J-S22028-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

AUDRA LEIGH BROWN

Appellant No. 1677 WDA 2014

Appeal from the Judgment of Sentence September 12, 2014

In the Court of Common Pleas of Mercer County

Criminal Division at No(s): CP-43-CR-0001008-2013

BEFORE: PANELLA, J., LAZARUS, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.: FILED JUNE 19, 2015

Audra Leigh Brown appeals from the judgment of sentence imposed by 

the Court of Common Pleas of Mercer County following her convictions for 

driving under the influence (DUI),1 homicide by vehicle while DUI,2failure to 

drive within a single lane,3and careless driving.4 After careful review, we 

affirm.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 75 Pa.C.S. § 3802(a)(1).

2 75 Pa.C.S. § 3735(a).

3 75 Pa.C.S. § 3309(1).

4 75 Pa.C.S. § 3714(a). 
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On June 20, 2012, at 11:03 p.m., Jeffrey Darling, a paramedic from 

Life Force Ambulance Group, was dispatched to an accident near Fredonia 

and Poole Roads in Mercer County. When he arrived at that location, he 

noticed a midsize car in the yard with severe damage. Representatives of 

the fire department who were already at the scene directed him to an 

individual lying on the ground, who Darling quickly realized was dead. 

Darling also noticed another victim, Brown, who was running around and 

crying. It took a number of minutes for Darling to calm Brown down so that 

she could answer his questions.

Trooper Thomas Ulintz of the Pennsylvania State Police arrived on the 

scene at 11:33 p.m. and noticed that Brown had bruises and scratches from 

her shoulder to her legs. In response to questions from the Trooper, Brown 

identified herself and the victim, and denied being the driver.

Trooper Ulintz then went to the site where the car was located, and 

saw that the driver’s seat was positioned more forward than the passenger’s 

seat. He noticed that, based on the deceased victim’s height, he would not 

have needed the driver’s seat pushed so far forward if he had been the 

driver. Concerned that a third person who may have been the driver had 

been ejected from the vehicle, the Trooper searched the area for an 

additional victim. When the Trooper told Brown of his concerns, she

apologized and admitted that she was the driver. 

Trooper Brian Shevitz, who was the officer in charge, was the next to 

arrive on the scene, where he saw an empty case of beer [bottles] strewn 
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about the vehicle and on the ground. He also noticed that the passenger’s 

seat belt was in place and the driver’s seat belt was sprung. Based on his 

experience in accident investigation, he concluded that the passenger was 

not wearing a seat belt at the time of the accident and, therefore, that the 

deceased was probably the passenger. Trooper Shevitz spoke with Brown, 

and she again apologized and admitted she was the driver.

Trooper Shevitz requested that the paramedic at the scene draw blood 

samples from Brown. Although the standard kit used by the State Police has 

two vials, the paramedic was only able to obtain one vial from Brown. As a 

result, Trooper Shevitz requested that she undergo another blood test at the 

hospital.

The ambulance transporting Brown left the scene at 12:32 a.m. and 

arrived at the hospital at 12:57 a.m. Trooper Ulintz was in a vehicle that 

followed the ambulance to the hospital. Upon arrival, Trooper Ulintz 

requested that the staff perform a blood draw. An additional two tubes of 

blood were drawn at 1:30 a.m. Although the three vials of blood were sent 

for testing, the lab report indicates that only the blood from the second draw 

was analyzed. The test results indicated that Brown had a blood alcohol 

content (BAC) of .178 percent.

On July 2, 2013, Brown was charged with several offenses arising out 

of the accident. On March 13, 2014, Brown filed a motion in limine seeking 

to suppress the BAC test results and certain incriminating statements that 
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she made to the troopers at the accident scene. The court held a hearing on 

April 9, 2014, following which it denied the motion.

On April 15, 2014, a nonjury trial was held. The following day, the 

court issued an order granting Brown’s demurrer to the charge of driving 

under the influence – highest rate of alcohol.5 On July 17, 2014, the court 

found Brown guilty of the aforementioned offenses, and on September 12, 

2014, the court imposed an aggregate sentence of three to six years’ 

imprisonment plus fines and costs.

Brown filed a notice of appeal on October 10, 2014. On November 3, 

2014, in response to an order from the trial court, Brown filed a statement 

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). The trial 

court filed its Rule 1925(a) opinion on December 12, 2014.

On appeal, Brown raises the following issue for our review:

Whether the trial court erred in failing to suppress evidence of 

Brown’s BAC test results where the blood was drawn more than 

two hours subsequent to her alleged operation of a motor 

vehicle, after determining that the Commonwealth had shown 

good cause as to why the blood sample was not obtained within 

two hours, when a blood sample was taken within two hours but 

not tested.

Appellant’s Brief, at 4.

We apply the following standard of review to this matter:

Our standard of review in addressing a challenge to the denial of 

a suppression motion is limited to determining whether the 

____________________________________________

5 75 Pa.C.S. § 3802(c).
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suppression court’s factual findings are supported by the record 

and whether the legal conclusions drawn from those facts are 

correct. Because the Commonwealth prevailed before the 

suppression court, we may consider only the evidence of the 

Commonwealth and so much of the evidence for the defense as 

remains uncontradicted when read in the context of the record 

as a whole. Where the suppression court’s factual findings are 

supported by the record, we are bound by these findings and 

may reverse only if the court's legal conclusions are erroneous. 

Where, as here, the appeal of the determination of the 

suppression court turns on allegations of legal error, the 

suppression court’s legal conclusions are not binding on an 

appellate court, whose duty it is to determine if the suppression 

court properly applied the law to the facts. Thus, the conclusions 

of law of the courts below are subject to our plenary review.

