J-A22036-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF : IN THE SUPERIOR COURT OF PENNSYLVANIA : PENNSYLVANIA : : v. : : : ALLEN PIPPEN : : No. 2112 EDA 2016 Appellant Appeal from the Judgment of Sentence June 13, 2016 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0009346-2014

BEFORE: BOWES, J., LAZARUS, J., and PLATT*, J.

CONCURRING/DISSENTING MEMORANDUM BY LAZARUS, J.: FILED OCTOBER 31, 2017 I join in the majority’s disposition of Pippen’s compulsory joinder issue; we are bound by our en banc decision in Perfetto. I respectfully dissent, however, from the majority’s determination that Pippen waived his Birchfield claim.1 I believe that the issue implicates the legality of Pippen’s sentence and, therefore, is non-waivable. ____________________________________________

____________________________________ * Retired Senior Judge assigned to the Superior Court.

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It is well established that “an exception to the issue-preservation requirement exists where the challenge is one implicating the legality of the appellant’s sentence.” Commonwealth v. Barnes, 151 A.3d 121, 124 (Pa. 2016). Here, Pippen was arrested for suspected DUI and taken to the police station. When he arrived at the station, he was read his implied consent/O’Connell2 warnings prior to having his blood drawn. See N.T.

Suppression Motion Hearing, 5/2/14, at 30. Pursuant to Birchfield, the voluntariness of Pippen’s consent was potentially compromised and, thus, a violation of his constitutional rights against unlawful searches and seizures.

Accordingly, I would vacate Pippen’s judgment of sentence and remand the case for a re-evaluation of Pippen’s purported consent. See Commonwealth v. Evans, 153 A.3d 323 (Pa. Super 2016); see also Commonwealth v. Giron, 155 A.3d 635 (Pa. Super. 2017) (where defendant refused to read and sign DL-26/O’Connell warnings or give consent to have blood drawn, and was subjected to enhanced DUI penalties, court sua sponte deemed sentence illegal despite fact that defendant never raised Birchfield).3 ____________________________________________

actually suppressed the defendant’s post-arrest BAC from blood drawn at the arresting officer’s request. Thus, any discussion regarding Birchfield and waiver under the instant circumstances is inapplicable to Pippen’s case.

Commonwealth v. Cox, 983 A.2d 666, 702 (Pa. 2009). Here, the issue of

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blood draws in DUI cases was not granted review by the United States Supreme Court in Birchfield until December 11, 2015 – more than two years after Pippen was arrested and his blood was drawn, nineteen months after Pippen’s motion to suppress was decided and he was found guilty of section 3802(d)(3) in the Municipal Court, and almost four months after Pippen filed an appeal for a trial de novo in the Court of Common Pleas. ____________________________________ * Retired Senior Judge assigned to the Superior Court.