J-S07010-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

TED EUGENE DYE, JR.,

Appellant No. 1008 MDA 2014

Appeal from the Judgment of Sentence Entered May 21, 2014

In the Court of Common Pleas of Lycoming County

Criminal Division at No(s): CP-41-CR-0000799-2012

BEFORE: BENDER, P.J.E., OLSON, J., and OTT, J.

MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 20, 2015

Appellant, Ted Eugene Dye, Jr., appeals from the judgment of 

sentence of six months’ Intermediate Punishment following his conviction for 

two counts of driving under the influence of alcohol (DUI) and related 

summary offenses. Appellant challenges the suppression court’s denial of 

his motion to suppress. He also asserts a sufficiency of the evidence claim 

premised upon the Commonwealth’s failure to draw his blood (for purposes 

of determining blood-alcohol content (BAC)) within the prescribed two-hour 

window set forth in the DUI statute. After careful review, we affirm.

Appellant was charged DUI-general impairment, 75 Pa.C.S. § 

3802(a)(1), and DUI-high rate of alcohol, 75 Pa.C.S. § 3802(b), as well as 

summary violations of 75 Pa.C.S. § 3309 (driving on roadways laned for 

traffic) and 75 Pa.C.S. § 3714 (careless driving), following a single-vehicle 
J-S07010-15

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crash that occurred on January 14, 2012. Appellant filed a suppression 

motion on October 26, 2012. A suppression hearing was held before the 

Honorable Marc F. Lovecchio on March 28, 2013. Subsequently, by opinion 

and order dated May 7, 2013, Judge Lovecchio denied Appellant’s 

suppression motion. Suppression Court Opinion, 5/7/13, at 9. Appellant 

proceeded to a non-jury trial on January 23, 2014, before the Honorable 

Richard A. Gray. At the conclusion of his one-day trial, Appellant was 

convicted of all of the charged offenses. Appellant was then sentenced on 

May 21, 2014. The sentence imposed consisted of two days’ incarceration, a 

concurrent term of six months’ intermediate punishment, 75 hours of 

community service, the completion of the Alcohol Highway Safety School 

program, as well as mandatory fines and court costs. Appellant filed a 

timely notice of appeal, and complied in a timely fashion when the trial court 

ordered him to file a Pa.R.A.P. 1925(b) statement. The trial court issued its 

Pa.R.A.P. 1925(a) opinion on September 3, 2014. 

Appellant now presents the following issues for our review:

I. Whether the [suppression] [c]ourt erred by failing to 

suppress all evidence, test results[,] and statements as (a) 

the Officer had no reasonable suspicion to believe 

[Appellant] violated the vehicle code; (b) the Officer had 

no probable cause to believe criminal activity had 

occurred; and (c) no probable cause existed to request 

Appellant to submit to chemical testing in violation of 

Article I[,] Section 8 of the Pennsylvania Constitution and 

the Fourth Amendment to the United States 

Constitution[?]

II. Whether [t]he Commonwealth established beyond a 

reasonable doubt that Appellant violated 75 Pa.C.S.A. § 
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- 3 -

3802(b), driving after imbibing, high rate[,] in that the 

Commonwealth did not demonstrate sufficient good cause 

for drawing Appellant’s blood outside of the two[-]hour 

rule of 75 Pa.C.S.A. § 3802(g)[?]

Appellant’s Brief at 9. 

This Court has thoroughly reviewed the record, Appellant’s brief, and 

the opinions of the suppression court and the trial court.1 We conclude that 

Appellant is not entitled to relief on either of these issues. With respect to 

Appellant’s suppression-related claim(s), we deny relief based on the wellreasoned opinion of Judge Lovecchio, who presided over Appellant’s 

suppression hearing.2 See Suppression Court Opinion, 5/7/13, at 1-6 

(finding that police possessed both reasonable suspicion and probable cause 

to believe that Appellant had committed a DUI offense). With respect to 

Appellant’s sufficiency claim, we deny relief based on the well-reasoned 

opinion of Judge Gray, who presided over Appellant’s non-jury trial. See 

Trial Court Opinion, 9/3/14, at 2-8 (finding that sufficient evidence was 

presented to satisfy the exception to the two-hour rule set forth in 75 

Pa.C.S. § 3802(g)). Accordingly, we affirm on the basis of these opinions. 

____________________________________________

1 The Commonwealth declined to file an appellate brief in this matter. 

Instead, it filed a letter with this court requesting that Appellant’s claims be 

denied based upon the trial court’s Rule 1925(a) opinion. 

