Com. v. Brown, F.

J. S15030/17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

FREDERICK T. BROWN,

APPELLANT

No. 1256 EDA 2016

Appeal from the Judgment of Sentence December 29, 2015

In the Court of Common Pleas of Monroe County

Criminal Division at No(s): CP-45-CR-0000466-2015

BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY DUBOW, J.: FILED APRIL 06, 2017

Appellant, Frederick T. Brown, appeals from the December 29, 2015

Judgment of Sentence entered in the Monroe County Court of Common Pleas

following his jury conviction of Driving Under the Influence: Controlled

Substance-Meta bolite.1

The trial court summarized the facts as elicited at trial as follows:

On July 22, 2014, at approximately 1:00 p.m., Trooper

Andrew Depew, while on routine patrol, ran Appellant's

vehicle registration through his in -car NCIC systenn.E21 The

NCIC system indicated that Appellant's vehicle registration

had been suspended due to his insurance being cancelled.

Trooper Depew followed Appellant off the interstate to

1 75 Pa.C.S. § 3802(d)(1)(iii).

2 The NCIC system is the National Crime Information Center's computerized

index of criminal justice information such as criminal record history

information, fugitives, stolen properties, and missing persons.

J. S15030/17

effectuate a safe traffic stop on Lower Main Street in

Stroudsburg, Pennsylvania, to address the suspended

registration and insurance cancellation issues.

Trooper Depew made contact with Appellant and related

the reason he was being stopped. Upon making contact,

Trooper Depew noted that Appellant was not wearing his

seat belt. Trooper Depew also observed the odor of

marijuana emanating from Appellant's person and that

Appellant's eyes were red, glossy, and bloodshot. Under

suspicion of DUI, Trooper Depew administered three field

sobriety tests: the Horizontal Gaze Nystagmus Test ("HGN

Test"), the Rhomberg Balance Test, and the Lack of

Convergence Test.

The Commonwealth elicited some specifics regarding the

HG[N] and other field sobriety tests, however, Trooper

Depew did not testify as to the results. At trial, defense

counsel[] did not object to the Commonwealth's questions

on the field sobriety tests and even mentioned some of

these tests on cross examination ("Now, when you talk

about the HGN, the Walk -and -Turn and the One -Leg

Stand, those tests were actually not designed to test for a

controlled substance intoxication; is that correct?").

Based on his observations, Trooper Depew placed

Appellant under arrest for suspicion of DUI and requested

Appellant submit to a blood draw. Appellant signed an

O'Connell Warnings form [DL -26] and submitted to a

blood draw at the DUI Center. The results of the blood

test indicate that Appellant had 6.4 nanograms per

milliliter of Delta -9 Carboxy THC, a metabolite of THC, or

marijuana, in his system. Based on the above events,

Appellant was charged with various DUI crimes and Vehicle

Code Violations.[3]

Trial Ct. Op., 6/17/16, at 1-2 (footnote in original omitted, citations to Notes

of Testimony omitted, paragraph breaks added).

3

Prior to trial, the Commonwealth dropped Counts 1 and 3 of the Criminal

Information, so that the jury only considered Count 2.

-2

J. S15030/17

On December 4, 2015, following a one -day trial, the jury convicted

Appellant of the above charge.4 The trial court also convicted Appellant of

two summary offenses: Vehicle Registration Suspended and Failure to Use

Safety Belt.5 The court ordered the preparation of a Pre -Sentence

Investigation Report, and on December 29, 2015, the court sentenced

Appellant to a standard -range term of 18 to 60 months' incarceration, a

$1,000.00 fine, and an 18 -month driver's license suspension.

