J-S38020-18

                                   2018 PA Super 266

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    MICHELLE LEIGH STARRY                      :   No. 1439 WDA 2017

                   Appeal from the Order September 28, 2017
    In the Court of Common Pleas of Westmoreland County Criminal Division
                      at No(s): CP-65-CR-0001154-2014


BEFORE: BOWES, J., NICHOLS, J., and STRASSBURGER, J.*

OPINION BY NICHOLS, J.:                            FILED SEPTEMBER 24, 2018

        The Commonwealth appeals from the order granting Appellee Michelle

Leigh Starry’s motion for supplemental ruling on her petition for a writ of

habeas corpus and dismissing the charge of driving under the influence

(DUI)—highest rate of alcohol.1 The Commonwealth claims it established a

prima facie case to proceed on that charge. We reverse.

        In a previous memorandum, this Court set forth the factual and

procedural history of this case as follows:

        On January 26, 2014, an individual identified as Mr. Teeter
        contacted State Police, indicating that Appellee had left his
        residence at approximately 11:00 a.m., driving the Hyundai
        registered in her name.1 At 11:49 a.m., Joseph Gabor called 911
        to report that he had arrived upon the scene of a crashed vehicle
        along County Road in Loyalhanna Township, Pennsylvania.


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   75 Pa.C.S. § 3802(c).
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        1 It is unclear from the record why Mr. Teeter called State
        Police that morning. We reference this fact due to its
        relevance in establishing that Appellee was operating her
        vehicle at that time on that date.

     At the scene, first responders found the vehicle registered to
     Appellee along the berm of the road where it had impacted a tree.
     Appellee was discovered sleeping in the back seat of the vehicle.
     There were no other individuals in the vehicle, and the first
     responders noted that, apart from the footprints belonging to Mr.
     Gabor, there were no other footprints in the snow that would
     indicate that anyone had left the scene of the crash. The driver-
     side airbag had deployed. Inside the passenger side door area of
     the vehicle was a Coors beer glass that appeared to be half-full of
     beer.

     Upon urging by the first responders, Appellee attempted to exit
     the vehicle, only to fall down. The first responders helped
     Appellee out of the vehicle and aided her to the ambulance.
     Examination of Appellee by medical personnel indicated that
     Appellee had bruising to her chest and abdomen area, which
     would be consistent with an impact with the steering wheel.

     Trooper Todd Adamski was dispatched to the accident and
     observed Appellee’s vehicle where it had impacted a tree. At the
     time of the trooper’s arrival, Appellee was being treated in the
     back of the ambulance. Upon interviewing Appellee, Trooper
     Adamski detected an odor of alcohol coming from Appellee.
     Trooper Adamski also noted that Appellee’s speech was slurred
     and “she was unable to complete her thoughts.” It was Trooper
     Adamski’s opinion, based upon his interaction with Appellee, that
     she was under the influence of alcohol to a degree that would
     render her incapable of safe driving. Trooper Adamski ended his
     interview of Appellee so that she could be properly treated for her
     medical needs. Trooper Adamski testified that from the time of
     his arrival at 12:36 p.m. until Appellee was removed from the
     scene by ambulance at 12:56 p.m., Appellee did not consume any
     alcohol. Appellee’s blood was drawn at Forbes Regional Hospital
     at 1:40 p.m. and produced a .304% blood alcohol content (“BAC”)
     result.

     Appellee was charged with two counts of driving under the
     influence[:] one count under 75 Pa.C.S. § 3802(a)(1), general
     impairment, and one count under 75 Pa.C.S. § 3802(c), highest
     rate of alcohol. Following a preliminary hearing, the magisterial


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      district justice determined that a prima facie case of the offenses
      had been made and held the charges over for trial.

Commonwealth v. Starry, 2028 WDA 2015, at 1-3 (Pa. Super. filed Sept.

29, 2016) (unpublished mem.) (internal citations omitted).

      On July 2, 2014, Appellee filed an omnibus pre-trial motion, which

included a petition for a writ of habeas corpus. Appellee claimed, in relevant

part, that the Commonwealth had failed to establish a prima facie case as to

all charges. Appellee’s Omnibus Pre-trial Mot., 7/2/14, at 1-2.

