from the Judgment of Sentence July 19, 2016, in the Court of
Common Pleas of Allegheny County, Criminal Division, at
BEFORE: BENDER, P.J.E., BOWES, and STRASSBURGER, JJ.
Napold (Appellant) appeals from the July 19, 2016 judgment of
sentence imposed following her conviction for driving under
the influence -general impairment (DUI). We affirm.
trial court set forth the following findings of fact after
Appellant's bench trial.
Pittsburgh Police Officer, Zachary Vozza, was working the
"midnight shift" on Monday, April 20, 2015, when he
received a call for a suspicious vehicle parked in a driveway
with the music blaring. Upon responding to the call and
approaching the vehicle, Officer Vozza observed a vehicle
running, parked sideways on the left side of the driveway,
with the music blaring and a female passed out at the wheel.
Officer Vozza then tried to make contact with the driver.
Officer Vozza opened the door to turn down the music and
attempted to make contact with the driver to ensure her
safety. Officer Vozza identified the driver of the vehicle as
[Appellant]. Upon engaging with [Appellant], Officer Vozza
noticed the driver had slurred speech, was mumbling and had
bloodshot, glassy eyes. Additionally, Officer Vozza noted a
moderate odor of alcohol coming from her breath when speaking
with her. It was determined that [Appellant] did not reside
at the residence where she was parked in the driveway.
Officer Vozza attempted to have [Appellant] step out of the
vehicle. However [Appellant] tried to shut the car door on
him. Officer Vozza then attempted to remove [Appellant] from
the vehicle. However [Appellant] was unable to stand and fell
to the ground. Prior to Officer Vozza removing [Appellant]
from the vehicle, [Appellant] vomited in the car and all over
herself. Officer Vozza attempted to perform standardized
field sobriety tests on [Appellant]. However the tests were
not performed after it became clear to Officer Vozza that
[Appellant] would be unable to do so and testing was stopped
for her safety. [Appellant] was read her DL-26 warnings and
refused the blood draw.
Trial Court Opinion, 3/2/2016, at 2-3.
on this incident, Appellant was charged with two counts of
driving under the influence pursuant to 75 Pa.C.S. §
3802(a)(1), one count for general impairment and one count
for general impairment with refusal. A bench trial occurred
on April 1, 2016, and Appellant was found guilty of violating
both counts of 75 Pa.C.S. § 3802(a)(1).
sentencing hearing was held on July 19, 2016. At that
hearing, counsel for Appellant argued as a motion for
extraordinary relief that pursuant to the United States
Supreme Court decision in Birchfield v. North
Dakota, 136 S.Ct. 2160 (2016),  the trial court should
"set aside the verdict at [the refusal] count and
dismiss that charge." N.T., 7/19/2016, at 3. The
Commonwealth did not object, and the trial court dismissed
that charge. Appellant was then sentenced to six months'
probation for the general impairment count, which is the
mandatory minimum sentence for a first DUI without
filed a post-sentence motion challenging both the weight of
the evidence and the sufficiency of the evidence to sustain
her conviction. That motion was denied by operation of law on
January 10, 2017. Appellant timely filed a notice of appeal.
The trial court ordered Appellant to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925.
Appellant complied, raising the same issues presented in her
Appellant filed a motion to amend her concise statement based
on our Supreme Court's grant of allocatur in
Commonwealth v. Carley, 141 A.3d 1287 (Pa. Super.
2016). Appellant's motion was granted and an
amended concise statement was filed, which added the
following issue: "[Appellant] alleges that [the trial
court] erred in considering the refusal to submit to blood
testing as evidence of the defendant's consciousness of
guilt." Concise Statement, 2/7/2017, at ¶ 10.
appeal, Appellant sets forth one issue for our review:
"Whether the trial court erred when it considered the
refusal to submit to a blood test as substantive evidence in
violation of her constitutional rights[.]"
Appellant's Brief at 3. Appellant recognizes that she did
not raise this issue in the trial court, but argues that
because Birchfield was not decided until after
trial, "the matter was not at issue at the time of
trial, and [Appellant] is entitled to the protection of the
rule on appeal." Id. at 10.
we reach the merits of this issue, we must determine whether
it has been preserved for our review. It is well-settled that
"[i]ssues not raised in the lower court are waived and
cannot be raised for the first time on appeal."
Pa.R.A.P. 302(a). The decision in Birchfield
announced a new criminal rule. When a United States Supreme
Court decision "results in a 'new rule, ' that
rule applies to all criminal cases still pending on direct
review." Schriro v. Summerlin, 542 U.S. 348,
351 (2004) (citing Griffith v. Kentucky, 479 U.S.
314, 328 (1987)). "Case law is clear, however, that in
order for a new rule of law to apply retroactively to a case
pending on direct appeal, the issue had to be preserved at
all stages of adjudication up to and including the direct
appeal." Commonwealth v. Tilley, 780 A.2d
649, 652 (Pa. 2001) (internal citations and quotation marks
omitted); see also Commonwealth v. Newman, 99 A.3d
86, 90 (Pa. Super. 2014) (en banc) ("To be
entitled to retroactive application of a new constitutional
rule, a defendant must have raised and preserved the issue in
the court below.").
in order to challenge the admissibility of Officer
Vozza's testimony at this juncture, Appellant would have
had to have filed a motion in limine to prohibit the
testimony prior to trial or to have objected to this
testimony during ...