Com. v. Lipchik, J. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMIE R. LIPCHIK
Appellant No. 556 WDA 2016
Appeal from the Judgment of Sentence April 1, 2016
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0002184-2015
BEFORE: MOULTON, J., RANSOM, J., and PLATT, J.*
MEMORANDUM BY MOULTON, J.: FILED: OCTOBER 24, 2017
Jamie R. Lipchik appeals from the April 1, 2016 judgment of sentence
entered in the Erie County Court of Common Pleas following his jury trial
conviction for driving under the influence of alcohol–general impairment
(“DUI”), 75 Pa.C.S. § 3802(a)(1).1 We vacate the judgment of sentence and
remand.
The trial court set forth the following factual history:
On February 15, 2015, at approximately 1:15 a.m.,
Patrolman Herman Lucas of the Millcreek Police
Department responded to a reported fight. Lucas arrived
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*
Retired Senior Judge assigned to the Superior Court.
1
The trial court further found Lipchik guilty of the summary offenses
of driving while operating privilege is suspended or revoked and general
lighting requirements. 75 Pa.C.S. §§ 1543(a) and 4303(a), respectively.
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on the scene and observed [Lipchik] drive away at a high
rate of speed and, at one point, spin in a complete one–
eighty. Lucas followed [Lipchik] until he pulled into a
driveway. After both exited their vehicles, Lucas detected
a strong odor of alcoholic beverage emanating from
[Lipchik]. [Lipchik] also had bloodshot, glassy eyes and
slurred speech.
Based on the poor weather, Patrolman Lucas
transported [Lipchik] to Millcreek Community Hospital to
perform field sobriety tests. While there, [Lipchik] refused
to complete the field sobriety tests and also refused a
blood test.
[Lipchik] was found guilty of the aforementioned
offenses. [Lipchik] was sentenced on April 1, 2016, to a
term of 1 to 5 years’ imprisonment. [Lipchik] did not file a
post-sentence motion.
1925(a) Op. at 1-2 (citations to record omitted). On April 15, 2016, Lipchik
filed a timely notice of appeal.
Lipchik raises the following issues on appeal:
A. Whether the trial court committed an abuse of
discretion and/or error of law when it denied, in part,
[Lipschik’s motion] to suppress certain statements made
by [Lipchik] that were made during the time of arrest and
in response to questions meant to elicit an incriminating
response and without being properly notified of his rights
under Miranda.[2]
B. Whether the trial court committed an abuse of
discretion and/or error of law when it denied the motion
for mistrial after statements made by the court, sua
sponte, during the cross-examination of the arresting
police, were prejudicial towards [Lipchik].
Lipchik’s Br. at 3 (full capitalization and suggested answers omitted).
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2
Miranda v. Arizona, 384 U.S. 436 (1966).
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We first address Lipchik’s claim that the trial court erred in denying his
motion for a mistrial. He argues that, during cross-examination of Officer
Lucas and again at the end of the first day of trial, the trial court incorrectly
informed the jury that Lipchik did not have a right to refuse the blood test
and that Lipchik’s refusal was “wrongful.” According to Lipchik, these
statements improperly prejudiced the jury and required that the trial court
grant his motion for a mistrial.
Our standard of review for an order denying a motion for a mistrial is
as follows:
In criminal trials, declaration of a mistrial serves to
eliminate the negative effect wrought upon a defendant
when prejudicial elements are injected into the case or
otherwise discovered at trial. By nullifying the tainted
process of the former trial and allowing a new trial to
convene, declaration of a mistrial serves not only the
defendant’s interest but, equally important, the public’s
interest in fair trials designed to end in just judgments.
Accordingly, the trial court is vested with discretion to
grant a mistrial whenever the alleged prejudicial event
may reasonably be said to deprive the defendant of a fair
and impartial trial. In making its determination, the court
must discern whether misconduct or prejudicial error
actually occurred, and if so, . . . assess the degree of any
resulting prejudice. Our review of the resulting order is
constrained to determining whether the court abused its
discretion. Judicial discretion requires action in conformity
with the law on facts and circumstances before the trial
court after hearing and consideration. Consequently, the
court abuses its discretion if, in resolving the issue for
decision, it misapplies the law or exercises its discretion in
a manner lacking reason.
