Commonwealth of Pennsylvania, v. Vincent Joseph Sosnowski

Commonwealth of Pennsylvania, v. Vincent Joseph Sosnowski

Criminal Action-Law-Homicide by Vehicle While Driving Under the Influence-Involuntary Manslaughter-Motion in Limine-Admissibility of Evidence-Report of Arborist-Condition of Tree on Roadway-Substantial Cause of Death-Electronic Communications-Text Messages-Authentication-Hearsay-Challenge to Admission of Blood Alcohol Content Test-Draw Occurred After Two (2) Hours-Waiver-Omnibus Pretrial Motion for Suppression of Evidence

Vincent Joseph Sosnowski (“Defendant”) was charged with Homicide by Vehicle While Driving Under the Influence (“DUI”), Involuntary Manslaughter and related charges when the front seat passenger of the vehicle he was operating passed away after he drove the vehicle into a tree that had fallen onto the road and a branch protruded through the windshield and struck the front seat passenger in the face.  Both parties have filed Motions in Limine seeking pretrial rulings on admissibility of evidence.

1.  Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence and the fact is of consequence in determining the action. 

2.  For the charge of Homicide by Vehicle DUI, the court should not instruct the jury that there can be only one (1) cause of an accident, as a defendant may be found criminally liable if his or her actions are determined to be a direct and substantial cause of the death, even if another factor also was a substantial cause.

3.  Where evidence of the condition of the tree is irrelevant to the issue of causation and the jury will understand the obstruction of the road by the fallen tree was a factor in the occurrence of the accident, a report by an arborist as to the condition of the tree and why it was in the road will not be admissible at trial, as it would not disprove Defendant’s conduct was a direct and substantial cause of the death of the victim and would confuse the jury.

4.  Electronic communications, such as text messages, must be authenticated prior to their admission at trial. 

5.  The admissibility of electronic communications is to be evaluated on a case by case basis as any other documentary evidence to determine whether there has been an adequate foundational showing of their relevance and authenticity.

6.  The proponent of digital evidence must produce sufficient evidence to support a finding that a particular person or entity was the author.

7.  The court must determine whether text messages constitute hearsay and the messages are admissible as an exception to the prohibition against hearsay. 

8.  Where the Commonwealth would be offering text messages to establish that Defendant was consuming alcohol at a bar prior to the incident and had not been driving from the home of the victim’s friend at the time of the accident, the text messages are hearsay that are not admissible at trial.

9.  Pa.R.Crim.P. Rule 579 provides that an omnibus pretrial motion must be filed and served within thirty (30) days after arraignment unless the opportunity did not exist, the defendant was not aware of the grounds for the motion or the time for filing has been extended by the court.

10.  Where Defendant did not file a timely Omnibus Pretrial Motion seeking suppression of his blood alcohol content on the basis that the draw was not completed within the two (2) hour timeframe required by the DUI statute for more than sixteen (16) months after the expiration of the time for a timely filing and provided no explanation necessitating that his request for suppression to be raised via Motion in Limine, Defendant waived challenging this issue.

11.  Since the DUI statute, Incapable of Safe Driving, does not require that a blood draw occur within two (2) hours of the time when a defendant drove, the results of the blood alcohol content test would be admissible at trial regardless to prove his violation of this offense. 

L.C.C.C.P. No. CP-38-CR-00000304-2022, Opinion by John C. Tylwalk, President Judge, December 29, 2023.     

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

                                                                   PENNSYLVANIA

                                                              CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA                      :           NO. CP-38-CR-304-2022

                                                                                    :

            v.                                                                     :

                                                                                    :

VINCENT JOSEPH SOSNOWSKI                          :

                                                               ORDER OF COURT

AND NOW, this 29th day of December, 2023, upon consideration of the

Motions in Limine submitted by the parties, the comments of counsel at the hearing conducted on October 25, 2023, and the Briefs submitted by the parties, it is hereby Ordered as follows:

1.  The Commonwealth’s Motion in Limine to preclude Defendant from introducing the expert report of Jonathan Schach, ISA Board Certified Master Arborist, and all evidence of the condition of the tree prior to this incident is GRANTED.
2.  The Commonwealth’s Motion in Limine to introduce the text messages between Danielle Hogg and Melissa A. Morrissey is DENIED, in part, in accordance with the Opinion accompanying this Order.  The Court will defer ruling on the admissibility of this evidence depending on the testimony/evidence adduced at the trial of this matter.
3. Defendant’s Motion in Limine to Suppress the results of Defendant’s blood test is DENIED.

