his insurance and
registration; appellant did not have a registration card and his proof of
financial responsibility was expired. (Id. at 73.) Trooper Burns attempted
to conduct field sobriety testing, but appellant refused to cooperate. (Id. at
78.) At that point, Trooper Matt Petrof arrived on the scene. (Id. at 80,
119-120.) Appellant continued to refuse to comply with the troopers’
attempts to administer standardized field sobriety testing and was placed
under arrest for suspicion of DUI. (Id. at 80, 120.) Appellant was also read
-2-
J. S08016/17
his DL-262 implied consent warnings and refused chemical testing. (Id. at
81-82, 121; Commonwealth’s Exhibit 2.) Trooper Burns saw no evidence
that appellant’s vehicle had struck a deer. (Id. at 84-85.)
Following a jury trial before the Honorable John H. Pavlock, appellant
was found guilty of count 1, DUI. Judge Pavlock found appellant guilty of
count 2, registration card to be signed and exhibited on demand, 3 and
count 5, careless driving.4 Appellant was found not guilty of the remaining
summary offenses. (Id. at 172-173.) On March 10, 2016, appellant was
sentenced to 30 days’ to 6 months’ incarceration for DUI and fines on the
summary offenses. (Docket #13.) The trial court granted appellant’s
motion for bail and stay of sentence pending appeal. Timely post-sentence
motions were denied on March 18, 2016, and this timely appeal followed on
April 18, 2016. On April 27, 2016, appellant was ordered to file a concise
statement of errors complained of on appeal within 21 days pursuant to
Pa.R.A.P. 1925(b); appellant timely complied on May 16, 2016, and on
June 13, 2016, the trial court filed a Rule 1925(a) opinion.
Appellant has raised the following issues for this court’s review:
2
The DL–26 form contains warnings of the potential consequences of a
person’s refusal to consent to a blood test, including that the individual’s
license could be suspended for at least one year, and that if convicted of
violating 75 Pa.C.S.A. § 3802(a), the individual will face more severe
penalties because of the refusal.
3
75 Pa.C.S.A. § 1311(b).
4
75 Pa.C.S.A. § 3714(a).
-3-
J. S08016/17
I. Should judgement of sentence be reversed by
operation of law under the circumstances of
this case because the Commonwealth failed to
present sufficient evidence in the record that
appellant drove in McKean County, the
Commonwealth having presented no evidence
at trial that the underlying location of the
vehicle crash and subsequent stop are located
in McKean County?
II. Should the case be remanded for resentencing
in light of the fact that the arresting officer did
not receive and execute a search warrant
before demanding that appellant submit to a
blood test?
Appellant’s brief at 5 (unnecessary capitalization omitted).
In his first issue on appeal, appellant claims that the Commonwealth
failed to present sufficient evidence of where the offense occurred to
establish jurisdiction. We disagree.
A court has no jurisdiction over an offense unless the
offense occurred within the county in which the trial
takes place. Commonwealth v. Thomas, 305
Pa.Super. 158, 451 A.2d 470 (1982). The burden to
establish the court’s jurisdiction is on the
Commonwealth. Commonwealth ex rel. Chatary
v. Nailon, 416 Pa. 280, 285, 206 A.2d 43 (1965).
Commonwealth v. Sestina, 546 A.2d 109, 112 (Pa.Super. 1988), appeal
denied, 554 A.2d 508 (Pa. 1989).
For a county to exercise jurisdiction over a criminal
case, an overt act involved in the crime must have
occurred within that county. Commonwealth v.
Bradfield, 352 Pa.Super. 466, 508 A.2d 568, 571
(1986), appeal denied, 513 Pa. 633, 520 A.2d
1384 (1987) (citing Commonwealth v. Tumolo,
455 Pa. 424, 427, 317 A.2d 295, 297 (1974)).
“While the Commonwealth bears the burden of
-4-
J. S08016/17
proving facts sufficient to establish jurisdiction, it
may rely upon circumstantial evidence to meet its
burden.” Bradfield, supra.
Commonwealth v. Passmore, 857 A.2d 697, 709 (Pa.Super. 2004),
appeal denied, 868 A.2d 1199 (Pa. 2005).
“The doctrine of judicial notice is intended to avoid
the necessity for the formal introduction of evidence
in certain cases when there is no real need for it,
where a fact is so well established as to be a matter
of common knowledge.” Albert Appeal, 372 Pa.
13, 20, 92 A.2d 663, 666 (1952); See
Commonwealth ex rel. Duff v. Keenan, 347 Pa.
574, 582-83, 33 A.2d 244, 249 (1943) (“so well
known as to be incontestable.”). Included in the
subjects appropriate for judicial notice is the county
in which a town or city is located, [s]ee Emert v.
Larami Corp., 414 Pa. 396, 200 A.2d 901 (1964);
Commonwealth v. Kaiser, 184 Pa. 493, 39 A. 299
(1898), and the location of roads and highways.
