J-S28030-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MADISON MARIE MORGAIN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1285 WDA 2022

Appeal from the Judgment of Sentence Entered October 25, 2022

In the Court of Common Pleas of Butler County Criminal Division at 

No(s): CP-10-CR-0002024-2020

BEFORE: PANELLA, P.J., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY OLSON, J.: FILED: September 29, 2023

Appellant, Madison Marie Morgain, appeals from the judgment of 

sentence entered October 25, 2022. We affirm. 

The trial court summarized the relevant facts of this case as follows. 

On October 17, 2020, [Appellant] was at [a residence along]

Branchton Road, Cherry Township[, Pennsylvania, (hereinafter, 

the “Branchton Road residence”)] attending a party. She was 

at the party with her boyfriend, [Bill] McGregor[.] Pennsylvania 

State Trooper Casey Fuller[,] who testified credibly at both the 

pretrial hearing and trial, was dispatched to the Branchton Road 

residence for an active domestic call between [Appellant] and 

McGregor. 

Once he arrived on scene at approximately 2:00 [a.m.], Trooper 

Fuller observed [Appellant] and McGregor around a vehicle that 

belonged to [Appellant]. The rear window was broken as a 

result of McGregor punching it, which [caused] an ambulance 

[to be summoned] to treat his injured hand. Trooper Fuller and 

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* Former Justice specially assigned to the Superior Court.
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others affixed a tarp to the broken window in an effort to keep 

the elements from entering the [vehicle’s interior]. 

[Appellant] during this initial interaction with Trooper Fuller was 

distraught and heavily intoxicated. She had bloodshot and 

glassy eyes, dilated pupils[,] and had a strong odor of alcohol 

emanating from her breath and person. 

Trooper Fuller, while advising [Appellant] to go home and away 

from the scene of the domestic call, was told by [Appellant] that 

she was too drunk to drive herself home. Trooper [Fuller] 

advised [Appellant] to find a friend to give her a ride home. 

During the entire [interaction], Trooper [Fuller] observed 

[Appellant] with a drink in her hand continually consuming 

alcohol. 

Once the domestic dispute was resolved and the tarp was 

placed on [Appellant’s] vehicle, Trooper [Fuller] left the party 

to attend to another unrelated call. 

[Later,] Trooper Fuller was again dispatched to the same 

residence due to a disturbance caused by [Appellant]. Robert 

Rossman, III . . . who lives at the Branchton Road residence, 

had his wife call the police because [Appellant] would not leave 

the property hours after being told to [do so]. When the second 

call to the police was made, [Appellant’s] vehicle was observed 

near the bottom of [] Rossman’s driveway. Once Trooper Fuller 

arrived back at the residence, he was told [that Appellant just 

left] and her vehicle was no longer on the property. The only 

person who left the party was [Appellant]. 

Trooper Fuller arrived back to the Branchton Road residence 

around 4:30 [a.m.]. After speaking with Rossman who told him 

[Appellant] recently left, Trooper Fuller was worried about 

[Appellant’s] wellbeing due to her high level of intoxication 

when he last observed her and the winding backroads she would 

[navigate] home. The drive between the two houses is roughly 

three to four miles. 

While in transit to [Appellant’s] residence, Trooper Fuller 

spotted on the road the same tarp he had place[d] on 

[Appellant’s] vehicle during his first encounter with her. When 

he arrived at her residence, [Appellant’s] vehicle was parked in 

the driveway and the tarp was missing from her rear window 

with visible damage to the rear of the vehicle. While 

approaching the front door, Trooper Fuller heard [Appellant] 
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and a male arguing. Concerned the male’s voice was 

McGregor’s, Trooper Fuller knocked on the front door and 

announced himself. 

After a brief discussion in the doorway, [Appellant] allowed 

Trooper Fuller inside her residence to speak with Matthew

Jackson, the individual [Appellant] told Trooper Fuller drove her 

home from the party. During Trooper Fuller’s conversation with 

[] Jackson, [Appellant] changed her story and admitted to 

Trooper [Fuller] that she drove herself from the party. 