                                                            BY THE COURT:

                                                            _________________________, P.J.

                                                            JOHN C. TYLWALK

JCT/jah

CC:  District Attorney

        Richard Coble, Esquire/Van der Venn Hartshorn, and Levin/1219 Spruce

             Street/Philadelphia, PA  19107

        Leslie Fillak/Court Administration

        Judith Huber, Esquire/Law Clerk

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

                                                                   PENNSYLVANIA

                                                              CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA                      :           NO. CP-38-CR-304-2022

                                                                                    :

            v.                                                                     :

                                                                                    :

VINCENT JOSEPH SOSNOWSKI                          :

APPEARANCES:

KEVIN M. DUGAN, ESQUIRE                             FOR THE COMMONWEALTH

SENIOR DEPUTY DISTRICT ATTORNEY

RICHARD COBLE, ESQUIRE                              FOR VINCENT JOSEPH SOSNOWSKI

VAN DER VEEN, HARTSHORN & LEVIN

OPINION, TYLWALK, P.J., DECEMBER 29, 2023.

            Defendant is charged with one count of Homicide by Vehicle DUI, one count of Involuntary Manslaughter, one count of DUI (high rate of alcohol), one count of DUI (incapable of safe driving),^[1] and several summary offenses^[2]  after he drove his vehicle into a tree that had fallen into the roadway in the area of East Penn Avenue and Union Street in North Cornwall Township on January 16, 2021.  Defendant’s front-seat passenger, Melissa A. Morrissey, died at the scene after a branch from the tree protruded into the passenger-side windshield and struck her in the face.  It is alleged that Defendant was traveling 59 miles per hour in a 35 mile per hour speed-limit zone and had consumed alcohol prior to the incident. 

Defendant notes that the incident report of Patrolman Joshua Althouse indicates that the call for the accident was received at 12:35 a.m.   Officer Althouse was dispatched to the scene at approximately 12:39 a.m. and arrived at approximately 12:41 a.m.  The report indicates that Officer Althouse left the scene at 2:40 a.m. to transport Defendant to the Good Samaritan Hospital in Lebanon (“GSH”) for a blood draw.  They arrived at GSH at 2:46 a.m. and Officer Althouse read the PennDot DL-26B to Defendant at 2:55 a.m. Defendant consented to the blood draw at 3:00 a.m. and had his blood drawn by a phlebotomist at 3:05 a.m.^[3]  The lab results of the blood test indicated that Defendant had a BAC of .135 percent. 

The report of an autopsy performed on Morrissey indicated that the cause of death was “blunt force head injuries.”  The autopsy report noted the circumstances of the injury to be the “vehicle crashed into the tree that previously fell across the road.  A branch split off the tree, went through the windshield and stuck (sic) the decedent in the head.” 

            Defendant waived his arraignment which was scheduled for April 6, 2022. He did not file any Pretrial Motions. 

On August 3, 2023, the Commonwealth filed a Motion in Limine alleging that Defendant was attempting to contact an attorney at the scene immediately after the incident and seeking a ruling that this evidence would be admissible as to Defendant’s consciousness of guilt.  In addition, the Commonwealth sought to introduce the testimony of Devon Dixon, a witness who heard Defendant’s car pass his home at 528 East Penn Avenue shortly before the incident.  The Motion indicated that Dixon would testify that it sounded like the vehicle was traveling at a high rate of speed. 

