Case Information

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA v.

FREDERICK T. BROWN,

APPELLANT

No. EDA 2016 Appeal from the Judgment of Sentence December 29, 2015 In the Court Common Pleas Monroe County Criminal Division at No(s): CP-45-CR-0000466-2015

BEFORE: BOWES, J., DUBOW, J., FORD ELLIOTT, P.J.E. FILED APRIL 06, 2017

MEMORANDUM BY DUBOW, J.: Appellant, Frederick T. Brown, appeals from the December 29, 2015 Judgment of Sentence entered Monroe County Court of Common Pleas following his jury conviction of Driving Under the Influence: Controlled Substance-Meta bolite.1

The trial court summarized the facts as elicited at as follows: On July 22, 2014, at approximately 1:00 p.m., Trooper Andrew Depew, while routine patrol, ran Appellant's vehicle registration through in -car NCIC systenn.E21 The NCIC system indicated Appellant's vehicle registration had been suspended due to insurance being cancelled. Trooper Depew followed Appellant off interstate 75 Pa.C.S. § 3802(d)(1)(iii). NCIC system the National Crime Information Center's computerized index of criminal justice information criminal record history information, fugitives, stolen properties, missing persons.

effectuate safe traffic stop on Lower Main Street in Stroudsburg, Pennsylvania, to address the suspended registration and insurance cancellation issues.

Trooper Depew made contact with Appellant and related the reason was being stopped. Upon making contact, Trooper Depew noted was not wearing his seat belt. Trooper Depew also observed the odor of marijuana emanating from Appellant's person and that eyes were red, glossy, and bloodshot. Under suspicion of DUI, Trooper Depew administered three field sobriety tests: the Horizontal Gaze Nystagmus Test ("HGN Test"), Rhomberg Balance Test, and Lack of Convergence Test.

The Commonwealth elicited some specifics regarding the HG[N] and other field sobriety tests, however, Trooper Depew did not testify the results. At trial, defense counsel[] did object the Commonwealth's questions on field sobriety tests and even mentioned some these tests cross examination ("Now, when you talk about the HGN, the Walk -and -Turn and One -Leg Stand, those tests were actually not designed to test for a controlled substance intoxication; correct?"). Based on his observations, Trooper Depew placed Appellant under arrest for suspicion of DUI and requested Appellant submit blood draw. signed an O'Connell Warnings form [DL -26] and submitted blood draw at the DUI Center. results of the blood test indicate had 6.4 nanograms per milliliter Delta -9 Carboxy THC, metabolite THC, or marijuana, system. Based on above events, charged with various DUI crimes Vehicle Code Violations.[3]

Trial Ct. Op., 6/17/16, at 1-2 (footnote original omitted, citations to Notes of Testimony omitted, paragraph breaks added). Prior to trial, the Commonwealth dropped Counts of the Criminal

Information, so that the jury only considered Count

On December 4, 2015, following a one -day trial, the jury convicted Appellant of the above charge.4 The trial court also convicted Appellant two summary offenses: Vehicle Registration Suspended and Failure to Use court ordered Safety Belt.5 the preparation a Pre -Sentence Investigation Report, and on December 29, 2015, the court sentenced to standard -range term 18 to 60 months' incarceration, $1,000.00 fine, an 18 -month driver's license suspension.

On January 7, 2016, Appellant's counsel filed Motion for Extension of Time to File Post -Sentence Motion, which court granted on January 8, 2016.6 On March 8, 2016, filed Post -Sentence Motion, alleging that verdict was against the weight evidence and/or unsupported by sufficient evidence, court erred allowing the Commonwealth present testimony regarding Appellant's failure of field sobriety tests, claiming sentence excessive. On April 12, 2016, the trial court denied Motion. filed timely ^[4] At the time trial, Noelle Wilkinson, Esq. Public Defender's Office represented Appellant. Following trial, court appointed current counsel Brian S. Gaglione, Esq. represent Appellant.

[5] 75 Pa.C.S. § 1371 (a) and 75 Pa.C.S. § 4581(a)(2)(ii), respectively. On January 2016, the court entered an Order extending the time for file Post -Sentence Motion until March 8, 2016. This Order also extended the time for Appellant file Notice of Appeal until "within days from the denial of any Post -Sentencing Motions may be filed in these matters days from March 8, 2016[,] if no Post-[S]entencing Motions are filed." Order, 1/8/16.

