from the Judgment of Sentence April 15, 2016 In the Court of
Common Pleas of Montgomery County Criminal Division at No(s):
BEFORE: BOWES, OLSON and STABILE, JJ.
Mario Giron, appeals from the judgment of sentence entered on
April 15, 2016. In this case, we hold that, pursuant to
Birchfield v. North Dakota, 136 S.Ct. 2160 (2016),
defendant who refuses to provide a blood sample when
requested by police is not subject to the enhanced penalties
provided in 75 Pa.C.S.A. §§ 3803-3804. As Appellant
was subjected to the enhanced penalties provided by sections
3803 and 3804 for refusing to provide a blood sample, his
sentence was illegal and although we affirm his convictions,
we are constrained to vacate his judgment of sentence and
remand for re-sentencing.
factual background and procedural history of this case are as
follows. At approximately 1:25 a.m. on February 12, 2015,
Officer Bryan Nawoschik witnessed Appellant's vehicle
sideswipe a legally parked car. Officer Nawoschik initiated a
traffic stop. When Appellant rolled down the vehicle window,
a strong odor of alcohol emanated from the vehicle. Officer
Nawoschik and Officer Brian Boyer noticed that Appellant had
red, glassy eyes and his speech was slurred.
Appellant exited the vehicle, the officers noticed that he
was unsteady on his feet. At that time, Officer Nawoschik
arrested Appellant for suspicion of driving under the
influence of alcohol. Officer Nawoschik requested that
Appellant provide a blood sample; however, Appellant refused
to provide a blood sample. At the police station, Appellant
was shown the May 2008 version of a DL-26 form printed in
Spanish. That form also requested Appellant provide a blood
sample. Appellant refused to read or sign the form.
April 10, 2015, the Commonwealth charged Appellant via
criminal information with first offense driving under the
influence-general impairment ("DUI-general
impairment") (with refusal),  careless driving,
driving without a license,  fleeing the scene of an accident,
April 8, 2016, the Commonwealth amended the criminal
information and the parties proceeded to a non-jury trial.
Appellant was convicted of second offense DUI-general
impairment (with refusal), careless driving, driving without
a license, and fleeing the scene of an accident. On April 15,
2016, the trial court sentenced Appellant to 90 days to 5
years' imprisonment on the second offense DUI-general
impairment (with refusal) charge. This timely appeal
presents two issues for our review:
1. Whether the fact-finder could find every element of the
crime of DUI beyond a reasonable doubt, with the evidence in
the light most favorable to the verdict winner, when the
arresting officers presented no physical evidence at trial
other than their own testimony based on consistent
communications in English with a non-English speaker who did
2. Whether a clear miscarriage of justice occurred when
officers attempted no language accommodation, despite several
options existing to them, and where video evidence is
unavailable to corroborate the knowing, voluntary, and
intelligent provision to [Appellant] of DL-26, and where
video evidence that does exist does not show probable cause
for the arrest[?]
Brief at 4.
first issue challenges the sufficiency of the evidence.
"Whether sufficient evidence exists to support the
verdict is a question of law; our standard of review is
de novo and our scope of review is plenary."
Commonwealth v. Walls, 144 A.3d 926, 931 (Pa. Super.
2016) (citation omitted). "In assessing Appellant's
sufficiency challenge, we must determine whether, viewing the
evidence in the light most favorable to the Commonwealth as
verdict winner, together with all reasonable inferences
therefrom, the trier of fact could have found that the
Commonwealth proved [each] element of the crime beyond a
reasonable doubt." Commonwealth v.
Ansell, 143 A.3d 944, 949 (Pa. Super. 2016) (citation
omitted). "The evidence need not preclude every
possibility of innocence and the fact-finder is free to
believe all, part, or none of the evidence presented."
Commonwealth v. Ford, 141 A.3d 547, 552 (Pa. Super.
2016) (citation omitted).
contends that there was insufficient evidence to convict him
of DUI-general impairment because there was no physical or
videotape evidence presented at trial. This argument is
wholly frivolous. There is no requirement that videotape or
physical evidence be presented at trial. E.g.,
Commonwealth v. Dent, 837 A.2d 571, 590 (Pa. Super.
2003), appeal denied, 863 A.2d 1143 (Pa. 2004);
Commonwealth v. Fisher, 764 A.2d 82, 87-88 (Pa.
Super. 2000), appeal denied, 782 A.2d 542 (Pa.
2001); Commonwealth v. Steward, 762 A.2d 721,
722-723 (Pa. Super. 2000), appeal denied, 782 A.2d
545 Pa. 2001). Instead, police officers' testimony is
sufficient to prove the elements of DUI-general impairment.
See Commonwealth v. ...