McGregor was not present in the home. 

[Appellant] appeared upset, aggravated and still visibly 

intoxicated. After admitting to Trooper Fuller she drove herself 

home, he led her outside and commenced field sobriety testing. 

Shortly after the field sobriety testing began, [Appellant] 

stopped cooperating and refused to continue. At this point, 

Trooper Fuller placed [Appellant] under arrest for suspicion of 

[driving under the influence (“DUI”)] and transported her to 

Butler Memorial Hospital at approximately 5:30 [a.m.] 

***

Donna Papsun, M.S., D-ABFT-FT, is board certified from the 

American Board of Forensic Toxicology, and previously testified 

in over 140 cases. She was recognized as an expert in the field 

of forensic toxicology without objection. She has been 

employed by NMS Labs since 2008 and has been a toxicologist 

for the last 10 years. She issued a report on the matter dated 

November 6, 2020. 

It was her responsibility, as the signing toxicologist to review 

the data generated in the lab to guarantee its accuracy. The 

testing revealed that [Appellant’s] blood drawn on the night of 

the incident had an alcohol reported at 193 milligrams per 

deciliter. This translates to a [blood alcohol content (“BAC”)] of 

[0].193. [] Papsun made her conclusions to a reasonable 

degree of professional certainty. 

Trial Court Opinion, 2/10/23, at 1-4. 

On January 28, 2021, Appellant was charged via information with 

DUI - general impairment, DUI – highest rate, and careless driving. Appellant 
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filed an omnibus motion to suppress on January 24, 2022. In her motion, 

Appellant argued that Trooper Fuller’s “failure to obtain a warrant prior to 

arresting [her] from her residence” violated her “right to privacy under the 

Fourth Amendment of the United States Constitution and parallel section of 

the Pennsylvania Constitution.” Appellant’s Motion to Suppress, 1/24/22, at 

*3 (unpaginated). Appellant also argued that, because “her blood was not 

drawn until 5:29 [a.m.],” and because Trooper Fuller “last observed [her] at 

around 2:58 [a.m.],” the blood sample was not obtained within two hours as 

required by 75 Pa.C.S.A. § 3802(c). Id. Based upon the foregoing, Appellant 

asked the court to “suppress the chemical tests involving her blood alcohol 

level, officer testimony and other illegal fruits of the poisonous tree.” Id. at 

*4. A hearing was conducted on Appellant’s motion on March 23, 2022, during 

which Trooper Fuller testified. Ultimately, the trial court denied Appellant’s 

motion. Trial Court Order, 3/24/22, at 1. 

The matter proceeded to a non-jury trial on September 8, 2022. At the 

close of testimony, the trial court found Appellant guilty of DUI – general 

impairment and DUI – highest rate,1 but not guilty of careless driving. On 

October 25, 2022, the trial court sentenced Appellant to six months’ probation 

and to pay a fine of $1,000.00. This timely appeal followed. 

Appellant raises the following issues on appeal: 

I. [Whether t]he [suppression] court erred when it denied 

[Appellant’s suppression] motion challenging the 

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1 75 Pa.C.S.A. §§ 3801(a)(1) and 3802(c), respectively. 
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admissibility of [Appellant’s] blood alcohol test taken 

[following] a warrantless search[?]

II. Whether the [suppression] court erred when it denied 

[Appellant’s suppression] motion challenging the 

admissibility of [Appellant’s] blood alcohol test [] when 

the blood draw was [taken] more than two hours [after

Appellant] operat[ed] her vehicle[?]

III. Whether the Commonwealth failed to present sufficient 

evidence to . . . establish that [(a) Appellant] operated 

her vehicle and [(b)] that [Appellant] was intoxicated to 

such a degree that she was incapable of any safe driving 

to sustain a convict[ion] for a DUI pursuant [to] 75 

Pa.C.S.[A. §] 3801(a)(1) and 75 Pa.C.S.[A. §] 3802(c)[?]

Appellant’s Brief at 3-4. 

