J-A28017-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

SHAWN BRADWELL

                            Appellee                 No. 1866 EDA 2013


                 Appeal from the Order Entered on May 30, 2013
              In the Court of Common Pleas of Philadelphia County
                Criminal Division at No: MC-51-CR-0049110-2011


BEFORE: GANTMAN, P.J., WECHT, J., and JENKINS, J.

MEMORANDUM BY WECHT, J.:                            FILED MARCH 10, 2015

       The   Commonwealth challenges a         May 30, 2013     order   of the

Philadelphia Court of Common Pleas. In that order, the trial court ruled that

test results from a draw of DUI-suspect Shawn Bradwell’s blood were

inadmissible because Bradwell’s blood was drawn after the expiration of the

two-hour time limit, see 75 Pa.C.S. § 3802(c), and because the police

offered no good cause to explain the delay. See 75 Pa.C.S. § 3802(g)(1).

For the reasons that follow, we affirm.

       The following facts are alleged by the Commonwealth.1 On November

19, 2011, at approximately 2:50 a.m., Philadelphia Police Officer Andrew
____________________________________________


1
       Due to the procedural events that occurred in the trial court, which we
set forth in more detail infra, this appeal comes before this Court without the
facts having been presented and proven beyond a reasonable doubt to a
fact-finder.    Thus, for purposes of this appeal, we rely upon the
(Footnote Continued Next Page)
J-A28017-14



Campbell observed Bradwell operating a motor vehicle in reverse through an

intersection.    Officer Campbell immediately stopped Bradwell’s vehicle.

Upon contact with Bradwell, Officer Campbell detected a strong odor of

alcohol, and noticed that Bradwell’s eyes appeared to be bloodshot.

Bradwell also displayed signs of confusion.        Officer Campbell arrested

Bradwell on suspicion that Bradwell was driving under the influence of

alcohol.

      Bradwell was placed in Officer Campbell’s vehicle and driven to the

police headquarters. At 5:07 a.m., approximately two hours and seventeen

minutes after Bradwell was observed driving his vehicle, the police drew

Bradwell’s blood.       Subsequent testing revealed that Bradwell had a blood

alcohol content (“BAC”) of .175%.

      Bradwell was charged with two violations of the Motor Vehicle Code:

one count of 75 Pa.C.S. § 3802(a)(1), DUI—General Impairment, and one

count of 75 Pa.C.S. § 3802(c), DUI—Highest Rate of Alcohol. On February

11, 2013, Bradwell filed a motion in limine with the Philadelphia Municipal

Court seeking to preclude the Commonwealth from introducing the BAC

results at trial for purposes of proving the subsection 3802(c) charge. On


                       _______________________
(Footnote Continued)

Commonwealth’s allegations, which Bradwell does not dispute. Regardless,
any discrepancies in the details of Bradwell’s arrest would not affect the
outcome of this case, particularly because the Commonwealth candidly
concedes the principal fact that the blood draw did not occur until after the
two-hour time limit had expired. See Brief for the Commonwealth at 5-6.



                                            -2-
J-A28017-14



that same day, The Honorable Joseph O’Neill of the Philadelphia Municipal

Court held a hearing. At the hearing, the Commonwealth conceded that it

could not proffer any cause, let alone good cause, for the delay in drawing

Bradwell’s blood.   Notes of Testimony (“N.T.”), 2/11/2013, at 6.       At the

conclusion of the hearing, Judge O’Neill deferred ruling until later that week.

On February, 14, 2013, Judge O’Neill reconvened the parties and announced

that Bradwell’s motion in limine was granted, precluding the Commonwealth

from introducing the BAC test results to prove Bradwell guilty of subsection

3802(c), DUI—Highest Rate of Alcohol.        N.T., 2/14/2013, at 3.     For all

practical purposes, the court’s ruling meant that the Commonwealth could

only try Bradwell under subsection 3802(a)(1), DUI—General Impairment.

