Commonwealth v. Giron, 1300 EDA 2016

• Court: Superior Court of Pennsylvania
• Writing for the Court: OPINION BY OLSON, J.
• Citation: 155 A.3d 635
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Mario GIRON, Appellant
• Docket Number: No. 1300 EDA 2016,1300 EDA 2016
• Decision Date: 31 January 2017

155 A.3d 635

COMMONWEALTH of Pennsylvania, Appellee
v.
Mario GIRON, Appellant

No. 1300 EDA 2016

Superior Court of Pennsylvania.

Argued November 1, 2016
FILED JANUARY 31, 2017

Joshua I. Chung, Norristown, for appellant.

Todd N. Barnes, Assistant District Attorney, Norristown, for Commonwealth, appellee.

BEFORE: BOWES, OLSON and STABILE, JJ.

OPINION BY OLSON, J.:

Appellant, Mario Giron, appeals from the judgment of sentence entered on April 15, 2016. In this case, we hold that, pursuant to Birchfield v. North Dakota , ––– U.S. ––––, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016),¹ a defendant who refuses to provide a blood sample when requested by police is not subject to the enhanced penalties provided

155 A.3d 637

in 75 Pa.C.S.A. §§ 3803 –3804. As Appellant was subjected to the enhanced penalties provided by sections 3803 and 3804 for refusing to provide a blood sample, his sentence was illegal and although we affirm his convictions, we are constrained to vacate his judgment of sentence and remand for re-sentencing.

The factual background and procedural history of this case are as follows. At approximately 1:25 a.m. on February 12, 2015, Officer Bryan Nawoschik witnessed Appellant's vehicle sideswipe a legally parked car. Officer Nawoschik initiated a traffic stop. When Appellant rolled down the vehicle window, a strong odor of alcohol emanated from the vehicle. Officer Nawoschik and Officer Brian Boyer noticed that Appellant had red, glassy eyes and his speech was slurred.

When Appellant exited the vehicle, the officers noticed that he was unsteady on his feet. At that time, Officer Nawoschik arrested Appellant for suspicion of driving under the influence of alcohol. Officer Nawoschik requested that Appellant provide a blood sample; however, Appellant refused to provide a blood sample. At the police station, Appellant was shown the May 2008 version of a DL–26 form printed in Spanish. That form also requested Appellant provide a blood sample. Appellant refused to read or sign the form.

On April 10, 2015, the Commonwealth charged Appellant via criminal information with first offense driving under the influence–general impairment ("DUI-general impairment") (with refusal),² careless driving,³ driving without a license,⁴ fleeing the scene of an accident,⁵ and public drunkenness.⁶

On April 8, 2016, the Commonwealth amended the criminal information and the parties proceeded to a non-jury trial. Appellant was convicted of second offense DUI-general impairment (with refusal), careless driving, driving without a license, and fleeing the scene of an accident. On April 15, 2016, the trial court sentenced Appellant to 90 days to 5 years' imprisonment on the second offense DUI-general impairment (with refusal) charge. This timely appeal followed.⁷

Appellant presents two issues for our review:

1. Whether the fact-finder could find every element of the crime of DUI beyond a reasonable doubt, with the evidence in the light most favorable to the verdict winner, when the arresting officers presented no physical evidence at trial other than their own testimony based on consistent communications in English with a non-English speaker who did not understand[?]

2. Whether a clear miscarriage of justice occurred when officers attempted no language accommodation, despite several options existing to them, and where video evidence is unavailable to corroborate the knowing, voluntary, and intelligent provision to [Appellant] of DL–26, and where video evidence that does exist

155 A.3d 638

does not show probable cause for the arrest[?]

Appellant's Brief at 4.⁸

Appellant's first issue challenges the sufficiency of the evidence. "Whether sufficient evidence exists to support the verdict is a question of law; our standard of review is de novo and our scope of review is plenary." Commonwealth v. Walls , 144 A.3d 926, 931 (Pa. Super. 2016) (citation omitted). "In assessing Appellant's sufficiency challenge, we must determine whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner, together with all reasonable inferences therefrom, the trier of fact could have found that the Commonwealth proved [each] element of the crime beyond a reasonable doubt." Commonwealth v. Ansell , 143 A.3d 944, 949 (Pa. Super. 2016) (citation omitted). "The evidence need not preclude every possibility of innocence and the fact-finder is free to believe all, part, or none of the evidence presented." Commonwealth v. Ford , 141 A.3d 547, 552 (Pa. Super. 2016) (citation omitted).

Appellant contends that there was insufficient evidence to convict him of DUI-general impairment because there was no physical or videotape evidence presented at trial. This argument is wholly frivolous. There is no requirement that videotape or physical evidence be presented at trial. E.g. , Commonwealth v. Dent , 837 A.2d 571, 590 (Pa. Super. 2003), appeal denied , 581 Pa. 671, 863 A.2d 1143 (2004) ; Commonwealth v. Fisher , 764 A.2d 82, 87–88 (Pa. Super. 2000), appeal denied , 566 Pa. 658, 782 A.2d 542 (2001) ; Commonwealth v. Steward , 762 A.2d 721, 722–723 (Pa. Super. 2000), appeal denied , 566 Pa. 662, 782 A.2d 545 Pa. 2001). Instead, police officers' testimony is sufficient to prove the elements of DUI-general impairment. SeeCommonwealth v. Stanley , 427 Pa.Super. 422, 629 A.2d 940, 943 (1993), citing Commonwealth v. Karch , 349 Pa.Super. 227, 502 A.2d 1359, 1361–1362 (1986). Accordingly, Appellant is not entitled to relief on his sufficiency challenge.

In his second issue, Appellant challenges the weight of the evidence. This argument is waived. "A weight of the evidence claim must be preserved either in a post-sentence motion, by a written motion before sentencing, or orally prior to sentencing." Commonwealth v. Thompson , 93 A.3d 478, 490 (Pa. Super. 2014) (internal alteration and citations omitted). In this case, Appellant did not file a post-sentence motion or a written motion prior to sentencing. Moreover, Appellant did not preserve the issue orally prior to sentencing. Accordingly, Appellant has waived his challenge to the weight of the evidence.

Finally, we sua sponte consider the legality of Appellant's sentence.⁹ SeeCommonwealth v. Mosley , 114 A.3d 1072, 1087 (Pa. Super. 2015) (citation omitted). In order to understand our illegal sentencing analysis, it is necessary to...