Notice of Appeal.' Both Appellant trial court complied with Pa.R.A.P. 1925. raises three issues appeal:

1. Whether the Mower [c]ourt abused its discretion at the time of [s]entencing matter[?] 2. Whether the lower [c]ourt erred by allowing the prosecutor elicit information relative to field sobriety tests, including the HGN test[?]

3. Whether the verdict against the sufficiency of the evidence, particularly light U.S. Supreme Court's ruling Birchfield [v. North Dakota, 136 S.Ct. 2160 (2016)?]

Appellant's Brief at

In his first issue, claims the court abused its discretion by imposing an allegedly excessive sentence. A claim of this nature challenges the discretionary of Appellant's aspects sentence. Commonwealth v. Ahmad, 961 A.2d (Pa. Super. (citation omitted). "must therefore petition for permission to appeal those issues, right to pursue claim not absolute." Commonwealth note that, generally, trial court without authority extend the time file Post -Sentence Motion Notice Appeal, the Superior Court may not enlarge the time for filing Notice Appeal. See Pa.R.A.P. 105(b); v. Valentine, 928 A.2d 346, 349 (Pa. Super. 2007). However, where trial court misleads defendant about an appeal period, this Court will consider an untimely direct appeal. Commonwealth Coolbaugh, 770 A.2d 788, 2001). In the instant matter, notwithstanding did file his Notice Appeal within 30 days Judgment of Sentence, because trial court erroneously extended the time for Appellant file appeal, will consider it. v. Finnecy, A.3d 1028, 1031 (Pa. Super. 2016) (citation and internal quotation marks omitted). In addition, prior reaching merits of a discretionary sentencing issue: conduct a four-part analysis to determine: (1) whether

appellant has filed a timely [N]otice of [A]ppeal, see Pa.R.A.P. and 903; (2) whether issue was properly preserved at sentencing or in a [M]otion [R]econsider [M]odify [S]entence, see [Pa.R.Crim.P. 720]; (3) and whether appellant's [B]rief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there a substantial question the sentence appealed from appropriate under the Sentencing Code, 42 Pa.C.S.[] § 9781(b). Evans, 901 A.2d (citations

omitted).

In the instant case, filed timely Notice of Appeal a timely Post -Sentence Motion. also included separate Pa.R.A.P. 2119(f) Statement his appellate Brief. As whether Appellant has presented substantial question, must examine the specific sentencing issue raised by Appellant.

In his Pa.R.A.P. 2119(f) Statement, Appellant alleges "the lower court abused its discretion by sentencing the standard range despite lack competent, credible evidence posed danger anyone while driving vehicle with such scant amount metabolite marijuana blood. Given lack evidence, the sentence imposed 18-16 months, shocks conscience constituted manifest abuse of discretion." Brief

5

It is well settled that: determination what constitutes a substantial

question must be evaluated a case -by -case basis. A appellant substantial question exists only when advances a colorable argument that the sentencing judge's actions were either: (1) inconsistent with a specific provision of the Sentencing Code; (2) contrary to the fundamental norms which underlie the sentencing process. Commonwealth Moury, 992 A.2d 162, (Pa. (citation, quotation marks, quotation omitted).

Ordinarily, absent showing of manifest injustice, a claim excessiveness does not raise substantial question that justifies review when the sentence within statutory limits. See v. Mouzon, 812 A.2d 624-25 2002). Similarly, "[a]n allegation that the sentencing court failed to consider certain mitigating factors generally does not necessarily raise substantial question." Moury, 992 A.2d at conclude challenge excessiveness his sentence does not raise substantial question permitting our review. Simply, Appellant has not framed preserved way that suggests the Appellant's sentence, which concedes was within the standard range, manifestly unreasonable. Moreover, extent that attempting claim the court did not adequately consider mitigating fact level intoxication purportedly not being danger public safety, such does present substantial question. Accordingly, claim fails.

In next issue, challenges the admission of testimony regarding Appellant's performance on field sobriety tests, including the HGN Test. Appellant's Brief at 14-15. Appellant claims that results of field sobriety testing is relevant to prove whether there evidence of drugs or a metabolite of drugs in blood. Id. review a trial court's decision admit evidence with the following

in mind: admission of evidence is a matter vested within the

sound discretion trial court, and such a decision shall be reversed only upon showing that trial court abused its discretion. In determining whether evidence should be admitted, the court must weigh the relevant probative value of the evidence against the prejudicial impact of the evidence. Evidence relevant if it logically tends establish material fact case tends support reasonable inference regarding material fact. Although court may find evidence relevant, the court may nevertheless conclude evidence is inadmissible on account of its prejudicial impact. Commonwealth v. Antidormi, A.3d 736, 749 (Pa. Super. 2014) (citation omitted).

