IN THE SUPERIOR COURT OF PENNSYLVANIA

XXX EDA 20XX

________________________

COMMONWEALTH OF PENNSYLVANIA

Appellee

vs

DAVID E. DOE,

Appellant

________________________

BRIEF OF APPELLANT

and

REPRODUCED RECORD

________________________

Appeal from the judgment of sentence

entered on the xxth

day of December, 20xx

in the Court of Common Pleas of Chester County

at CP-15-CR-XXXX-20XX

________________________

Patrick J. Connors, Esquire

11 West Third Street

Media, Pennsylvania 19063

610 566 5600

Atty. No. 38937

Attorney for Appellant,

David E. Doe

i

TABLE OF CONTENTS

TABLE OF CITATIONS ….……………………………………………… ii

STATEMENT OF JURISDICTION …….……………………………..…. 1

SCOPE OF REVIEW/ STANDARD OF REVIEW ….…………………… 2

JUDGMENT OF SENTENCE IN QUESTION ….……...……..…………. 4

STATEMENT OF THE QUESTIONS INVOLVED …….……..........…… 5

STATEMENT OF THE CASE …….……………………………...…….… 6

SUMMARY OF THE ARGUMENTS …….…………….……..….….…... 9

ARGUMENTS …..………………………………..…..……....….....….….. 10

CONCLUSION ……………………………....…………………...……..... . 23

OPINION OF THE TRIAL COURT ..………..….………………... Appendix A

STATEMENT OF MATTERS COMPLAINED

OF ON APPEAL ………..………………………………… Appendix B

REPRODUCED RECORD ………………………………………… Appendix C

CERTIFICATE OF SERVICE ..…………….….…..……….…...... Final Page

ii

TABLE OF CITATIONS

Cases

Coker v. S.M. Flickinger Company, Inc.,

533 Pa. 441, 625 A2d 1181 (1993) …………………….......……… 2

Commonwealth v. Adams,

760 A2d 33 (Pa. Super. Ct. 2000) …………………………………. 21

Commonwealth v. Blair,

860 A2d 567 (Pa. Super. Ct. 2004) ………………………………… 16

Commonwealth v. Bosurgi,

411 Pa. 56, 190 A2d 304 (1963) …………………………………… 15

Commonwealth v. Crissy,

304 Pa. Super. 38, 450 A2d 89 (1982) …………………………..… 15

Commonwealth v. Malone,

244 Pa. Super. 62, 366 A2d 584 (1976) …………………………… 16

Commonwealth v. Miller,

555 Pa. 354, 724 A2d 895 (1999) …………………….............…… 3, 10

Commonwealth v. Parker,

305 Pa. Super. 516, 451 A2d 767 (1982) .......................................... 3

Commonwealth v. Price,

543 Pa. 403, 672 A2d 280 (1996) ………………………….......….. 12

Commonwealth v. Sadvari,

561 Pa. 588, 752 A2d 393 (2000) ..................................................... 7, 12, 14, 15

iii

Commonwealth v. Shaffer,

710 A2d 89 (Pa. Super. Ct. 1998) ……………………….........…… 11, 12

Commonwealth v. Stair,

548 Pa. 596, 699 A2d 1250 (1997) ……………………….......…… 11, 12

Commonwealth v. Zugay,

745 A2d 639 (Pa. Super. Ct. 2000) ................................................... 13

Kovalesky v. Esther Williams Swimming Pools,

345 Pa. Super. 95, 497 A2d 661 (1985) …………………………… 21

Miranda v. Arizona,

384 U.S. 436 (1966) ……………………………………………..… 6, 13

Morrison v. Commonwealth, Department of Public Welfare,

538 Pa. 122, 646 A2d 565 (1994) ………………………….........… 2, 3

Pennoyer v. Neff,

95 U.S. 714 (1877) …………………………................................… 11

People v. Logue,

35 Cal.App.3rd

1, 110 Cal.Rptr. 504 (1973) …………………..…… 15

Smith v. Horn,

120 F.3d 400 (3rd

Cir. 1997) ............................................................ 18

State v. Donahue,

420 A2d 936 (Me. 1980) ……………………………………….….. 15

State v. Korotki,

418 A2d 1008 (De. Super. 1980) ………………………….….…… 14, 15

iv

State v. Rocheleau,

117 N.H. 792, 378 A2d 1381 (1977) …………………….……..…. 15

In re Winship,

397 U.S. 358 (1970) .......................................................................... 18

Wojdak v. Greater Philadelphia Cablevision, Inc.,

550 Pa. 474, 707 A2d 214 (1998) ..................................................... 2

Statutes

Pennsylvania –

42 Pa.C.S. § 742 ……..………………………………………...….......…… 1

42 Pa.C.S. § 8923 ………………………………………………..........…… 11, 14