On September 29, 2023, the Commonwealth filed an Amended Motion in Limine seeking rulings on several additional evidentiary matters.  The Commonwealth noted that when police questioned Defendant at the scene, he was asked where he was coming from and whether he had been drinking that evening.   Defendant responded that he had not had anything to drink and that he and Morrissey were coming from the home of one of Morrisey’s friends who lived in Annville.  The Amended Motion also indicated that Morrissey had been exchanging text messages with a friend, Danielle Hogg, during the evening.  The Commonwealth avers that during the exchange, Morrissey only mentioned going to Just Wing It, a bar/restaurant in Annville, and did not mention going to the home of a friend.  The Commonwealth further claimed that a picture sent with the text messages showed Defendant at Just Wing it.  The Commonwealth seeks a ruling that it may introduce Morrissey’s text messages with Hogg at trial to attack Defendant’s credibility and show that he had been dishonest with the police when he told them that he had not been drinking and had been coming from the home of a friend rather than an establishment where alcoholic beverages were served. 

The Commonwealth also sought to introduce evidence of Defendant’s prior conviction for DUI, which was charged in a 2016 action along with two counts of Accidents Involving Damage to Attended Property, for hitting an occupied vehicle and driving into a McDonald’s building before fleeing the scene as a prior bad act pursuant to Rule 404(b)(2).  The Commonwealth claimed that this evidence is admissible to show that Defendant’s knowledge and lack of mistake, and as a motive for his dishonesty to the police as he did not want to raise suspicion that he was under the influence of alcohol.

The Commonwealth also indicates that in August 2023, defense counsel provided it with a report prepared by Jonathan A. Schach, Sales and Operations Manager at Good’s Tree and Lawn Care Inc.  Schach is an ISA Board Certified Master Arborist who prepared the report regarding the condition of the fallen tree after the incident.^[4]  In the report, which was dated December 2021, Schach concludes that the condition of the tree prior to this incident was hazardous and that it should have been removed by the homeowner.  The Commonwealth argues that this information is irrelevant to the issue in this criminal action as it does not aid in proving or disproving any elements of the crimes of which Defendant is charged.  It seeks a ruling to prohibit Defendant from introducing any evidence from Schach or any other witness as to the condition or maintenance of the tree prior to the incident on January 16, 2021. 

On October 24, 2023, Defendant filed a Motion in Limine seeking to have his BAC results suppressed.   Defendant notes that 75 Pa.C.S.A. §3802(g) requires his blood to be drawn within two hours of the incident and that his blood was not drawn until after the expiration of the two-hour timeframe.  Defendant also filed a Motion in Limine to Suppress Vehicle Contents and a Motion in Limine to Suppress Based on Warrantless Search.  However, the latter two Motions were resolved by agreement of the parties.

We conducted a hearing on the Motions in Limine on October 25, 2023.  At the hearing, we denied the Commonwealth’s Motions regarding Defendant’s attempts to contact an attorney at the scene of the incident, the testimony of Devon Dixon, and evidence of Defendant’s prior convictions.  We took the Commonwealth’s Motions regarding evidence of the condition of the tree, Morrisey’s text messages with Ms. Hogg, and Defendant’s Motion to suppress his BAC results under advisement.  Both parties have filed post-hearing Briefs and these matters are now before us for resolution.

Report of Jonathan Schach/Evidence of Prior Condition of Tree

For purposes of admissibility in a criminal case, evidence is relevant if (1) it has any tendency to make a fact more or less probable than it would be without the evidence, and (2) the fact is of consequence in determining the action. Pa.R.E. 401; 27 Standard Pennsylvania Practice 2d § 135:181

The Motor Vehicle Code defines homicide by vehicle–DUI as follows:

Any person who unintentionally causes the death of another person as the result of a violation of section 3802 (relating to driving under influence of alcohol or controlled substance) and who is convicted of violating section 3802 is guilty of a felony of the second degree when the violation is the cause of death and the sentencing court shall order the person to serve a minimum term of imprisonment of not less than three years. A consecutive three-year term of imprisonment shall be imposed for each victim whose death is the result of the violation of section 3802.