2 We note, however, that Appellant has waived consideration of part (c) of 

his first issue due to his failure to raise that claim in his Rule 1925(b) 

statement. Any issues not raised in a 1925(b) statement will be deemed 

waived. Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998).
J-S07010-15

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Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/20/2015
Circulated 01/29/2015 10:57 AM

IN THE COURT OF COMMON PLEAS OF LYCOMING COUNTY, PENNSYLVANIA 

COMMONWEALTH OF PENNSYL VANIA, 

Plaintiff, 

vs. 

TED EUGENE DYE, JR., 

Defendant. 

OPINION AND ORDER 

1008 MDA 2014, 

,:' ; 

, . '(i! 

t" 

Issued Pursuant to Pennsylvania Rule of Aupellate ProcedUl'c 1925(a~ I d ~ . 

Tllis Court issues the following Opinion and Order pursuant to Pennsylvania Rule of 

Appellate Procedure 1925(a). This is an appeal from the Court's Order dated May 21, 2014, 

sentencing defendant on a verdict of guilty of DUI following a non-jury trial held on Janumy 23, 

2014. 1 

The Defendant filed his concise statement of matters complained of on appeal raising the 

following 2 issues for appeal. 

I. The Suppression Court erred in finding that the arresting officers had sufficient legal 

cause to arrest Defendant for driving under the influence. Viewing the facts in the best 

light for the Commonwealth indicates that the infonnation available to the arresting 

officers at the time of the contact with Defendant was not sufficient to establish probable 

cause. Defendant was not found in actual physical control of the motor vehicle. The 

evidence presented was consistent with Defendant being the passenger in the vehicle. 

2. The evidence to suppo11 a finding of guilt for Count 2 of the information, Driving under 

the Influence, middle tier, was insufficient in that the Commonwealth was unable to 

produce admissible evidence regarding Defendant's blood alcohol level. The State Police 

did not demonstrate sufficient good cause for not drawing Defendant's blood within two 

(2) hours of Defendant being in actual physical control of the movement of a motor 

vehicle. 

The Court will address defendant's issues in turn. 

I The trial was presented on a case stated basis. The non-jury verdict was dated January 24, 2014, and filed January 

29,2014. The Court found beyond a reasonable doubt that defendant violated 75 Pa.C.S.A. § 3802(a)(I) under 

Count I, an ungraded misdemeanor, and that defendant violated §3802(b), high rate (middle tier), an ungraded 

misdemeanor under count 2. 

IN THE COURT OF COMMON PLEAS OF LYCOMING COUNTY, PENNSYLVANIA 

COMMONWEALTH OF PENNSYL VANIA, 

Plaintiff, 

vs. 

TED EUGENE DYE, JR., 

Defendant. 

OPINION AND ORDER 

1008 MDA 2014, 

,:' ; 

, . '(i! 

t" 

Issued Pursuant to Pennsylvania Rule of Aupellate ProcedUl'c 1925(a~ I d ~ . 

Tllis Court issues the following Opinion and Order pursuant to Pennsylvania Rule of 

Appellate Procedure 1925(a). This is an appeal from the Court's Order dated May 21, 2014, 

sentencing defendant on a verdict of guilty of DUI following a non-jury trial held on Janumy 23, 

2014. 1 

The Defendant filed his concise statement of matters complained of on appeal raising the 

following 2 issues for appeal. 

I. The Suppression Court erred in finding that the arresting officers had sufficient legal 

cause to arrest Defendant for driving under the influence. Viewing the facts in the best 

light for the Commonwealth indicates that the infonnation available to the arresting 

officers at the time of the contact with Defendant was not sufficient to establish probable 

cause. Defendant was not found in actual physical control of the motor vehicle. The 

evidence presented was consistent with Defendant being the passenger in the vehicle. 

2. The evidence to suppo11 a finding of guilt for Count 2 of the information, Driving under 

the Influence, middle tier, was insufficient in that the Commonwealth was unable to 

produce admissible evidence regarding Defendant's blood alcohol level. The State Police 

did not demonstrate sufficient good cause for not drawing Defendant's blood within two 

(2) hours of Defendant being in actual physical control of the movement of a motor 

vehicle. 

The Court will address defendant's issues in turn. 

