Com. v. Nichelson, L.

J-S26010-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
LATHAN NICHELSON,
Appellant No. 1061 EDA 2017
Appeal from the Judgment of Sentence Entered February 28, 2017
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0006845-2015
BEFORE: BENDER, P.J.E., BOWES, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED JULY 16, 2018
Appellant, Lathan Nichelson, appeals from the judgment of sentence of
five days’ to six months’ incarceration, and a $25 fine, imposed after he was
convicted of driving under the influence of alcohol (hereinafter “DUI”), 75
Pa.C.S. § 3802(a)(1), and restriction on alcoholic beverages (hereinafter
“open containers”), 75 Pa.C.S. § 3809(a). After careful review, we affirm.
The trial court set forth a detailed summary of the facts and procedural
history of Appellant’s case, as follows:
[Appellant] was charged with DUI as a misdemeanor of the
first degree and summary [open containers] stemming from an
arrest on June 7, 2015. The Commonwealth alleged that
[Appellant] had driven to a parking lot under the influence where
he was found by police with vomit outside the car and an open
bottle of beer in the center console area. The bills were amended
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* Former Justice specially assigned to the Superior Court.
J-S26010-18
to add an additional DUI charge. On February 27, 2017, a jury
trial began with Officer [Dustin] Wittmer, an eight[-]year veteran
of the Abington Township Police Department. N.T. Trial[,]
2/27/17[,] [at] 112. Officer Wittmer had received training on
standard field sobriety testing, the effects of alcohol on the body,
and identifying signs of impairment. Id. at 113-14. Officer
Wittmer had come into contact with between 300-500 individuals
under the effects of alcohol and hundreds of people under the
influence of marijuana. Id. at 114. On June 7, 2015, at
approximately 2:54 AM, Officer Wittmer was on patrol, when his
tour of duty took him to 1352 Easton Road which was the location
of Tony’s Pizza, which sold bottles and cans of beer, and The Elbow
Room, a bar. Id. at 114-15. There was a shared parking lot at
that location. Id. at 116. The Elbow Room was open seven days
a week, and Tony’s Pizza was open every weekend and most days
of the week, but was occasionally closed Monday and Tuesday.
Id. The parking lot is a traffic way open to the public that had
two exits and entrances. Id. at 114-17. On this night, there was
only one vehicle in the parking lot, a Ford F-150 with the
headlights on and engine running. Id. at 117. The [o]fficer saw
large amounts of vomit next to the driver’s side door, about 18-
30 inches away. Id. at 117-18, 126. Officer Wittmer approached
the driver’s side and saw a small marijuana roach near the vomit.
Id. at 122. A marijuana roach is a hollowed out cigar wrapper
which is sometimes re-wrapped with marijuana and the roach is
the end of that after it’s smoked. Id. at 122-23.
The [o]fficer saw [Appellant] sitting in the car with his head
bent forward, all the windows rolled up, and the car locked. Id.
at 123. The [o]fficer shined his light into [Appellant’s] face, but
[Appellant] didn’t react. Id. While walking around the vehicle,
the [o]fficer noticed a Rolling Rock beer in a half rolled down
brown paper bag inside the center console of the truck. Id.
Officer Wittmer could see the label and felt the brown paper bag
indicated that the bottle came from Tony’s Pizza Shop. Id. at 126.
Officer Wittmer said [Appellant] was sitting upright in the seat and
appeared to be under the influence of alcohol, and was incoherent.
Id. Officer Wittmer testified that the car had a rear bench seat
and the front seats could recline. Id. at 125. The [o]fficer
testified that the car was still running, keys in the ignition, and
the headlights were on. Id. Officer [James] Ficzko arrived on
scene with Officer Wittmer, and was present when he approached
the vehicle. Id. at 126. Officer Wittmer pounded on the window
to wake [Appellant] as the vehicle was locked, and it took multiple
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attempts to wake him up. Id. at 127. When the [o]fficers were
finally able to rouse [Appellant], he appeared to be unaware of
who was outside the car, just stared, and took around 15 seconds
to realize the police were knocking on his window. Id. at 127-28.
When [Appellant] opened the door, the [o]fficer was “immediately
hit with a strong odor of freshly smoked marijuana coming straight
from the vehicle.” Id. at 128. The [o]fficer said fresh marijuana
has a “more botanical” smell and freshly smoked marijuana smells
burnt. Id. The smell of freshly burnt marijuana signified to the
[o]fficer that marijuana was recently smoked inside the vehicle.