75 Pa.C.S.A. § 3735(a).  Homicide by vehicle while driving under the influence requires: (1) conviction for driving under the influence pursuant to statute, and (2) proof that this violation caused the death.  Commonwealth v. McCurdy, 735 A.2d 681 (Pa. 1999).  The Pennsylvania Standard Jury Instruction for this offense provides, in part:

3.That the defendant’s act in violating the law was (a) (the) direct cause of [the decedent’s] death. A defendant’s act in violating the law cannot be a direct cause of a death unless the death would not have occurred but for that act and violation of law. (In this connection you should recognize that legally there may be more than one cause of death but that what is required for a finding of guilty is that the defendant’s actions were one of the direct causes.);

4. That [the decedent’s] conduct did not diminish the defendant’s responsibility for causing [the decedent’s] death to such an extent that the defendant’s act was not (a) (the) direct cause of [the decedent’s] death.)

Pennsylvania Standard Jury Instruction 17.3732 (Criminal), Para. 3-4.  Thus, a trial court should not instruct the jury that there can only be one cause of an accident as a defendant may be found criminally liable if his actions are determined to be a direct and substantial cause of the decedent’s death, even if another factor was also a substantial cause.  Commonwealth v. Hutchinson, 621 A.2d 681 (Pa. Super. 1993). 

            Schach’s report states that “the tree was an obvious hazard prior to its failure” and “had become extremely brittle from wood decay over years” including “white root fungus” and “likely several [other] types of wood decay.”  (Exhibit “A” to Defendant’s Brief)  Schach’s report further notes that “[a] healthy tree felled onto this same roadway would have stayed intact and a large root plate/mass would have come out of the ground.”  (Exhibit “A” to Defendant’s Brief) 

Defendant contends that the condition of the tree involved in the incident, as opposed to a regular tree, is relevant as it “would make the exact circumstances, determined in the autopsy to have caused the death, to be more or less probable than it would be without the evidence.” (Defendant’s Brief at p. 3)  Defendant argues “[t]he tree in question not only fell into the road due to its poor and rotted condition from years of rot but it splintered due to this and the splintered branch that went through the windshield was deemed to be the cause of the decedent’s death.”  (Defendant’s Brief at p.3)

We do not believe evidence of the condition of the tree is relevant to the issue of causation in this criminal action.   The jury will certainly understand that the obstruction of the road by the fallen tree was a factor in the occurrence of this incident.   However, the reason for the tree being in the road is irrelevant to what the jury will actually have to determine.  The jury will be required to decide whether Defendant was in violation of the DUI statute, Section 3802 of the Vehicle Code, and, if so, whether Morrisey’s death occurred as a result of Defendant’s violation of that statute by driving under the influence of alcohol.  This will require them to determine whether Defendant would have noticed the tree in the roadway had he not been under the influence of alcohol so that he would have been able to stop in time to avoid hitting the tree and the branch which went through the windshield and struck Morrissey in the head. 

We believe that injecting evidence of the tree’s alleged hazardous condition into the matter would only be an attempt to assign blame to the homeowner and confuse the jury by deflecting its focus from the question of Defendant’s conduct.  The admission of such evidence would not disprove that Defendant’s conduct was a direct and substantial cause of Morrisey’s death.   Thus, we will grant the Commonwealth’s Motion and prohibit any evidence of the hazardous condition of the tree.

Evidence Regarding Exchange of Text Messages between Hogg and Mossisey

The Commonwealth seeks to offer the testimony of Danielle Hogg, who was a close friend of Morrisey.  During the day and evening prior to this incident the two were communicating via text messages.  In her text messages to Hogg, Morrisey discussed her plans for the evening.  The text message exchange began on January 15, 2021 at 5:47 p.m. and included the following excerpts:

Hogg:  … What are you up to?

