Com. v. Bradwell, S.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
SHAWN BRADWELL
Appellee No. 1866 EDA 2013
Appeal from the Order Entered on May 30, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: MC-51-CR-0049110-2011
BEFORE: GANTMAN, P.J., WECHT, J., and JENKINS, J.
MEMORANDUM BY WECHT, J.: FILED MARCH 10, 2015
The Commonwealth challenges a May 30, 2013 order of the
Philadelphia Court of Common Pleas. In that order, the trial court ruled that
test results from a draw of DUI-suspect Shawn Bradwell’s blood were
inadmissible because Bradwell’s blood was drawn after the expiration of the
two-hour time limit, see 75 Pa.C.S. § 3802(c), and because the police
offered no good cause to explain the delay. See 75 Pa.C.S. § 3802(g)(1).
For the reasons that follow, we affirm.
The following facts are alleged by the Commonwealth.1 On November
19, 2011, at approximately 2:50 a.m., Philadelphia Police Officer Andrew
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1
Due to the procedural events that occurred in the trial court, which we
set forth in more detail infra, this appeal comes before this Court without the
facts having been presented and proven beyond a reasonable doubt to a
fact-finder. Thus, for purposes of this appeal, we rely upon the
(Footnote Continued Next Page)
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Campbell observed Bradwell operating a motor vehicle in reverse through an
intersection. Officer Campbell immediately stopped Bradwell’s vehicle.
Upon contact with Bradwell, Officer Campbell detected a strong odor of
alcohol, and noticed that Bradwell’s eyes appeared to be bloodshot.
Bradwell also displayed signs of confusion. Officer Campbell arrested
Bradwell on suspicion that Bradwell was driving under the influence of
alcohol.
Bradwell was placed in Officer Campbell’s vehicle and driven to the
police headquarters. At 5:07 a.m., approximately two hours and seventeen
minutes after Bradwell was observed driving his vehicle, the police drew
Bradwell’s blood. Subsequent testing revealed that Bradwell had a blood
alcohol content (“BAC”) of .175%.
Bradwell was charged with two violations of the Motor Vehicle Code:
one count of 75 Pa.C.S. § 3802(a)(1), DUI—General Impairment, and one
count of 75 Pa.C.S. § 3802(c), DUI—Highest Rate of Alcohol. On February
11, 2013, Bradwell filed a motion in limine with the Philadelphia Municipal
Court seeking to preclude the Commonwealth from introducing the BAC
results at trial for purposes of proving the subsection 3802(c) charge. On
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(Footnote Continued)
Commonwealth’s allegations, which Bradwell does not dispute. Regardless,
any discrepancies in the details of Bradwell’s arrest would not affect the
outcome of this case, particularly because the Commonwealth candidly
concedes the principal fact that the blood draw did not occur until after the
two-hour time limit had expired. See Brief for the Commonwealth at 5-6.
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that same day, The Honorable Joseph O’Neill of the Philadelphia Municipal
Court held a hearing. At the hearing, the Commonwealth conceded that it
could not proffer any cause, let alone good cause, for the delay in drawing
Bradwell’s blood. Notes of Testimony (“N.T.”), 2/11/2013, at 6. At the
conclusion of the hearing, Judge O’Neill deferred ruling until later that week.
On February, 14, 2013, Judge O’Neill reconvened the parties and announced
that Bradwell’s motion in limine was granted, precluding the Commonwealth
from introducing the BAC test results to prove Bradwell guilty of subsection
3802(c), DUI—Highest Rate of Alcohol. N.T., 2/14/2013, at 3. For all
practical purposes, the court’s ruling meant that the Commonwealth could
only try Bradwell under subsection 3802(a)(1), DUI—General Impairment.
On March 14, 2013, the Commonwealth filed a petition for certiorari,
appealing Judge O’Neill’s ruling to the Court of Common Pleas. On May 30,
2013, the Honorable Paula Patrick of the Court of Common Pleas of
Philadelphia held a hearing on the Commonwealth’s petition. At the hearing,
the Commonwealth again offered no reason to justify the delay in drawing
Bradwell’s blood. N.T., 5/30/2013, at 7. For that reason, Judge Patrick
denied the Commonwealth’s appeal.
On June 26, 2013, the Commonwealth filed a notice of appeal.
Therein, the Commonwealth certified that Judge Patrick’s order terminated
or substantially handicapped its prosecution of Bradwell. See Notice of
Appeal, 6/26/2013; Pa.R.A.P. 311(d) (stating that “the Commonwealth may
take an appeal as of right from an order that does not end the entire case
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where the Commonwealth certifies in the notice of appeal that the order will
terminate or substantially handicap the prosecution.”). On the same day,
the Commonwealth filed a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b), even though the trial court had not
yet ordered it to do so. On September 25, 2013, Judge Patrick issued an
opinion pursuant to Pa.R.A.P. 1925(a).