75 Pa.C.S. § 3309 …………………………………………………….……. 8

75 Pa.C.S. § 3714 …………………………………………………….……. 8

75 Pa.C.S. § 3802 ………………………………………………..............… 5, 7, 9, 10, 13,

18, 19, 20, 22

Delaware –

11 Del. Code § 1932 …………………………………….....................…… 7, 10, 11, 17

11 Del. Code § 1933 ………………….………………........................…… 7, 11, 13, 17

v

Court Rules

Pennsylvania Rule of Criminal Procedure 704 …………………………….. 21

Pennsylvania Rule of Civil Procedure 2253 (repealed) …………..……….. 21

1

STATEMENT OF JURISDICTION

This appeal is from the judgment of sentence entered in a criminal case. As such, the

Superior Court has jurisdiction pursuant to 42 Pa.C.S. § 742, which states:

The Superior Court shall have exclusive appellate jurisdiction

of all appeals from final orders of the courts of common pleas,

regardless of the nature of the controversy or the amount involved,

except such classes of appeals as are by any provision of this

chapter within the exclusive jurisdiction of the Supreme Court or

the Commonwealth Court.

42 Pa.C.S. § 742.

2

SCOPE OF REVIEW/STANDARD OF REVIEW

Scope of Review

As stated in Morrison v. Commonwealth, Department of Public Welfare, 538 Pa. 122,

646 A2d 565 (1994):

„Scope of Review‟ refers to „the confines within which an appellate court must

conduct its examination.‟ In other words, it refers to the matters (or „what‟)

the appellate court is permitted to examine.

Id at 131, 646 A2d at 570 (citation omitted, emphasis in original) quoting Coker v. S.M.

Flickinger Company, Inc., 533 Pa. 441, 450, 625 A2d 1181, 1186 (1993).

The issues raised herein involve questions of law and, as such, the Superior Court‟s

review is plenary. See Wojdak v. Greater Philadelphia Cablevision, Inc., 550 Pa. 474, 707 A2d

214 (1998).

3

Standard of Review

The “Standard of Review” relates to the manner in which the examination of the relevant

evidence is to be conducted; it refers to the degree of scrutiny that is to be applied to the Lower

Court‟s Decision. Morrison v. Commonwealth, Department of Public Welfare, supra.

Issue 1

When reviewing a suppression ruling, the Appellate Court must determine whether the

evidence presented at the suppression hearing supports the Lower Court‟s factual findings and

whether the legal conclusions drawn from those findings are free of error. Commonwealth v.

Miller, 555 Pa. 354, 724 A2d 895 (1999).

Issue 2

When asked to review the sufficiency of the evidence in a criminal case, the Appellate

Court‟s task is to view the evidence in the light most favorable to the Commonwealth as the

verdict winner and then determine whether that evidence establishes each element of the offense

beyond a reasonable doubt. Commonwealth v. Parker, 305 Pa. Super. 516, 451 A2d 767 (1982).

4

JUDGMENT OF SENTENCE IN QUESTION

The judgment of sentence in question is that imposed by the Honorable Howard F. Riley,

Jr. on December xx, 20xx, as follows:

Driving Under the Influence of Alcohol 15 days incarceration;

concurrent term of 1 year probation;

electronic home monitoring for 75 days or

until 80 hours of community service are performed;

1 year of ignition interlock;

18 months drivers license suspension;

$1,500 fine and costs of prosecution.

Careless Driving $25 fine and costs of prosecution

5

STATEMENT OF THE QUESTIONS INVOLVED

Whether the Court erred in refusing to suppress the fruits of the illegal arrest herein

where a Pennsylvania State Trooper, without the authority to do so, arrested Mr. Doe in the

State of Delaware. The Trooper was never in “fresh pursuit” of him, and he failed to bring

him before a Justice of the Peace in Delaware for a determination of the legality of the arrest.