Appellant’s first two issues challenge the court’s suppression ruling. Our 

standard of review in addressing a challenge to a trial court's denial of a 

suppression motion is

limited to determining whether the factual findings are 

supported by the record and whether the legal conclusions 

drawn from those facts are correct.

We may 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. Where the 

record supports the findings of the suppression court, we are 

bound by those facts and may reverse only if the court erred in 

reaching its legal conclusions based upon the facts.

Moreover, it is within the lower court's province to pass on the 

credibility of witnesses and determine the weight to be given to 

their testimony.

Furthermore, our Supreme Court clarified that the scope of 

review of orders granting or denying motions to suppress is 

limited to the evidence presented at the suppression hearing.
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Commonwealth v. Williams, 176 A.3d 298, 315–316 (Pa. Super. 2017) 

(internal citations and quotations omitted).

In her first appellate issue, Appellant claims that Trooper Fuller lacked 

probable cause to request a blood draw, resulting in an unconstitutional search 

violating her rights under the Fourth Amendment of the United States’ 

Constitution, as well as Article 1, Section 8 of the Pennsylvania Constitution. 

Appellant’s Brief at 14-20. Appellant, however, did not raise this issue in her 

suppression motion or during the suppression hearing held on March 23, 2022. 

Indeed, Appellant’s basis for suppression, as set forth in her motion to 

suppress, was as follows: 

a) Pennsylvania law enforcement’s failure to obtain a 

warrant prior to arresting [Appellant] from her residence 

[] resulted in a violation of [her] right to privacy under 

the Fourth Amendment of the United States Constitution 

and parallel section of the Pennsylvania Constitution. 

b) The officer’s actions of driving to [Appellant’s] residence 

did not meet the legal requirements of an anticipatory 

search warrant in violation of the Fourth Amendment of 

the United States Constitution and parallel section of the 

Pennsylvania Constitution in the following ways[.]

c) Pennsylvania law enforcement last observed [Appellant] 

at or around 2:58 [a.m.] at [the Branchton Road 

residence]. She was [not] in operation of a vehicle at the 

time [the officer] observed her and even if they did, her 

blood was not drawn until 5:29 [a.m.], more than two 

hours from 2:58 [a.m.]

Appellant’s Motion to Suppress, 1/24/22, at *3 (unpaginated). Appellant’s 

arguments during the hearing on her suppression motion were similarly 

limited. See N.T. Suppression Hearing, 3/23/22, at 9-36; 46-47. Hence, at 
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no time prior to the instant appeal did Appellant claim that Trooper Fuller 

lacked probable cause to demand a blood test. As such, this issue is waived. 

See Pa.R.A.P. 302(a) (“Issues not raised in the trial court are waived and 

cannot be raised for the first time on appeal.”). 

In her second appellate issue, Appellant contends the trial court erred 

in denying her motion to suppress the results of the blood alcohol test because 

it was taken more than two hours after driving. In particular, Appellant claims 

that the Commonwealth failed “to establish that [she] exercised control of the 

movement of her vehicle at the time she was intoxicated.” Appellant’s Brief 

at 22. Appellant points to the fact that no one, including Trooper Fuller, saw 

her operate the vehicle. Id. Alternatively, Appellant claims that the 

Commonwealth failed to establish good cause or that she did not imbibe any 

alcohol between the time she was arrested and the time her blood sample was 

obtained pursuant to 75 Pa.C.S.A. § 3802(g). Id. at 25-26. 

This Court previously explained: 

Section 3802(a)(1) of the Vehicle Code provides:

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.

75 Pa.C.S.[A.] § 3802(a)(1).

Section 3802(c) of the Vehicle Code provides:

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 
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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.

75 Pa.C.S.[A.] § 3802(c). Section 3802(c)'s requirement to 

take the defendant's blood test within two hours after the 

individual has driven is subject to a “good cause” exception 

within section 3802(g), which provides:

Notwithstanding the provisions of subsection . . . (c) . . . 

where alcohol or controlled 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.[A.] § 3802(g). In a section 3802(c) prosecution, 

when the blood test does not take place within two hours after 

the defendant drives, operates or is in actual physical control of 

the vehicle, test results are subject to suppression unless 

Commonwealth proves good cause for the delay in obtaining a 

blood test and the defendant did not imbibe alcohol between his 

arrest and his blood test. 75 Pa.C.S.[A.] § 3802(g).