Morrissey:  Going to pick up Vinny to go for wings. …

Hogg:  enjoy

…

Hogg:  Where do you get wings from

…

Morrissey:  Annville

                      Wing it

Hogg:  Is that one clean?  The one in leb is always in violation.  Which sucks

cause their wings are good lmao

            I’m guessing so since you go there

            …

Morrissey:  It’s really clean.  Wings are delicious too

…

(Exhibit “A” to Commonwealth’s Brief)

The exchange resumed at 9:47 p.m. on January 15, 2021.   In the later exchange, Morrissey sent a photo of Defendant and two other males standing outside of an establishment.  (Exhibit “A” to Commonwealth’s Brief) No beverages are shown in the photo.  The name and location of the establishment are not identified and are not apparent from the photo.

Morrissey and Hogg then engaged in the following exchange:

Morrissey:  These dudes, they talk sneakers like we talk nails.

                     And I’m almost drunk

Hogg:  Lmao.  You’re not driving are you?

Morrissey:  Nope.  It’s on him.

 He did promise me he won’t do his additives tonight though.

 I say we’ll see.

Hogg:  Ok good.

Morrissey:  I just did my first Vegas bomb^[5] with these fools.  Haha.  They

have no idea they are all babies to me.

(Exhibit “A” to Commonwealth’s Brief)  There is no indication of the time of the last text message on the printout attached to the Commonwealth’s Brief.

            Electronic communications, such as text messages, must be authenticated prior to their admission at trial. Commonwealth v. Murray, 174 A.3d 1147 (Pa. Super. 2017).  The admissibility of electronic communications is to be evaluated on a case-by-case basis as any other document to determine whether or not there has been an adequate foundational showing of their relevance and authenticity. In the Interest of F.P., 878 A.2d 91, 96 (Pa. Super. 2005).  A court must also determine whether text messages constitute hearsay and, if so, whether the content is admissible as an exception to the hearsay rule.  Commonwealth v. Koch, 39 A.3d 996 (Pa. Super. 2011).

Pennsylvania Rule of Evidence 901 provides that authentication is required prior to admission of evidence. The proponent of the evidence must introduce sufficient evidence that the matter is what it purports to be. Pa.R.E. 901(a). Testimony of a witness with personal knowledge that a matter is what it is claimed to be can be sufficient. Pa.R.E. 901(b)(1)^[11^]; see also Pa.R.E. 901(b)(1) cmt., citing Commonwealth v. Hudson, 414 A.2d 1381 (Pa. 1980). Furthermore, electronic writings typically show their source, so they can be authenticated by contents in the same way that a communication by postal mail can be authenticated. Circumstantial evidence may suffice where the circumstances support a finding that the writing is genuine. In the Interest of F.P., a Minor, 878 A.2d 91 (Pa. Super. 2005).

            …

The proponent of digital evidence is not required to prove that no one else could be the author. Rather, the proponent must produce sufficient evidence to support a finding that a particular person or entity was the author. See Pa.R.E. 901(a).

Circumstantial evidence of identifying content under Pa.R.E. 901(b)(11)(B)(i) may include self-identification or other distinctive characteristics, including a display of knowledge only possessed by the author. Circumstantial evidence of content may be sufficient to connect the digital evidence to its author.

Commonwealth v. Harper, 252 A.3d 242, 2021 WL 777697 at *5-6 (Pa. Super. 2021), citing Commonwealth v. Koch, supra.

            Hearsay, which is a statement made by someone other than the declarant while testifying at trial and is offered into evidence to prove the truth of the matter asserted, is normally inadmissible at trial … .  In the alternative, out-of-court statements may be admissible because they are non-hearsay, in which case they are admissible for some relevant purpose other than to prove the truth of the matter asserted. Commonwealth v. Koch, 106 A.3d 705 (Pa. 2014).

Pennsylvania Rule of Evidence 801 defines hearsay as follows:

(a) Statement. A “statement” is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.

(b) Declarant. A “declarant” is a person who makes a statement.

(c) Hearsay. “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

Pa.R.E. 801.   Pa.R.E. 802 provides: “Hearsay is not admissible except as provided by these rules, by other rules prescribed by the Pennsylvania Supreme Court, or by statute.” Pa.R.E. 802. 