Commonwealth v. Baldwin, 158 A.3d 1287, 1293 (Pa.Super. 2017)
(quoting Commonwealth v. Jaynes, 135 A.3d 606, 615 (Pa. Super.), app.
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denied, 145 A.3d 724 (Pa. 2016) (citation omitted)). Further, “[a] mistrial is
not necessary where cautionary instructions are adequate to overcome
prejudice.” Commonwealth v. Fortenbaugh, 69 A.3d 191, 193 (Pa.
2013) (citation omitted).
During cross-examination of Officer Lucas, the following exchange
occurred in the presence of the jury:
Q. There’s no [blood alcohol content (“BAC”)], right, no
chemical test?
A. He refused.
Q. Right, I understand that. He exercised his right to take
the test or not.
THE COURT: No, he didn’t have a right not to take the
test once he was placed under arrest, right?
[DEFENSE COUNSEL]: You can exercise that right.
THE COURT: It’s a power you have but he’s required
to take the test when he’s asked once he’s placed
under arrest, he didn’t do that.
THE WITNESS: That’s one of the –
[DEFENSE COUNSEL]: That’s the information.
THE COURT: I’ll give them instructions on that, but,
ladies and gentlemen, I don’t agree with that
statement – that that’s a correct statement of the
law.
BY [DEFENSE COUNSEL]:
Q. Well you can either agree to take the test or disagree
to take the test, right? You can’t force someone to take
the test.
THE COURT: Don’t go there because that’s my legal
instruction on the law. It’s different he has a power to
refuse and right to refuse. Leave that subject alone.
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It’s now you’re asking him what the law is and that’s for
me.
N.T., 2/10/16, at 67-68 (emphasis added). At the end of the first day of
trial, the trial court further stated:
The second matter that came up today is this question
of whether this refusal to take – provide blood was
justified. Here’s my instruction on the law. The
Commonwealth’s view is that driving is a privilege and
when you drive in the Commonwealth, by virtue of driving
you consent to have your blood or breath tested for alcohol
if you’re placed under arrest. And here it’s uncontroverted
that the defendant was, in fact, placed under arrest and
was told by the officer that he needed to take, provide
blood. He didn’t do it.
The defense says that’s – that was his right. I’ll be
clear. A person has the power to refuse. That is, we as a
society aren’t so – I don’t know what word to use –
aggressive that when they refuse, we hold them down and
stick a needle in their arm and take the blood. The
Supreme Court says we have a right of personal
autonomy. So the government doesn’t have a right to just
take the blood out of your arm but the law is clear that by
virtue of having a driv[ers’] license in Pennsylvania, you
consented to that.
In the Court’s view, when you fail to give that
test, where you fail to provide that blood, that
refusal is wrongful. I’ll tell you more about how you can
use that tomorrow. It doesn’t settle this case but it’s a
factor for you to consider.
What I don’t want you left with is a belief that
was the suggestion that somehow the defendant
was exercising some right that’s protected, because
in my view his refusal was wrongful. I’ll talk more
about that tomorrow.
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Id. at 87-88 (emphasis added). The following day, Lipchik filed a motion for
a mistrial,3 which the trial court denied.
The trial court included the following charge in the jury instructions:
Normally in these cases or often you have a blood
alcohol. Here you don’t have that. And the parties take
different positions about this blood alcohol test. Let me
talk about it. First of all, sometimes there’s a dispute
about refusal. It seems to me there’s no dispute.
Although the officer didn’t initially place [Lipchik] under
arrest, later, after he didn’t take the field sobriety test,
which I’ll say he had no duty to take, you just don’t have
to take those, he was placed under arrest, all right, and
asked to submit to a [blood]. And at that time he refused.
And again I say, it[] appears there’s no dispute about
whether he refused or not. But I say again, that’s for you
to determine because you have absolute control over what
the facts are. The Commonwealth’s view is that he
refused. If he refused, then you can take that refusal into
account.
What to do with it? Well, it’s a factor to consider. The
refusal doesn’t establish [Lipchik’s] guilt, certainly not.
Okay? And even though I said he had no right to refuse,
I’m not implying that either. I’m simply saying he had
a duty to take the test in the circumstance he was in.
