Com. v. Grajales, E. ( 2021 )

J-A23012-21
2021 PA Super 234COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ELINY ELIZA GRAJALES :
:
Appellant : No. 171 MDA 2021
Appeal from the Judgment of Sentence Entered January 20, 2021
In the Court of Common Pleas of Schuylkill County
Criminal Division at CP-54-CR-0000198-2020
BEFORE: BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.*
OPINION BY MURRAY, J.: FILED: DECEMBER 3, 2021
Eliny Eliza Grajales (Appellant) appeals from the judgment of sentence
imposed after the trial court convicted her of driving under the influence of
controlled substances (DUI), driving while operating privilege is suspended or
revoked, periods requiring lighted lamps, and possession of a small amount
of marijuana.1 After careful review, we affirm.
The trial court summarized the facts adduced at Appellant’s non-jury
trial:
On December 28, 2019, at 8:45 p.m., Corporal Matthew
Hartung of the Pennsylvania State Police (hereinafter “Hartung”),
was on routine patrol in an unmarked State Police vehicle in
Mahanoy City, Pennsylvania. As [] Hartung was travelling in a
westerly direction on West Centre Street, he noticed a sedan
passing by him going in the opposite direction (east) on West
Centre Street without its headlights on. Hartung reversed
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* Former Justice specially assigned to the Superior Court.
1 75 Pa.C.S.A. §§ 3802(d), 1543(a), and 4302(a); 35 P.S. § 780-113(a)(31).
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direction with his vehicle, and thereafter pulled over the vehicle
being operated by [Appellant].
Hartung searched [Appellant’s] registration and discovered
that her Pennsylvania driver’s license was suspended. Upon
approaching [Appellant’s] vehicle and informing her that the
reason he had pulled her over was for her failure to have her
headlights on while driving at night, Hartung immediately smelled
the odor of marijuana emanating from inside the vehicle. Hartung
also observed symptoms of [Appellant] being under the influence
of marijuana, based on her eye pupils being dilated while seated
in the vehicle. ... When asked whether she had been using
marijuana, [Appellant] denied doing so. [Appellant] informed
Hartung that a friend had smoked marijuana in her vehicle a day
or two earlier. At this time Hartung asked [Appellant] to exit the
vehicle. [Appellant] refused to do so. After a minor physical
scuffle, Hartung detained [Appellant] and conducted a probable
cause search of [Appellant’s] vehicle[, without a warrant].
Upon searching [Appellant’s] vehicle, Hartung found a
plastic bag, and discovered inside the bag the “guts” of a blunt
cigar. In addition, Hartung observed what he thought was
marijuana residue on the floor of the passenger side, as well as a
water bottle in the center console that contained ashes and what
looked like … the remnants of a marijuana blunt inside the bottle.
Upon finding these items and observing outward physical
manifestation of marijuana use by [Appellant], Hartung performed
field sobriety testing. He initially checked for eyelid tremors
which, based on his experience, is indicative of marijuana use.
After observing [Appellant’s] eyelid tremors during this sobriety
testing, Hartung continued to administer additional tests to
[Appellant]. He eventually concluded that [Appellant] was likely
under the influence of marijuana and then placed [Appellant]
under arrest for DUI. Hartung testified that he presumed
[Appellant] had used marijuana based on a totality of the
circumstances: the odor of marijuana, dilated pupils, eyelid
tremors, lack of eye convergence, and overall performance during
field sobriety testing. Upon being placed under arrest, Hartung
asked [Appellant] to go for a blood test[; Hartung also] read her
the PennDot Form DL-26B, Chemical Testing Warnings and
Refusal to Submit to a Blood Test. After reviewing this form with
[Appellant], she indicated she would not submit to a blood test;
thereafter[, Appellant signed] form DL-26B in the presence of
Hartung.
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Trial Court Opinion, 4/9/21, at 2-3 (citations to record omitted).2
The Commonwealth charged Appellant with the abovementioned
offenses. Appellant did not file an omnibus pretrial motion (nor did she
make an oral motion to suppress evidence). See Pa.R.Crim.P. 579(A)
(providing a defendant must generally file an omnibus pretrial motion within
30 days of his or her arraignment).
The matter proceeded to a non-jury trial on December 21, 2020.
Appellant testified on her own behalf. The Commonwealth presented the
testimony of Hartung and Brendan McCann (McCann), a forensic scientist with
the Pennsylvania State Police Crime Lab. McCann testified that the blunt cigar
fragment inside the water bottle recovered from Appellant’s vehicle contained
tetrahydrocannabinol (THC), a Schedule 1 controlled substance. N.T.,
12/21/20, at 40. The trial court found Appellant guilty at all counts. Appellant
did not file any post-verdict motions.