On January 7, 2016, Appellant's counsel filed a Motion for Extension of

Time to File a Post -Sentence Motion, which the trial court granted on

January 8, 2016.6 On March 8, 2016, Appellant filed a Post -Sentence

Motion, alleging that the verdict was against the weight of the evidence

and/or unsupported by sufficient evidence, that the court erred in allowing

the Commonwealth to present testimony regarding Appellant's failure of field

sobriety tests, and claiming that his sentence was excessive. On April 12,

2016, the trial court denied Appellant's Motion. Appellant filed a timely

4 At the time of trial, Noelle Wilkinson, Esq. of the Public Defender's Office

represented Appellant. Following trial, the court appointed current counsel

Brian S. Gaglione, Esq. to represent Appellant.

5 75 Pa.C.S. § 1371 (a) and 75 Pa.C.S. § 4581(a)(2)(ii), respectively.

6 On January 8, 2016, the court entered an Order extending the time for

Appellant to file a Post -Sentence Motion until March 8, 2016. This Order

also extended the time for Appellant to file a Notice of Appeal until "within

30 days from the denial of any Post -Sentencing Motions that may be filed in

these matters or 30 days from March 8, 2016[,] if no Post-[S]entencing

Motions are filed." Order, 1/8/16.

-3

J. S15030/17

Notice of Appeal.' Both Appellant and the trial court complied with Pa.R.A.P.

1925.

Appellant raises three issues on appeal:

1.Whether the Mower [c]ourt abused its discretion at the

time of [s]entencing in this matter[?]

2. Whether the lower [c]ourt erred by allowing the

prosecutor to elicit information relative to field sobriety

tests, including the HGN test[?]

3. Whether the verdict was against the sufficiency of the

evidence, particularly in light of the U.S. Supreme Court's

ruling in Birchfield [v. North Dakota, 136 S.Ct. 2160

(2016)?]

Appellant's Brief at 6.

In his first issue, Appellant claims the trial court abused its discretion

by imposing an allegedly excessive sentence. A claim of this nature

challenges the discretionary aspects of Appellant's sentence.

Commonwealth v. Ahmad, 961 A.2d 884, 886 (Pa. Super. 2008) (citation

omitted). Appellant "must therefore petition for permission to appeal those

issues, as the right to pursue such a claim is not absolute." Commonwealth

7 We note that, generally, a trial court is without authority to extend the

time to file a Post -Sentence Motion or Notice of Appeal, and the Superior

Court may not enlarge the time for filing a Notice of Appeal. See Pa.R.A.P.

105(b); Commonwealth v. Valentine, 928 A.2d 346, 349 (Pa. Super.

2007). However, where a trial court misleads a defendant about an appeal

period, this Court will consider an untimely direct appeal. Commonwealth

v. Coolbaugh, 770 A.2d 788, 791 (Pa. Super. 2001). In the instant matter,

notwithstanding that Appellant did not file his Notice of Appeal within 30

days of his Judgment of Sentence, because the trial court erroneously

extended the time for Appellant to file his appeal, we will consider it.

-4

J. S15030/17

v. Finnecy, 135 A.3d 1028, 1031 (Pa. Super. 2016) (citation and internal

quotation marks omitted). In addition, prior to reaching the merits of a

discretionary sentencing issue:

We conduct a four-part analysis to determine: (1) whether

appellant has filed a timely [N]otice of [A]ppeal, see

Pa.R.A.P. 902 and 903; (2) whether the issue was properly

preserved at sentencing or in a [M]otion to [R]econsider

and [M]odify [S]entence, see [Pa.R.Crim.P. 720]; (3)

whether appellant's [B]rief has a fatal defect, Pa.R.A.P.

2119(f); and (4) whether there is a substantial question

that the sentence appealed from is not appropriate under

the Sentencing Code, 42 Pa.C.S.[] § 9781(b).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006) (citations

omitted).

In the instant case, Appellant filed a timely Notice of Appeal and a

timely Post -Sentence Motion. Appellant also included a separate Pa.R.A.P.

2119(f) Statement in his appellate Brief. As to whether Appellant has

presented a substantial question, we must examine the specific sentencing

issue raised by Appellant.

