Com. v. Koger, C.

J-S27021-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHRISTOPHER ALBERT KOGER :
:
Appellant : No. 1428 WDA 2018
Appeal from the Judgment of Sentence Entered May 11, 2018
In the Court of Common Pleas of Washington County
Criminal Division at No(s): CP-63-CR-0002715-2017
BEFORE: OLSON, J., OTT, J., and COLINS*, J.
MEMORANDUM BY OTT, J.: FILED AUGUST 19, 2019
Christopher Albert Koger appeals, nunc pro tunc, from the judgment of
sentence imposed May 11, 2018, in the Washington County Court of Common
Pleas. Koger was sentenced to a term of six months county intermediate
punishment, with five days of incarceration, and a $1,000.00 fine, after the
trial court, sitting without a jury, found him guilty of driving under the
influence of alcohol (“DUI”) - highest rate of alcohol. See 75 Pa.C.S. §
3802(c). On appeal, he challenges the sufficiency and weight of the evidence.
Because we agree the evidence was insufficient to establish Koger’s conviction
of DUI – highest rate of alcohol, we are compelled to reverse the judgment of
sentence.
The facts underlying Koger’s arrest and conviction were aptly
summarized by the trial court as follows:
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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On July 29, 2017, at approximately 2:09 AM, Trooper
Michael Short and Trooper Tyler Parkes of the Pennsylvania State
Police were dispatched to the intersection of Caldwell Avenue and
Green Street in Canton Township, Washington County. The
troopers arrived on scene at approximately 2:21 AM at which point
they discovered a red Cadillac DeVille marooned in the
intersection by flood waters. The troopers observed [Koger]
standing at the intersection of Caldwell Avenue and Green Street
under a bridge approximately 50 to 75 yards away from his
vehicle. When the troopers approached [Koger], he was barefoot,
dressed in shorts that were soaked in water around the knee area.
When Trooper Short asked [Koger] what was going on, [Koger]
stated that he had been driving home from work when he stopped
to have a couple of drinks at Arch’s Bar. [Koger] stated that he
left Arch’s Bar to drive home and it was at that point he drove into
the flooded area where the car was now stuck. While speaking
with [Koger], Trooper Short noticed that [Koger] was slurring his
speech, his eyes were glassy, and he had a moderate odor of
alcohol emanating from his breath. Trooper Short conducted a
Standardized Field Sobriety Test, as well as a preliminary breath
test, which [Koger] failed, at which time he was placed under
arrest. [Koger] then submitted to a blood alcohol test [at 3:15
a.m.] which revealed a BAC of .174.
Trial Court Opinion, 11/28/2018, at 1-2 (footnotes with record citations
omitted).
Koger was subsequently charged with two counts of DUI - highest rate
of alcohol and general impairment - and two summary offenses.1 On April 6,
2018, the trial court, sitting without a jury, found Koger guilty of DUI – highest
rate of alcohol.2 On May 11, 2018, the court sentenced Koger to a term of six
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1 See 75 Pa.C.S. §§ 3802(c) and (a)(1), 3111.1(a) (“Obedience to traffic-
control devices warning of hazardous conditions”), and 3714(a) (“Careless
driving”).
2 The court found him not guilty of the summary offenses.
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months’ county intermediate punishment, with five days’ incarceration, and a
$1,000.00 fine.
On May 22, 2018, the 11th day after sentencing, Koger’s attorney filed
both a motion to withdraw and a post-sentence motion. No action was taken
on either motion.3 On July 27, 2018, Koger’s attorney filed both motions a
second time. Again, no action was taken by the trial court. Shortly thereafter,
Koger was approved for representation by the Public Defender’s Office. On
August 28, 2018, Koger’s public defender filed a petition for leave to file an
appeal nunc pro tunc, asserting that Koger informed his trial counsel he
wanted to file an appeal, and counsel failed to do so in a timely manner. The
trial court granted the motion on September 4, 2018. Present counsel entered
his appearance, and filed this timely, nunc pro tunc appeal, on October 1,
2018.4
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3 In its opinion, the trial court stated that counsel filed the motion to withdraw
with a “notice of presentation for May 24, 2018.” Trial Court Opinion,
11/28/2018, at 3. However, because counsel “never presented the motion to
the trial court, there was no further action taken upon it.” Id. Indeed,
attached to the motions was a “Notice of Presentment” signed by trial counsel,
which stated he would “present the attached motion to the [trial court] on
Thursday, May 24, 2018.” Notice of Presentment, 5/22/2018. Our research
has uncovered no state or local rule requiring an attorney to formally “present”
a motion to the court in addition to filing it in the proper office.