Whether the evidence was insufficient to sustain the conviction of Driving Under the

Influence of Alcohol under 75 Pa.C.S. § 3802(c) where the Commonwealth failed to prove

beyond a reasonable doubt that Mr. Doe’s blood alcohol level was at least 0.16% within two

hours after he drove, operated or was in actual physical control of the movement of a vehicle,

and where it also failed to establish that the exception to this rule found in 75 Pa.C.S. § 3802(g)

was applicable.

(Both questions answered in the negative by the Trial Judge)

6

STATEMENT OF THE CASE

Sometime between the late evening hours of May 9, 2004 and the early morning hours of

May 10, 2004, a one-vehicle accident occurred in Kennett Township, Chester County. When

State Troopers arrived on the scene, they found David E. Doe, Jr., the Appellant herein, trapped

in his car. He was subsequently extricated from the vehicle and taken by ambulance to

Christiana Hospital in the State of Delaware. (RR at 32a-33a, 59a).

Both Troopers stayed at the scene to complete their investigation of the accident and they

remained there until the vehicle was towed away. (RR at 59a).

At that point, they drove to their barracks in Avondale, Chester County in order to obtain

an “Implied Consent Form” (Pennsylvania Department of Transportation Form DL-26) and one

of them, Trooper Kenneth Tallman, drove on to Christiana Hospital where he met with Mr. Doe

at approximately 2:00 A.M. (RR at 33a, 59a).

The Trooper placed him under arrest and read him his Miranda 1 rights. He also read

him a statement from Form DL-26 that included the sentence – “Please be advised that you are

under arrest for driving under the influence of alcohol or controlled substance in violation of

Section 3802 of the Vehicle Code”. (RR at 59a, 61a).

Mr. Doe consented to supply a blood sample for analysis and his blood was drawn at 2:19

A.M. at Christiana Hospital (RR at 59a).

The Trooper then left the hospital and took the blood sample back to the Avondale

Barracks.

1 Miranda v. Arizona, 384 U.S. 436 (1966).

7

Mr. Doe was subsequently charged with Driving Under the Influence of Alcohol or

Controlled Substance and two summary traffic offenses.

The case was ultimately assigned to the Honorable Howard F. Riley, Jr. for disposition

and, on September 21, 2004, Mr. Doe filed an Omnibus Pretrial Motion. In it, he alleged that

Trooper Tallman had no authority to arrest him in Delaware and that, as a result, any evidence

obtained after the arrest, including the blood test results, should be suppressed.

A hearing was held on that motion on November 4, 2004 and, in lieu of testimony, the

parties submitted a written stipulation of facts to the Court. (RR at 58a-60a). Defense counsel

argued, in line with his motion, that Trooper Tallman had no authority to make the arrest in

Delaware and, in support of his position, cited two Delaware statutes, 11 Del. Code §§ 1932 and

1933, as well as the Pennsylvania Supreme Court‟s Decision in Commonwealth v. Sadvari, 561

Pa. 588, 752 A2d 393 (2000).

The Commonwealth countered that the case did not involve a “real arrest” but, rather, “a

nominal talismanic type of arrest where the police officer said you are under arrest but took none

of the physical steps that we associate with taking someone into custody, arrest, handcuffing,

shackling, moving the person against his will from one place to another, in custody, behind bars

or in the back of a police car”. (RR at 23a-24a, 30a).

Judge Riley agreed with the Commonwealth‟s position and, on March 29, 2005, issued an

Order denying the suppression motion.

A non-jury trial was held on May 9, 2005 at which time the parties again submitted their

cases by way of an agreed statement of the facts.

The Judge subsequently found Mr. Doe guilty of Driving Under the Influence of Alcohol

under sections 3802(a)(1) and 3802(c), as well as the summary offense of Careless Driving (75

8

Pa.C.S. § 3714). He was acquitted of the other summary offense of Driving on Roads Laned for

Traffic (75 Pa.C.S. § 3309).

On December xx, 20xx, the Court sentenced him to a term of 15 days incarceration, a

concurrent term of 1-year probation, a period of electronic home monitoring and a $1,500 fine.

His license was suspended for 18 months and he was Ordered to participate in the ignition

interlock program for one year.

He was fined $25 for Careless Driving.

An appeal was then taken to the Superior Court from this judgment of sentence.