We assume that the Commonwealth would be able to authenticate these text messages through Hogg’s testimony.  The Commonwealth argues that the text messages would not be offered as truth of the matters asserted, i.e., that Defendant had been consuming alcohol at a bar/restaurant prior to this incident.  It argues that, instead, these text messages are relevant to show Defendant’s consciousness of guilt and a motive for his dishonesty with the police, i.e., to hide the fact that he was coming from a bar/restaurant that served alcoholic beverages and that he had consumed alcohol there prior to this incident.

We first note that the substance of the text messages is not as dispositive of Defendant’s untruthfulness as the Commonwealth would claim.  Morrisey refers to drinking Vegas Bombs with “these fools.” She was apparently referencing some or all of the individuals pictured in the photo she sent to Hogg; however, nowhere in the text messages does Morrisey specifically mention which of the individuals she is referring to or that Defendant is one of the individuals consuming alcohol.  Although the picture shows Defendant and the other two individuals standing on the curb outside of some establishment, Morrisey does not identify the location or the name of the establishment and that information is not evident from the picture.

Regardless, we believe that this evidence constitutes hearsay which is not admissible for the purpose claimed by the Commonwealth.  In the Commonwealth’s effort to show Defendant’s consciousness of guilty or motive for being untruthful with the police, it would actually be offering the evidence for the truth of the matter asserted – that Defendant was consuming alcohol at a bar/restaurant prior to this incident and had not been coming from the home of Morrissey’s friend.  However, we do recognize the possibility that this evidence could become relevant and admissible depending on the testimony and evidence adduced at trial.  Therefore, at this point we only determine that it is inadmissible for the purpose claimed by the Commonwealth and will defer ruling on its admissibility for any other purpose in the event the matter is raised at the time of trial.

Suppression of BAC Results

Defendant is charged with one count of DUI – high rate of alcohol pursuant to 75 Pa.C.S.A. §3802(b) and one count of DUI – incapable of safe driving  pursuant to 75 Pa.C.S.A. §3802(a)(1).  Section 3802(b) 2 provides, in part: 

§ 3802. Driving under influence of alcohol or controlled substance

(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.

(g) Exception to 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 control of the movement of the vehicle is sufficient to establish that element of the offense under the following circumstances:

• where the Commonwealth shows good cause explaining why the chemical test sample could not be obtained within two hours; and

(2) where the Commonwealth establishes that the individual did not imbibe any alcohol or utilize a controlled substance between the time the individual was arrested and the time the sample was obtained.

75 Pa.C.S.A. §3802(b), (g) (emphasis added).

            In his Motion in Limine, filed August 11, 2023, Defendant seeks suppression of his BAC results because his blood draw was not completed within the two-hour timeframe required by Section 3802(b).  However, his request for suppression was not in compliance with the applicable Rules of Criminal Procedure.

Pursuant to Rules 578 and 581 of the Rule of Criminal Procedure, a request for the suppression of evidence is appropriately made in an omnibus pretrial motion for relief.  Pa.R.Crim.P. 578- Comment; 581.^[6]  Pursuant to Rule 579, “the omnibus pretrial motion must be filed and served within thirty days after arraignment, unless opportunity therefor did not exist, or the defendant or defense attorney, or the attorney for the Commonwealth, was not aware of the grounds for the motion, or unless the time for filing has been extended by the court for cause shown.”  Pa.R.Crim.P. 579 (A).  The Comment to Rule 578 provides, in part, that “[g]iven the potential complexity when the admissibility of such evidence is challenged, such challenges should be raised in advance of trial as part of the omnibus pretrial motion if possible.  However, nothing in this rule precludes such challenges from being raised in a motion in limine when circumstances necessitate it.”  Pa.R.Crim.P. 578 – Comment. 

Rule 581 provides, in part:

            Rul 581.  Suppression of Evidence

(B) Unless the opportunity did not previously exist, or the interests of justice otherwise require, such motion shall be made only after a case has been returned to court and shall be contained in the omnibus pretrial motion set forth in Rule 578.  If timely motion is not made hereunder, the issue of suppression of such evidence shall be deemed to be waived.

