J-A16043-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                :   IN THE SUPERIOR COURT OF
                                             :         PENNSYLVANIA
                    Appellee                 :
                                             :
               v.                            :
                                             :
MICHAEL EUGENE BUTERBAUGH,                   :
                                             :
                    Appellant                :   No. 1353 WDA 2015

              Appeal from the Judgment of Sentence May 1, 2015,
               in the Court of Common Pleas of Crawford County,
              Criminal Division, at No(s): CP-20-CR-0000561-2014

BEFORE:       SHOGAN, OLSON, and STRASSBURGER,∗ JJ.

MEMORANDUM BY STRASSBURGER, J.:              FILED AUGUST 25, 2016

        Michael Eugene Buterbaugh (Appellant) appeals from the judgment of

sentence imposed following his convictions for driving under the influence

(DUI) – high rate of alcohol and the summary offense of driving on roadways

laned for traffic. Upon review, we affirm.

        The trial court summarized the background underlying this matter as

follows.

               [Appellant] was charged with the following three violations
        of the Vehicle Code for an accident occurring on May 1, 2014:
        Count I, [DUI – general impairment]; Count II, DUI – high rate
        of alcohol[;] and Count III, driving on roadways laned for
        traffic[.]   The criminal complaint indicated that this was
        [Appellant’s] “second [DUI] offense,” and Counts I and II were
        accordingly listed as ungraded misdemeanors on the criminal
        information. [Appellant] pleaded guilty to Count II on October


∗
    Retired Senior Judge assigned to the Superior Court.
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     27, 2014, and a nolle prosequi was entered on the remaining
     charges.

            Prior to sentencing, the court ordered evaluation and/or
     assessment by the Adult Probation Department, which
     discovered [an additional prior] DUI conviction in the State of
     Idaho. Consequently, the court granted, on the submission of
     briefs, the Commonwealth’s oral motion to amend Count II to
     implicate the Vehicle Code’s mandatory sentencing provisions for
     a third offense. [A DUI – high rate of alcohol, third offense, is
     graded as a first degree misdemeanor.]           This amendment
     changed the mandatory minimum term of incarceration from
     thirty to ninety days, and also extended the maximum term from
     six months to up to five years. In addition, the fine thereby
     increased from a range of $750 to $5,000, to between $1,500
     and $10,000. [Appellant’s] subsequent motion to withdraw his
     guilty plea, alleging in part his innocence, was granted following
     a hearing on February 25, 2015.

           Count II was thereafter modified, in conformity with [a]
     memorandum and order dated October 17, 2014,[1] to
     incorporate the terms of [75 Pa.C.S. § 3802(g)]’s “Exception to
     two-hour rule.” Under this exception, the element of Count II –
     that [Appellant’s] BAC was at least 0.10% but less than 0.16%
     within two hours of having driven – could be proven by showing
     (1) good cause for not obtaining the blood sample within two
     hours, and (2) that [Appellant] did not imbibe any alcohol after
     he was arrested and before his blood was drawn for testing.

            [Appellant] was convicted on Count II after a two-day jury
     trial. The court then entered a guilty verdict on Count III (the
     summary offense) and, upon the Commonwealth’s oral motion, a
     nolle prosequi as to Count I (DUI – general impairment) on

1
  This memorandum was written to accompany an order denying Appellant’s
July 28, 2014 omnibus pre-trial motion to suppress Appellant’s BAC results
and “motion to dismiss” due to insufficient evidence, which the court treated
as a request for habeas corpus relief. The suppression motion was denied
after a hearing held on October 3, 2014. Subsequent to withdrawing his
plea, Appellant filed, inter alia, another motion to suppress his BAC results
on March 13, 2015, which the trial court denied by order filed March 17,
2015.
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     which the jury had been unable to reach a verdict. He was
     sentenced May 1, 2015 on Count II to inter alia four to sixty
     months of imprisonment in the county correctional facility, with
     work release privileges, and the minimum fine of $1,500.

Trial Court Opinion, 7/31/15, at 1-3 (unnecessary capitalization, footnotes,

and citations omitted).   Appellant filed post-sentence motions on May 11,

2015, which the trial court denied on July 31, 2015. This appeal followed.

     On     appeal,   Appellant   presents   the   following   issues   for   our

consideration.

     I.     Whether the trial court committed error by admitting
            [Appellant’s BAC] where it was shown that the blood draw
            for chemical testing was performed outside the two-hour
            statutory period without good cause?

     II.    Whether the trial court erred in permitting the
            Commonwealth to amend the criminal information
            charging [Appellant] changing the [DUI] charges to a third
            offense after [Appellant] plead [sic] guilty to [DUI] second
            offense?

