Opinion
J. A03032/17 No. 1998 MDA 2015
04-13-2017
COMMONWEALTH OF PENNSYLVANIA v. KATHLEEN E. BRADDOCK, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered October 20, 2015
In the Court of Common Pleas of Cumberland County
Criminal Division at No.: CP-21-CR-0000415-2015 BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J. MEMORANDUM BY DUBOW, J.:
Appellant, Kathleen E. Braddock, appeals from the Judgment of Sentence entered by the Cumberland County Court of Common Pleas following her convictions after a jury trial of Driving Under the Influence (General Impairment), Driving Under the Influence (General Impairment with Refusal), Driving on Roadways Laned for Traffic, and Driving Upon Sidewalk. After careful review, we affirm in part, vacate Appellant's Judgment of Sentence, and remand for resentencing consistent with Birchfield v. North Dakota , ___ U.S. ___, 136 S.Ct. 2160, 195 L.Ed. 2d 560 (2016).
75 Pa.C.S. § 3802(a)(1); 75 Pa.C.S. § 3802(a)(1) and 75 Pa.C.S. § 3804(c)(1); 75 Pa.C.S. § 3309; and 75 Pa.C.S. § 3703, respectively. Although premised on the same facts, the Commonwealth charged two separate counts of DUI in the Information.
We adopt the facts as set forth by the trial court. See Trial Court Opinion, 1/15/16, at 2-8. However, for purposes of the appeal, we note the following relevant facts.
On the night of October 8, 2014, while on patrol in a marked car, Officer Brian Staley ("Officer Staley") of the New Cumberland Police Department observed Appellant driving a black pickup truck as it crossed the centerline by a few feet and nearly hit a parked car. Officer Staley attempted to pull Appellant over, but Appellant continued driving and made several more turns. Appellant drove onto the sidewalk and eventually stopped her truck outside her boyfriend's residence.
Appellant exited the truck, appeared unsteady on her feet, and used her left hand to steady herself on the side of her truck. As Officer Staley approached Appellant, she stated that she wanted to go into the house. Officer Staley smelled alcohol on her breath from a few feet away, observed Appellant swaying and slurring her words, and stated that Appellant appeared sloppy or disheveled and seemed confused or disengaged. Appellant attempted to walk away, and Officer Staley had to put his hand out to stop her from leaving. Appellant could not produce her driver's license, stated that it was in the house, and eventually identified herself to Officer Staley as "Kathy Cruz."
Appellant would not submit to a field sobriety test and would not answer some of Officer Staley's questions about her suspected alcohol consumption. Officer Staley arrested Appellant. At trial, Officer Staley opined that, based on his 18 years of experience and participation in 100-200 DUI arrests, Appellant was under the influence of alcohol to a sufficient degree that rendered her incapable of driving safely.
Officer Staley took Appellant to Carlisle Regional Medical Center for a blood test, which Appellant refused after Officer Staley gave warnings provided in the DL-26 form. Video footage of Appellant in Officer Staley's police car during the ride from the medical center to the Cumberland county prison showed Appellant remove her handcuffs, remove her seatbelt, repeatedly tilt her head back and close her eyes as if "nodding off." Appellant was charged with Driving Under the Influence (General Impairment), Driving Under the Influence (General Impairment with Refusal), as well as summary offenses.
Appellant proceeded to a jury trial. The jury convicted Appellant of Driving Under the Influence (General Impairment) and Driving Under the Influence (General Impairment with Refusal). Pursuant to a bench trial following the jury verdict, the trial court found Appellant guilty of the summary offenses of Driving on Roadways Laned for Traffic and Driving Upon Sidewalk.
On October 20, 2015, the trial court sentenced Appellant to 72 hours' to 6 months' incarceration, which included a mandatory minimum sentence of 72 hours' incarceration based on Appellant's refusal to consent to a blood test pursuant to 75 Pa.C.S. § 3804(c)(1). On October 27, 2015, Appellant filed a Post-Sentence Motion, which the trial court denied on October 30, 2015.
On November 16, 2015, Appellant filed a timely Notice of Appeal. Both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant originally presented two issues for our review:
1. Did the trial court err by allowing the Commonwealth to introduce camera footage of [Appellant] in the patrol car that was taken well after [Appellant] had been stopped, given that the Commonwealth did not produce camera footage of the incidents as they unfolded[,] even though it had a working dash camera that contemporaneously recorded all of [Appellant's] other actions?Appellant's Brief at 4.