      The trial court held a hearing on Appellee’s motion on July 30, 2015. At

the hearing, Trooper Adamski testified that the road where the accident

occurred was a county road that was regularly traveled by people who live in

the area. N.T., 7/30/15, at 8. He testified that the first person to report the

accident called at 11:49 a.m., and the second person called at 12:10 p.m. Id.

at 9-10.   Trooper Adamski stated that Appellee had not consumed alcohol

from the time he arrived at the scene until she was taken to the hospital by

the ambulance personnel. Id. at 24. He explained that the ambulance took

Appellee to Forbes Regional Hospital at 12:56 p.m., and that he did not delay

her transportation because his main concern was “her being properly treated.”

Id. at 25.    Trooper Adamski testified that based on his training and

experience, the hospital performs blood draws in these circumstances to

determine what type of treatment is needed. Id. He continued that it was

his expectation that a blood draw would be performed in Appellee’s case. Id.




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     On cross-examination, Trooper Adamski acknowledged that the blood

draw took place 1 hour and 51 minutes after the first 911 call was made, but

that he did not know exactly when the accident had occurred.       Id. at 17.

Trooper Adamski further acknowledged that he did not contact the hospital to

request a blood draw and obtained a search warrant instead. Id. at 21. He

testified that generally, in suspected DUI cases, troopers read the DL4 form,

the defendant signs, and the trooper proceeds to the hospital to obtain the

blood test. Id. at 26. However, because of the type of accident in this case,

he chose to obtain a search warrant instead. Id.

     On December 16, 2015, the trial court granted Appellee’s petition for a

writ of habeas corpus. The trial court concluded that the Commonwealth failed

to establish a prima facie case that Appellee had “actual physical control of

the movement of [the] motor vehicle.” Order, 12/16/15. The court further

stated, “[i]n that no prima facie case has been made out, the evidence of

[BAC] will be excluded.” Id.

     On December 22, 2015, the Commonwealth filed a timely notice of

appeal, and this Court reversed. We explained that

     [t]he testimony at the preliminary hearing and the omnibus
     pretrial motion hearing established that the car registered to
     Appellee had been crashed into a tree on the side of a road.
     Appellee’s crashed vehicle was discovered and reported by a
     passerby approximately forty-nine minutes after Mr. Teeter had
     contacted police to report that Appellee had left his house driving
     the vehicle registered to her. Appellee was found alone in the
     vehicle, and the snow-covered ground did not reflect footprints
     indicating that any individuals had left the scene. As a result of
     the impact, the driver–side airbag deployed. Moreover, an open


                                    -4-
J-S38020-18


     container of alcohol was discovered inside the vehicle. Appellee
     was so intoxicated that she could not independently exit the
     vehicle and needed assistance to get to the ambulance.
     Additionally, Appellee had bruising consistent with impact to the
     steering wheel.      During Trooper Adamski’s interview with
     Appellee, it was obvious to him that Appellee was impaired, and
     the BAC results of .304% later drawn reflected the level of
     impairment.

                                     ***

     Viewing the evidence in the light most favorable to the
     Commonwealth, we agree that there exists a prima facie case that
     Appellee had driven or operated the vehicle while intoxicated.
     This Court has observed, “[T]he suspect location of an automobile
     supports an inference that it was driven . . . a key factor in the
     finding of actual control.” Commonwealth v. Woodruff, 668
     A.2d 1158, 1161 (Pa. Super. 1995). The location of the vehicle in
     this case, along the side of the road and crashed into a tree,
     supports an inference that the car was driven there and supports
     a finding of actual control. The fact that Appellee was found alone
     in that vehicle also supports the inference that she was the
     individual who drove it to that location, thereby reflecting her
     control of the vehicle. As noted, the Commonwealth can establish
     a prima facie case by wholly circumstantial evidence. Thus, the
     evidence of record supports the conclusion that Appellee was
     operating her vehicle on the roadway while under the influence of
     alcohol.

Starry, 2028 WDA 2015, at 8-9.

