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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
JOHNATHAN DRAKE COUSINS
Appellee No. 1801 WDA 2016
Appeal from the Order Dated November 1, 2016
In the Court of Common Pleas of Butler County
Criminal Division at No(s): CP-10-CR-0000927-2015
BEFORE: STABILE, J., SOLANO, J., and FITZGERALD, J.*
MEMORANDUM BY SOLANO, J.: FILED DECEMBEER 1, 2017
The Commonwealth of Pennsylvania, Appellant, appeals from the trial
court order granting the post-sentence motion of Johnathan Drake Cousins
and vacating Cousins’ conviction and sentence for driving under the
influence (DUI), 75 Pa.C.S. § 3802(d). We reverse and remand.
The evidence at Appellant’s trial included the results of chemical tests
on Appellant’s blood, which had been drawn without obtaining a warrant.
The trial court summarized the procedural posture of Cousins’ case as
follows:
Following a bench trial, [Appellant] was found guilty on June
[1]7, 2016 of violating § 3802(d)(1)(i) and § 1301(a) of the
Vehicle Code. On August 18, 2016, the Court sentenced
[Appellant] to pay fines and to undergo a period of county
intermediate punishment. Thereafter[, on August 25, 2016,
____________________________________________
* Former Justice specially assigned to the Superior Court.
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Appellant] filed a post-sentence motion challenging the reliability
of the chemical testing performed in this case. At the time of
the hearing on the motion [on September 26, 2016], in addition
to presenting argument relating to the reliability of the chemical
testing, counsel for [Appellant] argued that under Birchfield [v.
North Dakota, 136 S.Ct. 2160, 195 L.Ed 560 (2016)], which
was decided on June 23, 2016, the warrantless blood draw
performed was unconstitutional. The Court based its decision to
vacate the verdict and sentence on Birchfield, not on the
reliability of the performed chemical testing. Should the
Superior Court of Pennsylvania find that the decision to vacate
was erroneous, this Court found that the Commonwealth put
forth sufficient reliable evidence to sustain [Appellant’s]
conviction for driving under the influence in violation of 75
Pa.C.S.A. § 3802(d)(1)(i).
Trial Court Order Pursuant to Pa.R.A.P. 1925(a), 12/16/16, at 1-2. As we
discuss below, Cousins did not raise any question regarding the
constitutionality of the warrantless blood draw prior to the argument on his
post-sentence motion.
The Commonwealth filed a timely appeal on November 22, 2016, and
presents the following issues for our review:
1. Whether the trial court committed error and/or abused its
discretion in applying Birchfield v. North Dakota, 136 S.Ct.
2160 (U.S. 2016) retroactively and/or in an ex post facto
manner regarding the United States Supreme Court’s holding
surrounding a chemical draw and testing of blood and its
application by Pennsylvania’s courts that the Pennsylvania
DL-26 Form warnings were coercive in nature thus
invalidating a consensual blood draw?
2. Whether the trial court committed error by entertaining a
Birchfield v. North Dakota argument to chemical testing by
defense counsel and applying that case when the issue was
not preserved or raised through pre-trial motion by defense
counsel?
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3. Whether the trial court erred in determining that the drug
levels found in [Cousins’] blood/system as a result of the
chemical testing of [Cousins’] blood fell within the margin of
error thus giving rise to reasonable doubt?
Commonwealth Brief at 3.
In their first two issues, the Commonwealth challenges the trial court’s
retroactive application of Birchfield. The Commonwealth asserts that
Cousins waived any claim under Birchfield because he failed to raise the
issue “at all stages of adjudication,” and “cannot argue that Birchfield didn’t
exist until June 23, 2016 as the claims raised in Birchfield could have been
raised by defense counsel in the case at hand.” Commonwealth Brief at 6.
We agree.
This court recently addressed the retroactive application of Birchfield
in Commonwealth v. Moyer, --- A.3d ----, 2017 WL 4348121, 2017 PA
Super 314 (Oct. 2, 2017). In Moyer, we held that a defendant was not entitled
to retroactive application of Birchfield where the defendant was sentenced
for a DUI conviction on June 21, 2016 – two days prior to the Birchfield
decision – and failed to raise Birchfield in her timely post-sentence motion
filed on July 1, 2016, in which she challenged only the sufficiency of the
evidence. We explained:
Appellant argues that the trial court erred in declining to vacate
her DUI conviction under Birchfield. As explained above, the
United States Supreme Court handed down Birchfield two days
after Appellant's sentence. Appellant never challenged the
warrantless blood draw during trial, and did not raise any issue
under Birchfield until her nunc pro tunc post-sentence motion.
In Pennsylvania, it has long been the rule that criminal
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defendants are not entitled to retroactive application of a new
constitutional rule unless they raise and preserve the issue
during trial. Commonwealth v. Newman, 99 A.3d 86, 90 (Pa.
