Commonwealth v. Hays, 36 MAP 2018

Decision Date31 October 2019
Docket NumberNo. 36 MAP 2018,36 MAP 2018
Citation218 A.3d 1260
Parties COMMONWEALTH of Pennsylvania, Appellee v. Kirk Jacob HAYS, Appellant
CourtPennsylvania Supreme Court


We granted allocatur in this matter to determine whether Birchfield v. North Dakota , ––– U.S. ––––, 136 S. Ct. 2160, 195 L.Ed.2d 560 (2016), applies to all cases not yet final when the decision was rendered.1 Integral to this determination is the extent to which issues implicated by Birchfield must have been preserved in prior proceedings.

The underlying facts of this case follow. On April 11, 2014, Pennsylvania State Police Troopers Adam Kirk and Ryan Golla conducted a traffic stop after observing Appellant fail to use his right turn signal and then twice cross over the white fog lines on the roadway. Upon interaction with Appellant, Trooper Kirk smelled alcohol and suspected Appellant was driving under the influence of alcohol. Following two failed field sobriety tests, Appellant was taken into custody and transported to the Williamsport DUI Center. At the DUI Center, Matthew McCormick, an officer with the Old Lycoming Police Department, read Appellant the Pennsylvania Department of Transportation's DL-26 form,2 and Appellant agreed to submit to a blood alcohol content (BAC) test and acquiesced to a blood draw. The sample of Appellant's blood was taken and submitted for chemical testing, which showed Appellant's BAC to be 0.192. Appellant was charged with three summary offenses and two counts of DUI: Count 1, general impairment pursuant to 75 Pa.C.S. § 3802(a)(1), and Count 2, driving under the influence, highest rate of alcohol, 75 Pa.C.S. § 3802(c).3

On January 21, 2015, Appellant filed an omnibus pre-trial motion to suppress all evidence resulting from the traffic stop. Omnibus Pre-trial Motion, 1/21/15, at 1. Appellant averred Trooper Kirk lacked probable cause to stop his vehicle. As a consequence, Appellant argued that all blood tests, field sobriety tests, portable breath tests, statements of all police officers witnessing the traffic stop, and all statements by Appellant resulting from the illegal stop should be suppressed. Id. at 4. Appellant did not contend his consent to the blood draw at the Williamsport DUI Center was coerced. A hearing was held, and on May 26, 2015, the trial court denied Appellant's motion.

Appellant's jury trial was held on June 22, 2016. Pertinent to our analysis, we note that, during deliberations, the jury submitted a written question asking "can blood alcohol level on Count 2 be used to determine the second part of Count 1?" N.T., 6/22/16, at 128. The court called the jury back into the courtroom and informed the jury that "[g]enerally the answer is yes. By part two, I assume that you meant proving that they drove while in control of the vehicle when they weren't incapable [sic] of safe driving." Id. at 129. The jury found Appellant guilty of both counts of DUI, and the trial court found Appellant guilty of the summary offense of failing to give an appropriate signal, but not guilty of the remaining two summary counts. Sentencing was deferred pending a drug and alcohol assessment. On June 23, 2016, the day after Appellant's trial concluded, the United States Supreme Court decided Birchfield .

The trial court held Appellant's sentencing hearing on August 23, 2016. At sentencing, the following exchange took place.

[The Court]: Have you and the DA's office conferred at all about the situation? I mean, I would propose to go ahead and sentence under the Count 1 and - -
[Defense Counsel]: That is - -
[The Court]: Count 2 goes by the waste side [sic], is the long and short - -
[Defense Counsel]: That's the agreement we reached, yes.
[Defense Counsel]: I intend on asking for bail pending appeal. I don't know if Your Honor wants to set a report date and file a paper motion or if Your Honor would like to address that now. The issues would be, one, the suppression ruling, and then two, in light of Birchfield , while it makes the BAC count go away, I think it creates a weight issue as to the general impairment charge and especially because I think the jury came back with a question twice can they consider the blood alcohol content in determining - -
[The Court]: They do and I do recall.

N.T., 8/23/16, at 2, 5. Accordingly, the trial court sentenced Appellant only on Count 1, DUI: general impairment and the summary offense. Appellant received a sentence of five days to six months' incarceration, plus fines, fees, community service, counseling, and alcohol highway safety driving school.