Id. When Officer Wittmer began to speak to [Appellant], he noted
a smell of alcohol on [Appellant’s] breath. Id. at 129. [Appellant]
needed to hold onto the vehicle when he exited, and the [o]fficer
never saw a cane in the car and [Appellant] never indicated he
had balance or medical issues. Id. At no point in the encounter
did [Appellant] use a cane or indicate that he needed assistance
or a wheelchair. Id. In the parking lot, [Appellant] was having
trouble with his balance, and needed to hold onto the car the
whole time. Id. at 130-31.
[Appellant’s] eyes were glassy, his speech was slurred, and
when asked if he had consumed alcohol that evening [Appellant]
said he had. Id. at 131-32. [Appellant] denied marijuana use.
Id. at 132. Officer Wittmer asked [Appellant] to perform a field
sobriety test. Id. at 133. [Appellant] never indicated that he was
physically unable to perform the tests, or that he had medical
conditions [that] would affect his ability to perform the tests. Id.
at 134. The field sobriety tests were done in the parking lot, on
the large flat open black top area. Id. at 134-35. The first field
sobriety test conducted was the nine step walk and turn test which
the [o]fficer explained and demonstrated to [Appellant]. Id. at
136-38. [Appellant] was unable to keep his balance during the
instructional phase, he did not step heel to toe as required, and
[Appellant] only took 9 steps and failed to turn and do the final 9
steps. Id. at 138-39. [Appellant] also failed to stay on the line.
Id. at 138-39. The [o]fficer believed this was indicative of signs
of impairment. Id. at 139. [Appellant] was next told to do a one-
leg stand test[,] which Officer Wittmer explained and
demonstrated for [Appellant]. Id. at 139-40. The test is
supposed to last for 30 seconds, but [Appellant] put his foot down
after 5 seconds and[,] besides failing to complete the test,
[Appellant] was swaying and unbalanced. Id. at 141. The
[o]fficer then asked [Appellant] for a portable breath test, but
[Appellant] refused to blow into the test as demonstrated. Id. at
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142. He continued to turn his head away, and would not speak.
Id. [Appellant] was given multiple opportunities to take the test.
Id. [Appellant] was placed into custody, and the [o]fficer went to
retrieve the marijuana roach but the bottom was soaked in vomit,
so the [o]fficer dropped it and destroyed it. Id. at 144. The
destruction of the marijuana roach was consistent with
department policy when evidence is contaminated. Id. The
Rolling Rock beer bottle was half consumed, and the [o]fficer
poured out the rest and destroyed it on scene consistent with
department policy because there is no safe way to transport an
open container of alcohol. Id. at 144. No photographs of the
evidence were taken because the [o]fficer did not have a camera.
Id. The dash cam was not activated during the encounter, and
the recording from the transport to the hospital showed nothing
as [Appellant] did not speak or do anything. Id. at 147-48.
At the hospital, the [o]fficer provided a form requesting
[Appellant] submit to a chemical test, and informing [Appellant]
that the refusal to submit to the chemical test will result in a 12
month suspension of operating privileges. Id. at 150. The form
also stated that [Appellant] had no right to speak to an attorney
or anyone else before deciding whether to submit to the test and
a request to speak to anyone or remaining silen[t] would be
deemed a refusal. Id. [Appellant] ignored the [o]fficer who
continued to explain the test. Id. at 151. [Appellant] didn’t
submit to a blood test after being read the warnings, and the
[o]fficer deemed it a refusal. Id. at 152. [Appellant] was brought
home to his wife, around an hour after the [o]fficer first
encountered [Appellant]. Id. Based on his training and
experience, Officer Wittmer believed [Appellant] was incapable of
safe driving. Id.