2. Was [Appellant's] conviction for DUI (general impairment) against the weight of the evidence?
On August 17, 2016, Appellant filed a Supplemental Brief presenting the following claims for relief:
1. [Appellant's] conviction should be vacated and a new trial should be ordered because the jury was allowed to consider impermissible evidence in this case.Appellant's Supplemental Brief at 1. In her sentencing challenge, Appellant seeks relief pursuant to the U.S. Supreme Court's recent decision in Birchfield v. North Dakota , ___ U.S. ___, 136 S.Ct. 2160, 195 L.Ed. 2d 560 (2016) (pertaining to illegality of criminal penalties imposed for refusal to provide warrantless blood sample upon arrest for DUI).
2. [Appellant's] sentence of imprisonment should be vacated.
Admission of Video Footage
Appellant's first issue challenges the trial court's admission of video footage of Appellant in the back of a patrol car while police transported her to the county prison. Appellant argues that the video footage was irrelevant, the video footage "was much more prejudicial than it was probative[,]" and that it provided an incomplete and misleading picture since the Commonwealth failed to produce other "crucial video footage." Appellant's Brief at 10-17.
The following standard governs our review of the admissibility of evidence:
Admission of evidence is within the sound discretion of the trial court and will be reversed only upon a showing that the trial court clearly abused its discretion. Admissibility depends on relevance and probative value. Evidence is relevant if it logically tends to establish a material fact in the case, tends to make a fact at issue more or less probable or supports a reasonable inference or presumption regarding a material fact.Commonwealth v. Schoff , 911 A.2d 147, 154 (Pa. Super. 2006) (citation omitted).
Judicial discretion requires action in conformity with law, upon facts and circumstances judicially before the court, after hearing and due consideration. An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown by the evidence or the record, discretion is abused.
The Honorable Christylee L. Peck, who presided over the jury trial, authored a comprehensive, thorough, and well-reasoned Opinion, citing to the record and relevant case law in addressing Appellant's claim on appeal regarding the admission of video footage. After a careful review of the parties' arguments and the record, we affirm on the basis of the trial court's Opinion. See Trial Court Opinion at 8-13 (concluding that: (1) the video footage was relevant under Pa.R.E. 401 because Appellant's "erratic behavior" approximately one hour after her arrest constituted circumstantial evidence of Appellant's impairment or intoxication; (2) the video footage was "highly probative of whether or not [Appellant] was intoxicated [and any] potential for unfair prejudice to [Appellant] was minimal," particularly when Officer Staley already testified that he arrested Appellant and placed her in handcuffs and the trial court provided a cautionary jury instruction about the video footage; and (3) the trial court minimized prejudice and appropriately addressed the missing video footage where Officer Staley testified that "the missing video footage was lost due to a mistake, not due to any malicious motive," Appellant had the opportunity to cross-examine Officer Staley about the missing video footage and obtained helpful admissions, and the trial court provided a cautionary instruction to the jury about the Commonwealth's failure to produce evidence).
Appellant's arguments herein have not demonstrated that the court's decision was "manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown by the evidence or the record." Schoff , supra at 154. Consequently, we will not disturb the trial court's evidentiary ruling.
Weight of the Evidence
Appellant next avers that the jury's verdict was against the weight of the evidence because "Officer Staley's testimony was riddled with inconsistencies, [Appellant's] testimony about her behavior on the night in question as well as the supposed odor of alcohol emanating from her went unrebutted, and the jury was dissuaded from properly considering the incomplete video footage...[.]" Appellant's Brief at 18.
When considering challenges to the weight of the evidence, we apply the following precepts:
The weight of the evidence is exclusively for the finder of fact, who is free to believe all, none or some of the evidence and to determine the credibility of witnesses.Commonwealth v. Talbert , 129 A.3d 536, 545-46 (Pa. Super. 2015), appeal denied, 138 A.3d 4 (Pa. 2016) (quotation marks and citations omitted).
Appellate review of a weight claim is a review of the exercise of discretion, not the underlying question of whether the verdict is against the weight of the evidence. Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge when reviewing a trial court's determination that the verdict is against the weight of the evidence. One of the least assailable reasons for granting or denying a new trial is the lower court's conviction that the verdict was or was not against the weight of the evidence and that a new trial should be granted in the interest of justice.