 Pa.R.Crim.P. 581(B).

            Defendant did not file a timely omnibus pretrial motion to suppress his BAC results.  His arraignment was scheduled for April 6, 2022.  The Commonwealth notes that Defendant was represented by an attorney when Defendant waived his arraignment and that discovery, including the BAC results, were provided to his defense counsel at that time.  His Motion in Limine was not filed until 16 months later on August 23, 2023.  Thus, Defendant was aware of the BAC results, did not request an extension of time to file an omnibus pretrial motion, and has provided no explanation as to why the opportunity to file such a motion did not exist prior to August 2023.  Defendant has also failed to show any circumstances which necessitated his request for suppression to be raised via a motion in limine rather than in an omnibus pretrial motion.  Thus, he is deemed to have waived this issue pursuant to Rule 581(B). 

            As noted by the Commonwealth, had Defendant filed an omnibus pretrial motion to suppress the BAC results, the Court could have conducted a hearing on the motion to allow the Commonwealth to present evidence to show that Defendant did not consume any alcohol between the time of the incident and the blood draw and to explain the reason for the delay in obtaining Defendant’s blood for testing.  The Commonwealth alludes to Defendant’s lack of cooperation at the scene of the incident as a reason for the delay beyond the two-hour timeframe.  However, it has not had the opportunity to establish the facts necessary to support its position.

            In addition, Section 3802(a)(1) – DUI, incapable of safe driving – does not include any language regarding a two-hour time limit.  A defendant’s BAC is admissible as circumstantial evidence under this section of the DUI statute and may be considered in determining whether a defendant was incapable of safe driving even when the blood draw occurred more than two hours after the defendant was driving.  Commonwealth v. Eichler, 133 A.3d 775, 787 (Pa. Super. 2016), citing Commonwealth v. Segida, 985 A.2d 871, 879 (Pa. 2009).  Thus, Defendant’s BAC results would be relevant and admissible to prove his violation of the general impairment section of Section 3802.

            For these reasons, we will deny Defendant’s Motion in Limine to suppress his BAC results.

---

[1] Counts 1 to 4, 75 Pa.C.S.A. §3735(a)(1)(ii), 18 Pa.C.S.A. §2504(a), 75 Pa.C.S.A. §3802(b), and 75 Pa.C.S.A. §3802(a)(1), respectively.

[2] Reckless Driving, 75 Pa.C.S.A. §3736(a); Maximum Speed Limits, 75 Pa.C.S.A. §3362(a)(1); Driving Vehicle at Safe Speed, 75 Pa.C.S.A. §3361(a); and Careless Driving, 75 Pa.C.S.A. §3714(b).

[3] Defendant did not attach a copy of the incident report to either his Motion in Limine or his Brief.  However, the approximate times are confirmed by the Criminal Complaint/Affidavit of Probable Cause and the Commonwealth does not dispute that Defendant’s blood draw was outside of the two-hour timeframe.

[4] Schach notes that he did not actually inspect the tree, but prepared his report from his review of the police incident report and pictures which were taken immediately after the incident and from Google Street View.

[5] A “Vegas Bomb” is a cocktail made from a Royal Flush shot and an energy drink – usually Red Bull.  Like other “bomb” cocktails … , the drink is served as a single shot and a glass of energy drink along with it.  The drinker drops the shot into the glass and drinks the whole thing together.  The ingredients are Crown Royal Whiskey, Peach Schnapps, and cranberry juice.  Chefiso.com/p/vegas-bomb-recipe

[6] Rule 581 permits a defendant to move for the suppression of any evidence obtained in violation of the defendant’s rights.  This rule is intended to permit the suppression motion to test admissibility of evidence where the issue is the method by which the evidence was obtained.  Pa.R.Crim.P.  581 – Comment.  Subsection (I) of Rule 581 provides that the judge shall determine whether the evidence was obtained in violation of any statute.