The Commonwealth argues when you have a refusal,
that you can view that as consciousness of guilt. That is
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3
As the dissent correctly notes, a motion for mistrial must be “made
when the event is disclosed.” Pa.R.Crim.P. 605. Here, the trial court
provided its instruction at the end of the first day of trial, immediately before
permitting the jury to leave for the day. The trial court and Lipchik’s counsel
then discussed the trial court’s comments, after which court recessed for the
day. Counsel made a motion for mistrial the following morning, before the
second day of trial commenced. Where, as here, there were no trial court
proceedings between the court’s instruction and the motion for mistrial, and
where the trial court did not treat the motion as untimely but instead denied
it on the merits, we conclude Lipchik has not waived this issue.
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that he knew if he took the test, that those blood results
would serve as evidence against him and, therefore, that’s
why he refused.
The question isn’t whether that is the Commonwealth’s
argument. It is. The question is whether that finds
comport[] with you. The defense argues to the contrary,
there are other reasons, he was annoyed, he was tired,
whatever. They have arguments why they ask you not to
draw an inference for the refusal. And I’m here to tell you
[that you] may consider the refusal along with all other
facts and circumstances in the case and give it whatever
weight you think is appropriate in determining what it says
about the charge here and whether it’s been proven
beyond a reasonable doubt. But it certainly doesn’t
establish in and of itself [Lipchik’s] guilt, certainly not. It’s
simply a factor to consider with all the other evidence.
And I’m expressing when I talked about a duty to
take the test, no opinion at all on the ultimate
question here. That’s entirely for you.
N.T., 2/11/16, at 43-44 (emphasis added).
The Pennsylvania Supreme Court recently re-affirmed that individuals
have a statutory right to refuse to submit to a blood test. Commonwealth
v. Myers, ___ A.3d ____, 2017 WL 3045867, at *6 (Pa. July 19, 2017). In
Myers, the Supreme Court stated that under Pennsylvania’s statutory
scheme:
[A] motorist placed under arrest for DUI has a critical
decision to make. The arrestee may submit to a chemical
test and provide the police with evidence that may be used
in a subsequent criminal prosecution, or the arrestee may
invoke the statutory right to refuse testing, which: (i)
results in a mandatory driver’s license suspension under
75 Pa.C.S. § 1547(b)(1); (ii) renders the fact of refusal
admissible as evidence in a subsequent DUI prosecution
pursuant to 75 Pa.C.S. § 1547(e); and (iii) authorizes
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heightened criminal penalties under 75 Pa.C.S. § 3804(c) if
the arrestee later is convicted of DUI.[4]
Myers, 2017 WL 3045867, at *6. Accordingly, although individuals have a
statutory right to refuse to submit to a blood test, such refusal may be
admitted as evidence at trial.
Based on this precedent, we conclude that the trial court erred when it
informed the jury, during the cross-examination of Officer Lucas and at the
end of the first day of trial, that Lipchik had no right to refuse a blood test
and that his refusal was “wrongful.”
We further conclude that the trial court’s pre-deliberation jury
instruction did not adequately correct this error. Those instructions did
clarify that the refusal does not establish guilt; that while the
Commonwealth is free to argue that refusal reflects consciousness of guilt,
the refusal was only one factor to be considered; and it was for the jury to
determine the weight that factor carried. The trial court further instructed
that only the jury could determine whether Lipchik was guilty of DUI. Those
instructions, however, also included the following: “I’m simply saying he
had a duty to take the test in the circumstances he was in,” and “I’m
expressing when I talked about a duty to take the test.” The jury therefore
deliberated after being informed multiple times that Lipchik had no right to
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4
Following Birchfield v. North Dakota, 136 S.Ct. 2160 (2016), a
defendant who refuses to submit to a blood test is no longer subject to
increased criminal penalties if later convicted of DUI. Commonwealth v.
Giron, 155 A.3d 635, 640 (Pa.Super. 2017).
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refuse to submit to a blood test. Although a jury is permitted to draw an
adverse inference from a defendant’s refusal to submit to a blood draw, the
instructions taken as a whole not only failed to acknowledge Lipchik’s right
to refuse but also improperly characterized his exercise of that right as
“wrongful.”
Our Court has noted that “[t]he judge occupies an exalted and
dignified position; he is the one person to whom the jury, with rare
exceptions, looks for guidance, and from whom the litigants expect absolute
impartiality.” Commonwealth v. Claiborne, 102 A.2d 900, 904 (Pa.Super.