      On March 14, 2013, the Commonwealth filed a petition for certiorari,

appealing Judge O’Neill’s ruling to the Court of Common Pleas. On May 30,

2013, the Honorable Paula Patrick of the Court of Common Pleas of

Philadelphia held a hearing on the Commonwealth’s petition. At the hearing,

the Commonwealth again offered no reason to justify the delay in drawing

Bradwell’s blood.   N.T., 5/30/2013, at 7.    For that reason, Judge Patrick

denied the Commonwealth’s appeal.

      On June 26, 2013, the Commonwealth filed a notice of appeal.

Therein, the Commonwealth certified that Judge Patrick’s order terminated

or substantially handicapped its prosecution of Bradwell.      See Notice of

Appeal, 6/26/2013; Pa.R.A.P. 311(d) (stating that “the Commonwealth may

take an appeal as of right from an order that does not end the entire case

                                     -3-
J-A28017-14



where the Commonwealth certifies in the notice of appeal that the order will

terminate or substantially handicap the prosecution.”).         On the same day,

the Commonwealth filed a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b), even though the trial court had not

yet ordered it to do so. On September 25, 2013, Judge Patrick issued an

opinion pursuant to Pa.R.A.P. 1925(a).

      The Commonwealth raises the following question for our review:

      Did the Court of Common Pleas err in affirming the Municipal
      Court order excluding the Commonwealth’s evidence because
      the blood sample was obtained more than two hours after arrest,
      where the blood test results were admissible in [Bradwell’s]
      prosecution for driving under the influence of alcohol?

Brief for the Commonwealth at 4.

      Herein,    we     confront   a   question   heretofore     unanswered      in

Pennsylvania. We must determine whether BAC test results that were taken

after the two-hour time period set forth in subsection 3802(c) has expired

are admissible when the Commonwealth cannot establish good cause for law

enforcement’s delay in obtaining the blood sample. This question implicates

various legal precepts, and their interplay with one another, including

statutory interpretation and the Pennsylvania Rules of Evidence. We begin

with our applicable standards of review.

      The Commonwealth appeals the trial court’s denial of its petition for

writ of certiorari. When a party “files a petition for a writ of certiorari, the

Philadelphia    Court   of   Common    Pleas   sits   as   an   appellate   court.”



                                       -4-
J-A28017-14



Commonwealth v. Coleman, 19 A.3d 1111, 1119 (Pa. Super. 2011)

(citing Commonwealth v. Rosario, 615 A.2d 740, 741 (Pa. Super. 1992)).

Generally, “[a] lower court’s decision on the issuance of a writ of certiorari

will not be disturbed absent an abuse of discretion.      Certiorari provides a

narrow scope of review in a summary criminal matter and allows review

solely for questions of law.” Commonwealth v. Elisco, 666 A.2d 739, 740

(Pa. Super. 1995) (citations omitted).         Inasmuch as this case involves

statutory interpretation, which is a matter of law, our standard of review is

de novo, and our scope of review is plenary. Commonwealth v. Wilson,

101 A.3d 1151, 1153 (Pa. Super. 2014) (citing Commonwealth v. Spence,

91 A.3d 44, 46 (Pa. Super. 2014)).

      We turn to the relevant statutory provisions.      Bradwell was charged

with DUI—Highest rate of alcohol, which provides as follows:

      (c) Highest rate of alcohol.—An individual may not drive,
      operate or be in actual physical control of the movement of a
      vehicle after imbibing a sufficient amount of alcohol such that
      the alcohol concentration in the individual’s blood or breath is
      0.16% or higher within two hours after the individual has
      driven, operated or been in actual physical control of the
      movement of the vehicle.

75 Pa.C.S. § 3802(c). Subsection 3802(g) provides an exception to the two

hour time limit set forth in subsection (c):

      (g) Exception to the two-hour rule.—Notwithstanding the
      provisions of subsection (a), (b), (c), (e) or (f), 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

                                      -5-
J-A28017-14


      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. . . .

75 Pa.C.S. § 3802(g). Lastly, 75 Pa.C.S. § 1547(c) establishes the general

admissibility of BAC test results:

      § 1547. Chemical testing to determine amount of alcohol
      or controlled substance

      (c) Test results admissible in evidence.—In any summary
      proceeding or criminal proceeding in which the defendant is
      charged with a violation of section 3802 or any other violation of
      this title arising out of the same action, the amount of alcohol or
      controlled substance in the defendant’s blood, as shown by
      chemical testing of the person’s breath, blood or urine, which
      tests were conducted by qualified persons using approved
      equipment, shall be admissible in evidence.