Appellant filed a post-sentence motion on September 1, 2016, alleging he was entitled to a new trial because Birchfield held "that motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense." Post-Sentence Motion, 9/1/16, at ¶ 8 (quoting Birchfield , 136 S. Ct. at 2186 ). Appellant noted that Birchfield included a consolidated case of Beylund v. Grant Levi, Dir., North Dakota Dept. of Trans. In that case, the Supreme Court remanded the matter for a new trial, holding, "[b]ecause voluntariness of consent to a search must be ‘determined from the totality of all the circumstances,’ we leave it to the state court on remand to reevaluate Beylund's consent given the inaccuracy of the officer's advisory." Post-Sentence Motion, 9/1/16, at ¶ 10 (citing Birchfield , 136 S. Ct. at 2186 ). Appellant further noted that because his trial was held on June 22, 2016, and Birchfield was not decided until June 23, 2016, defense counsel could not have raised a challenge premised on the holding of Birchfield prior to trial. Finally, Appellant raised the claim he noted at sentencing, that the verdict was against the weight of the evidence because the jury based its finding of guilt on Count 1 on the inadmissible BAC evidence.

The Commonwealth filed an answer, asserting Appellant waived any challenge to the voluntariness of his consent by failing to raise the issue in his omnibus pre-trial motion. The Commonwealth conceded Appellant's case was not yet final when Birchfield was decided and that Appellant first raised his Birchfield issue in his timely filed post-sentence motion.4 However, the Commonwealth argued that retroactivity only applies in cases where the question is properly preserved at all stages. Commonwealth's Answer, 10/4/16, at ¶ 6 (citing Commonwealth v. Cabeza , 503 Pa. 228, 469 A.2d 146, 148 (1983) ("[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.")).

On October 14, 2016, the trial court granted Appellant's post-sentence motion and awarded Appellant a new trial. In granting Appellant's motion, the trial court noted its disagreement with the Commonwealth's assertion that Cabeza should apply, concluding Cabeza "was not a constitutional case or a case of constitutional rights." Trial Court Order, 10/31/16, at 1. Rather, the trial court found persuasive Commonwealth v. Marshall , 824 A.2d 323 (Pa. Super. 2003), which "held that inadmissible preliminary breath tests prejudiced the defendant in a general impairment case and the Superior Court ordered a new trial." Trial Court Order, 10/31/16, at 1-2. Accordingly, the trial court found that Appellant was "similarly prejudiced by the unconstitutional BAC evidence in this case and a new trial is therefore required." Id. at 2.

The Commonwealth timely appealed, averring (1) the trial court erred in granting Appellant's post-sentence motion because Appellant failed to properly preserve the suppression claim in a pre-trial motion, and (2) Birchfield created a new constitutional right, as opposed to a new constitutional rule. In its Rule 1925(a) opinion, the trial court suggested that the Commonwealth, and not Appellant, had waived the preservation issue when the Commonwealth agreed at sentencing that no sentence should be imposed on Count 2 in light of Birchfield . Trial Court Opinion, 1/19/17, at 5.

In a unanimous unpublished decision, a three-judge panel of the Superior Court vacated and reversed. Commonwealth v. Hays , No. 1787 MDA 2016, 2018 WL 481895 (Pa. Super. Jan. 19, 2018) (unpublished memorandum). The court held that because Appellant "did not raise any claim at, or before, trial that his consent to the blood draw was involuntary, the trial court erred in granting [Appellant]'s post-sentence motion." Id. at 5-6. The court cited its prior decision in Commonwealth v. Moyer , 171 A.3d 849 (Pa. Super. 2017), wherein it affirmed a trial court order denying a post-sentence motion to vacate and remand for a new trial on the basis Moyer's claim was waived for failure to preserve it pursuant to Cabeza . Id. at 6. Appellant had argued a new trial was warranted because his consent was involuntary under Birchfield . Id. The Moyer court held "[i]n Pennsylvania, it has long been the rule that criminal defendants are not entitled to retroactive application of a new constitutional rule unless they raise and preserve the issue during trial." Id. at 7 (citing Moyer , 171 A.3d at 855 ). Accordingly, in the instant case, the Superior Court held, because Appellant failed to challenge his consent to the warrantless blood draw at any stage of the litigation prior to his post-sentence motion, he was not entitled to retroactive application of Birchfield . Id. at 7.5

In this appeal, Appellant continues to pursue the underlying claim, and argues that Birchfield should apply to all cases that were not yet final when Birchfield was decided. Concisely, Appellant argues that his judgment of sentence is not yet final, Birchfield created a new rule, and he is entitled to the benefit of that rule. Appellant's Brief at 18. Appellant argues, "[i]n Pennsylvania, [u]nder the Te...

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