I The trial was presented on a case stated basis. The non-jury verdict was dated January 24, 2014, and filed January 

29,2014. The Court found beyond a reasonable doubt that defendant violated 75 Pa.C.S.A. § 3802(a)(I) under 

Count I, an ungraded misdemeanor, and that defendant violated §3802(b), high rate (middle tier), an ungraded 

misdemeanor under count 2. 
Circulated 01/29/2015 10:57 AM

1. The Suppression Court Conectly Found Probable Cause. 

In suppOli of the first issue raised by the defendant, whether the Suppression Court correctly 

found probable cause, this Comi respectfully relies upon the Opinion and Order entered by the 

Honorable Marc F. Lovecchio, dated May 6, 2013 and filed May 7, 2013. Upon review of the 

transcript from the suppression hearing, it is further noted that Trooper Fye testified that 

defendant was placed into custody after defendant told Fye that defendant had been driving the 

vehicle. Notes of Transcript from Suppression Hearing on 3/28/13, (NT. 3/28/13, at 49, I. 11-

17.)(emphasis added) Therefore, the evidence was not consistent with the defendant being a 

passenger and this issue appears to be without merit. 

2. The State Police Demonstrated good cause for not drawing Defendant's blood 

within two (2) hours of Defendant being in actual physical conh'ol of the movement 

of a motor vehicle. 

The second issue raised on appeal is whether the Commonwealth demonstrated good 

cause under 75 Pa.C.S. § 3802 (g)(1) for drawing the defendant's blood 35 minutes in excess of 

2 hours from the time defendant was operating the vehicle.2 In support of this Court's 

detennination that good cause existed, this Court respectfully relies upon its Verdict on January 

24, filed January 29, 2014, the Opinion and Order entered by the Honorable Marc F. Lovecchio, 

2 A conviction under 75 Pa.C.S. § 3802(b) requires the Commonwealth to prove that the defendant drove, operated 

or was in physical control of the movement of "a vehicle after imbibing a sufficient amount of alcohol such that tile 

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." 

(emphasis added). It is undisputed in this case that the blood was drawn 35 minutes in excess of the 2 hours from 

when the defendant was operating the vehicle. Therefore the question is whether the circumstances fall within the 

exception to the two hour rule as provided in 75 Pa.C.S. § 3802 (g). 75 Pa.C.S. § 3802 (g) provides an exception to 

the two·hour rule where I) the Commonwealth establishes good cause 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. Defendant has not raised any issue with respect to the second prong 

requiring the Commonwealth to establish that the defendant did not imbibe alcohol between the time he was anested 

and the time the sample was obtained pursuant to 75 Pa.C.S. § 3802 (g)(2). This COlllt believes that defendant 

concedes that he did not imbibe alcohol or use controlled substances between the time of an est and the time the 

sample was obtained. As the defendant has not raised an issue under the second prong, it has not been addressed in 

this Opinion and the Court believes it has been waived. See, e.g., Dollar Bank v. Swartz, 657 A.2d 1242, 1245 (Pa. 

1995). 

2 

1. The Suppression Court Conectly Found Probable Cause. 

In suppOli of the first issue raised by the defendant, whether the Suppression Court correctly 

found probable cause, this Comi respectfully relies upon the Opinion and Order entered by the 

Honorable Marc F. Lovecchio, dated May 6, 2013 and filed May 7, 2013. Upon review of the 

transcript from the suppression hearing, it is further noted that Trooper Fye testified that 

defendant was placed into custody after defendant told Fye that defendant had been driving the 

vehicle. Notes of Transcript from Suppression Hearing on 3/28/13, (NT. 3/28/13, at 49, I. 11-

17.)(emphasis added) Therefore, the evidence was not consistent with the defendant being a 

passenger and this issue appears to be without merit. 

2. The State Police Demonstrated good cause for not drawing Defendant's blood 

within two (2) hours of Defendant being in actual physical conh'ol of the movement 

of a motor vehicle. 

The second issue raised on appeal is whether the Commonwealth demonstrated good 

cause under 75 Pa.C.S. § 3802 (g)(1) for drawing the defendant's blood 35 minutes in excess of 

2 hours from the time defendant was operating the vehicle.2 In support of this Court's 

detennination that good cause existed, this Court respectfully relies upon its Verdict on January 

24, filed January 29, 2014, the Opinion and Order entered by the Honorable Marc F. Lovecchio, 

2 A conviction under 75 Pa.C.S. § 3802(b) requires the Commonwealth to prove that the defendant drove, operated 

or was in physical control of the movement of "a vehicle after imbibing a sufficient amount of alcohol such that tile 

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." 

