Com. v. Mace, L. ( 2017 )

J-A20006-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
LEDA JANE MACE :
:
Appellant : No. 1528 MDA 2016
Appeal from the Judgment of Sentence May 31, 2016
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0001376-2015
BEFORE: GANTMAN, P.J., PANELLA, J., and FORD ELLIOTT, P.J.E.
JUDGMENT ORDER BY GANTMAN, P.J.: FILED SEPTEMBER 08, 2017
Appellant, Leda Jane Mace, appeals from the judgment of sentence
entered in the York County Court of Common Pleas, following her jury trial
convictions for possession of a controlled substance, two counts of driving
under the influence of a controlled substance (“DUI”), and tampering with
physical evidence, and her bench trial conviction for use of multiple-beam
road lighting equipment (see 35 P.S. 780-113(a)(16); 75 Pa.C.S.A. §
3802(d)(1)(i), (iii); 18 Pa.C.S.A. § 4910(1); 75 Pa.C.S.A. § 4306(a)). On
the evening of November 29, 2014, Trooper Robert Colton observed a car
driving with high beams activated against oncoming traffic. The trooper
conducted a traffic stop and immediately detected a strong odor of burnt
marijuana coming from the vehicle. Based on the smell of marijuana,
Trooper Colton asked Appellant, the driver of the vehicle, to step out of the
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car and to perform sobriety tests. Trooper Colton administered the HGN
test, which showed signs of Appellant’s impairment. Trooper Colton also
smelled a strong odor of marijuana on Appellant’s breath and observed a
green leafy substance stuck to her tongue. The trooper conducted a search
incident to arrest and recovered three Hydrocodone pills. The trooper
transported Appellant to the York County Judicial Center for a blood draw.
Prior to the blood draw, the trooper read Appellant the “DL-26” chemical test
warning form (implied consent laws) in its entirety. Appellant submitted to a
blood draw, which showed active and inactive marijuana metabolites.
On March 18, 2016, a jury convicted Appellant of possession of a
controlled substance, two counts of DUI, and tampering with physical
evidence. The court convicted Appellant of a summary traffic offense. The
court sentenced Appellant on May 31, 2016, to an aggregate term of five
years and six months of intermediate punishment and a concurrent 12
months’ probation. Appellant timely filed a post-sentence motion on June 9,
2016. Appellant also requested time to file supplemental post-sentence
motions after receipt of the transcripts, which the court granted. Appellant
timely filed her supplemental post-sentence motion on June 22, 2016. On
July 8, 2016, Appellant moved to file new post-sentence motions nunc pro
tunc, challenging the validity of her consent to submit to the blood draw,
under the U.S. Supreme Court’s recent decision in Birchfield v. North
Dakota, ___ U.S. ___, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016) (holding
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Fourth Amendment does not permit warrantless blood tests incident to
arrests for DUI; motorists cannot be deemed to have consented to blood test
when faced with criminal penalties for refusing blood test). The court denied
Appellant’s request to file new post-sentence motions nunc pro tunc; on
September 1, 2016, the court denied Appellant’s existing post-sentence and
supplemental post-sentence motions. Appellant timely appealed on
September 15, 2016. On October 11, 2016, Appellant timely filed a court-
ordered concise statement per Pa.R.A.P. 1925(b).
On appeal, Appellant challenges the denial of her request to file new
post-sentence motions nunc pro tunc as well as the sufficiency and weight of
the evidence regarding her tampering with physical evidence conviction.
Initially, we would be inclined to remand for the trial court to determine if
Appellant’s consent to the blood draw was voluntary under the totality of the
circumstances. See, e.g., Commonwealth v. Evans, 153 A.3d 323(Pa.Super. 2016) (vacating appellant’s DUI sentence in light of Birchfield
and remanding for evaluation of appellant’s consent to blood draw based on
totality of circumstances). Nevertheless, the parties in this case have
stipulated at oral argument to the reversal of Appellant’s convictions for both
counts of DUI, in light of Birchfield, and the affirmance of Appellant’s
conviction for tampering with physical evidence. See Commonwealth v.
Rizzuto, 566 Pa. 40, 73, 777 A.2d 1069, 1088 (2001) (stating: “Parties
may by stipulation resolve questions of fact or limit the issues, and, if the
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stipulations do not affect the jurisdiction of the court or the due order of the
business and convenience of the court they become the law of the case”);
Commonwealth v. Mathis, 463 A.2d 1167 (Pa.Super. 1983) (supporting
stipulations in criminal cases). Consistent with the parties’ stipulations, we
affirm Appellant’s conviction for tampering with physical evidence and
reverse her DUI convictions. Accordingly, we vacate the judgment of
sentence and remand for resentencing.1
Judgment of sentence vacated; case remanded for resentencing.
Jurisdiction is relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/8/2017
____________________________________________
1
See generally Commonwealth v. Bartrug, 732 A.2d 1287 (Pa.Super.
1999), appeal denied, 561 Pa. 651, 747 A.2d 896 (1999) (holding
sentencing error in multi-count case requires appellate court to vacate entire
judgment of sentence so trial court can restructure sentencing scheme).
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