The Commonwealth raises the following question for our review:
Did the Court of Common Pleas err in affirming the Municipal
Court order excluding the Commonwealth’s evidence because
the blood sample was obtained more than two hours after arrest,
where the blood test results were admissible in [Bradwell’s]
prosecution for driving under the influence of alcohol?
Brief for the Commonwealth at 4.
Herein, we confront a question heretofore unanswered in
Pennsylvania. We must determine whether BAC test results that were taken
after the two-hour time period set forth in subsection 3802(c) has expired
are admissible when the Commonwealth cannot establish good cause for law
enforcement’s delay in obtaining the blood sample. This question implicates
various legal precepts, and their interplay with one another, including
statutory interpretation and the Pennsylvania Rules of Evidence. We begin
with our applicable standards of review.
The Commonwealth appeals the trial court’s denial of its petition for
writ of certiorari. When a party “files a petition for a writ of certiorari, the
Philadelphia Court of Common Pleas sits as an appellate court.”
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Commonwealth v. Coleman, 19 A.3d 1111, 1119 (Pa. Super. 2011)
(citing Commonwealth v. Rosario, 615 A.2d 740, 741 (Pa. Super. 1992)).
Generally, “[a] lower court’s decision on the issuance of a writ of certiorari
will not be disturbed absent an abuse of discretion. Certiorari provides a
narrow scope of review in a summary criminal matter and allows review
solely for questions of law.” Commonwealth v. Elisco, 666 A.2d 739, 740
(Pa. Super. 1995) (citations omitted). Inasmuch as this case involves
statutory interpretation, which is a matter of law, our standard of review is
de novo, and our scope of review is plenary. Commonwealth v. Wilson,
101 A.3d 1151, 1153 (Pa. Super. 2014) (citing Commonwealth v. Spence,
91 A.3d 44, 46 (Pa. Super. 2014)).
We turn to the relevant statutory provisions. Bradwell was charged
with DUI—Highest rate of alcohol, which provides as follows:
(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). Subsection 3802(g) provides an exception to the two
hour time limit set forth in subsection (c):
(g) Exception to the two-hour rule.—Notwithstanding the
provisions of subsection (a), (b), (c), (e) or (f), 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
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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. . . .
75 Pa.C.S. § 3802(g). Lastly, 75 Pa.C.S. § 1547(c) establishes the general
admissibility of BAC test results:
§ 1547. Chemical testing to determine amount of alcohol
or controlled substance
(c) Test results admissible in evidence.—In any summary
proceeding or criminal proceeding in which the defendant is
charged with a violation of section 3802 or any other violation of
this title arising out of the same action, the amount of alcohol or
controlled substance in the defendant’s blood, as shown by
chemical testing of the person’s breath, blood or urine, which
tests were conducted by qualified persons using approved
equipment, shall be admissible in evidence.
75 Pa.C.S. § 1547(c).
The relevant facts underlying this case are undisputed. Bradwell was
arrested for DUI. The police did not perform a blood draw within two hours
of the time that Bradwell was observed driving his vehicle. The
Commonwealth did not attempt to establish good cause for the delay before
the Municipal Court, the Court of Common Pleas, or this Court. Thus,
Bradwell’s blood was not drawn within the two hours required by subsection
3802(c), and the Commonwealth has not established the applicability of
subsection 3802(g).
We must determine whether, under these circumstances, the
applicable statutory provisions nonetheless permit the results of the BAC test
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that result from the tardy blood draw to be admitted at trial. For the
reasons that follow, we hold that they do not.
We turn our attention to the principles that govern our interpretation
of the statutory provisions of the Motor Vehicle Code.
When construing [provisions] utilized by the General Assembly in
a statute, our primary goal is “to ascertain and effectuate the
intention of the General Assembly.” 1 Pa.C.S. § 1921(a).
“Every statute shall be construed, if possible, to give effect to all
its provisions.” Id. However, “[w]hen the words of a statute
are clear and free from all ambiguity, the letter of it is not to be
disregarded under the pretext of pursuing its spirit.” Id. §
1921(b). “Words and phrases shall be construed according to
the rules of grammar and according to their common and
approved usage.” Id. § 1903(a). In other words, if a term is
clear and unambiguous, we are prohibited from assigning a
meaning to that term that differs from its common everyday
usage for the purpose of effectuating the legislature’s intent.
Additionally, we must remain mindful that the “General
Assembly does not intend a result that is absurd, impossible of
execution or unreasonable.” Id. § 1922(1).
Commonwealth v. Cahill, 95 A.3d 298, 301 (Pa. Super. 2014).