Super. 2014) (en banc), appeal denied, 632 Pa. 693, 121 A.3d
496 (2014). The Newman Court relied on Commonwealth v.
Cabeza, 503 Pa. 228, 469 A.2d 146, 148 (1983). There, the
Supreme Court wrote:
[W]here an appellate decision overrules prior law and
announces a new principle, unless the decision specifically
declares the ruling to be prospective only, the new rule is
to be applied retroactively to cases where the issue in
question is properly preserved at all stages of
adjudication up to and including any direct appeal.
Id. (emphasis added). Instantly, Appellant failed to challenge
the warrantless blood draw at any stage of the litigation prior to
her nunc pro tunc post-sentence motion. Thus, she is not
entitled to retroactive application of Birchfield.
Commonwealth v. Moyer, 2017 WL 4348121, at *4-5, (Pa. Super. Oct. 2,
2017).
Similarly, in Commonwealth v. Napold, --- A.3d ----, 2017 WL
4105733, 2017 PA Super 296 (Sept. 15, 2017), we declined to reach the
merits of an appellant’s Birchfield-based argument, and held that for
Birchfield to apply retroactively in the appellant’s direct appeal, the issue
had to be preserved at all stages of adjudication up to and including the
direct appeal. We stated:
On appeal, Appellant sets forth one issue for our review:
“Whether the trial court erred when it considered the refusal to
submit to a blood test as substantive evidence in violation of her
constitutional rights[.]” Appellant's Brief at 3. Appellant
recognizes that she did not raise this issue in the trial court, but
argues that because Birchfield was not decided until after trial,
“the matter was not at issue at the time of trial, and [Appellant]
is entitled to the protection of the rule on appeal.” Id. at 10.
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Before we reach the merits of this issue, we must determine
whether it has been preserved for our review. It is well-settled
that “[i]ssues not raised in the lower court are waived and
cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a).
The decision in Birchfield announced a new criminal rule. When
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, 124 S.Ct.
2519, 159 L.Ed.2d 442 (2004) (citing Griffith v. Kentucky, 479
U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987)). “Case
law is clear, however, 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. Tilley, 566 Pa. 312, 780
A.2d 649, 652 (2001) (internal citations and quotation marks
omitted); see also 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.”).
Commonwealth v. Napold, 2017 WL 4105733, at *2 (Pa. Super. Sept. 15,
2017).
Instantly, the trial court convicted Cousins of DUI on June 17, 2016.
Six days later, on June 23, 2016, the United States Supreme Court issued its
decision in Birchfield. Our review of the record discloses that Cousins did
not raise the applicability of Birchfield prior to or at his sentencing on
August 18, 2016; nor did he raise it in the post-sentence motion he filed on
August 25, 2016. Cousins raised Birchfield for the first time on September
26, 2016, when he appeared for oral argument on his post-sentence motion.
At the September 26, 2016 argument, Appellant first argued that his “main
point . . . has to do with the deviation and the testimony from the
toxicologist, whereby it was learned that there was an approximate twenty
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percent deviation plus or minus regarding the blood test in this particular
case.” N.T., 9/26/16, at 3-4. Appellant then added, “although it’s not
specifically in our written motion, I would raise a Birchfield issue here, the
blood was taken and that it lacked valid consent.” Id. at 4-5.
Bound by our decisions in Moyer and Napold, we are constrained to
conclude that Cousins failed to properly preserve the Birchfield issue
because he failed to raise it “at all stages of adjudication.” Thus, the
Commonwealth is entitled to relief on its first two issues relating to
Birchfield.
In its third issue, the Commonwealth states that that the trial court
erred “in determining that the drug levels found in [Cousins’] blood/system
as a result of the chemical testing of [Cousins’] blood fell within the margin
of error thus giving rise to reasonable doubt.” Commonwealth Brief at 3.
However, the Commonwealth also “concedes the argument surrounding
margin of error” because “the trial court states that it did not grant
[Cousins’] post-sentence motion under the margin of error argument.” Id.
at 6. As noted above, the trial court specifically “found that the
Commonwealth put forth sufficient reliable evidence to sustain [Cousins’]
conviction.” Trial Court Order Pursuant to Pa.R.A.P. 1925(a), 12/16/16, at
2. Thus, despite the confused way in which the Commonwealth has
presented this issue, there is no basis on which to grant relief with respect to
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it. The Commonwealth already prevailed on this issue in the trial court and
therefore is not an aggrieved party on this third issue.
In sum, and for the aforementioned reasons, we reverse the trial
court’s November 1, 2016 order granting Cousins’ post-sentence motion,
and reinstate the June 7, 2016 conviction and August 18, 2016 judgment of
sentence. The case is remanded for proceedings consistent with this
memorandum.
Order reversed. Conviction and judgment of sentence reinstated.
Case remanded with instructions. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/1/2017
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Com. v. Cousins, J.
Combined Opinion