4On October 19, 2018, the trial court ordered Koger to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Koger
complied with the court’s directive, and filed a concise statement on November
6, 2018.
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In his first issue, Koger contends the evidence was insufficient to sustain
his conviction under Section 3802(c) of the Motor Vehicle Code. See Koger’s
Brief at 14-16. Specifically, he argues the Commonwealth failed to prove his
blood alcohol content (BAC) was more than 0.16% within two hours of driving.
See id. at 14. While he concedes his BAC was 0.174% at 3:15 a.m., Kroger
maintains the Commonwealth presented no evidence, direct or circumstantial,
to establish that he drove his vehicle after 1:15 a.m. See id. at 14-15.
Moreover, he insists the Commonwealth also failed to establish the exception
to the two-hour rule set forth in Subsection 3802(g).
Our review of a claim challenging the sufficiency of the evidence is
well-established:
A challenge to the sufficiency of the evidence is a question
of law, subject to plenary review. When reviewing a sufficiency of
the evidence claim, the appellate court must review all of the
evidence and all reasonable inferences drawn therefrom in the
light most favorable to the Commonwealth, as the verdict winner.
Evidence will be deemed to support the verdict when it establishes
each element of the crime charged and the commission thereof by
the accused, beyond a reasonable doubt. The Commonwealth
need not preclude every possibility of innocence or establish the
defendant’s guilt to a mathematical certainty. Finally, the trier of
fact while passing upon the credibility of witnesses and the weight
of the evidence produced, is free to believe all, part or none of the
evidence.
Commonwealth v. Teems, 74 A.3d 142, 144–145 (Pa. Super. 2013)
(quotation omitted), appeal denied, 79 A.3d 1098 (Pa. 2013).
In the present case, Koger was convicted only of DUI – highest rate of
alcohol. Subsection 3802(c) of the Motor Vehicle Code provides as follows:
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(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). Accordingly, in order to obtain a conviction under
Subsection 3802(c), the Commonwealth must prove (1) the defendant “drove,
operated or was in actual physical control of a motor vehicle[,]” and he did so
“after imbibing enough alcohol that [his] BAC reached 0.16% within two hours
after driving.” Commonwealth v. Thur, 906 A.2d 552, 564 (Pa. Super.
2006), appeal denied, 946 A.2d 687 (Pa. 2008).
Because Koger’s BAC was obtained at 3:15 a.m., the Commonwealth
was required to prove Koger drove, or was in actual physical control of his
vehicle, no earlier than 1:15 a.m. By way of background, we note that Koger
testified in his own defense at trial and claimed his car became stranded
“[s]omewhere around” 11:30 p.m. to midnight. N.T., 4/6/2018, at 41. He
stated that after he was stranded, he went to the bar and “tried to call for a
ride home,” but “couldn’t get in touch with anyone.” Id. at 42. Koger claimed
he then had “some beers because [he] knew [he] wasn’t driving that night[.]”
Id. He stated he left the bar and walked to the scene, which is when the
officers arrived. See id.
In concluding the evidence was sufficient to establish the two-hour time
frame, the trial court opined:
[Koger] testified that he believed his vehicle became stranded
between 11:30 PM and midnight. Trooper Short testified that he
was dispatched to the scene with Trooper Parkes around 2:09 AM
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and arrived on scene at approximately 2:21 AM. Additionally,
Trooper Short testified that, following the failure of the
Standardized Field Sobriety Test, [Koger] was placed under arrest
for suspicion of DUI and taken to the Washington Hospital where
a blood draw was conducted at 3:15 AM. Despite [Koger’s]
testimony, the trial court found circumstantial evidence, including
[Koger] being barefoot and in wet clothes, to conclude that
[Koger] was discovered promptly after driving his car into the
flooded roadway, not two hours later as [Koger] claimed. Thus,
the blood draw occurred within two hours of [Koger’s] driving.
Trial Court Opinion, 11/28/2018, at 7.
While the trial court, sitting as fact finder, was entitled to disbelieve
Koger’s testimony regarding the sequence of events on the night in question,
the Commonwealth was still obligated to prove, beyond a reasonable doubt,
that Koger’s BAC level was 0.16% or higher within two hours of driving. Here,
the evidence presented by the Commonwealth at trial revealed the troopers
were dispatched to the scene at 2:09 a.m., and arrived at 2:21 a.m. N.T.,
4/6/2018, at 12. When they arrived, they found Koger’s car stranded in
floodwaters, and Koger standing about 50 feet away under a bridge. See id.
at 13. Trooper Short testified it had been raining “[t]hroughout the night.”
