Commonwealth v. Moyer, No. 1663 MDA 2016

• Court: Pennsylvania Superior Court
• Writing for the Court: OPINION BY STABILE, J.
• Citation: 171 A.3d 849
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Tina Maria MOYER, Appellant
• Docket Number: No. 1663 MDA 2016
• Decision Date: 02 October 2017

171 A.3d 849

COMMONWEALTH of Pennsylvania, Appellee
v.
Tina Maria MOYER, Appellant

No. 1663 MDA 2016

Superior Court of Pennsylvania.

Submitted May 15, 2017
Filed October 02, 2017

Sean A. Mott, Public Defender, Gettysburg, for appellant.

Daniel S. Topper, Assistant District Attorney, Gettysburg, for Commonwealth, appellee.

BEFORE: STABILE, J., MOULTON, J., and MUSMANNO, J.

OPINION BY STABILE, J.:

Appellant, Tina Marie Moyer, appeals from the June 21, 2016 judgment of sentence imposing an aggregate 36 to 108 months of incarceration for homicide by vehicle ( 75 Pa.C.S.A. § 3732 ), recklessly endangering another person ("REAP") ( 18 Pa.C.S.A. § 2705 ), and driving under the

171 A.3d 851

influence of a controlled substance ( 75 Pa.C.S.A. § 3802 ). We affirm.

The trial court summarized the pertinent facts in its Pa.R.A.P. 1925(a) opinion:

Here, in [the] light most favorable to the Commonwealth as verdict winner, the evidence at trial showed the following: Appellant was driving her vehicle on Kindig Road, ran a stop sign at the intersection of Kindig Road and Route 97, and pulled out into oncoming traffic on a busy road with a speed limit of thirty-five (35) miles per hour. Appellant's line of sight going in the southbound direction was completely obstructed by a building as Appellant approached the stop sign. Rather than inch up past the stop sign to look for oncoming traffic, Appellant never stopped and proceeded into the intersection, traveling 12 miles per hour, pulling out directly in front of decedent's northbound box truck. The box truck crashed into Appellant's car, crossed the double yellow line, and then crashed into a tow truck driving southbound on Route 97. The evidence also showed that Appellant was familiar with her route of travel, the placement of the stop sign, and the nature of the intersecting road.

Trial Court Opinion, 11/29/16, at 5.

At the conclusion of Appellant's trial, a jury found her guilty of homicide by vehicle and REAP, but not guilty of homicide by vehicle while driving under the influence ( 75 Pa.C.S.A. § 3735 ). The trial court found Appellant guilty of DUI and various summary traffic offenses. On June 21, 2016, the trial court sentenced Appellant to 27 to 84 months of incarceration for homicide by vehicle, a consecutive 9 to 24 months for REAP, and a concurrent 3 to six months for DUI.

On June 23, 2016, two days after Appellant's sentence, the United States Supreme Court handed down its decision in Birchfield v. North Dakota, –––U.S. ––––, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016), wherein the Court held that criminalization of a suspect's refusal to consent to a blood test violates the Fourth Amendment to the United States Constitution. Instantly, Appellant claims that police provided her with Pennsylvania form DL–26,¹ which states that refusal to consent to a blood draw would result in enhanced criminal penalties. Following Birchfield, this Court has held that such penalties are constitutionally invalid, and that consent obtained under threat of increased penalties is constitutionally suspect. Commonwealth v. Giron, 155 A.3d 635 (Pa. Super. 2017) (vacating a sentence that included increased criminal penalties based on the defendant's refusal to consent to a blood test); Commonwealth v. Evans, 153 A.3d 323 (Pa. Super. 2016) (remanding for evaluation of the validity of the defendant's consent). The precise circumstances of Appellant's consent were not the subject of a hearing and therefore are not of record. The blood draw revealed trace amounts of Alprazolam and THC.²

On July 1, 2016, Appellant filed a timely post-sentence motion arguing that the Commonwealth produced insufficient evidence to support her homicide by vehicle conviction. The motion did not address Birchfield. The trial court denied Appellant's motion on July 11, 2016. On July 13, 2016, according to the certified docket, Appellant filed an untimely second post-sentence motion, titled "Motion to Vacate Sentence,"

171 A.3d 852

asking the trial court to vacate her DUI conviction under Birchfield. On August 10, 2016, the trial court entered an order accepting Appellant's July 13, 2016 motion as a nunc pro tunc post-sentence motion. Because the trial court's August 10, 2016 order fell within 30 days of its July 11, 2016 order denying Appellant's original post-sentence motion, the trial court retained jurisdiction and the appeal period was tolled. Commonwealth v. Dreves, 839 A.2d 1122 (Pa. Super. 2003) (en banc). The trial court denied Appellant's nunc pro tunc motion on September 7, 2016, concluding that she was not entitled to retroactive application of Birchfield because she did not preserve a challenge to the warrantless blood draw during trial. Appellant filed this timely appeal on October 6, 2016.

Appellant challenges the sufficiency of the evidence in support of her homicide by vehicle conviction and the legality of her DUI conviction in light of Birchfield. We will consider these issues in turn. The following standard governs this Court's review of a sufficiency of the evidence challenge:

When evaluating a sufficiency claim, our standard is whether, viewing all the evidence and 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.

Commonwealth v. Kane, 10 A.3d 327, 332 (Pa. Super. 2010), appeal denied, 612 Pa. 689, 29 A.3d 796 (2011).

Section 3732 of the Motor Vehicle Code defines homicide by vehicle:

Any person who recklessly or with gross negligence causes the death of another person while engaged in the violation of any law of this Commonwealth or municipal ordinance applying to the operation or use of a vehicle or to the regulation of traffic except section 3802 (relating to driving under influence of alcohol or controlled substance) is guilty of homicide by vehicle, a felony of the third degree, when the violation is the cause of death.

75 Pa.C.S.A. § 3732(a).

The Crimes Code defines criminal recklessness as follows:

A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and

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