     We further noted that

     the trial court applied an incorrect standard when it concluded that
     “[n]o evidence was offered that proved that [Appellee] drove,
     operated or was in actual physical control of a motor vehicle.”
     Order, 12/16/15, at 1 (emphasis added). As outlined above, when
     confronted with a petition for habeas corpus, the Commonwealth
     is not required to prove the elements of the crime. Instead, the
     Commonwealth need only present evidence, viewed in the light
     most favorable to the Commonwealth, establishing a prima facie
     case of the offense, sufficient for the matter to proceed to trial. []
     See [Commonwealth v. Hendricks, 927 A.2d 289, 291 (Pa.

                                     -5-
J-S38020-18


        Super. 2007)] (“a prima facie case consists of evidence, read in
        the light most favorable to the Commonwealth, that sufficiently
        establishes both the commission of a crime and that the accused
        is probably the perpetrator of that crime. The Commonwealth
        need not prove the defendant’s guilt beyond a reasonable
        doubt.”).

Id. at 9-10.      Appellee filed a petition for allowance of appeal in the

Pennsylvania Supreme Court, which was denied on March 22, 2017, and the

matter was returned to the trial court.

        On July 21, 2017, Appellee filed a motion requesting that the trial court

address her claim that the Commonwealth failed to present a prima facie case

of a violation of section 3802(c). Mot. for Supp. Ruling on Appellee’s Pet. for

Writ of Habeas Corpus, 7/21/17, at 1. Specifically, Appellee alleged that (1)

the Commonwealth failed to establish that the blood was drawn within two

hours of her operation of the vehicle; (2) the Commonwealth failed to

establish good cause such that would justify an exception to the “two hour

rule”; and (3) due to statutory ambiguity in 75 Pa.C.S. § 3802(g)(2), the

Commonwealth could not meet the requirement in subsection 3802(g)(2). Id.

at 3.

        On September 5, 2017, the Commonwealth filed a motion to dismiss

Appellee’s supplemental motion.         The Commonwealth alleged that in

Appellee’s first omnibus pre-trial motion, Appellee argued that her blood

sample was not withdrawn within two hours and that there was no good cause

for the draw occurring more than two hours after she drove. Commonwealth’s

Mot. to Dismiss & Brief in Opp’n, 9/5/17, at 1-2. The Commonwealth further


                                       -6-
J-S38020-18



alleged that the trial court had ruled on that issue in its December 16, 2015

order when it stated “no prima facie case has been made out, the evidence of

the blood alcohol content will be excluded.” Id. at 2.

       The Commonwealth also claimed that this Court had reversed the trial

court’s determinations and that the trial court was “divested of jurisdiction to

re-review and consider ruling the [BAC] inadmissible on . . . alternative

grounds.”2 Id. The Commonwealth added that allowing Appellee a “second

bite at the apple” would prejudice the Commonwealth because the four-year

delay in this case will lessen the Commonwealth’s ability to present a

meaningful case to the jury. Id.

       On August 23, 2017, the trial court held a hearing on Appellee’s motion.3

On September 28, 2017, the court granted Appellee’s petition for a writ of

habeas corpus and dismissed with prejudice Appellee’s charge for DUI—

highest rate.



____________________________________________


2 Contrary to the Commonwealth’s assertions, our previous memorandum did
not address whether the Commonwealth had established a prima facie case
that the blood draw took place within two hours or whether there was good
cause for the delay. Moreover, the Commonwealth does not raise this issue
on appeal.

3 The docket reflects that the trial court held a hearing on Appellee’s motion
for supplemental ruling on August 23, 2017. Upon this Court’s informal inquiry
regarding the location of that transcript, the trial court indicated that it did not
have the transcript. However, all parties and the trial court refer to the
evidence presented at the July 30, 2015 hearing on Appellee’s omnibus pre-
trial motion. Therefore, it appears that no additional evidence was presented
at the August 23, 2017 hearing.

                                           -7-
J-S38020-18



      In an opinion setting forth its reasons, the trial court reasoned that the

Commonwealth did not meet the two-hour rule because it could not determine

when the accident occurred. See Trial Ct. Op. & Order, 9/28/17, at 6. The

court further reasoned that the Commonwealth did not meet the good cause

exception because it did not attempt to arrange a blood draw and because it

did not establish that Appellee had not consumed alcohol after the accident.