(emphasis added). It is undisputed in this case that the blood was drawn 35 minutes in excess of the 2 hours from 

when the defendant was operating the vehicle. Therefore the question is whether the circumstances fall within the 

exception to the two hour rule as provided in 75 Pa.C.S. § 3802 (g). 75 Pa.C.S. § 3802 (g) provides an exception to 

the two·hour rule where I) the Commonwealth establishes good cause 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. Defendant has not raised any issue with respect to the second prong 

requiring the Commonwealth to establish that the defendant did not imbibe alcohol between the time he was anested 

and the time the sample was obtained pursuant to 75 Pa.C.S. § 3802 (g)(2). This COlllt believes that defendant 

concedes that he did not imbibe alcohol or use controlled substances between the time of an est and the time the 

sample was obtained. As the defendant has not raised an issue under the second prong, it has not been addressed in 

this Opinion and the Court believes it has been waived. See, e.g., Dollar Bank v. Swartz, 657 A.2d 1242, 1245 (Pa. 

1995). 

2 
Circulated 01/29/2015 10:57 AM

dated May 6,2013, and filed May 7, 2013, specifically at 6-9, and the following supplemental 

opinion. 

This Conrt believes that the Commonwealth has shown good cause for explaining why 

the chemical sample could not be obtained within two honrs. 75 Pa.C.S. § 3802 (g) (I) provides 

a good-canse exception to the two-hour rule as follows. 

[W]here alcohol or controlled snbstance concentration in an individnal'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: 

(I) where the Commonwealth shows good cause explaining why the chemical test 

sample could not be obtained within two honrs[. ***] 75 Pa.C.S. § 3802 (g) (I) 

There has not yet been appellate authority directly on point, however, some trial courts have 

opined that good cause exists where the Commonwealth has established a specific time-frame 

context for the blood draw and where distance and investigations explain the delay in getting the 

defendant's blood drawn. For example, in Commonwealth v. Hill, No. 3281106 (C.P. Berks June 

8, 2007), [2007 Pa. D & C. Dec. LEXIS 181], ajJ'd 953 A.2d (Pa. Super. 2008), the trial conrt 

concluded that the Commonwealth established good cause for collecting the blood sample 17 

minutes after the two-hour period. In Hill, the trooper was 20 minutes away from the accident 

scene when dispatched. It took her 47 minutes to travel to the processing center. At the accident 

scene, the trooper interviewed the victim and performed field sobriety tests. The accident scene 

was 34 miles from the processing center and it took 47 minutes to travel to processing center. 

Similarly, in Commonwealth v. McNair, 8 Pa. D. & C.5th 262 (C.P. Fayette 2009), the 

Conrt concluded that the Commonwealth established good cause where the blood test occnrred at 

12:14 a.m. when the time of the accident was estimated to be between 8 and 10 p.m. The police 

3 

dated May 6,2013, and filed May 7, 2013, specifically at 6-9, and the following supplemental 

opinion. 

This Conrt believes that the Commonwealth has shown good cause for explaining why 

the chemical sample could not be obtained within two honrs. 75 Pa.C.S. § 3802 (g) (I) provides 

a good-canse exception to the two-hour rule as follows. 

[W]here alcohol or controlled snbstance concentration in an individnal'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: 

(I) where the Commonwealth shows good cause explaining why the chemical test 

sample could not be obtained within two honrs[. ***] 75 Pa.C.S. § 3802 (g) (I) 

There has not yet been appellate authority directly on point, however, some trial courts have 

opined that good cause exists where the Commonwealth has established a specific time-frame 

context for the blood draw and where distance and investigations explain the delay in getting the 

defendant's blood drawn. For example, in Commonwealth v. Hill, No. 3281106 (C.P. Berks June 

8, 2007), [2007 Pa. D & C. Dec. LEXIS 181], ajJ'd 953 A.2d (Pa. Super. 2008), the trial conrt 

concluded that the Commonwealth established good cause for collecting the blood sample 17 

minutes after the two-hour period. In Hill, the trooper was 20 minutes away from the accident 

scene when dispatched. It took her 47 minutes to travel to the processing center. At the accident 

scene, the trooper interviewed the victim and performed field sobriety tests. The accident scene 

was 34 miles from the processing center and it took 47 minutes to travel to processing center. 

Similarly, in Commonwealth v. McNair, 8 Pa. D. & C.5th 262 (C.P. Fayette 2009), the 

Conrt concluded that the Commonwealth established good cause where the blood test occnrred at 

12:14 a.m. when the time of the accident was estimated to be between 8 and 10 p.m. The police 

3 
Circulated 01/29/2015 10:57 AM

received a dispatch and responded around 11 :04 p.m. There was a delay because the parties left 

the scene of the accident and waited ten to fifteen minutes before contacting the police. 