See Schmidt v. Allegheny County, 303 Pa. 560,
154 A. 803 (1931); Commonwealth v. Ball, 277
Pa. 301, 121 A. 191 (1923).
Commonwealth v. Varner, 401 A.2d 1235, 1236 (Pa.Super. 1979).
In Varner, the offense occurred in the parking lot of the Shippensburg
Fair Grounds and on Possum Hollow Road near the Fair Grounds. Id. While
the appellant never alerted the prosecution that the county of the offense
was in issue, he argued on post-trial motions and on appeal that
Shippensburg is near the border of Cumberland and Franklin counties and
that the prosecution never specifically established that the situs of the
offense was in Franklin County. Id. at 1235-1236. This court held that the
trial court did not err in taking judicial notice that the offense occurred in
-5-
J. S08016/17
Franklin County where the locality of the offense was only technically in
issue. Id. at 1236. In overruling post-trial motions, the trial court took
judicial notice that “it is a well-known geographical fact that” the area near
the Fair Grounds where the appellant was arrested is in Franklin County. Id.
at 1235. See also Sestina, 546 A.2d at 112 (where the Commonwealth
established a specific street and intersection location, the trial court would
have been entitled to take judicial notice of the fact that the site of the
offense was in Warren County).
Here, Trooper Burns testified that the crash occurred on State
Route 146. (Notes of testimony, 11/16/15 at 67.) The criminal information
identified the location as “State Route 146/Red Mill Road near Creekside
Drive, Norwich Township.” (Docket #32.) This was sufficient for the trial
court to take judicial notice that the incident occurred in McKean County. As
Judge Pavlock explained in his Rule 1925(a) opinion:
[Appellant] is correct that the underlying
location of the vehicle crash and subsequent stop
were never specifically identified as being located in
McKean County. This was clearly an oversight by the
Commonwealth. However, in accordance with
Commonwealth v. Sestina, the court can take
judicial notice that State Route 146 or “Clermont
Road”[5] is located entirely within McKean County,
Pennsylvania, which is a physical fact that cannot be
disputed. If facts existed that could establish that
even a small portion of that Route was not in
McKean County the court would rule in [appellant]’s
favor. However, because Route 146 is where it is
5
In the trial transcript it is spelled “Cleremont Road.” (Notes of testimony,
11/16/15 at 67.)
-6-
J. S08016/17
and cannot be moved, there is nothing that could
demonstrate that the location of this “crash” was
anywhere other than McKean County. Further,
although standing alone it would not establish
location, the fact that Trooper Burns testified that he
was assigned to the Kane Barracks, which covers
McKean County is additional evidence that the
location was in McKean County. In sum, although
not ideal, there is sufficient evidence to establish
venue or jurisdiction in McKean County, and,
therefore, the motion for demurrer or motion for
direct[ed] verdict was properly denied.
Trial court opinion, 6/13/16 at 2-3. We agree.
We now turn to appellant’s second issue on appeal. Appellant basically
argues that his sentence was illegal under the recent United States Supreme
Court case of Birchfield v. North Dakota, U.S. , 136 S. Ct. 2160
(2016), which invalidates any criminal sanction assessed for refusing to
submit to a blood test in the absence of a warrant. We are constrained to
agree.
Initially, we note that appellant did not raise this issue in the court
below; in post-sentence motions and in his Rule 1925(b) statement, he only
challenged jurisdiction. The Commonwealth contends that the issue is
waived on this basis. (Commonwealth’s brief at 8.) However, the issue
goes to the legality of appellant’s sentence, which is non-waivable. See
Commonwealth v. Barnes, 151 A.3d 121, 127 (Pa. 2016) (“[W]here the
mandatory minimum sentencing authority on which the sentencing court
relied is rendered void on its face, and no separate mandatory authority
supported the sentence, any sentence entered under such purported
-7-
J. S08016/17
authority is an illegal sentence for issue preservation purposes on direct
appeal.”); Commonwealth v. Foster, 17 A.3d 332, 345 (Pa. 2011)
(plurality) (“[W]here a sentencing court is required to impose a mandatory
minimum sentence, and that mandatory minimum sentence affects a trial
court’s traditional sentencing authority or the General Assembly’s intent in
fashioning punishment for criminal conduct, a defendant’s challenge thereto
sounds in legality of sentence and is therefore nonwaivable.”). See also
Commonwealth v. Edrington, 780 A.2d 721, 723 (Pa.Super. 2001), citing
Commonwealth v. Vasquez, 744 A.2d 1280 (Pa. 2000) (application of a
mandatory sentencing provision implicates the legality of the sentence, not
the discretionary aspects of the sentence).