See id. at 7-9.

      On September 29, 2017, the Commonwealth filed a timely notice of

appeal.    The Commonwealth filed a court-ordered Pa.R.A.P. 1925(b)

statement, and the trial court filed a Pa.R.A.P. 1925(a) opinion relying on its

September 28, 2017 order and opinion.

      The Commonwealth raises the following issue on appeal:

      Whether Commonwealth established a prima facie case of DUI in
      violation of Vehicle Code Section 3802(c) under the following
      facts: [Appellee] was seen driving off alone Sunday morning at
      11:00 a.m., in a vehicle registered to her and along a regularly
      traveled road. She was discovered 49 minutes later alone in her
      vehicle, crashed into a tree, and exhibiting signs of intoxication.
      There were no footprints in the snow to suggest other occupants,
      and she bore injury consistent with hitting a steering wheel. She
      was taken to the hospital for treatment where blood was drawn at
      1:40 p.m. (1 hour and 51 minutes later) with a BAC result of
      .304%[.]

Commonwealth’s Brief at 4.      The Commonwealth essentially raises three

arguments in its brief: (1) a jury could reasonably infer that the blood sample

was taken within two hours; (2) even if a jury finds that the sample was not

taken within two hours, then there was good cause for the delay; and (3) even


                                     -8-
J-S38020-18



if no good cause is found, then the evidence is still admissible as circumstantial

evidence. See id. at 12-34.

      Initially, we note that

      [a] pre-trial habeas corpus motion is the proper means for testing
      whether the Commonwealth has sufficient evidence to establish a
      prima facie case. To demonstrate that a prima facie case exists,
      the Commonwealth must produce evidence of every material
      element of the charged offense(s) as well as the defendant’s
      complicity therein. To meet its burden, the Commonwealth may
      utilize the evidence presented at the preliminary hearing and also
      may submit additional proof.

Commonwealth v. Dantzler, 135 A.3d 1109, 1112 (Pa. Super. 2016) (en

banc) (internal citations and quotations marks omitted).

      We have explained that

      [a] prima facie case consists of evidence, read in the light most
      favorable to the Commonwealth, that sufficiently establishes both
      the commission of a crime and that the accused is probably the
      perpetrator of that crime. The Commonwealth need not prove the
      defendant’s guilt beyond a reasonable doubt.          Rather the
      Commonwealth must show sufficient probable cause that the
      defendant committed the offense, and the evidence should be
      such that if presented at trial, and accepted as true, the judge
      would be warranted in allowing the case to go to the jury. In
      determining the presence or absence of a prima facie case,
      inferences reasonably drawn from the evidence of record that
      would support a verdict of guilty are to be given effect, but
      suspicion and conjecture are not evidence and are unacceptable
      as such.

Commonwealth v. Hendricks, 927 A.2d 289, 291 (Pa. Super. 2007)

(emphases, internal quotation marks, and citations omitted).

      Our standard of review follows:

      We review a decision to grant a pre-trial petition for a writ of
      habeas corpus by examining the evidence and reasonable

                                      -9-
J-S38020-18


     inferences derived therefrom in a light most favorable to the
     Commonwealth. In Commonwealth v. Karetny, 583 Pa. 514,
     880 A.2d 505 (2005), our Supreme Court found that this Court
     erred in applying an abuse of discretion standard in considering a
     pre-trial habeas matter to determine whether the Commonwealth
     had provided prima facie evidence. The Karetny Court opined,
     “the Commonwealth’s prima facie case for a charged crime is a
     question of law as to which an appellate court’s review is plenary.”
     Id. at 513, 880 A.2d 505; see also Commonwealth v. Huggins,
     575 Pa. 395, 836 A.2d 862, 865 (2003) (“The question of the
     evidentiary sufficiency of the Commonwealth’s prima facie case is
     one of law[.]”). The High Court in Karetny continued, “[i]ndeed,
     the trial court is afforded no discretion in ascertaining
     whether, as a matter of law and in light of the facts
     presented to it, the Commonwealth has carried its pre-trial,
     prima facie burden to make out the elements of a charged
     crime.” Karetny, supra at 513, 880 A.2d 505. Hence, we are
     not bound by the legal determinations of the trial court. To the
     extent prior cases from this Court have set forth that we evaluate
     the decision to grant a pre-trial habeas corpus motion under an
     abuse of discretion standard, our Supreme Court has rejected that
     view. See id.

