### 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee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

- 2 -

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. §

### J-S07010-15

- 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

- 4 -

Judgment of sentence affirmed. Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 2/20/2015Circulated 01/29/2015 10:57 AM

IN THE COURTOF COMMON PLEAS OF LYCOMING COUNTY, PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA, Plaintiff, vs. TED EUGENE DYE, JR., Defendant. 

### OPINION AND 

### ORDER 1008 MDA 2014,

,:' ;



## ,

. '(i! t"


### Issued Pursuantto Pennsylvania Rule ofAupellate ProcedUl'c**1925(a~** I d**~** . Tllis Court issues the following Opinion and Orderpursuant 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 ofguilty ofDUI following a non-jury trial held on Janumy23, 2014. 1 The Defendantfiled his concise statement ofmatters complained ofon 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 Commonwealthindicates that the infonnation available to the arresting officers at the time ofthe contactwith Defendant was not sufficient to establishprobable cause. Defendant was not found in actual physical control ofthe motorvehicle. The evidence presented was consistent with Defendant being the passengerin the vehicle. 2. The evidence to suppo11 a finding ofguilt for Count 2 ofthe information, Drivingunder the Influence, middle tier, was insufficient in that the Commonwealth was unable to produce admissible evidence regarding Defendant's blood alcohol level. The StatePolice did not demonstrate sufficient good cause for not drawing Defendant's blood within two (2) hours ofDefendant being in actualphysical control ofthe movement ofa 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 COURTOF COMMON PLEAS OF LYCOMING COUNTY, PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA, Plaintiff, vs. TED EUGENE DYE, JR., Defendant. 

### OPINION AND 

### ORDER 1008 MDA 2014,

,:' ;



## ,

. '(i! t"


### Issued Pursuantto Pennsylvania Rule ofAupellate ProcedUl'c**1925(a~** I d**~** . Tllis Court issues the following Opinion and Orderpursuant 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 ofguilty ofDUI following a non-jury trial held on Janumy23, 2014. 1 The Defendantfiled his concise statement ofmatters complained ofon 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 Commonwealthindicates that the infonnation available to the arresting officers at the time ofthe contactwith Defendant was not sufficient to establishprobable cause. Defendant was not found in actual physical control ofthe motorvehicle. The evidence presented was consistent with Defendant being the passengerin the vehicle. 2. The evidence to suppo11 a finding ofguilt for Count 2 ofthe information, Drivingunder the Influence, middle tier, was insufficient in that the Commonwealth was unable to produce admissible evidence regarding Defendant's blood alcohol level. The StatePolice did not demonstrate sufficient good cause for not drawing Defendant's blood within two (2) hours ofDefendant being in actualphysical control ofthe movement ofa 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. TheSuppression Court ConectlyFound Probable Cause. In suppOli ofthe first issue raised by the defendant, whether the Suppression Court correctly found probable cause, this Comirespectfully relies upon the Opinion and Order entered by the Honorable Marc F. Lovecchio, dated May 6, 2013 and filed May 7, 2013. Upon review ofthe transcript from the suppressionhearing, it is further noted that Trooper Fye testified that defendant was placed into custody 

### afterdefendant told Fye that defendanthad been driving the vehicle. Notes ofTranscript 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 passengerand this issue appears to be withoutmerit. 2. TheStatePolice Demonstrated good cause for not drawingDefendant's blood within two (2) hours ofDefendantbeing in actualphysical conh'ol ofthe movement ofa motorvehicle.
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 ofthis Court's detennination that good cause existed, this Courtrespectfullyrelies 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 ofthe movement of"a vehicle after imbibing a sufficient amount ofalcohol 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 afterthe individual has driven, operated or been in actual physical control ofthe movement ofthe vehicle." (emphasis added). It is undisputed in this case that the blood was drawn 35 minutes in excess ofthe 2 hours from when the defendant was operating the vehicle. Therefore the question is whether the circumstances fall within the exception to the two hourrule 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 requiringthe 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 thathe did not imbibe alcohol or use controlled substances between the time ofan 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., DollarBank v. Swartz, 657 A.2d 1242, 1245 (Pa. 1995). 2 

### 1. TheSuppression Court ConectlyFound Probable Cause. In suppOli ofthe first issue raised by the defendant, whether the Suppression Court correctly found probable cause, this Comirespectfully relies upon the Opinion and Order entered by the Honorable Marc F. Lovecchio, dated May 6, 2013 and filed May 7, 2013. Upon review ofthe transcript from the suppressionhearing, it is further noted that Trooper Fye testified that defendant was placed into custody 

