J-A16043-16 

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA, 

 Appellee 

 v. 

MICHAEL EUGENE BUTERBAUGH, 

 Appellant 

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IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 

 No. 1353 WDA 2015 

 

Appeal from the Judgment of Sentence May 1, 2015, 

in the Court of Common Pleas of Crawford County, 

 Criminal Division, at No(s): CP-20-CR-0000561-2014

BEFORE: SHOGAN, OLSON, and STRASSBURGER,∗ JJ. 

MEMORANDUM BY STRASSBURGER, J.: FILED AUGUST 25, 2016 

 Michael Eugene Buterbaugh (Appellant) appeals from the judgment of 

sentence imposed following his convictions for driving under the influence 

(DUI) – high rate of alcohol and the summary offense of driving on roadways 

laned for traffic. Upon review, we affirm. 

 The trial court summarized the background underlying this matter as 

follows. 

 [Appellant] was charged with the following three violations 

of the Vehicle Code for an accident occurring on May 1, 2014: 

Count I, [DUI – general impairment]; Count II, DUI – high rate 

of alcohol[;] and Count III, driving on roadways laned for 

traffic[.] The criminal complaint indicated that this was 

[Appellant’s] “second [DUI] offense,” and Counts I and II were 

accordingly listed as ungraded misdemeanors on the criminal 

information. [Appellant] pleaded guilty to Count II on October 

 

∗

 Retired Senior Judge assigned to the Superior Court. 
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27, 2014, and a nolle prosequi was entered on the remaining 

charges. 

 Prior to sentencing, the court ordered evaluation and/or 

assessment by the Adult Probation Department, which

discovered [an additional prior] DUI conviction in the State of 

Idaho. Consequently, the court granted, on the submission of 

briefs, the Commonwealth’s oral motion to amend Count II to 

implicate the Vehicle Code’s mandatory sentencing provisions for 

a third offense. [A DUI – high rate of alcohol, third offense, is 

graded as a first degree misdemeanor.] This amendment 

changed the mandatory minimum term of incarceration from 

thirty to ninety days, and also extended the maximum term from 

six months to up to five years. In addition, the fine thereby 

increased from a range of $750 to $5,000, to between $1,500 

and $10,000. [Appellant’s] subsequent motion to withdraw his 

guilty plea, alleging in part his innocence, was granted following 

a hearing on February 25, 2015. 

 Count II was thereafter modified, in conformity with [a] 

memorandum and order dated October 17, 2014,[1] to 

incorporate the terms of [75 Pa.C.S. § 3802(g)]’s “Exception to 

two-hour rule.” Under this exception, the element of Count II – 

that [Appellant’s] BAC was at least 0.10% but less than 0.16% 

within two hours of having driven – could be proven by showing 

(1) good cause for not obtaining the blood sample within two 

hours, and (2) that [Appellant] did not imbibe any alcohol after 

he was arrested and before his blood was drawn for testing. 

 [Appellant] was convicted on Count II after a two-day jury 

trial. The court then entered a guilty verdict on Count III (the 

summary offense) and, upon the Commonwealth’s oral motion, a 

nolle prosequi as to Count I (DUI – general impairment) on 

 

1

 This memorandum was written to accompany an order denying Appellant’s 

July 28, 2014 omnibus pre-trial motion to suppress Appellant’s BAC results 

and “motion to dismiss” due to insufficient evidence, which the court treated 

as a request for habeas corpus relief. The suppression motion was denied 

after a hearing held on October 3, 2014. Subsequent to withdrawing his 

plea, Appellant filed, inter alia, another motion to suppress his BAC results 

on March 13, 2015, which the trial court denied by order filed March 17, 

2015. 
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which the jury had been unable to reach a verdict. He was 

sentenced May 1, 2015 on Count II to inter alia four to sixty 

months of imprisonment in the county correctional facility, with 

work release privileges, and the minimum fine of $1,500. 

Trial Court Opinion, 7/31/15, at 1-3 (unnecessary capitalization, footnotes, 

and citations omitted). Appellant filed post-sentence motions on May 11, 

2015, which the trial court denied on July 31, 2015. This appeal followed. 

 On appeal, Appellant presents the following issues for our 

consideration. 

I. Whether the trial court committed error by admitting 

[Appellant’s BAC] where it was shown that the blood draw 

for chemical testing was performed outside the two-hour 

statutory period without good cause? 

II. Whether the trial court erred in permitting the 

Commonwealth to amend the criminal information 

charging [Appellant] changing the [DUI] charges to a third 

offense after [Appellant] plead [sic] guilty to [DUI] second 

offense? 