In addition, Birchfield was decided on June 23, 2016, after
appellant’s sentence, but during the pendency of the instant appeal. 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 (2004). The Commonwealth cites case law
for the proposition that in order for a new rule to apply retroactively to a
case pending on direct appeal, the issue had to be preserved at all stages of
litigation up to and including the direct appeal. (Commonwealth’s brief at 8,
citing Commonwealth v. Tilley, 780 A.2d 649 (Pa. 2001);
Commonwealth v. Cabeza, 469 A.2d 146 (Pa. 1983).) See also
Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and
-8-
J. S08016/17
cannot be raised for the first time on appeal.”). However, the Pennsylvania
Supreme Court in Barnes made clear that “an exception to the
issue-preservation requirement exists where the challenge is one implicating
the legality of the appellant’s sentence.” Barnes, 151 A.3d at 124, citing
Commonwealth v. Dickson, 918 A.2d 95, 99 (Pa. 2007). Therefore, the
matter is not waived, and appellant is entitled to retroactive benefit of the
new rule.6
In Birchfield, as in this case, the defendant refused a blood test after
being read his implied consent warnings. He was advised that his refusal to
undergo blood alcohol content (“BAC”) testing would expose him to criminal
penalties. Birchfield, 136 S. Ct. at 2170. Birchfield pled guilty to a
misdemeanor violation of the North Dakota refusal statute, but argued that
the Fourth Amendment prohibited criminalizing his refusal to submit to the
test. Id. at 2170-2171. The United States Supreme Court agreed and
reversed Birchfield’s conviction, holding that a State may not criminalize a
motorist’s refusal to comply with a demand to submit to blood testing.
The Birchfield Court distinguished between breath and blood tests,
the latter of which it found to be significantly more intrusive. Id. at 2184.
The Court determined that with regard to blood tests, the police must either
6
The Commonwealth does not dispute that appellant was sentenced under
75 Pa.C.S.A. § 3804(c), providing for mandatory penalties for refusal: “On
March 10, 2016, [appellant] was sentenced pursuant to 75 Pa.C.S.A.
§ 3804(c) for a first offense DUI with the refusal sentencing enhancement.”
(Commonwealth’s brief at 1.)
-9-
J. S08016/17
seek a warrant or show exigent circumstances. Id. The Court in Birchfield
also rejected the argument that warrantless blood tests are justified based
on the driver’s legally implied consent to submit to them:
Our prior opinions have referred approvingly to the
general concept of implied-consent laws that impose
civil penalties and evidentiary consequences on
motorists who refuse to comply. Petitioners do not
question the constitutionality of those laws, and
nothing we say here should be read to cast doubt on
them.
It is another matter, however, for a State not only to
insist upon an intrusive blood test, but also to
impose criminal penalties on the refusal to submit to
such a test. There 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.
Id. at 2185 (citations omitted).
Appellant cannot be subject to enhanced criminal penalties for refusal
to submit to a blood test. See also Commonwealth v. Giron, A.3d
, 2017 WL 410267 (Pa.Super. filed Jan. 31, 2017) (“[P]ursuant to
Birchfield, in the absence of a warrant or exigent circumstances justifying a
search, a defendant who refuses to provide a blood sample when requested
by police is not subject to the enhanced penalties provided in 75 Pa.C.S.A.
§§ 3803-3804.” (footnote omitted)); Commonwealth v. Evans, A.3d
, 2016 WL 7369120 at *8 (Pa.Super. Dec. 20, 2016) (vacating the
judgment of sentence and remanding for a re-evaluation of the appellant’s
purported consent where the appellant only consented to the warrantless
- 10 -
J. S08016/17
blood draw after being informed, by the police, that refusal to submit to the
test could result in enhanced criminal penalties, in violation of Birchfield).7
Therefore, it is necessary to remand for resentencing without consideration
of the mandatory minimum sentence in Section 3804(c).
Judgment of sentence vacated. Remanded for resentencing.
Jurisdiction relinquished.
7
The Supreme Court in Birchfield consolidated three separate cases, one of
which was petitioner Steve Michael Beylund’s case. After Beylund’s arrest
for DUI, the officer informed him of North Dakota’s implied consent advisory
and that “test refusal in these circumstances is itself a crime.” Birchfield,
136 S. Ct. at 2172. Beylund then agreed to the requested blood draw, and
testing revealed a BAC of 0.250%, more than three times the legal limit.
Id. Beylund appealed, principally arguing that his consent to the blood test
was coerced by the officer’s warning that refusing to consent would itself be
a crime. The North Dakota Supreme Court found that Beylund’s consent
was valid, emphasizing that North Dakota’s implied consent advisory was not
misleading because it truthfully related the penalties for refusal. The
Birchfield Court rejected this rationale:
The North Dakota Supreme Court held that Beylund’s
consent was voluntary on the erroneous assumption
that the State could permissibly compel both blood
and breath tests. Because voluntariness of consent
to a search must be determined from the totality of
all the circumstances, we leave it to the state court
on remand to reevaluate Beylund’s consent given the
partial inaccuracy of the officer’s advisory.
Id. at 2186 (citation and quotation marks omitted).
- 11 -
J. S08016/17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/9/2017
- 12 -