75 Pa.C.S. § 1547(c).

      The relevant facts underlying this case are undisputed. Bradwell was

arrested for DUI. The police did not perform a blood draw within two hours

of the time that Bradwell was observed driving his vehicle.                  The

Commonwealth did not attempt to establish good cause for the delay before

the Municipal Court, the Court of Common Pleas, or this Court.              Thus,

Bradwell’s blood was not drawn within the two hours required by subsection

3802(c), and the Commonwealth has not established the applicability of

subsection 3802(g).

      We   must    determine    whether,   under   these   circumstances,     the

applicable statutory provisions nonetheless permit the results of the BAC test


                                     -6-
J-A28017-14



that result from the tardy blood draw to be admitted at trial.           For the

reasons that follow, we hold that they do not.

      We turn our attention to the principles that govern our interpretation

of the statutory provisions of the Motor Vehicle Code.

      When construing [provisions] utilized by the General Assembly in
      a statute, our primary goal is “to ascertain and effectuate the
      intention of the General Assembly.”         1 Pa.C.S. § 1921(a).
      “Every statute shall be construed, if possible, to give effect to all
      its provisions.” Id. However, “[w]hen the words of a statute
      are clear and free from all ambiguity, the letter of it is not to be
      disregarded under the pretext of pursuing its spirit.” Id. §
      1921(b). “Words and phrases shall be construed according to
      the rules of grammar and according to their common and
      approved usage.” Id. § 1903(a). In other words, if a term is
      clear and unambiguous, we are prohibited from assigning a
      meaning to that term that differs from its common everyday
      usage for the purpose of effectuating the legislature’s intent.
      Additionally, we must remain mindful that the “General
      Assembly does not intend a result that is absurd, impossible of
      execution or unreasonable.” Id. § 1922(1).

Commonwealth v. Cahill, 95 A.3d 298, 301 (Pa. Super. 2014).

      We first consider the plain language of the above-cited statutory

provisions.    Subsection 3802(c) makes it a crime for a person to drive or

operate a motor vehicle after imbibing a sufficient amount of alcohol to

produce a BAC of .16% or higher. The Commonwealth must establish that

the suspected intoxicated driver had such an elevated BAC within two

hours of driving. 75 Pa.C.S. § 3802(c). In other words, the driver’s blood,

breath, or urine must be obtained by law enforcement within two hours of

being stopped by the police.           The Commonwealth’s arguments to the

contrary      notwithstanding,   our   General   Assembly   has   unequivocally

                                        -7-
J-A28017-14



instructed that this is an essential element of proving a person guilty of

subsection 3802(c). In fact, the language of subsection (g) twice refers to

the two-hour time limit as an element of the offense.         See 75 Pa.C.S. §

3802(g); Wilson, 101 A.3d at 1154 (noting that § 3802’s subsections

dealing with the consumption of alcohol specify a time limit within which

blood must be drawn for the presence of alcohol). Thus, the plain language

of the statute demonstrates patently the General Assembly’s intent:

obtaining a DUI-suspect’s blood, breath, or urine within two hours of driving

is an essential element of subsection 3802(c).         No other construction is

tenable, as any other construction would conflict directly with the clear

language utilized by our General Assembly when it enacted § 3802(c).

        This conclusion is particularly inescapable by virtue of the fact that the

lawmakers codified a “safety valve” for the Commonwealth. Where, as here,

the Commonwealth cannot establish that a suspect’s chemical sample was

obtained within two hours, the Commonwealth nonetheless still may utilize

tests resulting from a tardy blood draw if it satisfies the relevant exception

set forth in subsection 3802(g). Subsection (g) states that evidence of test

results from samples drawn after the two-hour limit will be admissible and

sufficient to establish the relevant element when Commonwealth can show

good cause for the delay.      75 Pa.C.S. § 3802(g).     This good cause safety

valve has not been invoked (much less established) by the Commonwealth

here.