III. Whether the trial court erred by rereading of instructions 

to the jury with particular emphasis to focus on the 

consideration of [Appellant’s] testimony, while refusing to 

give similar instruction to testimony of Pennsylvania State 

Trooper acting as witness for the Commonwealth, 

constituting improper influence on the jury and depriving 

[Appellant] of a fair trial? 

Appellant’s Brief at 4 (unnecessary capitalization and suggested answers 

omitted). 
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 In his first issue, Appellant argues that the trial court should have 

suppressed his BAC results because “it violated the [s]tatutory two hour 

time period.” Appellant’s Brief at 11. 

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

a suppression motion is limited to determining whether the 

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....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 ... 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. 

Moreover, our scope of review from a suppression ruling is 

limited to the evidentiary record that was created at the 

suppression hearing. 

Commonwealth v. Haslam, ___ A.3d ___, 2016 WL 2641464 at *4-5 (Pa. 

Super. May 9, 2016) (citations omitted). 

 The offense of DUI – high rate of alcohol is defined as follows. 

(b) High 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 at 

least 0.10% but less than 0.16% 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. § 3802(b). 
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Appellant dedicates much of his argument to the requirements of 

subsection 3802(b) and the failure of the Commonwealth to “establish the 

time when [Appellant] was driving or in actual physical control of his vehicle 

[and] the alcohol concentration of [his] blood within two hours after driving 

or being in actual physical control of [his] vehicle.” Appellant’s Brief at 11. 

Subsection 3802(b)’s two-hour limitation, however, is subject to the “good 

cause” exception listed in subsection 3802(g): 

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

provisions of subsection ... (b) ... 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. 

Id. at § 3802(g).

 As pointed out by the Commonwealth, Appellant’s only argument with 

respect to the above exception is a bald assertion that “[t]he Commonwealth 

failed to establish good cause for the delay beyond the two-hour time 

requirement and therefore the evidence of [Appellant’s] BAC must be 
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suppressed.” Appellant’s Brief at 12. Notwithstanding Appellant’s 

underdeveloped claim, Appellant nevertheless included in his Pa.R.A.P. 

1925(b) statement, and the trial court addressed, a challenge to the trial 

court’s decision on the basis that Appellant “testified to consuming alcohol 

after driving his vehicle.” Rule 1925(b) Statement, 9/22/15. 

Appellant’s argument is misplaced, as the good cause exception 

requires the Commonwealth to establish 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(g)(2); see also Commonwealth v. Eichler, 133 A.3d 775, 786-87 

(Pa. Super. 2016) (“The Commonwealth fulfilled section 3802(g)’s noimbibing element by presenting the testimony of three officers during trial 

that Eichler did not drink alcohol between the time of his arrest and the time 

of his blood test.”). Moreover, our Supreme Court has rejected the 

argument that the Commonwealth has the burden to establish that a 

defendant did not consume alcohol between the time he last drove and the 

time of the arrest. See Commonwealth v. Segida, 985 A.2d 871, 879 n.6 

(Pa. 2009) (concluding that, under 75 Pa.C.S. § 3802(a)(1) (DUI – general 

impairment), the Commonwealth is not required to “prove that an accused 

did not drink any alcohol after the accident. There is no basis in the statute 

for insertion of this element.”) (citation omitted).
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 Even assuming arguendo that the Commonwealth had such a burden 

under the good cause exception, Appellant’s argument fails because the 

Commonwealth presented testimony from Trooper Erik Cox (Trooper Cox) of 

the Pennsylvania State Police at the suppression hearing that Appellant 

admitted he did not drink alcohol after the accident: 

[Commonwealth]: And did he -- did he tell you what time the 

accident occurred? 

[Trooper Cox]: I believe he said it was 10:30. 

*** 

[Commonwealth]: And did you inquire of [Appellant] whether or 

not he had anything to drink after the accident? 

[Trooper Cox]: Yes, he advised he did not. 

[Commonwealth]: And did you ask him when was the last time 

he had anything of an alcoholic nature to drink? 

[Trooper Cox]: He advised me he drank approximately 7 p.m. 

[Commonwealth]: And was that the last time he had anything 

to drink? 

[Trooper Cox]: According to him. 