On January 20, 2021, the trial court sentenced Appellant to serve 6 days
of incarceration in county jail and one month of probation. Appellant did not
file post-sentence motions. Appellant timely appealed. Both Appellant and
the trial court have complied with Pa.R.A.P. 1925.
Appellant presents two issues:
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2There is no indication in the record that Appellant had a Pennsylvania medical
marijuana patient identification card, pursuant to the Medical Marijuana Act,
35 P.S. § 10231.101 et seq.
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1. Did the police lack probable cause to search based on the smell
of marijuana?
2. Did the police lack probable cause to request a blood test or
conduct field sobriety tests?
Appellant’s Brief at 4.
Preliminarily, Appellant argues – in connection with her first issue – that
she should benefit from the Pennsylvania Supreme Court’s recent landmark
decision in Commonwealth v. Alexander, 243 A.3d 177 (Pa. 2020), which
was decided the day after the trial court rendered the guilty verdicts in this
case. Appellant’s Brief at 9. Alexander announced a new rule of criminal
law mandating probable cause and exigent circumstances for a warrantless
search of an automobile. See Alexander, 243 A.3d at 181, 207-08
(overruling Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014) (adopting
federal “automobile exception” to the warrant requirement and holding that
police may conduct a warrantless vehicle search based solely on probable
cause, with no exigency required beyond the inherent mobility of a motor
vehicle)).
Appellant asserts, “Because the Alexander decision was decided after
[Appellant’s] trial, it created new law which could not have been raised in a
suppression motion prior to the trial.” Appellant’s Brief at 9. The
Commonwealth counters, “Appellant did not properly preserve any challenge
pursuant to … Alexander, and therefore the holding of Alexander cannot be
applied retroactively to her case.” Commonwealth Brief at 2. The
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Commonwealth emphasizes that Appellant did not challenge the
constitutionality of the warrantless search of her vehicle in an omnibus pretrial
motion, even though the Pennsylvania Supreme Court had granted allocatur
in Alexander several months before Appellant’s arraignment. Id. at 4. The
Commonwealth also stresses that after Alexander was decided, Appellant
failed to file a post-verdict motion or post-sentence motion invoking
Alexander. Id.
The trial court agrees with Appellant, concluding in its opinion that:
. . . it appears this [c]ourt’s determination of guilt on December
21, 2020 . . . became in conflict the very next day with the
December 22, 2020, Supreme Court decision of Commonwealth
v. Alexander. For the foregoing reasons, it is respectfully
suggested that this matter should be remanded for further
proceedings consistent with Alexander.2
2 The Supreme Court in Alexander concluded that it was
appropriate to remand to the lower court for further
proceedings on probable cause to search, where “the
testimony was not particularly directed at the exigencies
of the situation,” and “further development” was
warranted. Alexander, supra, at 209.
Trial Court Opinion, 4/9/21, at 6 (footnote in original).
The trial court, however, failed to recognize that appellants are not
automatically entitled to retroactive application of Alexander.3 See
Commonwealth v. Grooms, 247 A.3d 31, 37 n.8 (Pa. Super. 2021) (“[I]n
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3 This Court may affirm on any basis and is not limited by a trial court’s
rationale. Commonwealth v. Katona, 191 A.3d 8, 16 (Pa. Super. 2018) (en
banc).
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order for a new rule of law to apply retroactively to a case . . ., the issue
[must] be preserved at all stages of adjudication up to and including the
direct appeal.” (emphasis added; citation and quotation marks omitted)). The
Grooms Court held that the appellant had waived any claim under Alexander
because he only disputed the existence of probable cause and did not raise
the issue of exigent circumstances or challenge the continuing validity
of Gary in the trial court. Id. at 37.
Here, Appellant is not entitled to the application of Alexander, as she
failed to preserve the claim. Unlike the defendant in Alexander, Appellant
never challenged Hartung’s warrantless search of her vehicle in the trial
court. Cf. Alexander, 243 A.3d at 193 n.8 (finding defendant sufficiently
preserved issue in a motion to suppress and at the suppression hearing).
Appellant briefly raised Alexander for the first time in her Rule 1925(b)
statement,4 but did not reference either exigent circumstances or the
overruling of Gary. See Pa.R.A.P. 302(a) (providing issues may not be raised
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4 Appellant’s Rule 1925(b) statement reads:
Police lacked probable cause to search based on smell of marijuana
(Com. v. Alexander, 2020 WL 7567601 (Pa. 2020)).
Police lacked probable cause to request blood test or conduct field
sobriety tests.