Dantzler, 135 A.3d at 1111-12 (footnote and some citations omitted;

emphasis added).

     The statute relevant to this appeal states:

     (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.

                                     ***

     (g) Exception to two-hour rule.—Notwithstanding the
     provisions of subsection [(c)] 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

                                    - 10 -
J-S38020-18


      has driven, operated or been in actual physical control of the
      movement of the vehicle is sufficient to establish that element of
      the offense under the following circumstances:

         (1) where the Commonwealth shows good cause explaining
         why the chemical test sample could not be obtained within two
         hours; and

         (2) where the Commonwealth establishes that the individual
         did not imbibe any alcohol or utilize a controlled
         substance between the time the individual was arrested
         and the time the sample was obtained.

75 Pa.C.S. § 3802(c), (g) (emphases added).

      Under section 3802(c), the elements of DUI—highest rate are: “(1) that

a person drove, operated or was in actual physical control of a motor vehicle;

and (2) that such action was conducted after imbibing enough alcohol that the

actor’s BAC reached 0.16% within two hours after driving.” Commonwealth

v. Thur, 906 A.2d 552, 564 (Pa. Super. 2006) (citation omitted). Section

3802(g) states that a blood test taken more than two hours after the

defendant drove is “sufficient” to prove the “two-hour rule” for a violation of

DUI—highest rate. 75 Pa.C.S. § 3802(g). However, the Commonwealth must

demonstrate (1) there was good cause for the delay, and (2) the defendant

did not consume an intoxicant between the time of the arrest and the time of

testing. Commonwealth v. Eichler, 133 A.3d 775, 786 (Pa. Super. 2016).

      The Commonwealth first argues that the trial court erred in concluding

that the evidence failed to establish a prima facie case that Appellee’s BAC

was over 0.16% within two hours after driving. The Commonwealth contends

that “even considering the outermost possible time between [Appellee]’s


                                    - 11 -
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physical control of the vehicle and the drawing of the sample, it is eminently

reasonable to conclude . . . that [Appellee]’s BAC was greater than .16%

within two hours of her last driven or been in physical control of the vehicle.

Commonwealth’s Brief at 23 (emphasis in original).

      Appellee counters that Commonwealth did not establish the time at

which the accident occurred.    Appellee’s Brief at 15.   She claims Trooper

Adamski assumed that the accident recently occurred. Id. at 15-16. Appellee

contends that the blood draw took place more than two hours after she began

driving at 11:00 a.m. Id. at 17.

      In Commonwealth v. Segida, 985 A.2d 871 (Pa. 2009), a police officer

was dispatched to investigate a report at 12:20 a.m. on a Sunday. Id. at

873. When he arrived, he saw the defendant’s vehicle “at the top of a hillside

in some brush, rotated 180 degrees.” Id. The defendant acknowledged that

he was the owner of the vehicle and that he had been drinking at a local club

and subsequently driving home when the accident occurred. Id. After the

defendant failed several field sobriety tests, the police officer drove the

defendant to the hospital where a blood draw revealed a BAC of .326. Id.

      The defendant was charged with DUI under sections 3802(a)(1) and

3802(c) and, following a bench trial, the defendant was convicted of both

counts.   Id.   The defendant appealed and a panel of the Superior Court

reversed, concluding the evidence was insufficient to support either of the

convictions. Id. at 874.