Commonwealth v. Hoppert, 39 A.3d 358, 361–62 (Pa. Super. 2012) 

(citation omitted).

Section 3802 of the Vehicle Code, which addresses driving under the 

influence of alcohol or controlled substances, provides in relevant part:

(a) General impairment.--

(1) An individual may not drive, operate or be in actual physical 

control of the movement of a vehicle after imbibing a sufficient 

amount of alcohol such that the individual is rendered incapable 

of safely driving, operating or being in actual physical control of 

the movement of the vehicle.

. . .

(c) Highest rate of alcohol.-- An individual may not drive, 

operate or be in actual physical control of the movement of a 

vehicle after imbibing a sufficient amount of alcohol such that 

the alcohol concentration in the individual’s blood or breath is 

0.16% or higher within two hours after the individual has driven, 

operated or been in actual physical control of the movement of 

the vehicle.

. . .

(g) Exception to two-hour rule.--Notwithstanding the provisions 

of subsection (a), (b). (c), (e) or (f), where alcohol or controlled 
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substance concentration in an individual’s blood or breath is an 

element of the offense, evidence of such alcohol or controlled 

substance concentration more than two hours after the individual 

has driven, operated or been in actual physical control of the 

movement of the vehicle is sufficient to establish that element of 

the offense under the following circumstances:

(1) where the Commonwealth shows good cause explaining why 

the chemical test sample could not be obtained within two 

hours; and

(2) where the Commonwealth establishes that the individual did 

not imbibe any alcohol or utilize a controlled substance between 

the time the individual was arrested and the time the sample 

was obtained.

75 Pa.C.S. § 3802.

Here, the accident occurred no later than 11:03 p.m. when the 

ambulance was dispatched to the scene. Brown argues that 11:03 p.m. 

“serves as the baseline for the latest time that anyone could have driven the 

automobile.” Appellant’s Brief, at 9. Therefore, in conformity with the twohour rule set forth in section 3802, the police were required to obtain 

Brown’s blood sample before 1:03 a.m. However, this did not occur until 

twenty-seven minutes later at 1:30 a.m. Nevertheless, at the conclusion of 

the suppression hearing, the court concluded that the Commonwealth had 

shown good cause for the delay, and that Brown did not imbibe any alcohol 

between the time of her arrest and the time her blood was drawn.

Central to our disposition of this matter is the fact that the trial court 

granted Brown’s demurrer to the charge of DUI highest rate of alcohol, 

which was the only count that required the Commonwealth to establish her 

BAC within two hours of driving. See 75 Pa.C.S. § 3802(c). Instead, Brown 
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was convicted of driving after imbibing an amount of alcohol that rendered 

her incapable of driving safely. Accordingly, the demurrer moots the twohour rule analysis. It is well settled that “the appellate courts of this 

Commonwealth will not decide moot questions.” Commonwealth v. Benn, 

680 A.2d 896, 898 (Pa. Super. 2002) (citations omitted). 

At trial, paramedic Jeffrey Darling testified as follows about his initial 

contact with Brown at the accident scene:

Q: Did you notice any unusual odors about her?

A: Indeed. She did – I did ask her at one point, or I stated I 

smelled some alcohol, had she been drinking today. And 

she told me she had been drinking and that she was in 

trouble with the police.

Q: Did she specify as to why she was in trouble with the 

police?

A: She didn’t. She just continually said that she had been 

drinking, she is in trouble with the police.

N.T. Trial, 4/15/14, at 36.

Trooper Shevitz testified that Brown told him she had consumed 

alcohol the night of the accident.

A: She had something at the restaurant where they ate 

earlier and then something else and then, like I said, I 

have it written down, I think they were White Russians. 

She referred to – yeah, I wasn’t drinking [the beer that 

was in the car]. I had two glasses of wine at the 

restaurant, which I believe was the Springfield Grille, one 

draft beer, a White Russian drink, and one White Russian 

drink at the OK Corral.

Id. at 109-10.
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Trooper Shevitz subsequently testified:

A: I could smell the odor of an alcoholic beverage being 

emitted from her breath and person as I spoke with her, 

her eyes were bloodshot, her speech was slurred, and you 

know, from investigating crashes and DUI arrests over my 

career, I was under the impression that she was possibly 

intoxicated.

Q: And did the additional fact that she had told you that she 

had alcohol did that –

A: Yes, and the amount she told me she had drank [sic] I, 

you know, to me was sufficient to believe that she was 

intoxicated, plus the beer in the car.

Id. at 113.

Our Supreme Court has noted that:

The types of evidence that the Commonwealth may proffer in a 

subsection 3802(a)(1) prosecution include but are not limited to 

the following: the offender’s actions and behavior, including 

manner of driving and ability to pass field sobriety tests; 

demeanor, including toward the investigating officer; physical 

appearance, particularly bloodshot eyes and other physical signs 

of intoxication; odor of alcohol, and slurred speech.

Commonwealth v. Segida, 985 A.2d 871, 879 (Pa. 2009).

The evidence presented at trial was sufficient to establish beyond a 

reasonable doubt that Brown was guilty of DUI without consideration of BAC 

test results.6 Because the trial court granted Brown’s demurrer to the 

____________________________________________

6 Although not listed as a separate question presented, Brown argues in her 

brief that the Commonwealth presented insufficient evidence to support her 

conviction for DUI. Appellant’s Brief, at 16-17.
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subsection 3802(c) count, her challenge to the decision to admit BAC 

evidence is moot.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/19/2015