9

SUMMARY OF THE ARGUMENTS

The salient facts in this case are not in dispute. Mr. Doe was arrested in the State of

Delaware by a Pennsylvania State Trooper for Driving Under the Influence of Alcohol in

violation of Section 3802 of the Pennsylvania Motor Vehicle Code.

Delaware law permits a foreign police officer to make such an arrest only if he is in

“fresh pursuit” of a motorist and, even if that requirement is satisfied, the officer must then bring

the arrestee to a Justice of the Peace in Delaware for a determination as to whether the arrest was

lawful.

In the present case, the Trooper was not in “fresh pursuit” of Mr. Doe when he entered

Delaware, nor was Mr. Doe brought before a Justice of the Peace in that State for a

determination of the legality of the arrest.

These clear and blatant violations of Delaware law, and disregard for that State‟s

sovereignty, rendered the arrest illegal and, as such, the fruits of that arrest should have been

suppressed.

Moreover, the statute under which Mr. Doe was convicted required that the

Commonwealth prove beyond a reasonable doubt that his blood alcohol level was at least 0.16%

within two hours after he drove, operated or was in actual physical control of the movement of a

vehicle.

It failed to sustain that burden and, in addition, failed to establish that the exception to

this element found in 75 Pa.C.S. § 3802(g) was applicable.

For these reasons, the judgment of sentence for driving under the influence of alcohol

should be vacated.

10

ARGUMENTS

I.

The Hearing Court erred in refusing to suppress the fruits of the illegal arrest herein

since a Pennsylvania State Trooper, without the authority to do so, arrested Mr. Doe in the State

of Delaware. The Trooper was never in “fresh pursuit” of him, and he failed to bring him

before a Justice of the Peace in Delaware for a determination of the legality of the arrest.

When reviewing a suppression ruling, the Appellate Court must determine (1) whether

the evidence presented at the suppression hearing supports the Lower Court‟s factual findings

and (2) whether the legal conclusions drawn from those factual findings are free of error.

Commonwealth v. Miller, 555 Pa. 354, 724 A2d 895 (1999).

In the present case, the Suppression Court‟s factual findings are supported by the Record

and, indeed, were stipulated to by both counsel. At issue are the legal conclusions drawn from

those findings.

The Record is clear that Mr. Doe was arrested by a Pennsylvania State Trooper at a

hospital in the State of Delaware for violating Section 3802 of the Pennsylvania Motor Vehicle

Code. (Driving Under the Influence of Alcohol). 75 Pa.C.S. § 3802. Delaware law only

authorizes such an arrest where the foreign officer was in “fresh pursuit” of the arrestee. To

quote the relevant Delaware statute:

1932. Arrest by out-of-state police

(a) Any member of a duly organized state, county or municipal peace

unit of another state of the United States who enters this State in

fresh pursuit, and continues within this State in such fresh pursuit,

of a person in order to arrest the person on the ground that the

person is believed to have committed a felony, a misdemeanor or a

11

violation of the motor vehicle code in such other state, shall have

the same authority to arrest and hold such person in custody, as has

any member of any duly organized state, county or municipal

peace unit of this State, to arrest and hold in custody a person on

the ground that the person is believed to have committed a felony,

a misdemeanor or a violation of the Motor Vehicle Code in this

State.

11 Del. Code § 1932(a).

Once the arrest occurs, Delaware law requires that the officer take the defendant “before

a justice of the peace of the county in which the arrest was made”. 11 Del. Code § 1933. That

Justice of the Peace must then “conduct a hearing for the purpose of determining the lawfulness

of the arrest”. Id. If the arrest is found to be unlawful, the defendant must be discharged. Id.

Mr. Doe, however, was deprived of the protection afforded him by the Delaware Code.

He was arrested in that State by a Pennsylvania State Trooper for an offense that allegedly

occurred in this Commonwealth.

This raises substantial issues of State sovereignty. It has long been the law in this nation

that one State cannot infringe upon the sovereignty of another by exercising direct authority over

persons and property located within that other State. Pennoyer v. Neff, 95 U.S. 714 (1878). See

also Commonwealth v. Stair, 548 Pa. 596, 699 A2d 1250 (1997) (per Zappala, J. – Opinion in

Support of Reversal).

Certain States have nevertheless promulgated statutes, such as the one at issue herein,

which authorize foreign police officers to continue the “fresh pursuit” or “close pursuit” of a

person into its territory.

