Opinion
J-S07040-17 No. 679 MDA 2016
03-30-2017
COMMONWEALTH OF PENNSYLVANIA v. SEZAN HESSOU, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence January 27, 2016 in the Court of Common Pleas of Dauphin County, Criminal Division, No(s): CP-22-CR-0005099-2014 BEFORE: BOWES, LAZARUS and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.: :
Sezan Hessou ("Hessou") appeals from the judgment of sentence imposed following his conviction of one count each of driving under the influence ("DUI") - general impairment, DUI - controlled substance/impaired ability, and careless driving. We affirm.
See 75 Pa.C.S.A. §§ 3802(a)(1), (d)(2), 3714(a).
In its Opinion, the trial court set forth the relevant factual and procedural background of this case, which we adopt for the purpose of this appeal. See Trial Court Opinion, 6/17/16, at 1-9.
On appeal, Hessou raises the following issues for our review:
1. Whether the trial court erred in denying [Hessou's] post-sentence Motion[,] where the finding of guilt was against the weight of the evidence so as to shock one's sense of justice[,] where the Commonwealth never showed that [Hessou] was under the combined influence of alcohol and a drug or drugs[,] nor to a degree that rendered him incapable of safe driving?
2. Whether the Commonwealth failed to present sufficient evidence to sustain [Hessou's] convictions[,] where the Commonwealth did not prove that [Hessou] was under the influence of alcohol and a drug or drugs[,] rendering him incapable of safe driving?Brief for Appellant at 7 (issues renumbered for ease of disposition, some capitalization omitted).
In his first issue, Hessou contends that his "conviction was against the weight of the evidence[,] where the testimony showed that [he] never left his lane of travel, passed the one[-]legged stand field sobriety test[,] and blew a .073 [percent] result on the preliminary breath test ("PBT")." Id. at 20-21. Hessou asserts that "[a] .073 percent reading on a [PBT] is below the permissible blood alcohol level for a tier one (1), general impairment [DUI] charge." Id. at 21.
In its Opinion, the trial court addressed Hessou's first issue, set forth the relevant law, and concluded that the issue lacks merit. See Trial Court Opinion, 6/17/16, at 9-11. We agree with the reasoning of the trial court, and affirm on this basis as to Hessou's first issue. See id .; see also id. at 5-9 (wherein the trial court set forth, in detail, the evidence supporting Hessou's convictions).
In his second issue, Hessou challenges the sufficiency of the evidence underlying his convictions. Brief for Appellant at 17-19.
Hessou failed to raise this claim in his Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal. See Commonwealth v. Lord , 719 A.2d 306, 309 (Pa. 1998) (holding that, if an appellant is directed to file a concise statement of matters to be raised on appeal pursuant to Pa.R.A.P. 1925(b), any issues not raised in that statement are waived); see also Pa.R.A.P. 1925(b) (providing that "[a] failure to comply with such direction may be considered by the appellate court as a waiver of all objections to the order, ruling or other matter complained of."). Because Hessou did not raise this issue in his Concise Statement, he failed to preserve it for our review.
Although the issue was not raised by Hessou, we are mindful that his refusal to submit to a blood alcohol test, following his arrest for driving under the influence, could implicate the recent United States Supreme Court holding in Birchfield v. North Dakota , 136 S. Ct. 2160 (2016). In Birchfield , the Supreme Court concluded that "a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving." Id. at 2185. Additionally, the 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." Id .; see also id. (concluding that the petitioner could not be convicted of refusing a warrantless blood draw following an arrest for driving under the influence). Here, the trial court sentenced Hessou on his conviction under 75 Pa.C.S.A. § 3802(d)(3) (driving under the influence of alcohol - combination of alcohol and drugs), which triggered the imposition of penalties under 75 Pa.C.S.A. § 3804(c)(1). Notably, the penalties provided by section 3804(c)(1) are also triggered when a defendant is convicted of section 3802(a)(1) (driving under the influence of alcohol - general impairment), and the defendant refuses to consent to a blood or breath test. Thus, Birchfield is implicated when a defendant is convicted under section 3802(a)(1), and penalties are imposed under section 3804(c)(1) based on a refusal to submit to a blood alcohol test. However, as Hessou was sentenced under section 3804(c)(1) solely based on his conviction under section 3802(d)(3), Birchfield is not implicated. --------
Judgement of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: March 30, 2017
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