### afterdefendant told Fye that defendanthad been driving the vehicle. Notes ofTranscript 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 passengerand this issue appears to be withoutmerit. 2. TheStatePolice Demonstrated good cause for not drawingDefendant's blood within two (2) hours ofDefendantbeing in actualphysical conh'ol ofthe movement ofa motorvehicle.
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 ofthis Court's detennination that good cause existed, this Courtrespectfullyrelies 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 ofthe movement of"a vehicle after imbibing a sufficient amount ofalcohol 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 afterthe individual has driven, operated or been in actual physical control ofthe movement ofthe vehicle." (emphasis added). It is undisputed in this case that the blood was drawn 35 minutes in excess ofthe 2 hours from when the defendant was operating the vehicle. Therefore the question is whether the circumstances fall within the exception to the two hourrule 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 requiringthe 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 thathe did not imbibe alcohol or use controlled substances between the time ofan 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., DollarBank v. Swartz, 657 A.2d 1242, 1245 (Pa. 1995). 2Circulated 01/29/2015 10:57 AM
dated May6,2013, and filed May 7, 2013, specifically at 6-9, and the following supplemental opinion. This Conrtbelieves 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-hourrule as follows. [W]here alcohol or controlled snbstance concentration in anindividnal's blood orbreath is anelement ofthe offense, evidence ofsuch alcohol orcontrolled substance concentrationmore than two hours after the individual has driven, operated orbeen in actual physical control ofthe movement ofthe vehicle is sufficient to establish that element ofthe offense under the following circumstances: (I) where the Commonwealth shows good cause explaining whythe 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, sometrial courts have opined that good cause exists where the Commonwealthhas 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. BerksJune 8, 2007), [2007 Pa. D 

### & C. Dec. LEXIS 181], 

### ajJ'd953 A.2d (Pa. Super. 2008), the trial conrt concluded that the Commonwealth established good cause for collecting the blood sample 17 minutes afterthe two-hourperiod. 

### In Hill, the trooper was 20 minutes away from the accident
scene when dispatched. Ittook 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 ofthe accident was estimated to be between 8 and 10 p.m. The police

3 dated May6,2013, and filed May 7, 2013, specifically at 6-9, and the following supplemental opinion. This Conrtbelieves 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-hourrule as follows. [W]here alcohol or controlled snbstance concentration in anindividnal's blood orbreath is anelement ofthe offense, evidence ofsuch alcohol orcontrolled substance concentrationmore than two hours after the individual has driven, operated orbeen in actual physical control ofthe movement ofthe vehicle is sufficient to establish that element ofthe offense under the following circumstances: (I) where the Commonwealth shows good cause explaining whythe 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, sometrial courts have opined that good cause exists where the Commonwealthhas 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. BerksJune 8, 2007), [2007 Pa. D 

### & C. Dec. LEXIS 181], 

### ajJ'd953 A.2d (Pa. Super. 2008), the trial conrt concluded that the Commonwealth established good cause for collecting the blood sample 17 minutes afterthe two-hourperiod. 

### In Hill, the trooper was 20 minutes away from the accident
scene when dispatched. Ittook 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 ofthe accident was estimated to be between 8 and 10 p.m. The police

3Circulated 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 ofthe accident and waited ten to fifteen minutes before contacting the police. When the Commonwealthfails 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 ofthe blood being drawn at the hospital, ofdrinking by the driver, of driving orofthe accident. Segida, 912 A.2d at 845-846. There was no evidencepresented from which those times could have reasonably been infelTed. Id. The Commonwealth also "failedto 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'sblood wasdrawn, the Court could not determine whether the blood draw
was within the 2 hours or "whetherthere was good cause explaining whythe chemical test could not be obtained within two hours." Inthe instant case, the Commonwealth established a very specific timeline ofpeliinent events. The Commonwealth's witness, Tracy Harp, observed the accident from her kitchen window at approximately 8:00p.m. N.T. 1123/14 at 5, 

