from the Judgment of Sentence, September 7, 2017, in the
Court of Common Pleas of Franklin County, Criminal Division
at No(s): CP-28-CR-0000813-2016.
BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J.
Neysmith appeals from the judgment of sentence, after a jury
convicted him of driving under the influence (DUI) of
alcohol. We affirm.
one night, Neysmith drove upon a highway of the Commonwealth
with a blood alcohol content (BAC) of 0.126. Erratic driving
ensued. The state police, following close behind Neysmith,
recorded events on their cruiser's dashboard camera.
See Commonwealth's Suppression Exhibit 1.
Neysmith had difficulty staying in his lane, so the troopers
pulled him over.
first, things proceeded routinely. The police smelled
alcohol; heard slurred speech; observed bloodshot and glassy
eyes; and administered two field sobriety tests and four
breathalyzers. Neysmith failed both sobriety tests and did
not breathe hard enough to produce readings on the
breathalyzer. As the troopers arrested him, Neysmith, drawing
on his knowledge from several prior DUI arrests, asked,
"Can I get a needle test, please, with all due
respect?" Commonwealth's Suppression Exhibit 1;
see also N.T. Of Suppression Hearing, 12/19/16, at
state police had not requested a blood sample, so the trooper
asked, "For blood?" Commonwealth's Suppression
answered, "Yeah, for blood." Id.
trooper quickly accepted, saying, "That's what
we're gonna do, sir. We're gonna take you to the
was so sure that a BAC test would prove his innocence that,
as the police patted him down, he again asked, "Do I get
to take a blood test, though?" Id.
we're gonna do that," the trooper reassured him.
when they were at the hospital, the police presented Neysmith
with a DL-26 Form that Birchfield v. North Dakota,
579 U.S. ___, 136 S.Ct. 2160 (2016), would later render
unconstitutional. Because Neysmith had personally requested
the blood draw before receiving the unconstitutional DL-26
Form, the judge distinguished these events from those in
Birchfield and permitted the jury to consider
Neysmith's blood-draw results.
jury convicted him of DUI.
the trial judge scheduled Neysmith's sentencing for June
14, 2017 but, after several false starts, postponed that
hearing until September 7, 2017. Neysmith caused these delays
by contesting the Commonwealth's claim that he had two
prior DUI convictions. He challenged the prosecutors'
submission of a 2014 DUI conviction in Franklin County,
Pennsylvania and a similar 2013 conviction from Washington
County, Maryland. Neysmith used the alias of "Prince
Fevoir St. Hilaire," in both of those prior cases. He
provided that same alias to police during his arrest in this
Maryland case, an intoxicated "St. Hilaire" drove a
car registered to Michelle McKeller, Neysmith's
"girlfriend of seven years." Trial Court Opinion at
10. Also, the Maryland defendant's "name" and
"birth date" matched the "name" and
"birth date" that Neysmith used in his past DUI
conviction in Pennsylvania. Thus, the trial court found that
this case marked Neysmith's third DUI conviction in the
past ten years. It therefore imposed a sentence of 18 to 60
months of incarceration in the state penitentiary.
raises three claims of error. First, he challenges the
admission of his blood draw into evidence, because, he
claims, his consent to the draw was involuntary.
Neysmith's Brief at 11. Second, Neysmith asserts that the
Commonwealth's evidence was insufficient to support the
trial court's finding that he has a prior DUI conviction
from Maryland. Id. Third, he argues that the trial
court violated his due process and speedy-trial rights by
sentencing him more than 90 days after his conviction.
Id. We will address each issue in turn.
The evidence of record supports the suppression court's
finding that the DL-26 Form did not coerce Neysmith into
requesting the blood draw.
appealing the common pleas court's admission of his BAC
from the blood-draw test into evidence, Neysmith claims his
consent to the test was involuntary. Specifically, he argues
that "the Commonwealth presented no evidence that [his]
decision to sign the O'Connell
warnings and allow his blood to be drawn was not
due to fear of enhanced criminal penalties for refusing the
blood test." Neysmith's Brief at 21-22. The
suppression judge disagreed with this interpretation of the
facts and found that Neysmith wanted a blood draw, because he
"believed that that blood test result was going to
vindicate him, demonstrate that he was not, in fact, under
the influence of alcohol." N.T. of Suppression Hearing,
12/19/16, at 31-32.
correctly states that our "standard of review is
limited" when examining a suppression judge's
factual findings. Neysmith Brief at 9. We review those
findings "only for clear error and [are] to give due
weight to inferences drawn from those facts by resident
judges and local law enforcement officers." Ornelas
v. United States, 517 U.S. 690 (1996). When applying a
"clearly erroneous" standard, the suppression
court's findings of fact are binding upon the appellate
court, unless definitely and firmly convinced that the lower
court made a mistake. In other words, we shall only reverse a
finding of fact if it is implausible in light of the
scope of review in these matters is limited to certain
suppression-hearing evidence. See In re L.J., 79
A.3d 1073 (Pa. 2013). Because the Commonwealth prevailed on
this issue in the suppression court, we consider "only
the evidence of the prosecution and so much of the evidence
for the defense as remains uncontradicted when read in the
context of the record as a whole. When the record supports
the findings of the suppression court, we are bound by those
facts and may reverse only if the legal conclusions drawn
therefrom are in error." Commonwealth v.
Johnson, 33 A.3d 122, 124 (Pa. Super. 2011).
case, the crux of the issue is whether Neysmith's consent
to the blood draw was knowing and voluntary. See
Neysmith's Brief at 18; Commonwealth's Brief at 2.
Valid consent is "the product of an essentially free and
unconstrained choice-not the result of duress or coercion,
express or implied, or a will overborne-under the totality of
the circumstances." Commonwealth v. Caban, 60
A.3d 120, 130 (Pa. Super. 2012), overruled on
other grounds as recognized in Commonwealth v. Coleman,
130 A.3d 38, 42 n.1 (Pa. Super. 2015).
contends that the Commonwealth coerced him into requesting
the blood draw, because he knew, based on a DUI arrest in
Luzerne County in 2003, that refusing an officer's
blood-draw request would result in enhanced criminal
penalties. Neysmith's Brief at 21. He also claims that
the pre-Birchfield DL-26 Form, which the troopers
presented to him at the hospital, confirmed his understanding
that enhanced penalties would apply to a refused blood
in his brief does he say how or why the judge's findings
of fact were clearly erroneous, implausible in light of all
the evidence, or unsupportable given the facts of record.
Instead, Neysmith is ...