In his Pa.R.A.P. 2119(f) Statement, Appellant alleges "the lower court

abused its discretion by sentencing Appellant in the standard range despite a

lack of competent, credible evidence that Appellant posed a danger to

anyone while driving his vehicle with such a scant amount of a metabolite of

marijuana in his blood. Given the lack of such evidence, the sentence

imposed of 18-16 months, shocks the conscience and constituted a manifest

abuse of discretion." Appellant's Brief at 11.

5

J. S15030/17

It is well settled that:

The determination of what constitutes a substantial

question must be evaluated on a case -by -case basis. A

substantial question exists only when the appellant

advances a colorable argument that the sentencing judge's

actions were either: (1) inconsistent with a specific

provision of the Sentencing Code; or (2) contrary to the

fundamental norms which underlie the sentencing process.

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation,

quotation marks, and quotation omitted).

Ordinarily, absent a showing of manifest injustice, a claim of

excessiveness does not raise a substantial question that justifies review

when the sentence is within the statutory limits. See Commonwealth v.

Mouzon, 812 A.2d 617, 624-25 (Pa. 2002). Similarly, "[a]n allegation that

the sentencing court failed to consider certain mitigating factors generally

does not necessarily raise a substantial question." Moury, 992 A.2d at 171.

We conclude that Appellant's challenge to the excessiveness of his

sentence does not raise a substantial question permitting our review.

Simply, Appellant has not framed and preserved his issue in a way that

suggests that the Appellant's sentence, which he concedes was within the

standard range, was manifestly unreasonable. Moreover, to the extent that

Appellant is attempting to claim that the court did not adequately consider

the mitigating fact of his level of intoxication purportedly not being a danger

to public safety, such does not present a substantial question. Accordingly,

this claim fails.

-6

J. S15030/17

In his next issue, Appellant challenges the admission of testimony

regarding Appellant's performance on field sobriety tests, including the HGN

Test. Appellant's Brief at 14-15. Appellant claims that the results of field

sobriety testing is not relevant to prove whether there was evidence of drugs

or a metabolite of drugs in his blood. Id. at 15.

We review a trial court's decision to admit evidence with the following

in mind:

The admission of evidence is a matter vested within the

sound discretion of the trial court, and such a decision

shall be reversed only upon a showing that the trial court

abused its discretion. In determining whether evidence

should be admitted, the trial court must weigh the relevant

and probative value of the evidence against the prejudicial

impact of the evidence. Evidence is relevant if it logically

tends to establish a material fact in the case or tends to

support a reasonable inference regarding a material fact.

Although a court may find that evidence is relevant, the

court may nevertheless conclude that such evidence is

inadmissible on account of its prejudicial impact.

Commonwealth v. Antidormi, 84 A.3d 736, 749 (Pa. Super. 2014)

(citation omitted).

Where a defendant claims error in the admission of evidence, he must

have made a timely objection, stating the specific ground of objection.

Commonwealth v. Willis, 552 A.2d 682, 690 (Pa. Super. 1988); see also

Pa.R.E. 103(a)(1). Defense counsel's failure to object to the admission of

evidence results in waiver of that issue on appeal. Commonwealth v.

Benson, 421 A.2d 383, 389 (Pa. 1980).

-7

J. S15030/17

Here, as noted by the trial court, Appellant's trial counsel, Attorney

Wilkinson, "did not object to the Commonwealth's questions regarding the

HGN Test, or any field sobriety test. Moreover, Attorney Wilkinson

questioned Trooper Depew specifically about the HGN Test during cross[-]

examination." Trial Ct. Op. at 6 (citations to the Notes of Testimony

omitted). Our review of the Notes of Testimony confirms that Appellant's

trial counsel failed to object to the admission of this evidence. Accordingly,

Appellant has waived this issue.8

In his last issue, Appellant claims that the Commonwealth's evidence

was insufficient to support his conviction, particularly in light of the holding

in Birchfield, supra. Appellant's Brief at 15. Appellant is not entitled to

relief.