     III.   Whether the trial court erred by rereading of instructions
            to the jury with particular emphasis to focus on the
            consideration of [Appellant’s] testimony, while refusing to
            give similar instruction to testimony of Pennsylvania State
            Trooper acting as witness for the Commonwealth,
            constituting improper influence on the jury and depriving
            [Appellant] of a fair trial?

Appellant’s Brief at 4 (unnecessary capitalization and suggested answers

omitted).




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      In his first issue, Appellant argues that the trial court should have

suppressed his BAC results because “it violated the [s]tatutory two hour

time period.” Appellant’s Brief at 11.

      Our standard of review in addressing a challenge to the denial of
      a suppression motion is limited to determining whether the
      suppression court’s factual findings are supported by the record
      and whether the legal conclusions drawn from those facts are
      correct. Because the Commonwealth prevailed before the
      suppression court, we may consider only the evidence of the
      Commonwealth and so much of the evidence for the defense as
      remains uncontradicted....Where the suppression court’s factual
      findings are supported by the record, we are bound by these
      findings and may reverse only if the court’s legal conclusions are
      erroneous. Where ... the appeal of the determination of the
      suppression court turns on allegations of legal error, the
      suppression court’s legal conclusions are not binding on an
      appellate court, whose duty it is to determine if the suppression
      court properly applied the law to the facts. Thus, the conclusions
      of law of the courts below are subject to our plenary review.

      Moreover, our scope of review from a suppression ruling is
      limited to the evidentiary record that was created at the
      suppression hearing.

Commonwealth v. Haslam, ___ A.3d ___, 2016 WL 2641464 at *4-5 (Pa.

Super. May 9, 2016) (citations omitted).

      The offense of DUI – high rate of alcohol is defined as follows.

      (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).
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      Appellant dedicates much of his argument to the requirements of

subsection 3802(b) and the failure of the Commonwealth to “establish the

time when [Appellant] was driving or in actual physical control of his vehicle

[and] the alcohol concentration of [his] blood within two hours after driving

or being in actual physical control of [his] vehicle.” Appellant’s Brief at 11.

Subsection 3802(b)’s two-hour limitation, however, is subject to the “good

cause” exception listed in subsection 3802(g):

      (g) Exception to two-hour rule.--Notwithstanding the
      provisions of subsection … (b) … 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 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.

Id. at § 3802(g).

      As pointed out by the Commonwealth, Appellant’s only argument with

respect to the above exception is a bald assertion that “[t]he Commonwealth

failed to establish good cause for the delay beyond the two-hour time

requirement and therefore the evidence of [Appellant’s] BAC must be

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suppressed.”    Appellant’s   Brief   at   12.    Notwithstanding   Appellant’s

underdeveloped claim, Appellant nevertheless included in his Pa.R.A.P.

1925(b) statement, and the trial court addressed, a challenge to the trial

court’s decision on the basis that Appellant “testified to consuming alcohol

after driving his vehicle.” Rule 1925(b) Statement, 9/22/15.

      Appellant’s argument is misplaced, as the good cause exception

requires the Commonwealth to establish 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(g)(2); see also Commonwealth v. Eichler, 133 A.3d 775, 786-87

(Pa. Super. 2016) (“The 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.”).     Moreover, our Supreme Court has rejected the

argument that the Commonwealth has the burden to establish that a

defendant did not consume alcohol between the time he last drove and the

time of the arrest. See Commonwealth v. Segida, 985 A.2d 871, 879 n.6

(Pa. 2009) (concluding that, under 75 Pa.C.S. § 3802(a)(1) (DUI – general

impairment), the Commonwealth is not required to “prove that an accused

did not drink any alcohol after the accident. There is no basis in the statute

for insertion of this element.”) (citation omitted).

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      Even assuming arguendo that the Commonwealth had such a burden

under the good cause exception, Appellant’s argument fails because the

Commonwealth presented testimony from Trooper Erik Cox (Trooper Cox) of

the Pennsylvania State Police at the suppression hearing that Appellant

admitted he did not drink alcohol after the accident:

      [Commonwealth]: And did he -- did he tell you what time the
      accident occurred?

      [Trooper Cox]: I believe he said it was 10:30.

                                     ***

      [Commonwealth]: And did you inquire of [Appellant] whether or
      not he had anything to drink after the accident?

      [Trooper Cox]: Yes, he advised he did not.

      [Commonwealth]: And did you ask him when was the last time
      he had anything of an alcoholic nature to drink?

      [Trooper Cox]: He advised me he drank approximately 7 p.m.