 

N.T., 10/3/2014, at 6-7; see also id. at 13-14 (Trooper Cox confirming that 

Appellant stated the accident occurred at 10:30 p.m. and he had stopped 

drinking at about 7 p.m.). Viewing this evidence in the light most favorable 

to the Commonwealth, Appellant’s argument is without merit, and no relief 

is due. 
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 In his second issue, Appellant argues that the trial court erred in 

permitting the Commonwealth to amend the criminal information to charge 

Appellant with DUI – high rate of alcohol as a third offense after Appellant 

had pled guilty to the charge as a second offense. We disagree and, in so 

doing, find Commonwealth v. Mentzer, 18 A.3d 1200 (Pa. Super. 2011), 

to be controlling. 

 Therein, Mentzer was charged and convicted following a jury trial with 

DUI - general impairment as a first offense, ungraded misdemeanor. Id. at 

1201. Prior to sentencing, the Commonwealth was notified by the probation 

department that, upon investigation, it was revealed that Mentzer had a 

prior DUI offense in the State of Maryland in 2006. Id. Based on this 

information, the Commonwealth moved to amend the criminal information at 

the time of sentencing to include the same charge, which was “then 

classified as a second offense, graded as a misdemeanor of the first degree, 

which carried with it a maximum penalty of 60 months’ imprisonment and a 

$10,000 fine.” Id. At sentencing, the trial court granted the 

Commonwealth’s motion to amend and imposed a sentence of four to 60 

months of incarceration. Id. at 1202. 

 In rejecting Mentzer’s argument on appeal that “adding a prior 

conviction to the criminal information was a substantive change increasing 

both the grading and the maximum sentence of the offense charged, and 
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was therefore a different offense which is not permitted under Pa.R.Crim.P. 

564,” this Court observed as follows. 

According to Pa.R.Crim.P. 564, the court may permit

amendment of an information “when there is a defect in form, 

the description of the offense(s), the description of any person or 

any property, or the date charged, provided the information as 

amended does not charge an additional or different offense.” 

Pa.R.Crim.P. 564. Moreover, “[u]pon amendment, the court may 

grant such post-ponement of trial or other relief as is necessary 

in the interests of justice.” Id. [T]he purpose of Rule 564 is to 

ensure that a defendant is fully apprised of the charges, and to 

avoid prejudice by prohibiting the last minute addition of alleged 

criminal acts of which the defendant is uninformed. [O]ur courts 

apply the rule with an eye toward its underlying purposes and 

with a commitment to do justice rather than be bound by a 

literal or narrow reading of the procedural rules. 

[W]hen presented with a question concerning the propriety of an 

amendment, we consider: 

[w]hether the crimes specified in the original indictment or 

information involve the same basic elements and evolved 

out of the same factual situation as the crimes specified in 

the amended indictment or information. If so, then the 

defendant is deemed to have been placed on notice 

regarding his alleged criminal conduct. If, however, the 

amended provision alleges a different set of events, or the 

elements or defenses to the amended crime are materially 

different from the elements or defenses to the crime 

originally charged, such that the defendant would be 

prejudiced by the change, then the amend[ment] is not 

permitted. 

Additionally, 

[i]n reviewing a grant to amend an information, the Court 

will look to whether the appellant was fully apprised of the 

factual scenario which supports the charges against him. 

Where the crimes specified in the original information 

involved the same basis [sic] elements and arose out of 
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the same factual situation as the crime added by the 

amendment, the appellant is deemed to have been placed 

on notice regarding his alleged criminal conduct and no 

prejudice to defendant results. 

Further, the factors which the trial court must consider in 

determining whether an amendment is prejudicial are: 

(1) whether the amendment changes the factual scenario 

supporting the charges; (2) whether the amendment adds 

new facts previously unknown to the defendant; (3) 

whether the entire factual scenario was developed during a 

preliminary hearing; (4) whether the description of the 

charges changed with the amendment; (5) whether a 

change in defense strategy was necessitated by the 

amendment; and (6) whether the timing of the 

Commonwealth’s request for amendment allowed for 

ample notice and preparation. 

Most importantly, we emphasize that the mere possibility 

amendment of information may result in a more severe penalty 

... is not, of itself, prejudice. Moreover, this Court has 

reaffirmed this principle in the context of DUI offenses. 

Id. at 1202-03 (some internal quotation marks and citations omitted). This 

Court agreed that the amendment was proper and that, although “the 

amendment increased the grading of the offense from an ungraded 

misdemeanor to a misdemeanor of the first degree,” Mentzer was not 

prejudiced. Id. at 1203. 

 Based on the above, we similarly agree that the amendment herein 

was proper and that Appellant has not established prejudice. We reach this 

conclusion particularly in light of the fact that the trial court herein even 

permitted Appellant to withdraw his guilty plea in response to the 
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amendment and proceed to trial, a circumstance that was absent in 

Mentzer.