On cross, Officer Wittmer testified that it is possible to edit
the reports he generates, but that he was out of work for 10
months following a serious car accident. Therefore, he could have
updated his report in the Fall of 2017 when he returned, but not
before. Id. at 161-63. Nowhere in the [o]fficer’s report or
affidavit is there a mention of the headlights being on or that
[Appellant] was sitting upright. Id. at 165-66. The report also
didn’t say every word was slurred, the [o]fficer just wrote[,] “he
slurred his words,” and it doesn’t say the marijuana smel[led]
freshly burnt, just that the marijuana smel[led] burnt. Id. The
report also doesn’t mention the [o]fficer[’s] asking [Appellant] if
he had any physical conditions that would impair his ability to
perform the tests. Id. at 166-67. The [o]fficer stated that his
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training indicates to check for medical conditions, but that he does
not indicate his instructional phase in his report. Id. at 167. The
[o]fficer also indicated that the bottle of beer could have come
from anywhere. Id. at 176. The [d]efense asked if the [o]fficer
could have taken pictures with his cell phone, but he said that is
not policy as the cell phone itself would become evidence. Id. at
178-79. The [o]fficer said he was one hundred percent certain
[Appellant’s] headlights were on, his seat was in the upright
position, and [Appellant] was passed out. Id. at 179. The
[o]fficer also stated the even without the field sobriety tests, he
felt there was enough evidence to feel [Appellant] was incapable
of safe driving based on his training and experience. Id. at 181.
Officer Ficzko then testified to being employed with the
Abington Police Department for almost 8 years. Id. at 188.
Officer Ficzko had standard field sobriety testing training as well
as [Advanced Roadside Impairment] training…. Id. at 189. Officer
Ficzko is also familiar with the effects of drugs and alcohol. Id. at
190. Officer Ficzko responded as back up to Officer Wittmer, and
saw [Appellant] in the driver’s seat, with the keys in the ignition
and engine running. Id. at 191-92. Officer Ficzko also saw an
open container in the center console. Id. at 192. Officer Ficzko
also observed that [Appellant’s] speech was slurred, there was an
odor of alcohol from [Appellant], and a burnt marijuana smell
coming from the vehicle and clothing. Id. at 192-93. Officer
Ficzko said the smell indicated to him recent use of marijuana in
the vehicle. Id. at 193. The [o]fficer also noted a puddle of vomit
and remnants of a burnt marijuana cigarette outside the car. Id.
Based on his training and experience, Officer Ficzko believed that
[Appellant] was unable to safely operate a motor vehicle at that
time based on his observations of [Appellant]. Id. at 193-94.
The Defense called Mary Nichelson to testify. She had been
married to [Appellant] for 40 years. Id. at 199. Mrs. Nichelson
testified that her husband has a broken ankle, knee problems, and
back problems. Id. at 200. The back problems stemmed from
2006 when he had a fractured pelvis and knee issues from an
accident. Id. at 200-01. She testified that [Appellant] uses a
cane from “time to time.” Id. at 201. Mrs. Nichelson also testified
that without a cane the [Appellant] has balance problems. Id.
She testified that [Appellant] has Post Traumatic Stress Disorder,
and when [Appellant] gets mad he starts to scream and then
leaves. Id. at 201-02. He will often sit in his truck and listen to
music. Id. at 203. The truck will be running, but the lights will
be off. Id. She testified that when he is angry he sometimes
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won’t talk or follow commands. Id. at 204. Mrs. Nichelson also
testified that her husband is a deep sleeper and hard to wake. Id.
Mrs. Nichelson testified that she was at her cousin’s house on the
night before the arrest, and [Appellant] was there from 5:30-8:30
PM. Id. at 207. She didn’t see [Appellant] again until the police
brought him home. Id. at 207-08. She said when he was brought
home she didn’t think he smelled of marijuana and she didn’t think
he was under the influence. Id. at 208. When Mrs. Nichelson
went to recover the vehicle she didn’t see vomit, and she didn’t
think the car smelled of marijuana. Id. at 210. However, it was
important for her husband to keep his commercial driver’s license
because that is what he does for a living. Id. at 211-12.
[Appellant] testified that he is an over-the-road trucker, and
works long hours. N.T. Trial[,] 2/28/17[,] [at] 8. He often sleeps
in his truck while it’s running. Id. [Appellant] testified to mental
health issues[,] which lead him to want to be alone, so he goes to
his truck to sleep or rest. Id. at 11. If people engage with him,
[Appellant] said he gets angry. Id. [Appellant] also said he was
under a doctor’s care for a “bad ankle, bad knee, and a bad back.”