When reviewing sufficiency of evidence challenges:

[O]ur standard whether, viewing all the evidence and

is

reasonable inferences in the light most favorable to the

Commonwealth, the factfinder reasonably could have

determined that each element of the crime was established

beyond a reasonable doubt. This Court considers all the

evidence admitted, without regard to any claim that some

of the evidence was wrongly allowed. We do not weigh the

evidence or make credibility determinations. Moreover,

any doubts concerning a defendant's guilt were to be

resolved by the factfinder unless the evidence was so weak

and inconclusive that no probability of fact could be drawn

from that evidence.

8 To the extent that within this issue Appellant attempts to raise a claim of

ineffective assistance of trial counsel, we note that such claims are properly

raised on collateral review. See Commonwealth v. Holmes, 79 A.3d 562,

598 (Pa. 2013).

-8

J. S15030/17

Commonwealth v. Kane, 10 A.3d 327, 332 (Pa. Super. 2010) (citation

omitted).

The jury convicted Appellant of Driving Under the Influence, 75 Pa.C.S.

§ 3802(d)(1)(iii). That statute provides, in relevant part, as follows:

(d) Controlled substances. --An individual may not

drive, operate or be in actual physical control of the

movement of a vehicle under any of the following

circumstances:

(1) There is in the individual's blood any amount of

a:

(iii) metabolite of a [Schedule I, II, or III

controlled] substance.

75 Pa.C.S. § 3802(d)(1)(iii).

As a prefatory matter, we note that Appellant, relying on Birchfield,

avers that this Court should vacate his Judgment of Sentence on sufficiency

of the evidence grounds, and remand to allow Appellant the opportunity to

challenge the admissibility of the result of his blood test. Id. at 16.

Although Appellant presents this issue as a challenge to the sufficiency of

the evidence, it is clear that the gravamen of his argument is a challenge to

the trial court's admission of his blood test results, in the absence of which,

he claims, incidentally, the Commonwealth could not have sustained a

conviction. Thus, to the extent Appellant purports to challenge the

sufficiency of the evidence, we find this issue waived, as Appellant failed to

_9

J. S15030/17

develop an argument in support of this claim.9 See Pa.R.A.P. 2119;

Commonwealth v. Perez, 93 A.3d 829, 838 (Pa. 2014) ("[T]o the extent

appellant's claims fail to contain developed argument or citation to

supporting authorities and the record, they are waived[.]")

Moreover, we find Appellant's reliance on Birchfield misplaced. In

Birchfield, the United States Supreme Court concluded that because "the

taking of a blood sample" is a search within the meaning of the Fourth

Amendment of the United States Constitution, absent an applicable

exception, police officers may not compel the taking a blood sample of a

defendant without a search warrant. Birchfield, 136 S.Ct. at 2185. One

exception to the warrant requirement occurs where a person voluntarily

consents to the search. Id. at 2185.

In the instant matter, Appellant did not challenge the admissibility of

the blood test result at any time; he did not file a Motion to Suppress, and

did not raise the issue of the voluntariness of his consent at trial or in his

Post -Sentence Motion. Accordingly, because Appellant is raising this issue

for the first time on appeal, it is waived. See Willis, supra at 690.

Judgment of Sentence affirmed.

9 Moreover, our review of the record indicates that the Commonwealth met

its burden of proving every element of this charge beyond a reasonable

doubt where Trooper Depew testified at trial that Appellant was driving a

motor vehicle (N.T., 12/4/15, at 11, 22), and the Commonwealth's expert

witness testified that the nanograms per milliliter of Delta -0 Carboxy THC in

Appellant's blood sample exceeded the maximum allowable legal limit (N.T.

at 27).

- 10 -

J. S15030/17

Judgment Entered.

J seph D. Seletyn,

Prothonotary

Date: 4/6/2017