The “fresh pursuit” statutes of both Delaware and Pennsylvania, however, also require

the officer to take the arrestee before a member of the State‟s judiciary. 11 Del. Code § 1933;

42 Pa.C.S. § 8923. In Commonwealth v. Shaffer, 710 A2d 89 (Pa. Super. Ct. 1998), the Superior

12

Court found that the failure to abide by a foreign State‟s law in this regard rendered the out-of-

state arrest fatally defective. There, a Pennsylvania State Trooper chased a motorist into the

state of New York and subsequently arrested him there for Driving Under the Influence of

Alcohol. In violation of New York law, however, he failed to then bring the arrestee before a

New York Court to determine if the arrest was proper.

The Superior Court opined that this violation of New York law was not a mere

technicality and concluded that the New York Court must be given the opportunity to “validate”

the arrest. Id at 91, footnote 2. (“If not validated by a local criminal court, as contemplated

under the Act … the arrest would be without legal authority”).

The Court further found that the proper remedy for such an illegal arrest was suppression

of its fruits, and this is in accord with Supreme Court precedent. In Commonwealth v. Price,

543 Pa. 403, 672 A2d 280 (1996), for example, the defendant‟s vehicle was stopped by an FBI

agent and the driver was later arrested for Driving Under the Influence of Alcohol. The Supreme

Court found that the agent had no authority to make an arrest in this Commonwealth for a traffic

offense or a misdemeanor and Ordered that the fruits of the arrest be suppressed. See also

Commonwealth v. Stair, supra (per Zappala, J. – Opinion in Support of Reversal) (Unauthorized

arrest by Pennsylvania State Trooper in Maryland should have resulted in suppression of the

fruits of the arrest).

The case of Commonwealth v. Sadvari, 561 Pa. 588, 752 A2d 393 (2000) is also

instructive. There, a Pennsylvania State Trooper stopped a vehicle in the State of Delaware for

driving at an excessive rate of speed. According to the chronology of events outlined in the

Opinion, the following events transpired –

13

1. The Trooper asked the driver for his license and registration, at which time he

“smelled a strong odor of alcohol and noticed [his] slurred speech and blood-shot eyes”.

2. The driver failed two field sobriety tests.

3. The driver was arrested in Delaware for Driving Under the Influence of Alcohol

and taken to a hospital in Pennsylvania.

4. Blood samples were drawn at the hospital and subsequent analysis revealed a

blood/alcohol level of .16%.

The Trooper, however, neglected to bring the driver before a Delaware Justice of the

Peace, in derogation of 11 Del. Code § 1933. This, the Supreme Court determined, warranted

suppression of any physical evidence obtained after the arrest.

That same remedy should also be granted in the present case.

The record reflects that Mr. Doe was involved in an automobile accident and, while he

was still at the scene, a Trooper believed that he “emitted a strong odor of an alcoholic

beverage”. (RR at 32a). Upon being extricated from the vehicle, he was taken, by ambulance,

to a hospital in the State of Delaware. He was later met there by Trooper Tallman, who placed

him under arrest for Driving Under the Influence of Alcohol and read him his Miranda2 rights.

He also read him a statement from Form DL-26 that included the sentence – “Please be advised

that you are under arrest for driving under the influence of alcohol or controlled substance in

violation of Section 3802 of the Vehicle Code”. (RR at 33a, 61a).

Mr. Doe then consented to have blood drawn for chemical analysis and the results of that

test were included in the Commonwealth‟s evidence against him at the stipulated non-jury trial.

It was available for use to prove a violation of sections 3802(a)(1) and (c). See Commonwealth

v. Zugay, 745 A2d 639, 646 (Pa. Super. Ct. 2000).

2 Miranda v. Arizona, 384 U.S. 436 (1966).

14

In his Opinion herein, the Hearing Judge candidly agreed that no “fresh pursuit” was

involved in this case but, even if there was, Mr. Doe was never brought before a Delaware

Justice of the Peace as required by Delaware law.

Thus, as in Sadvari, the fruits of the arrest, i.e., any physical evidence obtained after the

arrest, must be suppressed.

Indeed, suppression is required as a matter of policy. If the police are free to ignore the

Delaware Code, or if there is no remedy for violating it, Pennsylvania will have no legitimate

reason to expect other States to honor 42 Pa.C.S. § 8923. Police from foreign jurisdictions will

feel free to arrest persons in this Commonwealth with impunity and those arrestees will have no

meaningful Pennsylvania forum within which to raise issues concerning the propriety of the

incursions and the arrests.