Id. On the day before he was arrested, [Appellant] had been in
Illinois and drove to his cousin’s house. Id. at 13. [Appellant]
denied drinking. Id. After his cousin’s house, he went to The
Elbow Lounge Bar and claimed he only drank tonic and lime until
the end of the night where he had “one glass of beer” which
[Appellant] said he didn’t finish. Id. at 14. [Appellant] said he
got agitated so he parked in the back to take a nap, and claimed
he reclined his seat. Id. at 15-16. [Appellant] denied buying a
bottle of beer or one being in his truck. Id. at 17. [Appellant]
claimed that when the police woke him up he wasn’t all there
because he had been in a deep sleep. Id. at 18. [Appellant] also
claimed that when asked to do field sobriety tests, he told the
officer about his bad ankle, knees, and back. Id. at 19. He
claim[ed that] despite this, the police had him perform field
sobriety tests, that he had a cane in his truck, and the police didn’t
let him retrieve it. Id. at 19. [Appellant] also denied seeing vomit
outside his car or smoking marijuana. Id. at 20. [Appellant]
claimed he didn’t do anything the [o]fficer asked because “I just
felt that he was going to stick me with a DUI no matter what I
said or did.” Id. He said he didn’t give a blood test because he
didn’t think he did anything wrong and just “shutdown.” Id. at
21. On cross, [Appellant] denied being offered a portable breath
test, and agreed that his physical issues didn’t prevent him from
giving a blood sample. Id. at 23-24.
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On February 28, 2017, a jury found [Appellant] guilty of
DUI-general impairment and not guilty of DUI-impaired ability.
This [c]ourt found [Appellant] guilty of the summary [open
containers] charge. On the same day, [Appellant] was sentenced
to five days to six months of incarceration for the DUI charge and
given a $25 fine for the summary offense. On March 24, 2017,
[Appellant] filed a timely notice of appeal.
Trial Court Opinion (TCO), 5/22/17, at 1-8 (footnote omitted).
The trial court ordered Appellant to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal, and Appellant timely complied.
Herein, he presents three questions for our review:
1. Whether the trial court erred in denying Appellant’s request for
individual voir dire[?]
2. Whether the trial court erred in allowing evidence of the
refusal[?]
3. Whether the evidence was insufficient as a matter of law for a
DUI conviction and for the summary charge of open containers
conviction[?]
Appellant’s Brief at 7.
In Appellant’s first issue, he challenges the trial court’s refusal to
individually voir dire prospective jurors about their responses to a certain
question (hereinafter, “Question 15”) asked by the court when it examined
the jury pool collectively. Specifically, the court questioned the prospective
jurors all together, as follows:
[The Court]: Is there anyone here who himself or herself has been
a victim of a crime or who has had a family member who has been
a victim of a crime? Raise your card if that applies to you. And
I’ll have a backup question to this one. [The numbers of the
prospective jurors who are raising cards are] 3, 12, 13, 23, 24,
25. [Number] 16, I have you. 27, 19, 10, 20, 39, 38, 47 and 44.
All right.
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Of all those that raised their card, and there were many on
that question about being a victim or has had a family member
[who has been] a victim of a crime, this case obviously deals with
two counts of DUI, so you know generally what this case is about.
If that question about being a victim or a family member
being a victim of a crime, if you believe that given the very limited
facts of this case would impair your ability to be fair and impartial,
I need you to be honest with me, then re-raise your card of those
who raised their card before. All right. I see no one who has re-
raised their card.
N.T. Trial, 2/27/17, at 15-16.
After this collective questioning of the jury pool, defense counsel
requested individual voir dire regarding some of the questions, including
Question 15. The court denied that request regarding Question 15, but it did
grant defense counsel’s request pertaining to other questions, including
Question 8. That question asked the jurors if they “would either accept or
reject the testimony of a police officer merely because that witness happens
to be a police officer[.]” Id. at 14. None of the jury panel raised their hands
to Question 8. Id. However, 15 of them had answered “yes” to that same
question on a confidential juror information questionnaire filled out prior to
voir dire. See id. at 24. Based on this inconsistency, the court granted
defense counsel’s request to individually voir dire the 15 prospective jurors
who had answered “yes” to Question 8 on the written questionnaire. Through
those examinations, several of the jurors were stricken for cause after they
made statements indicating they may be biased in favor of police officers.
