J-A09028-17

                                  2017 PA Super 225

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

STEVEN VAN SMITH S. RICH,

                            Appellee                  No. 789 MDA 2016


                 Appeal from the Order Entered May 20, 2016
             In the Court of Common Pleas of Cumberland County
             Criminal Division at No(s): CP-21-CR-0003120-2015


BEFORE: GANTMAN, P.J., SHOGAN and OTT, JJ.

OPINION BY SHOGAN, J.:                                 FILED JULY 17, 2017

       This case arose out of an automobile accident involving Appellee,

Steven Van Smith S. Rich, in Cumberland County on May 23, 2015.           The

accident resulted in the death of a bystander, who came to the aid of the

accident victims and was killed when struck by a passing tractor-trailer.

Appellant, Commonwealth of Pennsylvania (“Commonwealth”), has appealed

from a pretrial order excluding evidence.      For the reasons that follow, we

affirm.

       The trial court summarized the facts of the case,1 as follows:


____________________________________________


1
    At the hearing on Appellee’s motion in limine and the Commonwealth’s
motion to amend the information, the Commonwealth averred that defense
counsel stipulated to the facts for the purposes of this appeal only, not for
trial. Commonwealth’s Brief at 9 n.1; N.T., 5/17/16, at 61.
J-A09028-17


             Around midnight on May 23, 2015, [Appellee] was driving
       on State Route 114, a multi-lane divided road. Driving at some
       speed, he failed to stop at a red light and struck the rear of a
       vehicle driven by Ms. Mary Hudson as she made a left turn
       through the intersection. Ms. Hudson’s vehicle spun around and
       came to rest against the curb on the side of the road closest to
       where she had begun her left-hand turn. [Appellee] continued
       driving, eventually coming to rest some distance away from
       where he had struck Ms. Hudson’s vehicle. Another driver pulled
       up behind Ms. Hudson’s vehicle and activated her emergency
       flashers to increase the visibility of Ms. Hudson’s car. Within two
       to three minutes after the impact, a third party, . . . Mr. Adam
       Webb, crossed the highway on foot, coming from the parking lot
       of the Pizza Hut on the opposite side of the highway. Mr. Webb
       came over to where Ms. Hudson stood on the side of the road
       near her vehicle and spoke with her as she was on the phone
       with 911. After briefly speaking to her, Mr. Webb then stepped
       back into the roadway, apparently moving towards where he
       believed [Appellee’s] car had come to rest. Almost immediately,
       Mr. Webb was struck by an oncoming tractor trailer.16 He was
       pronounced dead at the scene. Ms. Hudson was mobile at the
       scene and waved off EMS care, but sought medical treatment
       several days later for stiffness, soreness, bruising, pain, and
       anxiety.
              16
                 N.T. at 37. The truck driver was not charged in
              relation to the incident. N.T. at 40-44.

             [Appellee] was subsequently charged with one count each
       of the following: 1) DUI-General Impairment, 2) DUI-General
       Impairment with Refusal to Submit to Blood Alcohol Test, 3)
       DUI-General Impairment with Accident Involving Death or
       Personal[] Injury, 4) Accidents Involving Death or Personal
       Injury, 5) Failure to Stop and Give Information and Render Aid,
       6) Failure to Notify Police of an Accident Involving Damage, 7)
       Careless Driving, 8) Failure to Stop at a Traffic Control Signal, 9)
       Disregarding a Traffic Lane (Single), and 10) Recklessly
       Endangering Another Person [“REAP”].[2]           Counts 5-9 are
____________________________________________


2
   75 Pa.C.S. §§ 3802(a)(1), 3802(a)(1), 3802(a)(1), 3742(a), 3744(a),
3746(a), 3714(a), 3112(a)(3)(i), 3309(1), and 18 Pa.C.S. § 2705,
respectively.



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       summary offense[s], carrying fines of $25 each. Counts 1-3, the
       general DUI charges, carry a maximum [penalty of] six months
       imprisonment and therefore were set for non-jury trial. The
       remaining two charges were set for jury trial; Count [4],
       Accidents Involving Death or Personal Injury, which was charged
       as a misdemeanor in the first degree, and Count 10, [REAP],
       which was charged as a misdemeanor in the second degree.
       [Appellee] waived his pre-trial conference.