Such a “blurring” of borders would erode a history of State sovereignty that is even older

than the Republic.

In prior arguments made in this case, however, the Commonwealth has shrugged off the

fact that an arrest occurred in Delaware by noting that Mr. Doe was never physically restrained

by the Trooper while in Delaware. It seems to take the position that certain arrests, such as the

one herein, are not “real” arrests. (RR at 23a-24a, 30a).

But the law in this Commonwealth is clear that an “arrest” is “accomplished by any act

that indicates an intention to take a person into custody and subjects him to the actual control and

will of the person making the arrest”. Commonwealth v. Sadvari, supra at 599, 752 A2d at 399

(citation omitted). This is also the case in Delaware. See State v. Korotki, 418 A2d 1008, 1011

(De. Super. 1980).

15

Moreover, under both Pennsylvania and Delaware law, an “arrest” need not be

accompanied by “manual force” or “physical restraint”. Commonwealth v. Crissy, 304 Pa.

Super. 38, 42, 450 A2d 89, 91 (1982). See also Commonwealth v. Bosurgi, 411 Pa. 56, 190

A2d 304 (1963); State v. Korotki, supra.

Indeed, neither Sadvari nor the Delaware Code distinguish individual arrests based upon

the level of restraint involved.

This point was made in three cases from other States that dealt with an arrest in a hospital

setting.

In State v. Rocheleau, 117 N.H. 792, 378 A2d 1381 (1977), the defendant was involved

in a one- car accident. A police officer arrived on the scene and then rode with him in an

ambulance to a local hospital. While in the emergency room, the officer told the defendant that

he was placing him under arrest for driving under the influence of alcohol, advised him of his

rights under New Hampshire‟s implied consent law and requested that he submit to a blood test.

The defendant agreed and the officer then left the hospital with the blood sample. Upon his

release from the hospital, the defendant merely went home.

Pursuant to New Hampshire law, a suspect must be under arrest before a blood sample

can be obtained. The defendant contended that his test results should have been suppressed

because “an arrest never in fact occurred” since he did not remain in the officer‟s custody after

the blood was drawn. Id at 1382-1383.

The New Hampshire Supreme Court disagreed and determined that an arrest had

occurred even though “the defendant did not remain in the officer‟s custody after the blood

sample was taken”. Id at 1383. Accord State v. Donahue, 420 A2d 936 (Me. 1980); People v.

Logue, 35 Cal.App.3rd

1, 110 Cal.Rptr. 504 (1973).

16

In addition, the consequences of an “arrest” are dire no matter what level of actual

restraint is employed.

It is an ancient maxim that “no right is held more sacred, or is more carefully guarded, by

the common law, than the right of every individual to the possession and control of his own

person, free from all restraint or interference of others”. Commonwealth v. Blair, 860 A2d 567,

571 (Pa. Super. Ct. 2004) (citations omitted). When Trooper Tallman “arrested” Mr. Doe, he

placed him under his “actual control” and Mr. Doe thereupon lost this most basic civil right.

Also, aside from the immediate consequences of an arrest, its indirect effects are just as

severe. In a case involving the expungement of an arrest record, the Superior Court stated –

The harm ancillary to an arrest record is obvious: Information

denominated a record of arrest, if it becomes known, may subject

an individual to serious difficulties. Even if no direct economic

loss is involved, the injury to an individual‟s reputation may be

substantial. Economic losses themselves may be both direct and

serious. Opportunities for schooling, employment, or professional

licenses may be restricted or nonexistent as a consequence of the

mere fact of an arrest, even if followed by acquittal or complete

exoneration of the charges involved. An arrest record may be

used by the police in determining whether subsequently to arrest

the individual concerned, or whether to exercise their discretion to

bring formal charges against an individual already arrested.

Commonwealth v. Malone, 244 Pa. Super. 62, 68-69, 366 A2d 584, 587-588 (1976).

The existence of an “arrest”, therefore, has implications far beyond mere physical

restraint and the statement “you are under arrest” made by a police officer has severe and lasting

implications for the arrestee even if it is not accompanied by actual physical restraint.

Delaware law demands that the strictures and repercussions of an arrest not be inflicted

upon persons within its borders except under the very limited circumstances permitted by

Sections 1932 and 1933 of the Delaware Code.