Appellant now contends that, because some of the prospective jurors
did not honestly answer Question 8 during the trial court’s collective voir dire,
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it demonstrates that the prospective jurors were likely also dishonest in
answering Question 15, and the court should have individually examined the
jurors on that question. He further maintains that the jury panel’s hesitation
to answer truthfully during the collective voir dire was because
the trial court made comments before the entire panel that
expressly indicated it would be bad if any of them indicated they
could not be fair. (N.T. [Trial, 2/27/17, at] 24). Thus, no one
raised their hand when the trial court asked if, in light of their
responses to questions #8 … and #15, it would affect their ability
to be fair and impartial. The words of the trial court had a severe
chilling effect on the jurors[’] comfort level in freely expressing
and communicating their beliefs. Thus, many who responded in a
biased manner on their questionnaires in the comfort of their
homes, failed to respond after the trial court commented it would
be bad to express their bias when asked the same questions in
the courtroom. The trial court[’s] comment caused them to
become timid, and they did not raise their hands. Thus[,] defense
counsel observed their uneasiness first hand, and surmised there
was a strong likelihood that the jurors were not being truthful or
that they were uncomfortable discussing their true feelings in
open court.
Appellant’s Brief at 15-16.
Notably, at no point does Appellant explicitly state what improper
comment the trial court made that allegedly caused ‘uneasiness’ in the
prospective jurors’ minds and compelled them not to answer honestly, despite
being under oath during the collective examination. The only portion of the
record cited by Appellant in support of this argument is a discussion between
the trial court and the parties, outside the hearing of the jury. See id. at 15
(citing N.T. Trial, 2/27/17, at 24). Because Appellant does not identify where
in the record the court allegedly made an improper comment, or even state
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in his appellate brief what that comment was, he has waived his argument
that this ostensible tainting of the jury pool required individual voir dire on
Question 15.
We also disagree with Appellant that the individual voir dire of
prospective jurors on Question 8 demonstrates that the court should have also
conducted individual examinations regarding Question 15. There was a clear
inconsistency between the prospective jurors’ answers of Question 8 on the
written questionnaire and their responses during the collective voir dire. The
same is not true for Question 15; multiple prospective jurors raised their cards
during the collective voir dire indicating that they, or a family member, had
been the victim of a crime. Appellant does not claim that those answers were
inconsistent with the written questionnaires. Additionally, unlike with
Question 8, the court followed the collective voir dire on Question 15 with a
second question about whether those prospective jurors believed that they
would not be able to be fair and impartial based on their, or their family
member’s, victimization. See N.T. Trial, 2/27/17, at 15. The court specifically
directed the jury pool “to be honest with [the court]” and to raise their card if
they questioned their ability to be impartial and fair on this basis. Id. at 16.
No prospective juror raised a card. Therefore, unlike with Question 8, there
was no facial inconsistency or ‘red flags’ in the prospective jurors’ responses
during the collective voir dire on Question 15. Consequently, Appellant has
not demonstrated that the trial court abused its discretion by not conducting
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an individual examination of the jury pool regarding that question. 1 See
Commonwealth v. Howard, 375 A.2d 79, 82 (Pa. Super. 1977) (stating
that, in all non-capital cases, the decision to permit defense counsel to conduct
individual voir dire of prospective jurors “is a matter resting within the sound
discretion of the trial judge”) (citation omitted).
Appellant next contends that the trial court erred by allowing the
Commonwealth to admit evidence, as proof of his consciousness of guilt, that
he refused to submit to a breathalyzer test and a warrantless blood draw.
First, Appellant argues that his refusal of the breath test should not have been
admitted because he contested that he was even asked to submit to such a
test. Second, regarding his refusal of a warrantless blood test, Appellant
maintains that this evidence was inadmissible under Birchfield v. North
Dakota, 136 S. Ct. 2160 (2016), where the United States Supreme Court held
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1 We also stress that Appellant at no point clarifies whether any of the 15
prospective jurors who indicated, during the collective examination, that they
or a family member had been the victim of a crime, were actually chosen to
be part of the final jury. The trial court points out that “the jury [was] selected
from jurors 1-32 and the alternates would be chosen from 33-36[,]” meaning
that 4 of the 15 who answered “yes” to Question 15 during the collective voir
dire did not end up on the jury panel (i.e., jurors number 38, 39, 44, and 47).