2

 Thus, Appellant’s issue is without merit.3

 Finally, Appellant argues that the trial court improperly influenced the 

jury and deprived him of a fair trial when it reread instructions to the jury 

pertaining to the weight and credibility of witness testimony in response to 

its request for a portion of Appellant’s testimony during deliberations. 

Appellant argues that, although the language used may have been “benign,” 

the reinstruction’s close proximity to the jury’s rehearing of the testimony 

and the manner in which the instructions were prefaced4 improperly 

influenced the jury’s verdict. Appellant’s Brief at 17. Appellant contends 

that the rereading was not done impartially when viewing the trial in its 

 

2

 Notably, “Mentzer was fully aware of []his prior DUI offense but did not 

disclose it throughout the[] criminal proceedings.” Mentzer, 18 A.3d at 

1201 n.1. Likewise, the trial court explained that Appellant’s prior out-ofstate conviction “is not one of which [Appellant] was uninformed [and that] 

he alone was aware of it.” See Trial Court Opinion, 7/31/15, at 10. 

3

 To the extent Appellant premises his argument on the proposition that 

sentencing pursuant to mandatory minimums based on prior convictions is 

unconstitutional, that proposition is erroneous. See Commonwealth v. 

Reid, 117 A.3d 777, 784 (Pa. Super. 2015) (“[T]he Supreme Court of the 

United States [has] held that the Sixth Amendment requires that any fact—

other than a prior conviction—that increases a mandatory minimum 

sentence for an offense must be submitted to the jury and proven beyond a 

reasonable doubt. Importantly, [it] did not overturn prior precedent that 

prior convictions are sentencing factors and not elements of offenses.”). 

4

 Appellant argues that the trial court “noted that he was giving those 

instructions because they were listening to the testimony of [Appellant].” 

Appellant’s Brief at 17. 
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totality, given that the trial court denied Appellant’s proposed jury 

instruction as it related to police officers’ testimony, it “applauded Trooper 

Cox’s conduct as well as the jury’s verdict” after it was rendered, the 

rereading of the instructions was unnecessary to respond to the jury’s 

request, and it “only served to place emphasis on how the [t]rial [court] 

wanted the jury to view the evidence.” Id. at 17-18. 

Our standard of review in assessing a trial court’s jury instructions is 

as follows: 

When reviewing a challenge to jury instructions, the reviewing 

court must consider the charge as a whole to determine if the 

charge was inadequate, erroneous, or prejudicial. The trial court 

has broad discretion in phrasing its instructions, and may choose 

its own wording so long as the law is clearly, adequately, and 

accurately presented to the jury for its consideration. A new trial 

is required on account of an erroneous jury instruction only if the 

instruction under review contained fundamental error, misled, or 

confused the jury. 

Commonwealth v. Estepp, 17 A.3d 939, 946 (Pa. Super. 2011) (citation 

omitted). 

 As stated above, Appellant does not argue that the reinstruction itself 

was inadequate or erroneous. As to Appellant’s contentions regarding 

prejudice, we conclude that they are without merit. Prior to the challenged 

reinstruction, the trial court advised the jury that that no emphasis was 

intended by their repetition: 

 I’d like now to, again, remind you that if I have repeated 

any of these instructions or stated them in different ways, no 
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emphasis is intended, and I truly mean that, no emphasis is 

intended. Do not draw any inference because of the repetition. 

Do not single out any individual rule or instruction and then 

ignore the others. Do not place greater emphasis on the 

elements of the offenses that I have described for you or the 

instructions I have given to you in answer to your questions. 

You must consider all the instructions as whole and each in light 

of the others. 

N.T., 3/19/2015, at 18. Additionally, the trial court stated the following 

immediately after the jury reheard the portion of Appellant’s testimony: 

 Now, again, I will remind you that even though we read 

certain portions of the transcript to you, you should not place 

greater emphasize [sic] on the testimony that was read than all 

the other evidence presented to you during the course of the 

trial. You must consider all of the evidence and all the 

instructions as a whole in light of the totality of the evidence, as 

well as, the instructions. 

Id. at 37. As “[j]uries are presumed to follow a court’s instructions,” 

Commonwealth v. Mollett, 5 A.3d 291, 313 (Pa. Super. 2010), Appellant’s 

claim fails. 

 Because Appellant has failed to establish that he is entitled to relief, 

we affirm his judgment of sentence. 

 Judgment of sentence affirmed. 
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Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 8/25/2016