When the Commonwealth fails to establish the time frames involved, however, cOUlis 

have dismissed the charges. For example, in Commonwealth v. Segida, 2006 PA Super 296; 

912 A.2d 841, 848 (Oct. 24, 2006), the Superior Court concluded that the evidence presented 

was insufficient to suppOli a conviction for DUL The Commonwealth failed to produce any 

evidence as to the time of the blood being drawn at the hospital, of drinking by the driver, of 

driving or of the accident. Segida, 912 A.2d at 845-846. There was no evidence presented from 

which those times could have reasonably been infelTed. Id. The Commonwealth also "failed to 

preclude the possibility that Appellant ingested alcohol after the accident occurred." Segida, 

912 A,2d at 847. (emphasis in the original) Similarly, in Commonwealth v. Pophal, No. 8-2011 

(C.P. Lycoming June _ 2011), the Court concluded that, without any evidence whatsoever as to 

when the defendant's blood was drawn, the Court could not determine whether the blood draw 

was within the 2 hours or "whether there was good cause explaining why the chemical test could 

not be obtained within two hours." 

In the instant case, the Commonwealth established a very specific timeline of peliinent 

events. The Commonwealth's witness, Tracy Harp, observed the accident from her kitchen 

window at approximately 8:00 p.m. N.T. 1123/14 at 5, I. 18-23. Ms. Harp checked on the 

vehicle which was stuck in a ditch, and asked the defendant whether he wanted her to call 911 

and defendant said no. N.T. 1123/14 at 6, I. 2-9. After about ten minutes, Ms. Harp's daughter 

contacted Corporal (Corp.) Farber who lived nearby. N.T. 1123114 at 6, 1.7-9. While off duty, 

Corp. Farber received the unexpected phone call at about 8: 15 p.m. while watching football. 

Corp. Faber left his home at about 8:25 p.m.to check on the crash and arrived at the accident 

4 

received a dispatch and responded around 11 :04 p.m. There was a delay because the parties left 

the scene of the accident and waited ten to fifteen minutes before contacting the police. 

When the Commonwealth fails to establish the time frames involved, however, cOUlis 

have dismissed the charges. For example, in Commonwealth v. Segida, 2006 PA Super 296; 

912 A.2d 841, 848 (Oct. 24, 2006), the Superior Court concluded that the evidence presented 

was insufficient to suppOli a conviction for DUL The Commonwealth failed to produce any 

evidence as to the time of the blood being drawn at the hospital, of drinking by the driver, of 

driving or of the accident. Segida, 912 A.2d at 845-846. There was no evidence presented from 

which those times could have reasonably been infelTed. Id. The Commonwealth also "failed to 

preclude the possibility that Appellant ingested alcohol after the accident occurred." Segida, 

912 A,2d at 847. (emphasis in the original) Similarly, in Commonwealth v. Pophal, No. 8-2011 

(C.P. Lycoming June _ 2011), the Court concluded that, without any evidence whatsoever as to 

when the defendant's blood was drawn, the Court could not determine whether the blood draw 

was within the 2 hours or "whether there was good cause explaining why the chemical test could 

not be obtained within two hours." 

In the instant case, the Commonwealth established a very specific timeline of peliinent 

events. The Commonwealth's witness, Tracy Harp, observed the accident from her kitchen 

window at approximately 8:00 p.m. N.T. 1123/14 at 5, I. 18-23. Ms. Harp checked on the 

vehicle which was stuck in a ditch, and asked the defendant whether he wanted her to call 911 

and defendant said no. N.T. 1123/14 at 6, I. 2-9. After about ten minutes, Ms. Harp's daughter 

contacted Corporal (Corp.) Farber who lived nearby. N.T. 1123114 at 6, 1.7-9. While off duty, 

Corp. Farber received the unexpected phone call at about 8: 15 p.m. while watching football. 

Corp. Faber left his home at about 8:25 p.m.to check on the crash and arrived at the accident 

4 
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scene at 8:30 p.m., which was approximately tlu'ee quarters of a mile from his residence. N.T. 

1I23114 at 5, l. 1-3, and at 7, l. 7,17-21. 

At approximately 8:20 p.m. Pellllsylvania State Trooper Christine Fye received a call that 

an off duty corporal had picked up a gentleman who he believed had crashed a vehicle and 

ultimately taken him to Trooper Haven's home. N.T. 1I23/14 at 9, line, 15-19. Given the 

weather and distance, Trooper Fye took 30 to 40 minutes to alTive at Trooper Havens' residence. 

N.T. 1I23114 at 9, lines, 1, 15-19. and at 10, line I. See also, Conunonwealth Exhibit 1 (40 

minutes between dispatch time and arrival time.) Shortly after Corp. Faber arrived, Trooper Fye 

arrived at Trooper Haven's residence at approximately 8:50 to 9:00 p.m. N.T. 1I23/14 at 9, line 

1, at 10, line I. When Trooper Fye arrived, the defendant was seated in the rear of the 

ambulance with EMS persOimel. N.T. 1I23/14 at 10, line 4-5. 