                                       -8-
J-A28017-14



     The plain language of these two provisions establishes a two-tier

approach pursuant to which the Commonwealth may prove beyond a

reasonable doubt that a driver had a BAC of .16% or higher.                  The

Commonwealth can prove the BAC either: (1) with test results derived from

a sample drawn within two hours of the suspect driving the vehicle; or (2)

with a sample drawn after the passage of two hours, provided there exists

good cause for the delay.

     Instantly,   the   Commonwealth      satisfied   neither   of   these   two

approaches.   The Commonwealth nonetheless argues that the evidence

should be admitted at trial because its failure to satisfy either of the

statutory requirements affects—so it says—only the weight of the evidence,

not its admissibility. This interpretation is unsupported and unsupportable.

First, it clashes directly with the plain language of the relevant provisions

detailed above. Second, it would yield absurd results, effectively nullifying

the exception set forth in subsection 3802(g). We are not free to violate the

General Assembly’s clear intent as evidenced by the unambiguous statutory

language.

     As noted above, subsection 3802(c) requires proof that the driver had

a BAC of .16% or higher at the time he operated or controlled a vehicle. For

all practical purposes, there is only one way in which the Commonwealth can

establish that value: by chemical testing of a suspect’s blood, breath, or

urine. Obviously, if the test is performed upon blood that was drawn within

two hours and returns a sufficiently high BAC, the Commonwealth can meet

                                    -9-
J-A28017-14



its burden.     If the draw does not occur within that time frame, the

Commonwealth may still resort to the exception set forth in subsection

3802(g).      It is critical to note that subsection 3802(g) uses the term

“sufficient” rather than the term “admissible.” The subsection states that, if

good cause is demonstrated by the Commonwealth, the test results from a

late collection of a chemical sample will be “sufficient” to establish the BAC

element of § 3802(c).     If the only way to prove the BAC element is by

chemical testing, and if the results of the chemical testing are “sufficient”

only if they are derived from blood drawn within the two-hour time frame or

thereafter with good cause, then in circumstances where the Commonwealth

can establish neither of these two conditions, the test results from a tardy

blood draw necessarily are insufficient to prove the BAC element of

subsection 3802(c) beyond a reasonable doubt.

      By force of statute, the test results obtained by the Commonwealth in

this case are insufficient to prove the BAC element of § 3802(c) against

Bradwell. Admitting those results nonetheless, as the Commonwealth urges,

effectively would nullify subsection 3802(g).       Our canons of statutory

construction oblige us, where possible, “to give effect to all [of a statute’s]

provisions.” 1 Pa.C.S. § 1921(a). Moreover, we must construe statutes in a

manner that avoids rendering “any provision as mere surplusage.” C.B. v.

J.B., 65 A.3d 946, 951 (Pa. Super. 2013) (citing In re Adoption of J.A.S.,

939 A.2d 403, 406 (Pa. Super. 2007)).        Subsection (g) provides the only

statutory mechanism to introduce chemical samples drawn beyond the two-

                                    - 10 -
J-A28017-14



hour time frame set forth in § 3802(c). As we have explained repeatedly, it

is only upon good cause that such evidence can be introduced at trial. If the

Commonwealth were permitted to introduce the evidence without a showing

of good cause, then subsection 3802(g)’s exception would be a nullity, and

we would have reduced the statutory language to mere surplusage at best.

We are required to give effect to the General Assembly’s statutes; we cannot

ignore them, improve upon them, or create byways around them. Simply

put, subsection 3802(g) is not an advisory provision that the Commonwealth

may ignore at its will or convenience.

      For   many      of     the   same   reasons,   admitting   the   evidence

notwithstanding the statutory provisions would yield an absurd result.       As

noted earlier, for all practical purposes, there is only one way to prove that a

DUI suspect had a BAC of .16% or higher: chemical testing. However, if the

sample is not collected within the required time frame, or does not meet the

statutory exception, subsection 3802(g) provides that the chemical testing is

insufficient. Because those results can never amount to sufficient evidence,

and because there is no other way to satisfy the BAC element, those results

also can serve no corroborative purpose.