17

Since that did not occur herein, the evidence obtained after the arrest, including the blood

samples, must be suppressed.

18

II.

The evidence was insufficient to sustain the conviction of Driving Under the Influence of

Alcohol under 75 Pa.C.S. § 3802(c) since the Commonwealth failed to prove beyond a

reasonable doubt that Mr. Doe’s blood alcohol level was at least 0.16% within two hours after

he drove, operated or was in actual physical control of the movement of a vehicle, and since it

also failed to establish that the exception to this rule found in 75 Pa.C.S. § 3802(g) was

applicable.

It is a generally accepted tenet of federalism that a State may define the elements of a

crime in any way it sees fit. Smith v. Horn, 120 F.3d 400, 414 (3rd

Cir. 1997). Once those

elements are promulgated, however, the Federal Constitution places certain constraints on the

State‟s authority to convict a person of that offense. One of those constraints is the burden of

proof placed upon the prosecutor. Id.

In the case of In re Winship, 397 U.S. 358 (1970), the Supreme Court discussed this

burden of proof and stated that “the Due Process Clause protects the accused against conviction

except upon proof beyond a reasonable of every fact necessary to constitute the crime with which

he is charged”. Id at 364 (emphasis supplied).

Mr. Doe was convicted of Driving Under the Influence of Alcohol under section 3802(c)

of the Vehicle Code. It states –

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

19

after the individual has driven, operated or been in actual physical

control of the movement of the vehicle.

75 Pa.C.S. § 3802(c).

As can be seen, one of the elements of this offense is that the alcohol concentration in the

defendant‟s blood be at least 0.16% within two hours after he has driven, operated or been in

actual physical control of the movement of the vehicle.

This was not established by the Commonwealth in the present case.

The facts that were stipulated to for purposes of the trial state, in pertinent part –

On May 10, 2004, at approximately 12:12 a.m., Pennsylvania

State Police Troopers Kenneth Tallman and Donald Allaband were

dispatched to the area of Baltimore Pike at Exelon Lane, in

Kennett Township, Chester County. They were dispatched to that

location in response to a report of a one-vehicle collision there.

The Troopers arrived at the location at approximately 12:16 a.m.

(RR at 58a).

Perhaps the most glaring problem from the Commonwealth‟s perspective is that the

Stipulation does not give the exact time that the accident occurred and, as such, the record is

devoid of any evidence as to when Mr. Doe had last “driven, operated or been in actual physical

control of the movement of [his] vehicle”. 75 Pa.C.S. § 3802(c).

Moreover, the Stipulation goes on to state –

At approximately 2:12 a.m., at Christiana Hospital, after

Trooper Tallman read to the Defendant “the Implied Consent

Warning” and “the O‟Connell Warnings” from Pennsylvania

Department of Transportation Form DL–26 (12–03). In particular,

Trooper Tallman read to the Defendant those four numbered

paragraphs in that Form which begin with the words, “1. Please be

advised that you are under arrest ...” and that ends with the words,

“... violating Section 3802(a) of the Vehicle Code. Thereafter,

20

Trooper Tallman and the Defendant signed and dated that Form, a

copy of which is attached hereto as Exhibit C-1. The Defendant

consented to the taking of a specimen of his blood and the testing

of the specimen for alcohol concentration. At 2:19 a.m., at

Christiana Hospital, a nurse took a specimen of the Defendant‟s

blood.

(RR at 59a) (emphasis supplied).

Thus, even if the Court ignores the basic flaw in the Commonwealth‟s case that it never

proved the time at which Mr. Doe had last “driven, operated or been in actual physical control of

the movement of [his] vehicle”, it is clear that his blood was not drawn within two hours of the

time the Troopers arrived on the scene of the accident. 75 Pa.C.S. § 3802(c).

Thus, the evidence is simply insufficient to sustain the conviction of § 3802(c).

Section 3802(g) nevertheless permits the Commonwealth to overcome this deficiency in

its proof under the following circumstance –

(1) where the Commonwealth shows good cause explaining why the

chemical test could not be performed 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(g).

With regard to the first of these, it is highly significant that the Legislature adopted a

“good cause” standard as the gauge of police conduct. Although this term is not defined in

§3802, it has been construed in other situations as a threshold that is above mere negligence or

inadvertence.