Id. He observed Koger was wearing shorts that “were soaked at around the
knee area[ a]nd his shoes were off.” Id. at 14. Trooper Short stated Koger
told him “he was on his way home from work, stopped at Arch’s Bar, had a
couple of drinks, and then left Arch’s Bar to go home. And that’s when his
vehicle got stuck.” Id. at 15. As noted above, within an hour of the trooper’s
arrival at the scene, Koger’s BAC level registered at 0.174%.
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Accepting as true the Commonwealth’s version of the events, we still
find the evidence was insufficient to establish Koger’s BAC level was at least
0.16% within two hours of driving. Although Trooper Short testified Koger
told the trooper he stopped at the bar before driving into the floodwaters, the
Commonwealth was unable to establish, even circumstantially, when Koger
last drove his vehicle. Under cross-examination, Trooper Short acknowledged
that he did not know when the vehicle became disabled, when the 911 call
came in or who placed the 911 call. See id. at 25. Further, Trooper Parkes
testified it was his “understanding” that the fire department or emergency
medical service “had already been on scene and they were the ones who …
forwarded the call to us.” Id. at 37. He admitted, however, he had no idea
what time they were on the scene, what they observed, or when they left.
See id. Moreover, there was no testimony the car was running when the
troopers arrived, and no witness from the bar to establish when Koger had
been drinking. Although the fact Koger’s shorts were soaked at the knee
might suggest he waded from the car to the bridge, Trooper Short testified it
had been “raining heavy out … [t]hroughout the night.” Id. at 13. There was
simply no evidence to suggest when Koger abandoned his vehicle.
Accordingly, we conclude the Commonwealth failed to establish beyond a
reasonable doubt that Koger had been driving or in control of his vehicle after
1:15 a.m.
This Court’s decision in Commonwealth v. Teems, 74 A.3d 142 (Pa.
Super. 2013), appeal denied, 79 A.3d 1098 (Pa. 2013), is instructive. In that
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case, a panel of this Court found sufficient circumstantial evidence to support
the defendant’s conviction of DUI – high rate of alcohol, despite the fact there
was no evidence pinpointing when the accident occurred. The police were
dispatched to the accident scene at 2:00 a.m. When they arrived, they
observed the defendant’s vehicle broken down in the right lane of Interstate
81. The vehicle’s lights were on, and the defendant was seated in the driver’s
seat. After he was arrested for DUI, the defendant was transported to the
hospital where a test conducted at 3:00 a.m. revealed a BAC of .143%. See
id. at 143-144. After his conviction of DUI – high rate of alcohol, the
defendant appealed to this Court. The panel affirmed the conviction,
concluding there was sufficient evidence to prove, circumstantially, that the
BAC level was obtained within the required two-hour time frame. See id. at
149. The panel opined:
Only if one accepts as reasonable the notion that [the defendant’s]
damaged and immobilized car came to a stop on Interstate 81
before 1:00 a.m. early Sunday morning—more than two hours
before the 3:00 a.m. blood draw—and sat there for over one hour
before [the troopers] were dispatched to the scene, may one
accept [the defendant’s] claim on appeal.
To this contention we apply the same rationale offered to resolve
the first sufficiency challenge—that sufficient circumstantial
evidence existed regarding the severity of the accident, the
position of [the defendant’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
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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. Accordingly, we conclude the
evidence sufficed to allow the inference that [the defendant’s]
blood draw occurred within two hours of the time of his accident.
Id. See also id. at 148 (noting “[t[he area in question was not a remote,
secondary or tertiary roadway in a rural setting; it was, instead a major artery
running immediately adjacent to the Chambersburg metropolitan area at Exit
17”).
We do not find the facts in this case mandate the same result. Here,
there was no testimony establishing when Koger drove the vehicle on the night
in question, and no testimony that the flooded roadway where his car was
disabled was so well traveled that the 911 call would have been made shortly
after the vehicle was abandoned. Furthermore, here, when the troopers
arrived, Koger was standing under a bridge away from the vehicle. He was
not sitting in the driver’s seat with the brake lights on. See Teems, supra.Accordingly, we conclude the evidence was insufficient to prove Koger was
driving or in control of his vehicle within two hours of the blood draw.