TCO at 10. Additionally, the record indicates that jurors 3, 12, 13, 23 were
stricken for cause for other reasons. See N.T. Trial, 2/27/17, at 40, 48, 51,
65. Appellant does not specify who, if any, of the remaining 7 jurors that
indicated that they, or a family member, had been the victim of a crime were
ultimately empaneled. Therefore, we would alternatively conclude that he has
not established that he was tried by a biased jury and, thus, reversal is not
required in this case. See Commonwealth v. Hoffman, 398 A.2d 658, 660
(Pa. Super. 1979) (“The purpose of examining jurors under voir dire is to
secure a competent, fair, impartial and unprejudiced jury.”).
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“that motorists cannot be deemed to have consented to submit to a blood test
on pain of committing a criminal offense.” Id. at 2186. According to
Appellant, the introduction of the evidence that he refused the blood draw
constituted a ‘criminal penalty’ of the type prohibited by the holding of
Birchfield. Appellant also complains that the trial court should not have
issued a consciousness-of-guilt jury instruction regarding his refusal of both
the breath and blood tests.
Initially, we conclude that Appellant has waived these challenges for our
review. Prior to trial, the Commonwealth filed a motion in limine seeking to
introduce the evidence that Appellant had refused to submit to the blood test.
Appellant did not file a responsive motion. Additionally, he does not point to
- and we cannot locate - where in the record he lodged any objection to the
admission of this evidence, or to the admission of the evidence that he refused
to submit to a breathalyzer. See , e.g., N.T. Trial, 2/27/17, at 149-52 (Officer
Wittmer’s testifying, without objection by Appellant, that he read Appellant
the DL-26 chemical test warnings, after which Appellant refused to submit to
a blood test); Id. at 142 (Officer Wittmer’s testifying, without objection by
Appellant, that Appellant refused to take a breathalyzer test). Likewise,
Appellant does not cite to where he objected to the trial court’s issuance of
the consciousness-of-guilt jury instruction, and we see no such objection
before, during, or after the jury charge was given. See N.T. Trial, 2/28/17,
at 67 (the court’s instructing the jury on consciousness of guilt regarding
Appellant’s refusal of the breath and blood tests without objection by
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Appellant). Because Appellant does not point to where he preserved these
evidentiary and jury instruction challenges at trial, we deem them waived for
our review. Commonwealth v. Boyd, 679 A.2d 1284, 1289 (Pa. Super.
1996) (“In order to preserve for appellate review any claim of error regarding
the admission of evidence, a party must specifically object to the admission
of such evidence at trial. Failure to do so results in a waiver of that claim of
error in the evidence’s admission.”) (citation omitted); Pa.R.Crim.P. 647(C)
(“No portions of the charge nor omissions from the charge may be assigned
as errors, unless specific objections are made hereto before the jury retires to
deliberate. All such objections shall be made beyond the hearing of the
jury.”).
Notwithstanding Appellant’s waiver of these claims, we would deem
them meritless. First, in regard to the admission of Appellant’s refusal of the
blood test, we rely on this Court’s recent decision in Commonwealth v. Bell,
67 A.3d 744 (Pa. Super. 2017), appeal granted, 183 A.3d 978 (Pa. 2018)
(holding that evidence that Bell refused a blood test was admissible under
Birchfield as an evidentiary consequence of his decision to refuse to submit
to that test).2 Appellant does not even acknowledge Bell, let alone make any
attempt to distinguish our holding in that case from his argument herein.
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2 We recognize that our decision in Bell is currently under review by our
Supreme Court. However, until the Court issues a ruling on Bell, it remains
binding precedent on this Court. See Marks v. Nationwide Ins. Co., 762
A.2d 1098, 1101 (Pa. Super. 2000) (citing Sorber v. American Motorists
Ins. Co., 680 A.2d 881, 882 (Pa. Super. 1996)).
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Consequently, we would conclude that the court did not abuse its discretion
in admitting the evidence that he refused the warrantless blood draw. See
Commonwealth v. Young, 989 A.2d 920, 924 (Pa. Super. 2010)
(recognizing that questions concerning the admissibility of evidence lie within
the sound discretion of the trial court, and a reviewing court will not reverse
the trial court’s decision absent a clear abuse of discretion) (citation omitted).
We would also discern no abuse of discretion in the court’s decision to
admit the evidence that Appellant refused the breathalyzer test. Officer
Wittmer testified that he asked Appellant “to perform [the test] multiple
times” but “[h]e continued to refuse by turning his head away from [the
[o]fficer] and just not speaking to [the officer] at all.” N.T. Trial, 2/27/17, at
142. Simply because Appellant contested the fact that the officer asked him
to take a breathalyzer test did not render inadmissible the officer’s testimony
that Appellant refused the test. Additionally, because we would conclude that
the court did not err in admitting the evidence that Appellant refused both the
breath and blood tests, we would also reject his challenge to the court’s
consciousness-of-guilt instruction regarding those refusals.