### I. 18-23. Ms. Harp checked on the vehicle which was stuckin 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'sdaughter contacted Corporal (Corp.) Farber who lived nearby. N.T. 1123114 at 6, 1.7-9. While offduty, Corp. Farberreceived the unexpected phone call at about 8: 15 p.m. while watching football. Corp. Faber left hishome at about 8:25 p.m.to check onthe 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 ofthe accident and waited ten to fifteen minutes before contacting the police. When the Commonwealthfails 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 ofthe blood being drawn at the hospital, ofdrinking by the driver, of driving orofthe accident. Segida, 912 A.2d at 845-846. There was no evidencepresented from which those times could have reasonably been infelTed. Id. The Commonwealth also "failedto 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'sblood wasdrawn, the Court could not determine whether the blood draw
was within the 2 hours or "whetherthere was good cause explaining whythe chemical test could not be obtained within two hours." Inthe instant case, the Commonwealth established a very specific timeline ofpeliinent events. The Commonwealth's witness, Tracy Harp, observed the accident from her kitchen window at approximately 8:00p.m. N.T. 1123/14 at 5, 

### I. 18-23. Ms. Harp checked on the vehicle which was stuckin 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'sdaughter contacted Corporal (Corp.) Farber who lived nearby. N.T. 1123114 at 6, 1.7-9. While offduty, Corp. Farberreceived the unexpected phone call at about 8: 15 p.m. while watching football. Corp. Faber left hishome at about 8:25 p.m.to check onthe crash and arrived at the accident

4Circulated 01/29/2015 10:57 AM

scene at 8:30 p.m., which was approximately tlu'ee quarters ofa 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 offduty corporal had picked up a gentleman who he believed had crashed a vehicle and ultimately taken him to Trooper Haven'shome. N.T. 1I23/14 at 9, line, 15-19. Giventhe weather and distance, TrooperFye took 30 to 40 minutes to alTive at TrooperHavens' residence. N.T. 

### 1I23114 at 9, lines, 1, 15-19. and at 10, line 

### I. 

### See also, ConunonwealthExhibit 1 (40 minutes between dispatch time and arrival time.) Shortly after Corp. Faber arrived, TrooperFye 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 ofthe ambulance with EMS persOimel. N.T. 

### 1I23/14 at 10, line 4-5. The ambulance left Trooper Havens' residence at approximately 9:30p.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, page4. There is no information as to what time the ambulance pulled into the E.R. which is located in the samebuilding 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 ofquestions 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. Inaddition to providing ample evidence ofa specific timeline ofevents, 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 ofa 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 offduty corporal had picked up a gentleman who he believed had crashed a vehicle and ultimately taken him to Trooper Haven'shome. N.T. 1123/14 at 9, line, 15-19. Giventhe weather and distance, TrooperFye took 30 to 40 minutes to alTive at TrooperHavens' residence. N.T. 1123114 at 9, lines, 1, 15-19. and at 10, line 

### I. See also, ConunonwealthExhibit 1 (40 minutes between dispatch time and arrival time.) Shortly after Corp. Faber arrived, TrooperFye 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 ofthe ambulance with EMS persOimel. N.T. 1123/14 at 10, line 4-5. The ambulance left Trooper Havens' residence at approximately 9:30p.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, CommonwealthExhibit 

### 1, Police Crash Report, page4. There is no information as to what time the ambulance pulled into the E.R. which is located in the samebuilding 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 ofquestions 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. Inaddition to providing ample evidence ofa specific timeline ofevents, the Commonwealth also established a several variables that led to the blood draw occurring outside
5Circulated 01/29/2015 10:57 AM


### the 2-hour window: the inclement weather, the distances travelled, the offduty nature ofthe encounterwith 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 ofthe defendant, as well as any other potential driver, passenger or victim. In the extreme cold, snowy weather and on the icy road, the offduty Corp. Farberencountered the defendant walking, with blood on his hands and shirt, "ina tee shirt, bluejeans, one foot was barefoot, and onejusthad a sock on[.]" N.T. 3/28/13 at 8, 

### I. 25; at 9, 

### I. 16-23. Therefore, Corp. Farber'spriority 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 offduty. Corp. Faber had to get ready, warm up his private vehicle and clearthe snow accumulation liOln his vehicle before going to the scene ofthe accidentupon receiving the unexpected request. Since Corp. Farber was offduty, Corp. Farber had no handcuffs, no Taser,
no way to subdue the defendant ifneeded. Afterencountering the defendant, Corp. Farberdid notknow how long defendant would remain cooperative, especially once he realized that Corp. Farber suspected defendant ofDUI. 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'spriority was to get defendant inside a warm place without risking his own safety. N.T. 3/28/13 at 19. Being offduty 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 offat defendant's friend's house with the intent ofrepOliing the accident once he dropped defendant off, depending upon the level of

