J-S56014-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

THOMAS FERREY

                            Appellant                 No. 492 MDA 2014


            Appeal from the Judgment of Sentence January 13, 2014
               In the Court of Common Pleas of Luzerne County
              Criminal Division at No(s): CP-40-CR-0000027-2013


BEFORE: PANELLA, J., WECHT, J., and PLATT, J.*

MEMORANDUM BY PANELLA, J.                         FILED OCTOBER 16, 2014

        Appellant, Thomas Ferrey, appeals from the judgment of sentence

entered January 13, 2014, by the Honorable Joseph M. Augello, Court of

Common Pleas of Luzerne County. On appeal, Ferrey argues that the trial

court erred when it failed to suppress the results of his blood alcohol content

(BAC) analysis. We affirm.

        On September 2, 2012, at approximately 7 p.m. or shortly thereafter,

Brian Bridge left work. See N.T., Suppression Hearing, 9/23/13 at 4-5. Ten

to fifteen minutes later, while travelling on Route 93, Bridge began to turn

on to Zenith Road when he was rear-ended in mid-turn by a motorcycle



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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operated by Ferrey. See id. at 6-7. Bridge’s mother arrived on the scene

fifteen minutes later and called the police. See id.

          State Trooper Michael Wienckoski arrived at the scene of the accident

at 7:50 p.m.         When Trooper Wienckoski spoke with Ferrey, he observed

Ferrey had slurred speech, glossy eyes, and a strong odor of alcohol

emanating from his person.             See id. at 27-28.   Trooper Wienckoski then

administered a portable breath machine test, which Ferrey failed. See id. at

29-30. Ferrey was subsequently placed under arrest for suspicion of driving

under the influence of alcohol. See id. at 31. Ferrey’s blood was drawn at a

local hospital at 9:02 p.m. for BAC analysis. See id. at 34.

          Ferrey was charged with DUI – general impairment,1 DUI – high rate

of alcohol,2 careless driving,3 and following too closely.4 On May 22, 2013,

Ferrey filed a pre-trial motion to suppress the results of the BAC test, based

upon the Commonwealth’s alleged failure to prove Ferrey’s blood had been

drawn within two hours after he drove a vehicle as required under 75

Pa.C.S.A. § 3802(b). Following an evidentiary hearing, the trial court denied

Ferrey’s suppression motion.            Following a stipulated bench trial, the trial

court found Ferrey guilty of DUI – high rate of alcohol, and not guilty of the



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1
    75   Pa.C.S.A.   §   3802(a)(1).
2
    75   Pa.C.S.A.   §   3802(b).
3
    75   Pa.C.S.A.   §   3714.
4
    75   Pa.C.S.A.   §   3310.



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remaining summary charges.5               On January 13, 2014, the trial court

sentenced Ferrey to 48 hours to six months’ imprisonment.              This timely

appeal followed.

        On appeal, Ferrey raises the following issue for our review:

           Whether the suppression court erred in admitting a blood
           alcohol test of the [Appellant] where the Commonwealth
           failed to prove that the test was taken within two hours
           after the [Appellant] operated his vehicle, and where the
           Commonwealth failed to prove any “good cause” for a
           delay beyond two hours in obtaining the [Appellant’s]
           blood?

Appellant’s Brief at 2.

        We review the denial of a motion to suppress physical evidence as

follows:

           Our standard of review in addressing a challenge to a trial
           court’s denial of a suppression motion is limited to
           determining whether the factual findings are supported by
           the record and whether the legal conclusions drawn from
           those facts are correct.

           [W]e may consider only the evidence of the prosecution
           and so much of the evidence for the defense as remains
           uncontradicted when read in the context of the record as a
           whole. Where the record supports the findings of the
           suppression court, we are bound by those facts and may
           reverse only if the court erred in reaching its legal
           conclusions based upon the facts.

           Further, [i]t is within the suppression court’s sole province
           as factfinder to pass on the credibility of witnesses and the
           weight to be given their testimony.

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5
    The general impairment DUI charge was dismissed prior to trial.



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Commonwealth v. Houck, 2014 WL 4783552 at *10 (Pa. Super., filed

Sept. 26, 2014) (internal citations and quotations omitted).

      Section 3802(b) provides:

      (b) High rate of alcohol.--An individual may not drive, operate or
      be in actual physical control of the movement of a vehicle after
      imbibing a sufficient amount of alcohol such that the alcohol
      concentration in the individual’s blood or breath is at least
      0.10% but less than 0.16% within two hours after the individual
      has driven, operated or been in actual physical control of the
      movement of the vehicle.

75 Pa.C.S. §§ 3802(b) (emphasis added). “The necessity for the two hour

time limit in subsections 3802(a)(2), (b), and (c) is grounded in the practical

impossibility either of measuring blood alcohol level precisely at the time of

driving or of calculating the exact blood alcohol level at the time of driving

from a single blood alcohol measurement taken at some point in time after

driving.” Commonwealth v. Segida, 985 A.2d 871, 879 (Pa. 2009).

      Ferrey maintains that the Commonwealth failed to establish that his

blood was drawn for testing within two hours of driving and, therefore, the

trial court should have suppressed the BAC results.      We disagree. Bridge

testified at the suppression hearing that he left work at “7:00 [p.m.] or a

little after” and that the accident occurred “around 10, 15” minutes later.

N.T., Suppression Hearing, 9/23/13 at 5, 7.      Trooper Wienckoski arrested

Ferrey and observed that Ferrey’s blood was drawn at 9:02 p.m. See id. at

34.   As we can deduce from Bridge’s testimony that Ferrey drove his

motorcycle into the rear of Bridge’s vehicle approximately between 7:10 and

7:15 p.m., the blood drawn at 9:02 p.m. falls squarely within the two-hour

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period    of   section   3802(b).   We   find   the   Commonwealth   sufficiently

established that Ferrey’s blood was drawn within two hours of driving as

required. We therefore affirm the order denying Ferrey’s suppression

motion.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/16/2014




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