However, the trial court also found that, even if it accepted Koger’s
testimony that he did not drive after midnight, the exception to the two-hour
rule set forth in Subsection 3802(g) applied. See Trial Court Opinion,
11/28/2018, at 8. That subsection provides, in relevant part:
(g) Exception to two-hour rule.--Notwithstanding the provisions of
subsection … (c) … where alcohol … concentration in an
individual’s blood or breath is an element of the offense, evidence
of such alcohol or controlled substance concentration more than
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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 … between the time the individual
was arrested and the time the sample was obtained.
75 Pa.C.S. § 3802(g).
With regard to the applicability of the two-hour exception, the court
opined:
Despite the possibility that [Koger’s] blood draw may have
happened more than two hours after his car had become stranded,
the trial court found good cause for the delay in the blood draw.
Trooper Short and Trooper Parkes placed [Koger] under arrest and
had him at the hospital for a blood draw within an hour of finding
him at the scene. Additionally, there is no credible evidence that
[Koger] imbibed any alcohol between the time he was arrested
and the time of the blood draw. Therefore, the trial court submits
that the Commonwealth provided sufficient evident that [Koger]
was guilty of DUI of the highest rate.
Trial Court Opinion, 11/28/2018, at 8.
Our research has uncovered very few published decisions interpreting
the exception to the two hour rule. To the extent Koger argues the exception
is waived because the Commonwealth did not explicitly raise it during trial,
we find no support for this claim. So long as the evidence shows good cause
for the delay in testing, and no alcohol consumption by the defendant after
his arrest, we conclude the exception may apply.
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Nevertheless, here, we disagree with the court’s determination that the
evidence demonstrated “good cause for the delay in the blood draw” based
solely on the fact that the troopers obtained the blood draw within an hour of
encountering Koger at the scene. Trial Court Opinion, 11/28/2018, at 8. In
the decisions in which this Court has found the two-hour exception applicable,
there has been at least some evidence establishing when the defendant last
drove the vehicle in question.
In Commonwealth v. Eichler, 133 A.3d 775 (Pa. Super. 2016), appeal
denied, 161 A.3d 791 (Pa. 2016), a panel of this Court considered whether
the trial court erred in failing to suppress the defendant’s blood test results,
which were obtained more than two hours after he struck a wheelchair-bound
pedestrian with his vehicle. In that case, shortly before 6:00 p.m., an
eyewitness observed the defendant strike something on the roadway, and flee
in his truck. A fender wall from the truck fell off and remained at the scene.
An officer responded almost immediately, and traced the fender wall to a black
Nissan pickup truck. Shortly thereafter, he was alerted by another witness
that a truck matching that description was parked in the driveway of a nearby
house. See id. at 780-781. The officer was familiar with the residence and
the defendant, and knew the defendant drove a black Nissan pickup truck.
When the officer arrived at the residence at 7:16 p.m., the defendant exited
the house and appeared “visibly highly intoxicated.” Id. at 781. After
confirming fresh damage on the front of the pickup truck, and noting the
engine was still warm, the officer placed the defendant under arrest. A blood
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test was administered at 8:12 p.m., and registered at .30%. See id. at 782,
791. The arresting officers testified that the defendant “did not consume any
alcoholic beverages between the time of his arrest and time of the blood
draw.”5 Id.
On appeal, the panel concluded the test results were admissible
pursuant to the Section 3802(g) exception:
Eichler’s 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.
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.
Id. at 786–787.
Therefore, in Eichler, unlike in the present case, there was direct
testimony concerning when the defendant last drove the vehicle. That
testimony, coupled with the defendant’s actions in fleeing the scene and the
detailed testimony concerning the investigation that followed, provided a
factual basis for the court to determine the Commonwealth demonstrated
good cause for the delay in obtaining the chemical test sample. Furthermore,
in Eichler, the Commonwealth presented direct testimony that the defendant
did not drink any alcoholic beverage after his arrest. Although the trial court
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5 We emphasize the two hour exception in Subsection 3802(g) requires the
Commonwealth establish only that the defendant did not consume any alcohol
between the time of his arrest and the blood draw. See 75 Pa.C.S. §
3802(g)(2). It does not account for any alcohol the defendant may have
consumed after an accident and before an arrest.
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in the present case found there was “no credible evidence that [Koger]
imbibed any alcohol” during that time, we emphasize the absence of direct
testimony by the arresting officers. See Trial Court Opinion, 11/28/2018, at
8.
In Commonwealth v. Starry, 196 A.3d 649 (Pa. Super. 2018), appeal
granted, 204 A.3d 369 (Pa. 2019),6 a panel of this Court considered whether
the trial court erred in granting the defendant’s petition for writ of habeas
corpus, and dismissing with prejudice a charge of DUI – highest rate of
alcohol, based upon a violation of the two-hour rule. In that case, the
____________________________________________
6 The Pennsylvania Supreme Court granted allocator review on the following
issues:
(1) Whether the rationale and holding in Commonwealth v.