In his third and final issue, Appellant claims that the evidence was
insufficient to sustain his DUI and open containers convictions.
In reviewing a sufficiency of the evidence claim, we must
determine whether the evidence admitted at trial, as well as all
reasonable inferences drawn therefrom, when viewed in the light
most favorable to the verdict winner, are sufficient to support all
elements of the offense. Commonwealth v. Moreno, 14 A.3d
133 (Pa. Super. 2011). Additionally, we may not reweigh the
evidence or substitute our own judgment for that of the fact
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finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
2009). The evidence may be entirely circumstantial as long as it
links the accused to the crime beyond a reasonable doubt.
Moreno, supra at 136.
Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).
Here, Appellant was convicted of DUI under 75 Pa.C.S. § 3802(a)(1),
which reads:
(a) General impairment.--
(1) An individual may not drive, operate or be in actual
physical control of the movement of a vehicle after imbibing
a sufficient amount of alcohol such that the individual is
rendered incapable of safely driving, operating or being in
actual physical control of the movement of the vehicle.
Appellant first avers that the Commonwealth failed to prove that he
operated, or was in actual physical control of the movement of his vehicle,
where the officers found him “in such a deep sleep that shining a light on his
face provoked no reaction.” Appellant’s Brief at 43. In rejecting this
sufficiency argument, the trial court reasoned that Appellant’s own testimony
demonstrated that he drove the car while intoxicated, as Appellant stated: “I
left the bar so I don’t [sic] get myself in trouble; got in my truck; went
around and parked in the back and just said I would take a nap because I
was tired anyway.” N.T. Trial, 2/28/17, at 16 (emphasis added); see also
TCO at 17-18. We agree with the trial court. Appellant’s testimony, along
with the evidence of his intoxication - i.e., the smell of alcohol on his breath
and burnt marijuana in his car, the vomit and marijuana “roach” found outside
the door to his vehicle, his failing the field sobriety tests, and his refusal to
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submit to a breath or blood test - were sufficient to prove that Appellant
operated his vehicle while intoxicated to a point that he could not safely do
so.3
Appellant also argues that his DUI conviction cannot stand because he
was not driving his vehicle on a highway or trafficway. As this Court has
recognized, DUI
is defined in the vehicle code as a ‘Serious Traffic Offense.’ A
Serious Traffic Offense, according to 75 Pa.C.S.[] § 3101, must
be committed on a highway or trafficway. A highway is defined
as[,]
the entire width between the boundary lines of every way
publicly maintained when any part thereof is open to the use
of the public for purposes of vehicular travel. The term
includes a roadway open to the use of the public for
vehicular travel on grounds of a college or university or
public or private school or public or historical park.
75 Pa.C.S.[] § 102.
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3 Moreover, we reject Appellant’s contention that the trial court erroneously
instructed the jury that it could convict Appellant of DUI if it found that he
posed a ‘threat’ of driving. Appellant’s Brief at 46. In the portion of the charge
cited by Appellant, the court stated: “These terms are broader than the term
drive because the law is concerned with the threat to public safety for
motorists who have a present intention of driving a vehicle immediately within
their control, as well as those who actually do drive while they are under the
influence.” N.T. Trial, 2/28/17, at 65 (emphasis added). Initially, at no point
did Appellant object to this portion of the jury charge, and he cites no legal
authority to support his claim that he did “not have to object to a patently
false instruction….” Appellant’s Brief at 46. Consequently, we deem this claim
waived. See Pa.R.Crim.P. 647(C). In any event, it is apparent that the court
used the word “threat” not to refer to the chance that Appellant might drive
his vehicle, but in regard to the public safety concerns on which the DUI
statute is premised. Accordingly, we would deem Appellant’s challenge to this
instruction meritless, even if preserved.
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A trafficway is defined as[,]
the entire width between property lines or other boundary
lines of every way or place of which any part is open to the
public for purposes of vehicular travel as a matter of right
or custom.
75 Pa.C.S.[] § 102.
Commonwealth v. Wilson, 553 A.2d 452, 453 (Pa. Super. 1989).