The ambulance left Trooper Havens' residence at approximately 9:30 p.m. N.T. 1/23114 

at 11, line, 10-11. The defendant "was taken by EMS to the Williamsport Hospital for possible 

hypothermia/frostbite where he received treatment." See, Commonwealth Exhibit 1, Police Crash 

Report, page 4. There is no information as to what time the ambulance pulled into the E.R. 

which is located in the same building as the DUI Processing Center. N.T. 1123/14 at 15. 

However, defendant arrived at the DUI Center for processing at approximately 10: 15 p.m. N.T. 

1I23114 at 11, line 13. At the DUI Center, defendant answered general intake booking 

questions and received the Section 1547 Chemical Testing Warnings. N.T. 1I23/14 at 13, line 3-

6. Defendant appeared confused about the warnings and asked a lot of questions before signing 

the form DL 26 and agreeing to submit to a blood sample. N.T. 1I23114 at 13, line 6-10. 

Defendant submitted a blood sample at 10:35 p.m. N.T. 1I23/14 at 13, I, 13. 

In addition to providing ample evidence of a specific timeline of events, the 

Commonwealth also established a several variables that led to the blood draw occurring outside 

5 

scene at 8:30 p.m., which was approximately tlu'ee quarters of a mile from his residence. N.T. 

1123114 at 5, l. 1-3, and at 7, l. 7,17-21. 

At approximately 8:20 p.m. Pellllsylvania State Trooper Christine Fye received a call that 

an off duty corporal had picked up a gentleman who he believed had crashed a vehicle and 

ultimately taken him to Trooper Haven's home. N.T. 1123/14 at 9, line, 15-19. Given the 

weather and distance, Trooper Fye took 30 to 40 minutes to alTive at Trooper Havens' residence. 

N.T. 1123114 at 9, lines, 1, 15-19. and at 10, line I. See also, Conunonwealth Exhibit 1 (40 

minutes between dispatch time and arrival time.) Shortly after Corp. Faber arrived, Trooper Fye 

arrived at Trooper Haven's residence at approximately 8:50 to 9:00 p.m. N.T. 1123/14 at 9, line 

1, at 10, line I. When Trooper Fye arrived, the defendant was seated in the rear of the 

ambulance with EMS persOimel. N.T. 1123/14 at 10, line 4-5. 

The ambulance left Trooper Havens' residence at approximately 9:30 p.m. N.T. 1/23114 

at 11, line, 10-11. The defendant "was taken by EMS to the Williamsport Hospital for possible 

hypothermia/frostbite where he received treatment." See, Commonwealth Exhibit 1, Police Crash 

Report, page 4. There is no information as to what time the ambulance pulled into the E.R. 

which is located in the same building as the OUI Processing Center. N.T. 1123/14 at 15. 

However, defendant arrived at the OUI Center for processing at approximately 10: 15 p.m. N.T. 

1123114 at II, line 13. At the our Center, defendant answered general intake booking 

questions and received the Section 1547 Chemical Testing Warnings. N.T. 1123/14 at 13, line 3-

6. Defendant appeared confused about the warnings and asked a lot of questions before signing 

the form DL 26 and agreeing to submit to a blood sample. N.T. 1123114 at 13, line 6-10. 

Defendant submitted a blood sample at 10:35 p.m. N.T. 1123/14 at 13, I, 13. 

In addition to providing ample evidence of a specific timeline of events, the 

Commonwealth also established a several variables that led to the blood draw occurring outside 

5 
Circulated 01/29/2015 10:57 AM

the 2-hour window: the inclement weather, the distances travelled, the off duty nature of the 

encounter with defendant, and defendant's own actions. As to the inclement weather, the 

snowy, icy and slippery roads3 slowed travel for all involved with investigating the scene ofthe 

accident and in transpOliing the defendant that evening. Furthermore, the severe cold and icy 

weather created an added concern for the medical needs of the defendant, as well as any other 

potential driver, passenger or victim. In the extreme cold, snowy weather and on the icy road, 

the off duty Corp. Farber encountered the defendant walking, with blood on his hands and shirt, 

"in a tee shirt, blue jeans, one foot was barefoot, and one just had a sock on[.]" N.T. 3/28/13 at 

8, I. 25; at 9, I. 16-23. Therefore, Corp. Farber's priority was getting the defendant to a warm 

place and securing defendant's safety. N.T. 3/28/13 at 19. 

