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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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