Here, Appellant avers that he “was in a private parking lot, not on a
highway. Moreover, the vehicle was not on a traffic way [sic] and was in fact
on private property.” Appellant’s Brief at 4. Appellant maintains that, “[t]he
case law on whether a private parking lot constitutes a public parking space
is far from settled.” Id. In support, he cites Commonwealth v. Owen, 580
A.2d 412 (Pa. Super. 1990), and Commonwealth v. McFadden, 547 A.2d
774 (Pa. Super. 1988).
In Owen, we held that the defendant’s being stopped “in the Nittany
Silver Parking Lot in University Park, Centre County, Pennsylvania[,]” did not
support his DUI conviction, where the Commonwealth “presented … no
competent evidence concerning the nature of the parking lot where [Owen]
was stopped by police.” Owen, 580 A.2d at 413, 414 (emphasis in original).
Specifically, there was no evidence demonstrating, or stipulation by the
parties conceding, that “the parking lot was open to the public….” Id. at 415.
In McFadden (which we note was a plurality decision and, thus, is not
binding precedent, see Wilson, 553 A.2d at 454), we reversed McFadden’s
DUI conviction where he was accused of driving while intoxicated on a private
drive in a trailer court. McFadden, 547 A.2d at 775. Because “the
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Commonwealth failed to adduce any evidence upon which the jury could have
based a conclusion that the road was customarily open to vehicular traffic[,]”
aside from residents and guests of the trailer court, we held that McFadden
did not drive on a highway or trafficway as required by the DUI statute. Id.
at 776.
The present case is clearly distinguishable from Owen and McFadden.
Here, the Commonwealth presented evidence that the parking lot in which
Appellant’s vehicle was driven was owned by The Elbow Room and Tony’s
Pizza, both of which are businesses that are open to the public. See N.T.
Trial, 2/27/17, at 115-16. Public patrons of those businesses, such as
Appellant, regularly use that parking lot. Id. at 116. We agree with the trial
court that “[t]he parking lot here is similar to [a] parking lot of a mall that is
open to the public for shopping.” TCO at 18. This Court has held that such a
public parking lot is a ‘trafficway’ for purposes of the DUI statute. See
Commonwealth v. Proctor, 625 A.2d 1221, 1224 (Pa. Super. 1993)
(holding that because “the evidence established that [the] appellant drove in
a parking lot of a mall that is open to the public for shopping[,] … there was
sufficient evidence for the jury to conclude that the parking area was a
trafficway”). See also Wilson, 553 A.2d at 453-54 (concluding that the
parking lot of an Elks Club is open to the public and, therefore, is a trafficway
for purposes of the DUI statute). Accordingly, Appellant’s challenge to the
sufficiency of the evidence to support his DUI conviction is meritless.
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Regarding the sufficiency of the evidence to support his open containers
conviction, Appellant has waived this claim for our review. Other than setting
forth the statute defining that offense, Appellant’s entire argument regarding
why the evidence was insufficient to prove the open containers charge
amounts to the following sentence: “Appellant, asleep in his pick-up truck in
a parking lot[,] does not meet the definition of a highway.” Appellant’s Brief
at 50. Appellant’s underdeveloped and legally unsupported argument is
insufficient to permit this Court to meaningfully review his claim.4 Therefore,
Appellant’s challenge to this conviction is waived. See Commonwealth v.
Hardy, 918 A.2d 766, 771 (Pa. Super. 2007) (“When briefing the various
issues that have been preserved, it is an appellant’s duty to present
arguments that are sufficiently developed for our review. … [W]hen defects
in a brief impede our ability to conduct meaningful appellate review, we may
dismiss the appeal entirely or find certain issues to be waived.”).
Judgment of sentence affirmed.
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4It is particularly troubling that Appellant offers no counter to the trial court’s
determination that the evidence was sufficient because,
[Appellant] testified that he did not buy the beer bottle at Tony’s
Pizza. [See N.T. Trial, 2/28/17, at 17.] Therefore, the only way
for the beer bottle to be inside [Appellant’s] truck was if he bought
it before driving to the Elbow Lounge/Tony’s Pizza parking lot.
[Appellant’s] own testimony circumstantially establishes that
[Appellant] drove with the open container of beer on a highway to
the parking lot….
TCO at 19.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/16/18
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