Com. v. Spease

• Decision Date: 13 November 2006
• Citation: 911 A.2d 952
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Lorraine K. SPEASE, Appellant.
• Court: Pennsylvania Superior Court

911 A.2d 952

COMMONWEALTH of Pennsylvania, Appellee v. Lorraine K. SPEASE, Appellant.

Superior Court of Pennsylvania.

Submitted September 25, 2006.

Filed November 13, 2006.

COPYRIGHT MATERIAL OMITTED

Paul R. Wagner, Harrisburg, for appellant.

Daniel W. Stern, Asst. Dist. Atty., New Bloomfield, for Com., appellee.

BEFORE: MUSMANNO, BENDER and TAMILIA, JJ.

OPINION BY TAMILIA, J.:

¶ 1 Lorraine Spease appeals from the April 6, 2006 judgment of sentence of ninety (90) days to eighteen (18) months imprisonment, payment of a $1,500 fine plus costs, and an eighteen (18) month license suspension, imposed following a bench trial in which the court convicted her of driving under the influence (DUI) of alcohol or controlled substance.¹

[On June 15, 2004,] the Defendant, Lorraine Spease ("Spease"), was involved in a minor accident with a parked vehicle, in Marysville Borough, Perry County, PA. She was detained at the scene by the victim's boyfriend. When the officer arrived, the officer observed that the defendant's eyes were bloodshot and glassy, and that she had a difficult time focusing her eyes. Further, the officer detected an odor of alcohol on the defendant. The defendant was also having a difficult time standing. The officer advised her of her implied consent rights and she consented to a blood test. At the time of testing her blood alcohol content measured 0.257%.

Trial Court Opinion, Rehkamp, J., 6/21/06, at 1.

¶ 2 Initially, on December 2, 2004, appellant pled guilty to 75 Pa.C.S.A. § 3802, Driving under influence of alcohol or controlled substance, (a) General impairment, (1), and (c) Highest rate of alcohol. Record, No. 8. She petitioned to withdraw her guilty plea on December 15, 2004, indicating that she wished to challenge the constitutionality of the new DUI law, 75 Pa.C.S.A. 3802, et seq. Record, No. 11. On December 16, 2004, the court granted her petition and her plea was withdrawn. Record, No. 12. Although the court indicated that appellant filed an Omnibus Pre-Trial Motion in which she raised various constitutional challenges to the new DUI law, see Trial Court Opinion at 1, no such motion appears in the record. The record does contain a brief, dated January 12, 2005, submitted on appellant's behalf, in which various constitutional challenges are raised. See Record, No. A1. On July 6, 2005, the court denied appellant's constitutional challenges. Record, No. 21. Appellant pled not guilty, waived her right to a jury trial, and proceeded to a non-jury trial on February 14, 2006, after which the court convicted her of DUI pursuant to Section 3802(c) only.² Record, Nos. 23, 29. On April 6, 2006, she was sentenced as indicated above. Following her appeal to this Court, the trial court ordered appellant to file a statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925, Opinion in Support of Order, (b) Direction to file statement of matters complained of, and appellant complied. Record, Nos. 34, 35.

¶ 3 In this timely appeal, appellant raises the following questions for our review:

A. Should Act 24 of 2003 be analyzed under the strict scrutiny test as effecting [sic] a fundamental right?

B. Does the statute violate the 5th Amendment of the United State Constitution if it is overly broad in its application to constitutionally protected activity?

C. Does the Act 24 of 2003 violate the due process guarantees in that it permits and promotes arbitrary and discriminatory enforcement by police officers?

D. Is Act 24 of 2003 arbitrary in its application and therefore violative of the due process guarantees of the Constitution?

E. Does Act 24 of 2003 violate the defendant's 6th amendment right to counsel at a time of request for chemical test or refusal to take such test?

F. Does the Act violate the defendant's 5th Amendment right to remain silent?

G. Does Act 24 of 2003 violate the equal protection clause by creating classifications that do not bear a rational relationship to a legitimate state interest?

H. Does Act 24 of 2003 violate the due process clause of the federal and state constitutions and the notice and trial guarantees of the 6th Amendment by increasing the penalty for a crime without charging the element that increases the penalty and without requiring proof of that element?

I. Does Act 24 of 2003, as it amends § 6308 of the Motor Vehicle Code, violate Pennsylvania Constitution, Article I, § 8 and § 4?

J. Are the penalty provisions of Act 24 of 2003 ambiguous and inconsistent with other provisions of the Act so as to fail to provide notice to the accused that his contemplated conduct is unlawful?

Appellant's brief at 5-7.