Commonwealth v. Eichler, 133 A.3d 775, 786 (Pa. Super. 2016).

A review of the testimony proffered during the suppression hearing 

reveals the following. Trooper Fuller was dispatched to the Branchton Road 

residence twice on October 17, 2020. Initially, Trooper Fuller was at the 

residence between 1:36 a.m. and 2:58 a.m. N.T. Suppression Hearing, 

3/23/22, at 12. Trooper Fuller was dispatched to the residence for the second 
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time at approximately 4:30 a.m. due to complaints that Appellant caused a 

disturbance. Id. at 13. Trooper Fuller arrived to the Branchton Road 

residence shortly thereafter. Id. Upon arrival, Trooper Fuller “observed that 

[Appellant’s] vehicle was no longer at the residence” and he was informed 

Appellant “left shortly prior to [his] arrival.” Id. at 14. As such, Trooper Fuller 

drove to Appellant’s residence, located three to four miles away, and 

ultimately arrived at 4:45 a.m. Id. at 15. When Trooper Fuller arrived at 

Appellant’s residence, he observed her vehicle in the driveway and then 

proceeded to Appellant’s front door, wherein he heard Appellant arguing with 

a male. Id. at 16. Concerned for Appellant’s safety, Trooper Fuller knocked 

on Appellant’s front door and announced himself. Id. Appellant opened the 

door and invited Trooper Fuller inside. Id. at 16-17. Because Trooper Fuller 

observed that Appellant’s eyes were “bloodshot and glassy,” her speech was 

slurred, and an “odor of intoxicating beverages” was emanating from 

Appellant’s “breath and person,” he asked Appellant “how she had arrived 

home.” Id. at 16. Appellant, as well as her friend, Matthew Jackson, informed 

Trooper Fuller that Appellant drove her vehicle from the Branchton Road 

residence to her home. Id. at 17. As such, Trooper Fuller attempted to 

perform field testing to determine Appellant’s level of impairment but, 

ultimately, Appellant refused to comply. Id. at 17-18. Accordingly, Trooper 

Fuller arrested Appellant, took her to the hospital, wherein her blood was 

drawn at approximately 5:30 a.m. Id. at 18; see also Trial Court Opinion, 

2/10/23, at 10.
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We conclude that the trial court correctly denied Appellant’s suppression 

motion. Initially, we note that Appellant was charged under Section 

3802(a)(1) and 3802(c). Importantly, Section 3802(a)(1) “does not include 

‘two hour’ language,” and, as such, “evidence of blood tests taken more than 

two hours after driving is admissible under subsection (a)(1) without resort to 

[S]ection 3802(g).” Eichler, 133 A.3d at 787. Hence, Appellant’s claim that 

the court erred in denying her suppression motion fails on this basis. 

In addition, we conclude that the trial court correctly denied suppression 

based upon its finding that Appellant’s blood draw occurred within the 

two-hour time constraint set forth in Section 3802(c). First, the evidence 

clearly demonstrated that Appellant drove her vehicle home on the morning 

in question, as both she and her friend admitted to Trooper Fuller. Second, 

the circumstantial evidence demonstrated that Appellant drove home

sometime between 4:00 a.m. and 4:45 a.m. Indeed, it is apparent that 

Appellant was still at the Branchton Road residence around 4:30 a.m., as her 

removal from the party was the basis for the dispatch. In addition, Trooper 

Fuller’s testimony showed that, between the time of dispatch and Trooper 

Fuller’s arrival at the Branchton Road residence shortly after 4:30 a.m., 

Appellant left. Finally, Trooper Fuller testified that he arrived at Appellant’s 

residence at 4:45 a.m. and her vehicle was in the driveway. Thus, we 

conclude that the Commonwealth demonstrated that Appellant’s blood draw, 

which took place at 5:30 a.m., was conducted within “two hours after 

[Appellant drove, operated or [was] in actual physical control of the movement 
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of [her] vehicle.” 75 Pa.C.S.A. § 3802(c). Therefore, Appellant’s claim of 

error lacks merit. 