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       The Commonwealth appealed and the Pennsylvania Supreme Court

reversed, holding that the evidence was sufficient to establish beyond a

reasonable doubt the defendant’s conviction under section 3802(a)(1).4 The

Court reasoned that:

       [T]he circumstantial evidence that [a]ppellee drove while he was
       incapable of driving safely due to ingestion of alcohol was
       sufficient to establish beyond a reasonable doubt his violation of
       subsection 3802(a)(1). Appellee admitted that he had been
       drinking at a local club, and that he was driving himself and his
       brother home when he lost control of his vehicle.               The
       investigating officer discovered [a]ppellee’s vehicle “almost over
       the hillside at the top . . . into some brush,” having rotated 180
       degrees before coming to a halt off the road. When the officer
       arrived on the scene, [a]ppellee and his brother were out of the
       vehicle, “on the street right near the vehicle.” The officer
       “smell[ed] a strong odor of alcohol coming from [appellee’s]
       person and his breath.” The officer then administered three field
       sobriety tests, and based on the results thereof, he concluded that
       [a]ppellee was incapable of safely driving due to alcohol
       consumption. After arresting [a]ppellee, the officer transported
       him to McKeesport Hospital for a blood alcohol test, which
       revealed that [a]ppellee had a very high blood alcohol content:
       0.326 percent. While the officer acknowledged that he had not
       observed the accident and did not know exactly what time it had
       occurred, he opined that it was “doubtful” that the accident had
       occurred two or three hours or even ten minutes prior to his arrival
       on the scene “due to traffic on the road.”

       The undisputed evidence of [a]ppellee’s strikingly high blood
       alcohol level—0.326 percent—is noteworthy. Although precisely
       how much time had elapsed between the accident and [a]ppellee’s
       blood alcohol measurement is unknown, the fact-finder is not
____________________________________________


4 This Court’s reversal of the defendant’s conviction under section 3802(c) was
not on appeal because the Commonwealth conceded that it had not
established the time of the blood draw and, therefore, could not prove that
the defendant’s blood was elevated within two hours after he had driven.
Segida, 985 A.2d at 874 n.3.


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       required to suspend common sense and ignore the fact that
       [a]ppellee’s [BAC] was not just elevated, but enormously
       elevated—four times the legal limit of 0.08, and twice the highest
       rate of alcohol pursuant to subsection 3802(c). Furthermore, the
       accident itself constitutes evidence that [a]ppellee drove when he
       was incapable of doing so safely. There was only one vehicle
       involved in the accident, and [a]ppellee admitted that he had lost
       control of the vehicle as he was driving home after drinking at a
       club.

Segida, 985 A.2d at 880.5

       In Commonwealth v. Teems, 74 A.3d 142 (Pa. Super. 2013), we

applied Segida and held that there was sufficient evidence “to allow the

inference that [the defendant]’s blood draw occurred within two hours of the

time of his accident.” Id. at 149. Specifically, the Teems court noted:

       [S]ufficient circumstantial evidence existed regarding the severity
       of the accident, the position of [a]ppellant’s car in a travel lane of
       a major artery near a population center, and the time of the
       accident (some time prior to 2:00 a.m. (the time of dispatch) on
       a Saturday night)—to conclude it was extremely doubtful that
       more than one hour passed from the time of the accident to the
       time of emergency response at the scene. It strains credulity to
       suggest that traffic was so infrequent at this metropolitan location
       of Interstate 81 during a late Saturday night that an eyewitness
       911 call would not have occurred within minutes of the accident
       to report such an inherently dangerous situation on the highway.
       It is similarly beyond reason to conclude that an emergency call
       center would have delayed dispatch to the scene.

Id.


____________________________________________


5 Although the Segida Court considered section 3802(a)(1), we find this
analysis pertinent to the instant case. See Commonwealth v. Teems, 74
A.3d 142, 149 (Pa. Super. 2013) (applying Segida’s section 3802(a)(1)
analysis to a claim of insufficient evidence to support a charge under section
3802(b), which requires that the blood draw take place within two hours).

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       In the instant case, there was no evidence of the exact time of the

accident. However, the Commonwealth presented the following facts. Mr.

Teeter notified state police that Appellee had left Teeter’s residence in her

vehicle at 11:00 a.m. on a Sunday morning. Starry, 2028 WDA 2015, at 1.

Joseph Gabor called 911 at 11:49 a.m. to report a crashed vehicle along a

regularly traveled county road.         Id. at 1-2.   Upon arrival, first responders

noted the vehicle along the berm of the road where it had impacted a tree.