"Resolving contradictory testimony and questions of credibility are matters for the [finder of fact]." Commonwealth v. Hopkins , 747 A.2d 910, 917 (Pa. Super. 2000). Further, "[i]n order for a defendant to prevail on a challenge to the weight of the evidence, the evidence must be so tenuous, vague[,] and uncertain that the verdict shocks the conscience of the court." Talbert , supra at 546 (quotation marks and citation omitted). It is well-settled that we cannot substitute our judgment for that of the trier of fact. Id. at 545.
Appellant essentially asks us to reassess the credibility of Officer Staley's testimony and reweigh the testimony and evidence presented at trial. Appellant's Brief at 18-21. We cannot and will not do so. After a careful review of the parties' arguments and the record, we affirm on the basis of the trial court's Opinion. See Trial Court Opinion at 13-16 (concluding that each of Appellant's "arguments go to the credibility of the evidence ... [and the trial court] did not find that the jury's verdict was so contrary to the evidence that it shocked the conscience."). We conclude that the trial court properly denied Appellant's weight of the evidence claim.
Birchfield
In her Supplemental Brief, Appellant challenges the legality of her sentence of 72 hours' incarceration "pursuant to 75 Pa.C.S. § 3803(b)(4) and 75 Pa.C.S. § 3804(c)(1)(i) for her refusal to provide a blood sample." Appellant's Supplemental Brief at 1. Appellant also challenges the admission at trial of evidence related to her refusal to submit to a blood test, and seeks a new trial. Id. at 1-4.
Challenges to a court's statutory authority to impose a sentence implicate the legality of sentence. Commonwealth v. Foster , 17 A.3d 332, 342 (Pa. 2011). It is well-settled that legality of sentence questions may be raised sua sponte by this Court. Commonwealth v. Wolfe , 106 A.3d 800, 801 (Pa. Super. 2014); Commonwealth v. Giron , ___ A.3d ___, 2017 PA Super 23 (filed January 31, 2017).
In Pennsylvania, 75 Pa.C.S. § 3802 prohibits an individual from driving a vehicle while intoxicated. Pennsylvania's implied consent statute reads, in relevant part, as follows:
(a) General rule.--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 or blood 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:
75 Pa.C.S. § 1547(a)(1).(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)[.]
This Court described the structure of Pennsylvania's DUI statutes as follows:
Pennsylvania law prescribes a three-tiered DUI statutory scheme, which penalizes and punishes drivers with higher levels of alcohol in their blood more severely than drivers with relatively lower blood alcohol levels. Section 3802(a) prohibits an individual from driving a vehicle "after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely driving ... the vehicle" and from driving a vehicle with a blood alcohol concentration ("BAC") of at least 0.08% but less than 0.10%. Section 3802(b) prohibits an individual from driving a vehicle with a BAC of at least 0.10% but less than 0.16%. Section 3802(c) prohibits an individual from driving a vehicle with a BAC that is 0.16% or higher. 75 Pa.C.S.[] § 3802.Commonwealth v. Giron , ___ A.3d ___, 2017 PA Super 23 (filed January 31, 2017).
Section 3804 sets forth the penalties for individuals who violate sections 3802(a), (b), and (c). The penalties are lowest for individuals who violate section 3802(a) and are the greatest for individuals who violate section 3802(c). However, [S]ection 3804 also sets forth the punishment for individuals who refuse a blood or breath test and who are then convicted of DUI-general impairment. Specifically, it punishes individuals who refuse the test (and are convicted of DUI-general impairment) at the same level as those who are convicted of DUI-highest rate of alcohol.
Relevant to the instant case, Section 3804 provides that an individual convicted of a first offense DUI (General Impairment) who refused to provide a blood sample faces a mandatory minimum of 72 hours' imprisonment. 75 Pa.C.S. § 3804(c)(1)(i). Section 3804(c)(1)(i) effectively increases the punishment when a driver refuses to consent to a blood or breath test.
Appellant argues that the U.S. Supreme Court's recent decision in Birchfield v. North Dakota , ___ U.S. ___, 136 S.Ct. 2160, 195 L.Ed. 2d 560 (2016), renders the enhanced sentencing provision void.