21

For example, the Pennsylvania Rules of Criminal Procedure set a time limit within which

a defendant must be sentenced and that limit can only be exceeded “for good cause shown”. See

Pa.R.Crim.P. 704(A)(2). In Commonwealth v. Adams, 760 A2d 33 (Pa. Super. Ct. 2000), the

Superior Court stated that, “at the very least, we read this rule to require that the delay (1) arise

from a specific, articulable cause which is (2) not attributable to the Commonwealth’s own

negligence or deliberate misconduct”. Id at 37 (citations omitted – emphasis supplied).

Moreover, even where a Court rule sets the standard at mere “cause shown”, the

negligence of a party or his attorney is insufficient. See Kovalesky v. Esther Williams Swimming

Pools, 345 Pa. Super. 95, 497 A2d 661 (1985) (construing Pa.R.Civ.P. 2253 which has since

been repealed).

In the present case, the Commonwealth attempted to explain the dilatory fashion in which

the blood was drawn by concentrating on the driving distances between the accident scene, the

State Police Barracks and Christiana Hospital. To quote the Stipulation –

7. The most direct route of driving an automobile from the

scene of the one-vehicle collision (at Old Baltimore Pike at Exelon

Way, Kennett Square, Pennsylvania) to Christiana Hospital (at

4755 Ogletown-Stanton Road, Newark, Delaware) is

approximately 15.29 miles in length, and, assuming normal traffic

conditions, the least amount of time required to drive an

automobile within the applicable speed limits on that route would

be approximately 33 minutes.

8. The most direct route of driving an automobile from the

scene of the one-vehicle collision (at Old Baltimore Pike at Exelon

Way, Kennett Square, Pennsylvania) to the Pennsylvania State

Police Barracks at Avondale (at 2 Moxley Road, Avondale,

Pennsylvania) is approximately 6.92 miles in length, and,

assuming normal traffic conditions, the least amount of time

required to drive an automobile on that route within the applicable

speed limits would be approximately 11 minutes.

22

9. The most direct route of driving an automobile from the

Pennsylvania State Police Barracks at Avondale (at 2 Moxley

Road, Avondale, Pennsylvania) to Christiana Hospital (at 4755

Ogletown-Stanton Road, Newark, Delaware) is approximately 15.7

miles in length, and, assuming normal traffic conditions, the least

amount of time required to drive an automobile on that route

within applicable speed limits would be approximately 32 minutes.

(RR at 60a).

That same Stipulation states, however, that Trooper Tallman remained at the scene of the

accident after Mr. Doe had been taken away by the ambulance. Indeed, he delayed his departure

until the completion of his “on-scene investigation of the collision”, and he even waited around

until the car had been towed away. (RR at 59a).

This would have been understandable had he been the only Trooper on duty that evening,

but the Stipulation reflects that another Trooper, Trooper Allaband, was also present.

There is no indication why one of those Troopers could not have left at the time Mr. Doe

did.

In addition, there is no explanation why the Troopers did not have a copy of the

necessary forms with them in their patrol cars.

Thus, it appears from the Stipulation that the two-hour limit was exceeded due to the

inadvertence of Trooper Tallman in (1) staying too long at the scene of the accident with the

other Trooper and (2) forgetting to have a copy of Pennsylvania Department of Transportation

Form DL–26 with him in his cruiser.

This is simply not “good cause” for purposes of §3802(g) and, as such, the evidence was

insufficient to sustain the conviction under §3802(c).

23

CONCLUSION

In the light of the arguments raised herein, the judgment of sentence imposed for driving

under the influence of alcohol should be vacated.

Respectfully submitted

_________________________________

Patrick J. Connors, Esquire

CERTIFICATE OF SERVICE

I, Patrick J. Connors, hereby certify that on the 16th

day of October, 2006, I did

serve two copies of the foregoing Brief of Appellant and Reproduced Record upon the

following person by first class United States mail.

This manner of service is in conformity with the Pennsylvania Rules of Appellate

Procedure.

Nicholas J. Casenta, Jr., Esquire

Chester County District Attorney‟s Office

17 North Church Street, 2nd

Floor

West Chester, PA 19380

Attorney for the Commonwealth

__________________________________

Patrick J. Connors, Esquire

11 West Third Street

Media, PA 19063

610 566 5600

Atty. No. 38937

Attorney for Appellant