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11/25/97 COMMONWEALTH PENNSYLVANIA v. MICHAEL

November 25, 1997

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
MICHAEL GRAHAM, APPELLANT



Appeal from the Judgment of Sentence Dated July 18, 1996, In the Court of Common Pleas of Philadelphia County, Criminal, No. 1357 AUG. TERM 1994. Before RICHETTE, J.

Before: Cavanaugh, Beck, And Brosky, JJ.

The opinion of the court was delivered by: Beck

OPINION BY BECK, J.

Filed November 25, 1997

In this appeal we decide, inter alia, whether the Motor Vehicle Code provision, 75 Pa.C.S. § 1547(e), is constitutional under the United States Constitution. The challenged statutory provision permits the Commonwealth to introduce into evidence the fact that a defendant refused to be tested for alcohol or drugs where the defendant is charged with a violation of 75 Pa.C.S. § 3731 (driving under the influence). We conclude that the statutory provision is constitutional and affirm the judgment of sentence.

The fatal automobile accident which formed the basis of appellant's conviction and sentence occurred on August 2, 1994. On that evening, appellant was driving northbound on Interstate 95, weaving back and forth between lanes at an estimated speed of seventy miles per hour. As appellant made one of his abrupt lane changes, his vehicle collided with another northbound vehicle. His vehicle was then hurled over the median barrier into the southbound lane, crashing into several other cars. Several persons were seriously injured, and one person, Catherine Sweeny, was killed.

After the accident, Lieutenant Mingacci and Sergeant Stieber of the highway patrol noticed that appellant was agitated, had glassy, bloodshot eyes, was acting disoriented, had difficulty standing and had a strong odor of alcohol on his breath. Believing that appellant may have been driving while under the influence of alcohol or a controlled substance, Sergeant Stieber radioed Lieutenant Nestle, a specialist in administering field sobriety tests, and requested that he report to the scene.

When Lieutenant Nestle arrived, he requested that appellant submit to a field sobriety test. Once appellant assented, Lieutenant Nestel administered the "one leg stand" and the "walk and turn" tests, neither of which appellant could successfully complete. Appellant was then transported to police headquarters where Officer Waerig gave appellant O'Connell warnings, *fn1 before asking appellant to consent to a breathalyzer test. Appellant agreed to submit to the breathalyzer test.

The results of the breathalyzer test revealed that the alcohol level of appellant's blood was within the legal limit. However, due to appellant's erratic conduct, Officer Waerig believed that appellant was under the influence of a controlled substance in addition to alcohol. Officer Waerig then requested that appellant submit to a blood test. After appellant was again given the requisite O'Connell warnings, he consented to the blood test. An analysis of appellant's blood revealed the presence of cocaine metabolite, marijuana and marijuana metabolite.

After a bench trial, appellant was found guilty of homicide by vehicle while driving under the influence of alcohol or a controlled substance, involuntary manslaughter, driving under the influence, aggravated assault and simple assault and sentenced to an aggregate term of fifteen to thirty years in prison. This appeal followed.

On appeal appellant claims his trial counsel was ineffective for failing to move to suppress the results of the blood test. In order to prevail on his claim of ineffective assistance of counsel, appellant bears the heavy burden of establishing that: (1) his underlying claim is of arguable merit; (2) counsel had no reasonable basis for his "mistake;" and (3) but for counsel's act or omission, the outcome of the proceeding would have been different. Commonwealth v. Washington, Pa. , , 700 A.2d 400, 409 (1997). Because appellant cannot, as a threshold matter, demonstrate that his underlying claim has arguable merit, his ineffectiveness claim must fail.

Appellant argues that the results of his blood test should not have been admitted at trial. In support of this contention, appellant maintains that his consent to the blood test was invalid because the officer coerced him to incriminate himself in violation of his fifth amendment rights. He asserts that he consented to the test only because he was afraid of the inferences the factfinders would draw if they learned he refused to take the blood test. He contends that such consent deprived him of his right not to incriminate himself.

Although appellant acknowledges that § 1547(e) *fn2 of the Motor Vehicle Code permits a defendant's refusal to submit to chemical testing to be introduced at trial, appellant argues that this provision is unconstitutional because it attaches a penalty to his exercise of a constitutional right. *fn3 The constitutional right he claims is his right to refuse the blood test, and the penalty he alleges is the authority of the Commonwealth to inform the factfinder that the defendant refused to take the test.

Appellant's argument is flawed for several reasons. First, contrary to his assertion, appellant had no constitutional right to refuse the blood test. Therefore, § 1547(e) does not burden appellant's constitutional rights by allowing evidence of his refusal to consent to be admitted at trial. Appellant's right to refuse the blood test is derived only from § 1547 itself and not from the Constitution. As explained by our ...


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