Superior Court applies Birchfield to pre-Birchfield conviction sua sponte, i.e. without it being raised below
Commonwealth of Pennsylvania v. Giron, 2017 PA Super 23 (January 31, 2017)
Mr. Giron was convicted on DUI on April 15, 2016 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, and sentenced to 90 days to 5 years’ imprisonment on the second offense DUI-general impairment (with refusal) charge. The refusal charge was based on the trial court’s finding that Mr. Giron, when requested and warned of penalties under the law, refused to supply a blood sample. His challenge to the sufficiency of the evidence was found waived, and to the weight of the evidence waived.
Birchfield v. North Dakota, 136 S.Ct. 2160 (2016) (police cannot compel a driver to provide a blood sample without first obtaining a search warrant except in certain limited circumstances) was decided after this case was decided. The Defendant did not raise it on appeal, but at oral argument the parties directed them to address it. The Superior Court raised the issue sua sponte, citing Commonwealth v. Mosley, 114 A.3d 1072 (Pa. Super, 2015) where it did something similar with a case with Alleyne issues. Finding Birchfield applied, the Superior Court vacated the sentence and remanded for resentencing.
This case is significant for two reasons. First, it flies in the face of another decision last week in Commonwealth v. March, 2017 PA Super 18, where the neither Superior Court nor parties raised the issue at all. Second, it shows that it is not too late to raise this issue if you have a case of direct appeal involving a pre-Birchfield (and maybe a post-Birchfield) conviction and have not mentioned it till now. For now, assume it is never too late to raise Birchfield. That is what another appellant successfully did in Commonwealth v Evans, 2016 PA Super 293, and he won.
 A weight of the evidence claim must be preserved either in a post-sentence motion, by a written motion before sentencing, or orally prior to sentencing. I can conceive of no circumstance where one is challenging the sufficiency of the evidence this issue is not at least preserved in the trial court, given the ease of doing so.
 Back in the day, when we got these decisions by way of advance sheets, there was a rule that the issue was not raised if you did not raise it six weeks after the decision, as there was no way you could have possibly known about it. Appellate court websites that publish decisions have removed this excuse, but as Commonwealth v. Mosley shows, the Superior Court will sometimes forgive counsel who does not raise a recently announced ruling. The Defendant in Commonwealth v. Mosley was tried after Alleyne was decided.