In her final issue, Appellant argues that the Commonwealth failed to 

present sufficient evidence to sustain her convictions under 75 Pa.C.S.A. 

§ 3801(a)(1) and 75 Pa.C.S.A. § 3802(c). Appellant’s Brief at 26-29. 

Appellant claims that the Commonwealth failed to establish that she

“operat[ed] or exercise[ed] control of her vehicle” or “a time frame from when 

[Appellant] allegedly [did so].” Id. at 28. We disagree. 

As stated above, pursuant to Sections 3801(a)(1) and 3802(c), an 

individual is prohibited from driving or operating a vehicle after “imbibing a 

sufficient amount of alcohol” that would prevent safe driving or if there is an 

“alcohol concentration in the individual's blood or breath [that] 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.” 75 Pa.C.S.A. 

§ 3801(a)(1); 75 Pa.C.S.A. § 3802(c). Importantly, 

“[t]he term ‘operate’ requires evidence of actual physical 

control of either the machinery of the motor vehicle or the 

management of the vehicle's movement, but not evidence that 

the vehicle was in motion.” Commonwealth v. Johnson, 833 

A.2d 260, 263 (Pa. Super. 2003). “Our precedent indicates that 

a combination of the following factors is required in determining 

whether a person had ‘actual physical control’ of an automobile: 

the motor running, the location of the vehicle, and additional 

evidence showing that the defendant had driven the vehicle.” 

Commonwealth v. Woodruff, 668 A.2d 1158, 1161 (1995). 

A determination of actual physical control of a vehicle is based 

upon the totality of the circumstances. [Commonwealth v. 

Williams, 871 A.2d 254, 259 (Pa. Super. 2005)]. 
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Commonwealth v. Brotherson, 888 A.2d 901, 904-905 (Pa. Super. 2005) 

(parallel citations omitted). 

In this instance, the evidence presented during Appellant’s trial was 

substantially similar to that of the suppression hearing. At trial, the 

Commonwealth presented testimony demonstrating that Appellant, as well as 

her friend, Matthew Jackson, admitted that she drove herself home from the 

party. See N.T. Trial, 9/8/22, at 12-13. Thus, in contrast to Appellant’s 

claims, the Commonwealth offered direct evidence that Appellant “operat[ed] 

or exercise[ed] control of her vehicle” on the morning in question. Appellant’s 

Brief at 28; see also 75 Pa.C.S.A. § 3802(a)(1); 75 Pa.C.S.A. § 3802(c). 

Moreover, the Commonwealth also presented circumstantial evidence 

regarding the time frame in which Appellant drove the vehicle on the morning 

in question. In particular, the testimony revealed that (1) Trooper Fuller was 

dispatched to the Branchton Road residence twice on October 17, 2020; 

(2) the second dispatch pertained to complaints that Appellant did not leave 

the party after being asked to do so; (3) Trooper Fuller arrived at the 

Branchton Road residence for the second time shortly after 4:30 a.m.; 

(4) upon arrival, the homeowner, Rossman, informed him that Appellant and 

her vehicle were gone, but everyone else at the party was accounted for; 

(5) Trooper Fuller than drove to Appellant’s residence, which was three to four 

miles away, and arrived around 4:45 a.m.; and (6) Trooper Fuller observed 

Appellant’s vehicle in the drive way upon arrival. Based upon the forgoing, 

circumstantial evidence demonstrated that Appellant drove her vehicle from 
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the Branchton Road residence to her home between 4:00 a.m. and 4:45 a.m. 

Finally, the Commonwealth introduced evidence demonstrating that, at that 

time, Appellant was incapable of driving safely. Indeed, following her 

transport to the hospital, Appellant consented to a blood draw, which revealed 

that she had a BAC of 0.193%. We therefore conclude that the 

Commonwealth presented sufficient evidence to sustain Appellant’s 

convictions under Sections 3802(a)(1) and 3802(c). 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/29/2023