3 It should be noted that the accident occurred on arural secondary road. See, Commonwealth's Exhibit I. 6 

### the 2-hour window: the inclement weather, the distances travelled, the offduty nature ofthe encounterwith 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 ofthe defendant, as well as any other potential driver, passenger or victim. In the extreme cold, snowy weather and on the icy road, the offduty Corp. Farberencountered the defendant walking, with blood on his hands and shirt, "ina tee shirt, bluejeans, one foot was barefoot, and onejusthad a sock on[.]" N.T. 3/28/13 at 8, 

### I. 25; at 9, 

### I. 16-23. Therefore, Corp. Farber'spriority 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 offduty. Corp. Faber had to get ready, warm up his private vehicle and clearthe snow accumulation liOln his vehicle before going to the scene ofthe accidentupon receiving the unexpected request. Since Corp. Farber was offduty, Corp. Farber had no handcuffs, no Taser,
no way to subdue the defendant ifneeded. Afterencountering the defendant, Corp. Farberdid notknow how long defendant would remain cooperative, especially once he realized that Corp. Farber suspected defendant ofDUI. 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'spriority was to get defendant inside a warm place without risking his own safety. N.T. 3/28/13 at 19. Being offduty 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 offat defendant's friend's house with the intent ofrepOliing the accident once he dropped defendant off, depending upon the level of

3 It should be noted that the accident occurred on arural secondary road. See, Commonwealth's Exhibit I. 6Circulated 01/29/2015 10:57 AM



### 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 ofthe accident. N.T. 

### 1123/14 at 6, lines 5-9. The defendantfalsely 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 ofassistance 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 ofthe 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. Defendantrequired repeated questioning priorto 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 ofthe 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 ofhindsight, defendant speculates that ifTrooper Fye had followed behind the ambulance, rather than observing the crash site to which she was assigned, the two-hour time windowcould 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 ofthe accident. N.T. 

### 1123/14 at 6, lines 5-9. The defendantfalsely 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 ofassistance 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 ofthe 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. Defendantrequired repeated questioning priorto 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 ofthe 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 ofhindsight, defendant speculates that ifTrooper Fye had followed behind the ambulance, rather than observing the crash site to which she was assigned, the two-hour time windowcould 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

7Circulated 01/29/2015 10:57 AM arresting officers did absolutelyeverythingpossible to get the defendant to submit to a blood drawwithin the two-hour window to establish good cause. This is especially true where the defendant's own actions, in addition to a confluence ofvariables, caused delay and where it is conceded that defendant did not imbibe in alcohol oruse controlled substances between the time ofthe accident and the blood draw. The Court believes the Commonwealth established good
cause and that all responders acted with due diligence in the midst ofmany variables in orderto 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'snon-jUly verdict and those provided in the Opinion ofthe Suppression Court, this COUli respectfully requests that the verdict and sentence be affirmed.

Date September 3, 2014

cc: pstrictAttorney's Office (AC)

### ~le W. Rude, Esq. Superior Court (& 1)

8 arresting officers did absolutelyeverythingpossible to get the defendant to submit to a blood drawwithin the two-hour window to establish good cause. This is especially true where the defendant's own actions, in addition to a confluence ofvariables, caused delay and where it is conceded that defendant did not imbibe in alcohol oruse controlled substances between the time ofthe accident and the blood draw. The Court believes the Commonwealth established good
cause and that all responders acted with due diligence in the midst ofmany variables in orderto 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'snon-jUly verdict and those provided in the Opinion ofthe Suppression Court, this COUli respectfully requests that the verdict and sentence be affirmed.

Date September 3, 2014

cc: pstrictAttorney's Office (AC)

### ~le W. Rude, Esq. Superior Court (& 1)

8Circulated 01/29/2015 10:57 AMCirculated 01/29/2015 10:57 AMCirculated 01/29/2015 10:57 AMCirculated 01/29/2015 10:57 AMCirculated 01/29/2015 10:57 AMCirculated 01/29/2015 10:57 AMCirculated 01/29/2015 10:57 AMCirculated 01/29/2015 10:57 AMCirculated 01/29/2015 10:57 AM