Id. at 2. Trooper Adamski arrived at 12:36 p.m. and the ambulance was

already at the scene providing medical attention to Appellee.             Id. at 3.

Appellee was taken to the hospital by the ambulance at 12:56 p.m.; and the

hospital performed a blood draw at 1:40 p.m., which revealed a BAC of .304%.

Id.

       Thus, Appellee’s blood was drawn 1 hour and 51 minutes after the

accident was first reported.        Although the exact time of the accident was

unknown, the severity, timing, and location of the accident gives rise to a

reasonable inference that accident occurred at or near the time the first caller

reported it at 11:49 a.m. See Segida, 985 A.2d at 880; Teems, 74 A.3d at

149. Further, the testing of the blood drawn at 1:40 p.m. revealed Appellee’s

BAC was .304%. The fact-finder would not be required to suspend common

sense and ignore Appellee’s enormously elevated BAC.6             See Segida, 985
____________________________________________


6 Indeed, the only evidence that there was additional alcohol in Appellee’s
vehicle was the presence of a single half-full glass of what appeared to be
beer. As noted above, the circumstantial evidence established that Appellee
did not leave the scene of the accident on foot.

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A.2d at 880.

      Additionally, the trial court erred in requiring the Commonwealth to

“prove” the elements of its case. See Trial Ct. Op. and Order, at 7. To survive

Appellee’s petition for a writ of habeas corpus, the Commonwealth was not

required to “prove the defendant’s guilt beyond a reasonable doubt.”

Hendricks, 927 A.2d at 291.        The Commonwealth was only required to

“present evidence, viewed in the light most favorable to the Commonwealth,

establishing a prima facie case . . ., sufficient for the matter to proceed to

trial.” Id. Applying the proper standard, we agree with the Commonwealth

that it met its burden of establishing a prima facie case of a violation of DUI—

highest rate.

      Assuming, arguendo, that the blood draw occurred more than two hours

after Appellee operated the vehicle, the Commonwealth next claims that the

trial court erred in concluding that it failed to establish the exception to the

two-hour rule under section 3802(g). The Commonwealth argues that when

Trooper Adamski arrived at the scene, an ambulance crew was already

providing medical treatment to Appellee. Commonwealth’s Brief at 28. The

Commonwealth claims that Trooper Adamski only spoke with Appellee for

fourteen minutes before the ambulance took her to the hospital where her

blood was drawn. Id. at 28-29. The Commonwealth contends that in that

situation, the only way Trooper Adamski could have obtained a sample earlier

was by removing Appellee from the ambulance and trying to drive to the

hospital more quickly than the ambulance would have.          Id. at 29.    The

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Commonwealth emphasizes that Trooper Adamski testified that his main

concern was for Appellee to receive medical treatment.         Id. at 30; N.T.,

7/30/15, at 25. The Commonwealth concludes that “[s]urely[,] allowing for

medical attention for injuries sustained in a car crash to take precedence over

investigative ends is ‘good cause’ for delay.” Commonwealth’s Brief at 30.

      Moreover, the Commonwealth notes that Trooper Adamski testified that

Appellee did not consume alcohol from the time of his arrival until she was

taken in the ambulance.     Id.; N.T., 7/30/15, at 24.     The Commonwealth

claims that it is irrelevant as to whether it can establish that Appellee did not

consume alcohol after the accident because, in addition to good cause,

subsection 3802(g) “only requires the absence of consumption between the

time of the arrest and the draw.” Commonwealth’s Brief at 33.

      Appellee counters that the Commonwealth provided no good cause for

not performing the blood draw sooner. Appellee’s Brief at 19. Appellee further

argues that the Commonwealth failed to establish that she did not have

anything to drink between the time of the accident and the time the police

arrived. Id. at 20.

      In its opinion, the trial court reasoned that

      the police provided no good reason for arranging a blood draw
      other than stating that the policy in serious accidents was to
      obtain a search warrant for the blood test results. No reason was
      provided for not obtaining the results more promptly when the
      time of the accident was unknown. Thus, the Commonwealth has
      failed to satisfy the good cause requirement.