1953); see also Commonwealth v. Burwell, 42 A.3d 1077, 1083
(Pa.Super. 2012) (“[W]e cannot underestimate the weight that a jury would
afford the opinion of a trial judge who opines that the element of serious
bodily injury was proven in a case.”). Here, the trial court informed the jury
not only that Lipchik had no right to refuse to submit to the blood test but
that his refusal was “wrongful.” Such instructions impaired the jury’s ability
to render a fair and impartial verdict; the instructions informed the jury that
Lipchik did something wrong beyond the offenses for which he was charged
and could have caused the jury to place greater weight on the refusal than
warranted by the evidence presented at trial. See Burwell, 42 A.3d at
1083 (finding that trial court committed reversible error when it instructed
the jury that “under the circumstances it appears that the injuries suffered .
. . constitute serious bodily injury. But that is a decision for you”).
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Because we conclude that the trial court erred in denying the motion
for a mistrial, we vacate the judgment of sentence and remand this matter
for a new trial.
Lipchik also claims that the trial court erred in denying his suppression
motion. Because this evidentiary issue likely will re-occur at a new trial, we
address it now. Lipchik maintains that he was in custody when he was
handcuffed and placed in the police car. He argues that, because the police
officers did not read him his Miranda rights, the trial court should have
suppressed his refusal to take field sobriety tests and refusal to consent to a
blood test.
When reviewing the denial of a suppression motion, we must
determine whether the record supports the trial court’s factual findings and
“whether the legal conclusions drawn from those facts are correct.”
Commonwealth v. Brown, 64 A.3d 1101, 1104 (Pa.Super. 2013) (quoting
Commonwealth v. Cauley, 10 A.3d 321, 325 (Pa.Super. 2010)). We may
only consider evidence presented at the suppression hearing. In re L.J., 79
A.3d 1073, 1085-87 (Pa. 2013). In addition, because the Commonwealth
prevailed on this issue before the suppression court, we consider only the
Commonwealth’s evidence and so much of the defendant’s evidence “as
remains uncontradicted when read in the context of the record as a whole.”
Brown, 64 A.3d at 1104 (quoting Cauley, 10 A.3d at 325). We may
reverse only if the legal conclusions drawn from the facts are in error. Id.- 10 -
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The trial court found that Lipchik was in custody at the time he was
taken to Millcreek Community Hospital and that the police officers did not
advise him of his Miranda rights. Order, 12/14/15. It further found that a
custodial interrogation occurred when Officer Lucas asked Lipchik why he
was refusing to participate in the field sobriety tests. Id. The trial court,
therefore, granted the motion to suppress Lipchik’s response. Id. The trial
court, however, denied the motion to suppress in all other respects. Id.Lipchik contends that his refusal to perform the field sobriety tests was
inadmissible because he was subject to a custodial interrogation and not
provided Miranda warnings. Our Supreme Court has held that the right
against self-incrimination in the Fifth Amendment of the United States
Constitution and Article I, Section 9 of the Pennsylvania Constitution does
not apply to field sobriety tests, which are non-testimonial in nature.
Commonwealth v. Hayes, 674 A.2d 677, 679, 683 (Pa. 1996). Because
field sobriety tests are non-testimonial, the police officers did not need to
provide Miranda warnings prior to requesting that Lipchik perform the tests.
Commonwealth v. Stewart, 846 A.2d 738, 741-42 (Pa.Super. 2004); see
also Hayes, 674 A.2d at 679, 683. Therefore, his statement of refusal to
perform the tests was properly admitted.
Lipchik also contends that the fact of his refusal to submit to a blood
test was inadmissible. This Court recently reaffirmed that a defendant’s
refusal to submit to a blood test is admissible at a trial for DUI.
Commonwealth v. Bell, ___ A.3d ____, 2017 WL 3046937, at *5
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(Pa.Super. July 19, 2017). Accordingly, we conclude the trial court did not
err in denying Lipchik’s motion to suppress his refusal to perform field
sobriety tests and his refusal to submit to a blood test.
Judgment of sentence vacated. Case remanded. Jurisdiction
relinquished.
Judge Ransom joins the memorandum.
Judge Platt files a concurring/dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/24/2017
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