Rule 1925(b) Statement, 3/19/21.
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for the first time on appeal);5 Commonwealth v. Melendez-Rodriguez, 856
A.2d 1278, 1288 (Pa. Super. 2004) (en banc) (“A party cannot rectify the
failure to preserve an issue by proffering it in response to a Rule 1925(b)
order.” (citation omitted)). Accordingly, Alexander is inapplicable. See
Grooms, 247 A.3d at 37 n.8 & n.9; Commonwealth v. Moore, 2021 PA
Super 202, at *10, 11 (Pa. Super. Oct. 12, 2021) (appellant waived
Alexander claim, pursuant to Grooms, where appellant (a) “did not raise the
issue of exigent circumstances, contend that a warrant was required to search
the vehicle, or argue that Gary should be overruled”; and (b) “did not raise
an issue with respect to exigent circumstances or challenge Gary in his Rule
1925(b) statement”); see also Commonwealth v. Aursby, 2021 WL
2826473, at *6 (Pa. Super. July 7, 2021) (unpublished memorandum)
(declining to apply Alexander, pursuant to Grooms, where appellant failed
to preserve the issue).
Appellant further argues that the warrantless search of her vehicle was
unlawful because the only indicia of criminality was an odor of marijuana,
which is insufficient to establish probable cause. Appellant’s Brief at 9.
As noted above, Appellant did not file a pretrial motion to suppress,
which was the proper procedure for raising this claim. See, e.g.,
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5Appellant, for the first time in her appellate brief, summarily claims “no
exigent circumstances existed.” Appellant’s Brief at 9. This bald claim is
waived. See Pa.R.A.P. 302(a).
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Commonwealth v. Gibson, 638 A.2d 203, 206-07 (Pa. 1994) (“The remedy
for an illegal search is [] exclusion of all the evidence derived from the illegal
search.”). Pennsylvania Rule of Criminal Procedure 581 provides, in relevant
part:
Rule 581. Suppression of Evidence
(A) The defendant’s attorney, or the defendant if unrepresented,
may make a motion to the court to suppress any evidence alleged
to have been obtained in violation of the defendant’s rights.
(B) Unless the opportunity did not previously exist, or the
interests of justice otherwise require, such motion shall be made
only after a case has been returned to court and shall be contained
in the omnibus pretrial motion set forth in Rule 578. If timely
motion is not made hereunder, the issue of suppression of
such evidence shall be deemed to be waived.
Pa.R.Crim.P. 581(A), (B) (emphasis added). Our appellate courts have
consistently affirmed the principle that “the failure to raise a suppression issue
prior to trial precludes its litigation for the first time at trial, in post-trial
motions or on appeal.” Commonwealth v. Collazo, 654 A.2d 1174, 1176
(Pa. Super. 1995) (citation omitted); see also Commonwealth v.
Baumhammers, 960 A.2d 59, 76 (Pa. 2006) (same). Further, though
Appellant is correct that she could not have filed an omnibus pretrial motion
invoking Alexander (decided after Appellant’s conviction), she could have
filed a pretrial suppression motion on other grounds, such as the purported
absence of probable cause to conduct a lawful warrantless search of her
vehicle. Accordingly, Appellant waived this claim. See Pa.R.Crim.P. 581(B);
Pa.R.A.P. 302(a); Cf. Moore, 2021 PA Super 202, at *14 (despite finding
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waiver of appellant’s claim invoking Alexander, addressing appellant’s
challenge to warrantless search of vehicle where he preserved claim in a
pretrial motion to suppress); Aursby, 2021 WL 2826473, at *6 (same).
In Appellant’s second issue, she argues “the police lacked probable
cause to request a blood test or conduct field sobriety tests.” Appellant’s Brief
at 10 (capitalization omitted). For the same reasons discussed above, we find
waiver based on Appellant’s failure to raise her issue before the trial court.
See, e.g., Pa.R.A.P. 302(a); Pa.R.Crim.P. 581(B); Collazo, supra.6
As no relief is due, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/03/2021
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6 Appellant repeatedly references the United States Supreme Court decision
in Birchfield v. North Dakota, 579 U.S. 438, 136 S.Ct. 2160, 2186 (2016)
(holding warrantless blood test cannot be deemed valid by virtue of implied
consent law when accompanied by threat of criminal charge for failure to
consent). Appellant has also waived any claim under Birchfield because she
raises it for the first time on appeal. See Pa.R.A.P. 302(a); Commonwealth
v. Hays, 218 A.3d 1260, 1266 (Pa. 2019) (“[a]ppellant is not entitled to
retroactive application of Birchfield based on his failure to preserve the issue
below.”).
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