      Section 3802(g)(2) requires that Commonwealth establish, as it
      did in Eichler, that [Appellee] had nothing further to drink

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      between the time of the accident and the time police arrived.
      Trooper Adamski noted that she had not consumed alcohol after
      his arrival on the scene. He could not discount, however, the
      possibility of her having consumed alcohol after the accident
      because a glass of beer, half full, was found in the passenger side
      door area of the vehicle. Because the Commonwealth cannot rule
      out this possibility, it appears that this prong of Section
      3802(g)(2) cannot be satisfied.

Trial Ct. Op. & Order, 9/28/17, at 8-9 (footnote and some citations omitted).

      In Eichler, the defendant struck a wheelchair-bound pedestrian while

driving his pickup truck. Eichler, 133 A.3d at 777. Less than ninety minutes

later, the police discovered the defendant’s pickup truck on his property and

found him highly intoxicated.    Id.   A jury found the defendant guilty, in

relevant part, of subsections 3802(a)(1) and (c). Id.

      On appeal, the defendant argued that the blood alcohol results should

have been suppressed because the draw was taken more than two hours after

driving. Id. at 785-86. This Court held that although the defendant’s blood

draw took place more than two hours after he drove his vehicle, the blood test

results were still admissible under the good cause exception. Id. at 786. We

explained that his “flight from the accident scene, and the consequential delay

in finding him, constituted good cause for the failure to obtain his blood test

within two hours after he stopped driving.” Id.

      Thus, the Commonwealth need only present evidence or testimony that

the defendant “did not drink alcohol between the time of his arrest and the

time of his blood test.”      See 75 Pa.C.S. § 3802(g)(2) (stating that

Commonwealth must establish that the defendant “did not imbibe any alcohol


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. . . between the time the individual was arrested and the time the sample

was obtained”); see also Eichler, 133 A.3d at 786-87 (“Commonwealth

fulfilled section 3802(g)’s no-imbibing element by presenting the testimony of

three officers during trial that Eichler did not drink alcohol between the time

of his arrest and the time of his blood test”).

      Here, when Trooper Adamski arrived at 12:36 p.m., the ambulance was

already at the scene providing medical assistance to Appellee.         Trooper

Adamski interviewed Appellee for a few minutes while she was being treated.

At 12:56 p.m., the ambulance took Appellee to the hospital. Trooper Adamski

testified that he did not delay her transport because his main concern was

that she receive proper treatment. He further testified that he expected that

a blood draw would be performed upon her arrival at the hospital.          We

conclude that the removal of a defendant to a hospital so that she be provided

proper treatment constitutes good cause for the delay in obtaining a blood

sample within two hours. See 75 Pa.C.S. § 3802(g)(1).

      Furthermore, the Commonwealth met the “no imbibing” requirement

when it presented the testimony of Trooper Adamski who stated that Appellee

had not consumed alcohol from the time he arrived until she was taken to the

hospital where the blood draw was performed. See 75 Pa.C.S. § 3802(g)(2).

As noted above, the trial court held that the Commonwealth could not discount

the possibility that Appellee had consumed alcohol after the accident and thus

could not satisfy subsection 3802(g)(2). However, the Commonwealth need

only establish that Appellee did not consume alcohol between the time of her

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arrest and the time of her blood test. See 75 Pa.C.S. § 3802(g)(2); Eichler,

133 A.3d at 786. Accordingly, the Commonwealth has sufficiently established

a prima facie case of good cause.

      Lastly, the Commonwealth raises an additional argument that when a

sample is withdrawn more than two hours after a defendant is in control of

the vehicle and the exception under subsection 3802(g) does not apply, “the

sample may still be considered by the jury as circumstantial evidence of what

the BAC was back within the two-hour period.” Commonwealth’s Brief at 14.

Because we have concluded that the Commonwealth has sufficiently

established a prima facie case that the sample was taken within two hours

and that, should a jury find that it was not taken within the required two hours,

then there was good cause for the delay, we need not address this argument.

      Order reversed. Case remanded for further proceedings. Jurisdiction

relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/24/2018




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