      For these reasons, the test results from an untimely blood draw have

no probative value.        To admit evidence so lacking in probative value can

serve only to prejudice the defendant. Pennsylvania Rule of Evidence 403

provides that relevant evidence may be precluded “if its probative value is

outweighed by a danger of one or more of the following: unfair prejudice,

                                       - 11 -
J-A28017-14



confusing the issues, misleading the jury, undue delay, wasting time, or

needlessly presenting cumulative evidence.”    Pa.R.E. 403.   Introduction of

evidence that by statute is insufficient to establish the relevant element

where no other means exists to prove that element not only would inject

undiluted prejudice into the case, but would also confuse and mislead the

jury. The jury would be instructed on the elements of the crime, and, by

necessity of subsection 3802(g), would be told that the inclupatory BAC test

results are insufficient to establish the BAC element. We cannot expect that

even the most reasonable jury will compartmentalize the evidence in such a

way.     The likelihood that the jury would perceive that evidence as

inculpatory is patent.   For this reason, admitting such evidence would

produce an absurd and unreasonable result, an untenable consequence that

we must avoid when fairly applying our rules of statutory construction. See

1 Pa.C.S. § 1922(1).

       The Commonwealth further presents the closely related argument that

75 Pa.C.S. § 1547 amounts to a “statutory mandate” that requires

admission of all BAC test results, no matter the circumstances. See Brief for

the Commonwealth at 14. Section 1547 states that BAC test results “shall

be admissible in evidence.” 75 Pa.C.S. § 1547. Our canons of construction

instruct us to assess the interplay between two statutes in a manner that

renders neither entirely unenforceable. To hold that section 1547 overrides

every other statutory provision essentially would be to flout and to nullify

the two-hour time period mandated in subsection 3802(c) and the exception

                                   - 12 -
J-A28017-14



crafted in subsection 3802(g).       The General Assembly did not intend for

section 3802’s provisions to be so easily cast into the dustbin.

      More importantly, the Commonwealth’s logic is untenable: that the

statute declares evidence to be admissible does not, ipso facto, mean that

such evidence is not subject to any other provision in our laws.                   For

instance, a defendant’s confession is admissible—unless it was obtained

unconstitutionally. Photographs of a murder victim’s body are admissible—

unless they are so graphic that the resulting prejudice would outweigh the

photos’ probative value. Indeed, all relevant evidence is admissible—unless

that evidence conflicts with an overriding law. That is precisely the situation

before us.      BAC test results generally are admissible.             However, those

results have no evidentiary value in a prosecution for under subsection

3802(c)    if   the   Commonwealth    fails    to   satisfy   either   the   timeliness

requirements of that section or the exception provided in subsection

3802(g).

      In sum, although the results of BAC tests generally are admissible, the

trial court did not err by prohibiting their admission at a trial for subsection

3802(c). To admit such evidence would undermine the relevant provisions

of section 3802, and would incurably prejudice the defendant. Our holding

is limited to the factual and procedural scenario presented by this case, to

wit, circumstances in which a defendant is charged with subsection 3802(c),




                                      - 13 -
J-A28017-14



a blood sample is not obtained within two hours of driving the vehicle, and

the Commonwealth cannot establish good cause for the delay.2

       Order affirmed.

       President Judge Gantman concurs in the result.

       Judge Jenkins concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/10/2015




____________________________________________


2
      We emphasize this point primarily because the trial court’s docket
indicates that Bradwell also was charged with 75 Pa.C.S. § 3802(a)(1)—
General Impairment. That provision states only that “[a]n individual may
not drive, operate or be in actual physical control of the movement of a
vehicle after imbibing a sufficient amount of alcohol such that the individual
is rendered incapable of safely driving, operating or being in actual physical
control of the movement of the vehicle.”          Id.    Notably, subsection
3802(a)(1) does not require a particular BAC, nor does it contain any testing
requirements or time constraints. We do not hold that the otherwise
untimely drawn blood would be admissible to demonstrate a driver’s general
impairment in a prosecution maintained solely under subsection 3802(a)(1),
nor do we hold to the contrary. That question must be deferred until it is
properly presented.



                                          - 14 -