      [Commonwealth]: And was that the last time he had anything
      to drink?

      [Trooper Cox]: According to him.

N.T., 10/3/2014, at 6-7; see also id. at 13-14 (Trooper Cox confirming that

Appellant stated the accident occurred at 10:30 p.m. and he had stopped

drinking at about 7 p.m.). Viewing this evidence in the light most favorable

to the Commonwealth, Appellant’s argument is without merit, and no relief

is due.

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      In his second issue, Appellant argues that the trial court erred in

permitting the Commonwealth to amend the criminal information to charge

Appellant with DUI – high rate of alcohol as a third offense after Appellant

had pled guilty to the charge as a second offense. We disagree and, in so

doing, find Commonwealth v. Mentzer, 18 A.3d 1200 (Pa. Super. 2011),

to be controlling.

      Therein, Mentzer was charged and convicted following a jury trial with

DUI - general impairment as a first offense, ungraded misdemeanor. Id. at

1201. Prior to sentencing, the Commonwealth was notified by the probation

department that, upon investigation, it was revealed that Mentzer had a

prior DUI offense in the State of Maryland in 2006.          Id. Based on this

information, the Commonwealth moved to amend the criminal information at

the time of sentencing to include the same charge, which was “then

classified as a second offense, graded as a misdemeanor of the first degree,

which carried with it a maximum penalty of 60 months’ imprisonment and a

$10,000    fine.”    Id.   At   sentencing,   the   trial   court   granted   the

Commonwealth’s motion to amend and imposed a sentence of four to 60

months of incarceration. Id. at 1202.

      In rejecting Mentzer’s argument on appeal that “adding a prior

conviction to the criminal information was a substantive change increasing

both the grading and the maximum sentence of the offense charged, and

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was therefore a different offense which is not permitted under Pa.R.Crim.P.

564,” this Court observed as follows.

     According to Pa.R.Crim.P. 564, the court may permit
     amendment of an information “when there is a defect in form,
     the description of the offense(s), the description of any person or
     any property, or the date charged, provided the information as
     amended does not charge an additional or different offense.”
     Pa.R.Crim.P. 564. Moreover, “[u]pon amendment, the court may
     grant such post-ponement of trial or other relief as is necessary
     in the interests of justice.” Id. [T]he purpose of Rule 564 is to
     ensure that a defendant is fully apprised of the charges, and to
     avoid prejudice by prohibiting the last minute addition of alleged
     criminal acts of which the defendant is uninformed. [O]ur courts
     apply the rule with an eye toward its underlying purposes and
     with a commitment to do justice rather than be bound by a
     literal or narrow reading of the procedural rules.

     [W]hen presented with a question concerning the propriety of an
     amendment, we consider:

        [w]hether the crimes specified in the original indictment or
        information involve the same basic elements and evolved
        out of the same factual situation as the crimes specified in
        the amended indictment or information. If so, then the
        defendant is deemed to have been placed on notice
        regarding his alleged criminal conduct. If, however, the
        amended provision alleges a different set of events, or the
        elements or defenses to the amended crime are materially
        different from the elements or defenses to the crime
        originally charged, such that the defendant would be
        prejudiced by the change, then the amend[ment] is not
        permitted.

     Additionally,

        [i]n reviewing a grant to amend an information, the Court
        will look to whether the appellant was fully apprised of the
        factual scenario which supports the charges against him.
        Where the crimes specified in the original information
        involved the same basis [sic] elements and arose out of
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        the same factual situation as the crime added by the
        amendment, the appellant is deemed to have been placed
        on notice regarding his alleged criminal conduct and no
        prejudice to defendant results.

     Further, the factors which the trial court must consider in
     determining whether an amendment is prejudicial are:

        (1) whether the amendment changes the factual scenario
        supporting the charges; (2) whether the amendment adds
        new facts previously unknown to the defendant; (3)
        whether the entire factual scenario was developed during a
        preliminary hearing; (4) whether the description of the
        charges changed with the amendment; (5) whether a
        change in defense strategy was necessitated by the
        amendment; and (6) whether the timing of the
        Commonwealth’s request for amendment allowed for
        ample notice and preparation.

     Most importantly, we emphasize that the mere possibility
     amendment of information may result in a more severe penalty
     ... is not, of itself, prejudice.      Moreover, this Court has
     reaffirmed this principle in the context of DUI offenses.

Id. at 1202-03 (some internal quotation marks and citations omitted). This

Court agreed that the amendment was proper and that, although “the

amendment increased the grading of the offense from an ungraded

misdemeanor to a misdemeanor of the first degree,” Mentzer was not

prejudiced. Id. at 1203.

