from the Judgment of Sentence March 24, 2016 In the Court of
Common Pleas of Venango County Criminal Division at No(s):
BEFORE: PANELLA, J., STABILE, J., and STEVENS,
an hour before noon on a Saturday morning, Donna Peltier, the
mother of Appellant, Samuel Monarch, contacted the Franklin
County 911 Emergency Services Center. She informed them that
her son was intoxicated and had just driven away from her
residence with his eight-year-old daughter. Officers caught
up with Monarch inside his residence shortly thereafter and
observed that Monarch's speech was slurred, he reeked of
alcohol, and he was unstable while standing. Monarch refused
to take sobriety tests and refused breath and blood tests.
trial, Peltier testified that she did not believe Monarch to
have been intoxicated when he drove away from her home. The
Commonwealth impeached this testimony with a prior recorded
interview of Peltier. The jury convicted Monarch of one count
of driving under the influence/general impairment
("DUI") and one count of endangering the welfare of
his daughter. The trial court increased the grading of the
DUI conviction pursuant to 75 Pa.C.S.A. § 3803(b)(4),
which imposes enhanced penalties for defendants convicted of
DUI if they refuse a breath or blood test.
appeal from his judgment of sentence, Monarch raises four
issues for our review. First, that the trial court erred in
admitting the recorded interview of Peltier. Second, that the
trial court erred in allowing Peltier's lay opinion on
intoxication to be presented to the jury over Monarch's
objection. Third, that the evidence presented by the
Commonwealth at trial was insufficient to support his
conviction. Finally, that pursuant to Birchfield v. North
Dakota, 136 S.Ct. 2160 (2016), the imposition of an
enhanced penalty based upon his refusal of blood tests was
unconstitutional. After careful review, we affirm.
first two issues on appeal, Monarch challenges evidentiary
rulings made by the court during trial.
A trial court has broad discretion to determine whether
evidence is admissible, and a trial court's ruling
regarding the admission of evidence will not be disturbed on
appeal unless that ruling reflects manifest unreasonableness,
or partiality, prejudice, bias, or ill-will, or such lack of
support to be clearly erroneous. If the evidentiary question
is purely one of law, our review is plenary.
Commonwealth v. Belani, 101 A.3d 1156, 1160 (Pa.
Super. 2014) (citations and quotation marks omitted).
"The court may exclude relevant evidence if its
probative value is outweighed by a danger of … unfair
prejudice…." Pa.R.E. 403. "'Unfair
prejudice' means a tendency to suggest decision on an
improper basis or to divert the jury's attention away
from its duty of weighing the evidence impartially."
first argues that the trial court abused its discretion in
allowing the Commonwealth to present a recorded interview of
Peltier to the jury. At trial, Peltier testified that Monarch
had driven away from her home at approximately 8:30 a.m. on
the morning in question. See N.T., Jury Trial,
2/12/16, at 134. She furthermore testified that Monarch did
not exhibit any symptoms of being drunk, nor did she believe
that Monarch was intoxicated when he drove away with his
daughter in tow. See id., at 133-134.
nonplussed by Peltier's testimony, the Commonwealth
sought to impeach Peltier with a recording of Peltier's
interview with police investigators on the morning of
Monarch's arrest. Monarch asserts that recorded interview
"was of limited probative value, " and therefore
should not have been admitted. Appellant's Brief, at 12.
However, we note that the recording is not a part of the
certified or reproduced records on appeal. Nor is there a
certified transcription of the video in the record. We
therefore have no ability to assess Monarch's assertion.
an appellant's responsibility to ensure that the
certified record contains all the items necessary to review
his claims. See, e.g., Commonwealth v.
Tucker, 143 A.3d 955, 963 (Pa. Super. 2016);
Commonwealth v. B.D.G., 959 A.2d 362, 372 (Pa.
Super. 2008). "When a claim is dependent on materials
not provided in the certified record, that claim is
considered waived." Commonwealth v. Petroll,
696 A.2d 817, 836 (Pa. Super. 1997) (citation omitted). As we
are unable to review the contents of the recorded interview,
Monarch has failed to preserve this issue for our review.
Monarch's first issue on appeal is therefore waived.
we were to address this issue by focusing on the limited,
select portions of the video that were the subject of
questioning after the video was played, we would find that
Monarch is not entitled to relief. Monarch contends that
Peltier's statements in the recording were equivocal.
While the statements highlighted by Monarch can be fairly
construed as equivocations, it is important to remember that
the recording was presented solely as impeachment evidence.
The jury was free to evaluate whether the recorded statements
were inconsistent with Peltier's testimony at trial-and
weigh Peltier's testimony accordingly. The trial court
did not abuse its discretion in admitting the recording.
Monarch argues that the trial court erred in allowing the
Commonwealth to present Peltier's hearsay, lay opinion
that Monarch was intoxicated on the morning in question.
Officer Steven Barnes testified at trial that Peltier had
told him that Monarch was ...