Where defendant claims error the admission of evidence, must have made timely objection, stating the specific ground of objection. Commonwealth Willis, 552 A.2d 682, (Pa. 1988); see also Pa.R.E. 103(a)(1). Defense counsel's failure object the admission of evidence results waiver appeal. v. Benson, 421 A.2d 1980).

Here, noted by the trial court, Appellant's trial counsel, Attorney Wilkinson, "did not object to the Commonwealth's questions regarding the HGN Test, or any field sobriety test. Moreover, Attorney Wilkinson questioned Trooper Depew specifically about the HGN Test during cross[-] examination." Trial Ct. Op. at 6 (citations to the Notes Testimony Kane, A.3d (citation omitted).

The jury convicted of Driving Under the Influence, 75 Pa.C.S. § 3802(d)(1)(iii). That statute provides, relevant part, as follows:

(d) Controlled substances. --An individual may not drive, operate or be actual physical control of the movement of vehicle under any of the following circumstances:

(1) There is in the individual's blood any amount a: [Schedule I, II, III

(iii) metabolite a controlled] substance.

75 Pa.C.S. § 3802(d)(1)(iii).

As prefatory matter, we note Appellant, relying on Birchfield, avers this Court should vacate his Judgment of Sentence sufficiency of the evidence grounds, remand allow Appellant the opportunity to Id. challenge the admissibility of the result of his blood test. Although Appellant presents this issue as challenge the sufficiency of the evidence, it clear the gravamen of argument challenge trial court's admission of blood test results, absence of which, claims, incidentally, the Commonwealth could have sustained conviction. Thus, extent Appellant purports challenge the sufficiency of the evidence, find waived, failed to

_9

develop an argument support of this claim.9 See Pa.R.A.P. 2119; Perez, A.3d 829, 838 ("[T]o the extent appellant's claims fail contain developed argument or citation supporting authorities the record, they are waived[.]")

Moreover, find Appellant's reliance on Birchfield misplaced. In Birchfield, the United States Supreme Court concluded that because "the taking of blood sample" is search within the meaning of the Fourth Amendment the United States Constitution, absent an applicable exception, police officers may not compel the taking blood sample of a defendant without search warrant. Birchfield, 136 S.Ct. at 2185. One exception warrant requirement occurs where person voluntarily consents to the search. Id. at 2185.

In the instant matter, did not challenge the admissibility blood test result at any time; did not file Motion to Suppress, and did raise of the voluntariness consent at trial his Post -Sentence Motion. Accordingly, because raising this issue for first time appeal, it waived. See Willis, supra at 690.

Judgment of Sentence affirmed. Moreover, our review record indicates the Commonwealth met its burden of proving every element charge beyond reasonable doubt where Trooper Depew testified at driving motor vehicle (N.T., 12/4/15, at 22), the Commonwealth's expert witness testified nanograms per milliliter Delta -0 Carboxy THC in blood sample exceeded the maximum allowable legal limit (N.T. 27).

- -

Judgment Entered.

J seph D. Seletyn,

Prothonotary

Date: 4/6/2017 omitted). Our review of the Notes Testimony confirms that Appellant's trial counsel failed to object to admission of this evidence. Accordingly, has waived issue.8 In last issue, claims that the Commonwealth's evidence was insufficient support conviction, particularly light holding Birchfield, supra. Appellant's Brief 15. entitled relief. When reviewing sufficiency of evidence challenges: [O]ur standard whether, viewing all the evidence and reasonable inferences light most favorable the Commonwealth, factfinder reasonably could have determined that each element of the crime was established beyond reasonable doubt. This Court considers all the evidence admitted, without regard any claim that some of the evidence was wrongly allowed. do not weigh the evidence or make credibility determinations. Moreover, any doubts concerning defendant's guilt were be resolved by factfinder unless the evidence so weak inconclusive that no probability of fact could be drawn from evidence.

[8] To extent within this attempts to raise claim ineffective assistance of counsel, note claims are properly raised collateral review. See Holmes, A.3d 562, 2013).