     Based on the above, we similarly agree that the amendment herein

was proper and that Appellant has not established prejudice. We reach this

conclusion particularly in light of the fact that the trial court herein even

permitted Appellant to withdraw his guilty plea in response to the

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amendment and proceed to trial, a circumstance that was absent in

Mentzer.2 Thus, Appellant’s issue is without merit.3

      Finally, Appellant argues that the trial court improperly influenced the

jury and deprived him of a fair trial when it reread instructions to the jury

pertaining to the weight and credibility of witness testimony in response to

its request for a portion of Appellant’s testimony during deliberations.

Appellant argues that, although the language used may have been “benign,”

the reinstruction’s close proximity to the jury’s rehearing of the testimony

and the manner in which the instructions were prefaced4 improperly

influenced the jury’s verdict.   Appellant’s Brief at 17.   Appellant contends

that the rereading was not done impartially when viewing the trial in its


2
  Notably, “Mentzer was fully aware of []his prior DUI offense but did not
disclose it throughout the[] criminal proceedings.” Mentzer, 18 A.3d at
1201 n.1. Likewise, the trial court explained that Appellant’s prior out-of-
state conviction “is not one of which [Appellant] was uninformed [and that]
he alone was aware of it.” See Trial Court Opinion, 7/31/15, at 10.
3
  To the extent Appellant premises his argument on the proposition that
sentencing pursuant to mandatory minimums based on prior convictions is
unconstitutional, that proposition is erroneous. See Commonwealth v.
Reid, 117 A.3d 777, 784 (Pa. Super. 2015) (“[T]he Supreme Court of the
United States [has] held that the Sixth Amendment requires that any fact—
other than a prior conviction—that increases a mandatory minimum
sentence for an offense must be submitted to the jury and proven beyond a
reasonable doubt. Importantly, [it] did not overturn prior precedent that
prior convictions are sentencing factors and not elements of offenses.”).
4
  Appellant argues that the trial court “noted that he was giving those
instructions because they were listening to the testimony of [Appellant].”
Appellant’s Brief at 17.
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totality, given that the trial court denied Appellant’s proposed jury

instruction as it related to police officers’ testimony, it “applauded Trooper

Cox’s conduct as well as the jury’s verdict” after it was rendered, the

rereading of the instructions was unnecessary to respond to the jury’s

request, and it “only served to place emphasis on how the [t]rial [court]

wanted the jury to view the evidence.” Id. at 17-18.

      Our standard of review in assessing a trial court’s jury instructions is

as follows:

      When reviewing a challenge to jury instructions, the reviewing
      court must consider the charge as a whole to determine if the
      charge was inadequate, erroneous, or prejudicial. The trial court
      has broad discretion in phrasing its instructions, and may choose
      its own wording so long as the law is clearly, adequately, and
      accurately presented to the jury for its consideration. A new trial
      is required on account of an erroneous jury instruction only if the
      instruction under review contained fundamental error, misled, or
      confused the jury.

Commonwealth v. Estepp, 17 A.3d 939, 946 (Pa. Super. 2011) (citation

omitted).

      As stated above, Appellant does not argue that the reinstruction itself

was inadequate or erroneous.       As to Appellant’s contentions regarding

prejudice, we conclude that they are without merit. Prior to the challenged

reinstruction, the trial court advised the jury that that no emphasis was

intended by their repetition:

           I’d like now to, again, remind you that if I have repeated
      any of these instructions or stated them in different ways, no
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      emphasis is intended, and I truly mean that, no emphasis is
      intended. Do not draw any inference because of the repetition.
      Do not single out any individual rule or instruction and then
      ignore the others.    Do not place greater emphasis on the
      elements of the offenses that I have described for you or the
      instructions I have given to you in answer to your questions.
      You must consider all the instructions as whole and each in light
      of the others.

N.T., 3/19/2015, at 18.      Additionally, the trial court stated the following

immediately after the jury reheard the portion of Appellant’s testimony:

             Now, again, I will remind you that even though we read
      certain portions of the transcript to you, you should not place
      greater emphasize [sic] on the testimony that was read than all
      the other evidence presented to you during the course of the
      trial.   You must consider all of the evidence and all the
      instructions as a whole in light of the totality of the evidence, as
      well as, the instructions.

Id. at 37.     As “[j]uries are presumed to follow a court’s instructions,”

Commonwealth v. Mollett, 5 A.3d 291, 313 (Pa. Super. 2010), Appellant’s

claim fails.

      Because Appellant has failed to establish that he is entitled to relief,

we affirm his judgment of sentence.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 8/25/2016




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