We first consider the plain language of the above-cited statutory
provisions. Subsection 3802(c) makes it a crime for a person to drive or
operate a motor vehicle after imbibing a sufficient amount of alcohol to
produce a BAC of .16% or higher. The Commonwealth must establish that
the suspected intoxicated driver had such an elevated BAC within two
hours of driving. 75 Pa.C.S. § 3802(c). In other words, the driver’s blood,
breath, or urine must be obtained by law enforcement within two hours of
being stopped by the police. The Commonwealth’s arguments to the
contrary notwithstanding, our General Assembly has unequivocally
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instructed that this is an essential element of proving a person guilty of
subsection 3802(c). In fact, the language of subsection (g) twice refers to
the two-hour time limit as an element of the offense. See 75 Pa.C.S. §
3802(g); Wilson, 101 A.3d at 1154 (noting that § 3802’s subsections
dealing with the consumption of alcohol specify a time limit within which
blood must be drawn for the presence of alcohol). Thus, the plain language
of the statute demonstrates patently the General Assembly’s intent:
obtaining a DUI-suspect’s blood, breath, or urine within two hours of driving
is an essential element of subsection 3802(c). No other construction is
tenable, as any other construction would conflict directly with the clear
language utilized by our General Assembly when it enacted § 3802(c).
This conclusion is particularly inescapable by virtue of the fact that the
lawmakers codified a “safety valve” for the Commonwealth. Where, as here,
the Commonwealth cannot establish that a suspect’s chemical sample was
obtained within two hours, the Commonwealth nonetheless still may utilize
tests resulting from a tardy blood draw if it satisfies the relevant exception
set forth in subsection 3802(g). Subsection (g) states that evidence of test
results from samples drawn after the two-hour limit will be admissible and
sufficient to establish the relevant element when Commonwealth can show
good cause for the delay. 75 Pa.C.S. § 3802(g). This good cause safety
valve has not been invoked (much less established) by the Commonwealth
here.
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The plain language of these two provisions establishes a two-tier
approach pursuant to which the Commonwealth may prove beyond a
reasonable doubt that a driver had a BAC of .16% or higher. The
Commonwealth can prove the BAC either: (1) with test results derived from
a sample drawn within two hours of the suspect driving the vehicle; or (2)
with a sample drawn after the passage of two hours, provided there exists
good cause for the delay.
Instantly, the Commonwealth satisfied neither of these two
approaches. The Commonwealth nonetheless argues that the evidence
should be admitted at trial because its failure to satisfy either of the
statutory requirements affects—so it says—only the weight of the evidence,
not its admissibility. This interpretation is unsupported and unsupportable.
First, it clashes directly with the plain language of the relevant provisions
detailed above. Second, it would yield absurd results, effectively nullifying
the exception set forth in subsection 3802(g). We are not free to violate the
General Assembly’s clear intent as evidenced by the unambiguous statutory
language.
As noted above, subsection 3802(c) requires proof that the driver had
a BAC of .16% or higher at the time he operated or controlled a vehicle. For
all practical purposes, there is only one way in which the Commonwealth can
establish that value: by chemical testing of a suspect’s blood, breath, or
urine. Obviously, if the test is performed upon blood that was drawn within
two hours and returns a sufficiently high BAC, the Commonwealth can meet
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its burden. If the draw does not occur within that time frame, the
Commonwealth may still resort to the exception set forth in subsection
3802(g). It is critical to note that subsection 3802(g) uses the term
“sufficient” rather than the term “admissible.” The subsection states that, if
good cause is demonstrated by the Commonwealth, the test results from a
late collection of a chemical sample will be “sufficient” to establish the BAC
element of § 3802(c). If the only way to prove the BAC element is by
chemical testing, and if the results of the chemical testing are “sufficient”
only if they are derived from blood drawn within the two-hour time frame or
thereafter with good cause, then in circumstances where the Commonwealth
can establish neither of these two conditions, the test results from a tardy
blood draw necessarily are insufficient to prove the BAC element of
subsection 3802(c) beyond a reasonable doubt.
By force of statute, the test results obtained by the Commonwealth in
this case are insufficient to prove the BAC element of § 3802(c) against
Bradwell. Admitting those results nonetheless, as the Commonwealth urges,
effectively would nullify subsection 3802(g). Our canons of statutory
construction oblige us, where possible, “to give effect to all [of a statute’s]
provisions.” 1 Pa.C.S. § 1921(a). Moreover, we must construe statutes in a
manner that avoids rendering “any provision as mere surplusage.” C.B. v.