¶ 4 The questions raised by appellant are all questions of law over which this Court exercises plenary review. See Commonwealth v. McCoy, 895 A.2d 18 (Pa.Super.2006) citing Commonwealth v. Atwell, 785 A.2d 123, 125 (Pa.Super.2001) (stating that we exercise plenary review over questions of law, including challenges to the constitutionality of statutes.).

¶ 5 Citing Pa.R.Crim.P. 575, Motions and answers, as support, the Commonwealth asserts appellant has waived all issues for her failure to file any motion or petition challenging the constitutionality of the Act. Commonwealth's brief at 11. Rule 575 gives the court some discretion as it provides "All motions shall be in writing, except as permitted by the court or when made in open court during a trial or hearing." Pa.R.Crim.P. 575(A), Motions, (1) (emphasis supplied). Additionally, although there is no specific document in the record titled a motion or petition, appellant did file a brief in January 2005, in which she raised the constitutional challenges and requested relief. See Record, No. A1. On January 20, 2005, the Commonwealth requested additional time to respond to appellant's challenges. Record, No. 13. The court granted the request and the Commonwealth filed a responsive brief on January 31, 2005. Record, Nos. 14, 16. Not only did the court address appellant's challenges by denying them on July 7, 2005, Record, No. 21, but appellant complied when asked to file a Rule 1925(b) statement, and again raised her constitutional challenges. Record, Nos. 34, 35. The court then authored an Opinion addressing the issues. Record, No. 3.

¶ 6 In sum, we find the issues are not waived for the following reasons. The court has discretion under Rule 575. Pre-trial, appellant raised all constitutional challenges that she now raises before this Court; thus, the spirit of Rule 575, which provides that a failure to raise a ground for relief results in waiver of those grounds, is not violated. The Commonwealth was able to respond to the challenges. Appellant again raised the constitutional challenges in a 1925(b) statement, and the court authored an Opinion addressing her complaints; thus our review of the issues is unhampered.

¶ 7 Proceeding now to the merits of appellant's challenges, she first argues that Act 24 of 2003 should be analyzed under the strict scrutiny test. Where statutes are challenged as violating the constitutional protections to equal protection and/or due process, a court must first determine the appropriate degree of scrutiny which must be applied. Commonwealth v. Burnsworth, 543 Pa. 18, 29, 669 A.2d 883, 889 (1995); Commonwealth v. Etheredge, 794 A.2d 391, 396-397 (Pa.Super.2002). Where a case "does not involve a fundamental right or suspect class and does not involve an important right or sensitive classification, our inquiry rests upon whether there exists a rational basis for the classification." See Commonwealth v. McCoy, 895 A.2d 18, 34 (Pa.Super.2006).

¶ 8 Appellant does not indicate which "right" is at issue in this matter which justifies a level of scrutiny higher than the rational basis test. As the trial court aptly noted, driving is a privilege, not a fundamental right. Trial Court Opinion at 3, citing Etheredge at 396-397; see also Commonwealth v. Jaggers, 903 A.2d 33, 38 (Pa.Super.2006); McCoy at 33, quoting Commonwealth v. Mikulan, 504 Pa. 244, 254, 470 A.2d 1339, 1344 (1983) (emphasis in original) (stating "there is no constitutional, statutory or common law right to the consumption of any quantity of alcohol before driving").

¶ 9 Appellant also fails to indicate in her argument for this issue which classification the statute makes which justifies an elevated level of scrutiny. See Commonwealth v. Barud, 545 Pa. 297, 681 A.2d 162 n. 5 (1996) (stating that the threshold question in an equal protection analysis is whether the statute creates a classification and since the appellant failed to demonstrate such a classification, no equal protection analysis was warranted). Elsewhere in her brief, however, appellant makes various arguments that the Act creates different classifications of drivers who violate section 3802(a)(1) based upon whether they are involved in an automobile accident and who caused the accident, the number of prior offenses, and whether they refused a chemical testing. Appellant's brief at 30-32. Certainly none of these alleged classifications are suspect or even sensitive. Thus, we find a rational basis test is applicable to appellant's due process and equal protection challenges.³

¶ 10 Appellant next contends section 3802 is unconstitutionally overbroad because, pursuant to it, a person who drives sober, but who, days earlier, imbibed a sufficient amount of alcohol such that he was incapable of safe driving, potentially could be punished. In McCoy, supra at 30-33, we rejected this same interpretation of the statutory language as we found it leads to an absurd and unreasonable result, which we presume the legislature did not intend.

¶ 11 Appellant also contends section 3802(c) potentially punishes those who may not have achieved the prohibited blood alcohol content (BAC) at the time of driving but reached those levels within two hours after driving.⁴ In other words, section 3802(c) does not require proof that the person's BAC was above a...