Another variable was the fact that the Corp. Farber became involved in this matter while 

off duty. Corp. Faber had to get ready, warm up his private vehicle and clear the snow 

accumulation liOln his vehicle before going to the scene of the accident upon receiving the 

unexpected request. Since Corp. Farber was off duty, Corp. Farber had no handcuffs, no Taser, 

no way to subdue the defendant if needed. After encountering the defendant, Corp. Farber did 

not know how long defendant would remain cooperative, especially once he realized that Corp. 

Farber suspected defendant of DUI. This impacted the decision about how and when to report 

the DUI, and where to take the defendant. Seeing the way defendant was dressed in the extreme 

cold, Corp. Faber's priority was to get defendant inside a warm place without risking his own 

safety. N.T. 3/28/13 at 19. Being off duty and alone, Corp. Farber took extra-time to check the 

defendant before allowing him into his personal vehicle. N.T. 3/28/13 at 10, 13-15. In 

addition, Corp. Faber attempted to drop defendant off at defendant's friend's house with the 

intent of repOliing the accident once he dropped defendant off, depending upon the level of 

3 It should be noted that the accident occurred on a rural secondary road. See, Commonwealth's Exhibit I. 

6 

the 2-hour window: the inclement weather, the distances travelled, the off duty nature of the 

encounter with defendant, and defendant's own actions. As to the inclement weather, the 

snowy, icy and slippery roads3 slowed travel for all involved with investigating the scene ofthe 

accident and in transpOliing the defendant that evening. Furthermore, the severe cold and icy 

weather created an added concern for the medical needs of the defendant, as well as any other 

potential driver, passenger or victim. In the extreme cold, snowy weather and on the icy road, 

the off duty Corp. Farber encountered the defendant walking, with blood on his hands and shirt, 

"in a tee shirt, blue jeans, one foot was barefoot, and one just had a sock on[.]" N.T. 3/28/13 at 

8, I. 25; at 9, I. 16-23. Therefore, Corp. Farber's priority was getting the defendant to a warm 

place and securing defendant's safety. N.T. 3/28/13 at 19. 

Another variable was the fact that the Corp. Farber became involved in this matter while 

off duty. Corp. Faber had to get ready, warm up his private vehicle and clear the snow 

accumulation liOln his vehicle before going to the scene of the accident upon receiving the 

unexpected request. Since Corp. Farber was off duty, Corp. Farber had no handcuffs, no Taser, 

no way to subdue the defendant if needed. After encountering the defendant, Corp. Farber did 

not know how long defendant would remain cooperative, especially once he realized that Corp. 

Farber suspected defendant of DUI. This impacted the decision about how and when to report 

the DUI, and where to take the defendant. Seeing the way defendant was dressed in the extreme 

cold, Corp. Faber's priority was to get defendant inside a warm place without risking his own 

safety. N.T. 3/28/13 at 19. Being off duty and alone, Corp. Farber took extra-time to check the 

defendant before allowing him into his personal vehicle. N.T. 3/28/13 at 10, 13-15. In 

addition, Corp. Faber attempted to drop defendant off at defendant's friend's house with the 

intent of repOliing the accident once he dropped defendant off, depending upon the level of 

3 It should be noted that the accident occurred on a rural secondary road. See, Commonwealth's Exhibit I. 

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resistance exhibited by the defendant. N.T. 3/28/13 at 13. Since no one was home at 

defendant's friend's house, Corp. Faber drove back to Ms. Harp's residence and repOited the 

accident from there and contacted Trooper Havens for assistance. N.T. 3/28/13 at 14. Corp. 

Faber then brought defendant to Trooper's Havens' nearby residence. N.T. 3128113 at 15. From 

there defendant was taken by ambulance to the E.R. 

Another significant variable was defendant's own actions which delayed the blood draw. 

The defendant refused to call 911 and left the scene of the accident. N.T. 1123/14 at 6, lines 5-9. 

The defendant falsely stated to police that another individual had been driving the vehicle. N.T. 

3/28/13 at 11, I. 20; N.T. 1/23/14 at 8, line 7-8, at 10, lines 7-8. As a result, there was a concern 

that someone else could be injured 01' in need of assistance 01' abandoned in the extreme cold. 

N.T. 3128113 at 11, I. 20; N.T. 1123114 at 10, lines 7-15. In addition, the defendant walked from 

the scene of the accident without shoes and wearing only a t-shitt, despite the extreme cold. N.T. 