J.B., 65 A.3d 946, 951 (Pa. Super. 2013) (citing In re Adoption of J.A.S.,
939 A.2d 403, 406 (Pa. Super. 2007)). Subsection (g) provides the only
statutory mechanism to introduce chemical samples drawn beyond the two-
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hour time frame set forth in § 3802(c). As we have explained repeatedly, it
is only upon good cause that such evidence can be introduced at trial. If the
Commonwealth were permitted to introduce the evidence without a showing
of good cause, then subsection 3802(g)’s exception would be a nullity, and
we would have reduced the statutory language to mere surplusage at best.
We are required to give effect to the General Assembly’s statutes; we cannot
ignore them, improve upon them, or create byways around them. Simply
put, subsection 3802(g) is not an advisory provision that the Commonwealth
may ignore at its will or convenience.
For many of the same reasons, admitting the evidence
notwithstanding the statutory provisions would yield an absurd result. As
noted earlier, for all practical purposes, there is only one way to prove that a
DUI suspect had a BAC of .16% or higher: chemical testing. However, if the
sample is not collected within the required time frame, or does not meet the
statutory exception, subsection 3802(g) provides that the chemical testing is
insufficient. Because those results can never amount to sufficient evidence,
and because there is no other way to satisfy the BAC element, those results
also can serve no corroborative purpose.
For these reasons, the test results from an untimely blood draw have
no probative value. To admit evidence so lacking in probative value can
serve only to prejudice the defendant. Pennsylvania Rule of Evidence 403
provides that relevant evidence may be precluded “if its probative value is
outweighed by a danger of one or more of the following: unfair prejudice,
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confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.” Pa.R.E. 403. Introduction of
evidence that by statute is insufficient to establish the relevant element
where no other means exists to prove that element not only would inject
undiluted prejudice into the case, but would also confuse and mislead the
jury. The jury would be instructed on the elements of the crime, and, by
necessity of subsection 3802(g), would be told that the inclupatory BAC test
results are insufficient to establish the BAC element. We cannot expect that
even the most reasonable jury will compartmentalize the evidence in such a
way. The likelihood that the jury would perceive that evidence as
inculpatory is patent. For this reason, admitting such evidence would
produce an absurd and unreasonable result, an untenable consequence that
we must avoid when fairly applying our rules of statutory construction. See
1 Pa.C.S. § 1922(1).
The Commonwealth further presents the closely related argument that
75 Pa.C.S. § 1547 amounts to a “statutory mandate” that requires
admission of all BAC test results, no matter the circumstances. See Brief for
the Commonwealth at 14. Section 1547 states that BAC test results “shall
be admissible in evidence.” 75 Pa.C.S. § 1547. Our canons of construction
instruct us to assess the interplay between two statutes in a manner that
renders neither entirely unenforceable. To hold that section 1547 overrides
every other statutory provision essentially would be to flout and to nullify
the two-hour time period mandated in subsection 3802(c) and the exception
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crafted in subsection 3802(g). The General Assembly did not intend for
section 3802’s provisions to be so easily cast into the dustbin.
More importantly, the Commonwealth’s logic is untenable: that the
statute declares evidence to be admissible does not, ipso facto, mean that
such evidence is not subject to any other provision in our laws. For
instance, a defendant’s confession is admissible—unless it was obtained
unconstitutionally. Photographs of a murder victim’s body are admissible—
unless they are so graphic that the resulting prejudice would outweigh the
photos’ probative value. Indeed, all relevant evidence is admissible—unless
that evidence conflicts with an overriding law. That is precisely the situation
before us. BAC test results generally are admissible. However, those
results have no evidentiary value in a prosecution for under subsection
3802(c) if the Commonwealth fails to satisfy either the timeliness
requirements of that section or the exception provided in subsection
3802(g).
In sum, although the results of BAC tests generally are admissible, the
trial court did not err by prohibiting their admission at a trial for subsection
3802(c). To admit such evidence would undermine the relevant provisions
of section 3802, and would incurably prejudice the defendant. Our holding
is limited to the factual and procedural scenario presented by this case, to
wit, circumstances in which a defendant is charged with subsection 3802(c),
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a blood sample is not obtained within two hours of driving the vehicle, and
the Commonwealth cannot establish good cause for the delay.2
Order affirmed.
President Judge Gantman concurs in the result.
Judge Jenkins concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/10/2015
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2
We emphasize this point primarily because the trial court’s docket
indicates that Bradwell also was charged with 75 Pa.C.S. § 3802(a)(1)—
General Impairment. That provision states only that “[a]n 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 individual
is rendered incapable of safely driving, operating or being in actual physical
control of the movement of the vehicle.” Id. Notably, subsection
3802(a)(1) does not require a particular BAC, nor does it contain any testing
requirements or time constraints. We do not hold that the otherwise
untimely drawn blood would be admissible to demonstrate a driver’s general
impairment in a prosecution maintained solely under subsection 3802(a)(1),
nor do we hold to the contrary. That question must be deferred until it is
properly presented.
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