Segida, 604 Pa. 103, 985 A.2d 871 (2009), applies to a charge
of driving under the influence brought pursuant to 75 Pa.C.S. §
3802(c), which has a statutory requirement that the defendant
have an alcohol concentration in his or her blood or breath of .16%
or greater within two hours after driving, operating or being in
actual physical control of the movement of a vehicle.
(2) Whether the Superior Court erred by finding that the
Commonwealth presented prima facie evidence that Petitioner’s
blood alcohol concentration was .16% or higher within two hours
after she drove, operated or was in actual physical control of the
movement of a vehicle.
(3) Whether the Superior Court erred in finding that the
Commonwealth presented prima facie evidence to satisfy 75
Pa.C.S. § 3802(g)(1), which requires the Commonwealth to show
“good cause explaining why the chemical test sample could not be
obtained within two hours.”
Starry, supra, 204 A.3d at 370. At this time, however, this Court’s decision
in Starry is controlling.
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evidence established that the defendant began driving at 11:00 a.m. A
witness called 911 at 11:49 a.m. to report a vehicle had crashed into a tree.
The first responders found the defendant sleeping in the back seat of the
vehicle, and the only footprints in the snowy area of the crash were of the
witness who called 911. The responding state trooper, who arrived at 12:36
p.m., believed the defendant was under the influence of alcohol. He testified
that from the time of his arrival until the defendant was transported to the
hospital by ambulance at 12:56 p.m., the defendant did not consume any
alcohol. The defendant’s blood draw at 1:40 p.m. produced a BAC of .304%.
See id. at 651-652.
On appeal, the panel concluded the trial court had erred in dismissing
the DUI charge. First, the panel found the Commonwealth presented sufficient
evidence to establish a prima facie case violation of Subsection 3802(c):
In the instant case, there was no evidence of the exact time of the
accident. However, the Commonwealth presented the following
facts. [A witness] notified state police that [the defendant] had
left [his] residence in her vehicle at 11:00 a.m. on a Sunday
morning. [Another witness] called 911 at 11:49 a.m. to report a
crashed vehicle along a regularly traveled county road. Upon
arrival, first responders noted the vehicle along the berm of the
road where it had impacted a tree. Trooper Adamski arrived at
12:36 p.m. and the ambulance was already at the scene providing
medical attention to [the defendant]. [The defendant] 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%.
Thus, [the defendant’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
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occurred at or near the time the first caller reported it at 11:49
a.m. Further, the testing of the blood drawn at 1:40 p.m. revealed
[the defendant’s] BAC was .304%. The fact-finder would not be
required to suspend common sense and ignore [the defendant’s]
enormously elevated BAC.
Id. at 658–659 (citations and footnote omitted). Further, the panel concluded
that even if the blood draw was conducted outside the two-hour time frame,
the Commonwealth also presented sufficient evidence to establish the two-
hour exception. See id. at 661 (holding (1) “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,” and (2) “the
Commonwealth met the ‘no imbibing’ requirement when” the arresting officer
testified the defendant did not consume any alcohol from “the time he arrived
until she was taken to the hospital where the blood draw was performed.” ).
Accordingly, in Starry, unlike in the present case, there was testimony
concerning what time the defendant began driving before the accident, as well
as testimony that the “road where the accident occurred was a county road
that was regularly traveled by people who live in the area,” so that it was
likely the witness who called 911 at 11:49 a.m. came upon the accident shortly
after it had occurred. Id. at 652. Indeed, the blood draw was conducted less
than two hours after the accident was first reported.
Conversely, in the present case, there was simply no evidence, direct or
circumstantial, to establish when Koger last drove his vehicle, when he last
drank alcohol, or how long the car was disabled before the troopers arrived.
Moreover, we note that while it seems logical to assume Koger did not drink
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any alcohol between the time of his arrest and the time of the blood draw, the
Commonwealth presented no testimony to confirm this. Accordingly, based
upon the facts developed at Koger’s trial, we agree the Commonwealth failed
to prove the exception to the two-hour blood draw applied in the present case.
Therefore, because we conclude the evidence was insufficient to sustain
Koger’s only conviction of DUI – highest rate of alcohol, we are constrained to
reverse the judgment of sentence.7
Judgment of sentence reversed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/19/2019
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7Because of our disposition of this claim, we need not address Koger’s weight
of the evidence challenge.
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