3128/13 at 8, I. 25; at 9, I. 16-23. Consequently, the defendant required immediate attention to 

ensure his well-being and required medical treatment at the ER. At the DUI center, defendant's 

responses were slow. Defendant required repeated questioning prior to understanding and 

providing consent to draw his blood. N.T. 1123/14 at 13, line 6-10. Thus, extra time was 

necessary to ensure propel' and informed consent. 

Given the timelines established and all of the variables at play, the COUit believes the 

Commonwealth established good cause for obtaining the blood sample 35 minutes outside the 2 

hour time period. With the benefit of hindsight, defendant speculates that if Trooper Fye had 

followed behind the ambulance, rather than observing the crash site to which she was assigned, 

the two-hour time window could have been met. No doubt, one could conceive ways that it may 

have been possible to secure a blood draw within the two-hour window. However, the Court 

does not believe that the Commonwealth is required to show that the first responders and 

7 

resistance exhibited by the defendant. N.T. 3/28/13 at 13. Since no one was home at 

defendant's friend's house, Corp. Faber drove back to Ms. Harp's residence and repOited the 

accident from there and contacted Trooper Havens for assistance. N.T. 3/28/13 at 14. Corp. 

Faber then brought defendant to Trooper's Havens' nearby residence. N.T. 3128113 at 15. From 

there defendant was taken by ambulance to the E.R. 

Another significant variable was defendant's own actions which delayed the blood draw. 

The defendant refused to call 911 and left the scene of the accident. N.T. 1123/14 at 6, lines 5-9. 

The defendant falsely stated to police that another individual had been driving the vehicle. N.T. 

3/28/13 at 11, I. 20; N.T. 1/23/14 at 8, line 7-8, at 10, lines 7-8. As a result, there was a concern 

that someone else could be injured 01' in need of assistance 01' abandoned in the extreme cold. 

N.T. 3128113 at 11, I. 20; N.T. 1123114 at 10, lines 7-15. In addition, the defendant walked from 

the scene of the accident without shoes and wearing only a t-shitt, despite the extreme cold. N.T. 

3128/13 at 8, I. 25; at 9, I. 16-23. Consequently, the defendant required immediate attention to 

ensure his well-being and required medical treatment at the ER. At the DUI center, defendant's 

responses were slow. Defendant required repeated questioning prior to understanding and 

providing consent to draw his blood. N.T. 1123/14 at 13, line 6-10. Thus, extra time was 

necessary to ensure propel' and informed consent. 

Given the timelines established and all of the variables at play, the COUit believes the 

Commonwealth established good cause for obtaining the blood sample 35 minutes outside the 2 

hour time period. With the benefit of hindsight, defendant speculates that if Trooper Fye had 

followed behind the ambulance, rather than observing the crash site to which she was assigned, 

the two-hour time window could have been met. No doubt, one could conceive ways that it may 

have been possible to secure a blood draw within the two-hour window. However, the Court 

does not believe that the Commonwealth is required to show that the first responders and 

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arresting officers did absolutely everything possible to get the defendant to submit to a blood 

draw within the two-hour window to establish good cause. This is especially true where the 

defendant's own actions, in addition to a confluence of variables, caused delay and where it is 

conceded that defendant did not imbibe in alcohol or use controlled substances between the time 

of the accident and the blood draw. The Court believes the Commonwealth established good 

cause and that all responders acted with due diligence in the midst of many variables in order to 

properly and promptly attend to all urgent needs arising from a DUl crash on an extremely cold, 

snowy and icy night. 

Conclusion 

For these reasons, and those provided in this Court's non-jUly verdict and those provided 

in the Opinion of the Suppression Court, this COUli respectfully requests that the verdict and 

sentence be affirmed. 

Date September 3, 2014 

cc: pstrict Attorney's Office (AC) 

~le W. Rude, Esq. 

Superior Court (& 1) 

8 

arresting officers did absolutely everything possible to get the defendant to submit to a blood 

draw within the two-hour window to establish good cause. This is especially true where the 

defendant's own actions, in addition to a confluence of variables, caused delay and where it is 

conceded that defendant did not imbibe in alcohol or use controlled substances between the time 

of the accident and the blood draw. The Court believes the Commonwealth established good 

cause and that all responders acted with due diligence in the midst of many variables in order to 

properly and promptly attend to all urgent needs arising from a DUl crash on an extremely cold, 

snowy and icy night. 

Conclusion 

For these reasons, and those provided in this Court's non-jUly verdict and those provided 

in the Opinion of the Suppression Court, this COUli respectfully requests that the verdict and 

sentence be affirmed. 

Date September 3, 2014 

cc: pstrict Attorney's Office (AC) 

~le W. Rude, Esq. 

Superior Court (& 1) 

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