In Birchfield , the U.S. Supreme Court held that blood tests taken pursuant to implied consent laws are an unconstitutional invasion of privacy. Id. at 2186. The Supreme Court stated that "motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense[,]" and concluded that Birchfield could not be convicted of refusing a warrantless blood draw following his DUI arrest.
In Commonwealth v. Giron , ___ A.3d ___, 2017 PA Super 23 (filed January 31, 2017), Giron refused to provide a blood sample and the trial court subjected him to the enhanced penalties provided by Section 3804 as a result. On appeal, this Court addressed the sentencing issue sua sponte and held that "pursuant to [ Birchfield ] 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. §§ 3803-3804." Id. at 1 (footnote omitted). Ultimately, this Court concluded that Giron's sentence was illegal as a result of the enhanced penalty, vacated his Judgment of Sentence, and remanded for resentencing.
In the instant case, the trial court imposed enhanced penalties for Appellant's refusal to consent to a blood draw. See DL-26, 10/9/14, at 1 ("Chemical Testing Warnings and Report of Refusal to Submit to Chemical Testing"); LABF 207, 10/9/14, at 1 ("Notation of Resistance" indicating Appellant "Requested attorney several times."); Pennsylvania Guideline Sentencing Form, filed 12/30/15, at 1; Sentencing Order, filed 10/23/15, at 1-2. Because the Birchfield Court held that the practice of criminalizing the failure to consent to warrantless blood testing following a DUI arrest is unconstitutional, the trial court improperly relied upon Section 3804(c)(3) in imposing a mandatory minimum sentence upon Appellant. See Giron , supra.
As a result, we vacate Appellant's Judgment of Sentence and remand for resentencing consistent with Birchfield.
Appellant also challenges the admission at trial of evidence pertaining to her refusal to consent to the warrantless blood test. Appellant's Supplemental Brief at 1-4. She argues that given the "recognition in Birchfield that a DUI suspect has the right to refuse a blood draw without suffering a criminal penalty, it should follow that the government ought not be allowed to use [Appellant's] exercise of her constitutional right against her." Appellant's Supplemental Brief at 2. Appellant analogizes the rights in Birchfield "to asserting her right to remain silent[,] which cannot be used against a defendant at trial." Id. at 2-3 (citing Commonwealth v. Molina , 104 A.3d 430, 445 (Pa. 2014)). Appellant contends that "her refusal to provide a blood sample played a prominent part during the instant trial[,]" and Appellant seeks a new trial. Appellant's Supplemental Brief at 1.
Before addressing Appellant's claim, we must first ascertain whether this issue was preserved for appellate review. It is axiomatic that an issue may not be raised for the first time on appeal. Pa.R.A.P. 302(a).
Appellant did not present this claim of error at any stage of the lower court proceedings. Appellant did not raise this claim in her Pa.R.A.P. 1925(b) Statement of Errors. The trial court did not address this claim in its Pa.R.A.P. 1925(a) Opinion. Appellant first presented this claim on August 17, 2016 in her Supplemental Brief. Based on our review of the certified record, Appellant has waived this claim of error. See Pa.R.A.P. 302(a).
While these facts also apply to Appellant's sentencing issue addressed previously, we may review challenges to the legality of sentence sua sponte. See Wolfe , supra; Giron , supra. That authority is limited, and Appellant points to no authority providing similar powers to address this claim of error. --------
Moreover, Birchfield does not apply retroactively to Appellant's remaining claim because she failed to raise and preserve this issue in the court below. See Commonwealth v. Tilley , 780 A.2d 649, 652 (Pa. 2001) (holding "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.'"); Commonwealth v. Newman , 99 A.3d 86, 90 (Pa. Super. 2014) (en banc) ("To be entitled to retroactive application of a new constitutional rule, a defendant must have raised and preserved the issue in the court below...." (citation omitted)).
In summary, we affirm Appellant's convictions. We also vacate Appellant's Judgment of Sentence and remand to the trial court for resentencing consistent with the dictates of Birchfield and this Memorandum.
The parties are instructed to attach a copy of the trial court's January 15, 2016 Opinion to all future filings.
Appellant's convictions affirmed. Judgment of Sentence vacated. Case remanded for resentencing consistent with this Memorandum. Jurisdiction relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/13/2017
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