Trial Court Opinion, 8/16/16, at 2–4 (multiple footnotes omitted).

       The trial court summarized the procedural history as follows:

       Trial was scheduled for May 16, 2016, with counts 1–3 and the
       summary offenses to be decided by non-jury trial and counts 4
       and 10 to be decided by criminal jury trial. On May 16, 2016,
       [Appellee] filed a Motion in Limine to exclude certain evidence.
       This [c]ourt held a hearing on the Motion on May 16 and 17,
       2016.[3] On May 17, 2016, after a hearing upon [Appellee’s]
       Motion in Limine and Commonwealth’s Motion to Amend the
       Information, this [c]ourt issued an order partially granting and
       partially denying the Motion in Limine and denying the Motion to
       Amend the Information.

Trial Court Opinion, 8/16/16, at 1–2 (multiple footnotes omitted).

       At the conclusion of the hearing, the trial court ruled that the

Commonwealth: could present evidence to the jury that Appellee was driving

while intoxicated; could not present evidence to the jury of Appellee’s refusal

to submit to a blood-alcohol test; and could not present evidence of the
____________________________________________


3
   At the hearing on Appellee’s motion, the Commonwealth orally moved to
amend the information to include a new count of DUI-General Impairment
with Accident Involving Death or Personal Injury, graded as either a felony
of the third degree for serious bodily injury and/or a felony of the second
degree, for the death of Mr. Webb. N.T., 5/16/16, at 9, 11. The trial court
denied the motion in an order filed May 20, 2016. The Commonwealth is not
appealing the denial of its oral motion to amend the information.
Commonwealth’s Brief at 14 n.3.



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death of Mr. Webb. The trial court also denied the Commonwealth’s Motion

to Amend the Information to include a higher grading of the offense of

Accidents Involving Death or Personal Injury. Trial Court Opinion, 8/16/16,

at 6; Order, 5/20/16. The Commonwealth filed a notice of appeal from the

court’s interlocutory order.4       Both the Commonwealth and the trial court

complied with Pa.R.A.P. 1925.

          The two issues asserted in the Commonwealth’s Rule 1925(b)

statement are the same issues raised on appeal, as follows:

     I.     Whether the trial court abused its discretion in granting
            [Appellee’s] motion to exclude evidence of his refusal to
            submit to a blood-alcohol test when such a refusal may be
            considered as consciousness of guilt of DUI and, in turn,
            evidence of DUI may be considered as consciousness of guilt
            for Recklessly Endangering Another Person?

    II.     Did the trial court abuse its discretion in a [sic] Accidents
            Involving Death or Personal Injury and Recklessly
            Endangering Another Person case when the court excluded
            evidence of the death of Victim Webb, who was attempting to
            assist Victim Hudson, the woman that [Appellee] crashed into
            while DUI and fled the crash scene from, regardless of the
            grading of the Accidents offense and fact that the Criminal
            Information does not specific [sic] the name of the Victims?

____________________________________________


4
    The Commonwealth may appeal an interlocutory order suppressing
evidence when it provides a certification with its notice of appeal that the
order     terminates      or    substantially handicaps   the   prosecution.
Commonwealth v. Petty, 157 A.3d 953, 954 n.1 (Pa. Super. 2017);
Pa.R.A.P. 311(d). See also Commonwealth v. Gordon, 673 A.2d 866
(1996) (Commonwealth may appeal grant of a defense motion in limine that
excludes Commonwealth evidence and has the effect of substantially
handicapping the prosecution). The Commonwealth attached the required
certification to its notice of appeal.



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J-A09028-17


Commonwealth’s Brief at 8.

     The standards by which we review this case are settled. “A motion in

limine is a procedure for obtaining a ruling on the admissibility of evidence

prior to or during trial, but before the evidence has been offered.”

Commonwealth v. Freidl, 834 A.2d 638, 641 (Pa. Super. 2003) (citation

omitted).     “In evaluating the denial or grant of a motion in limine, our

standard of review is the same as that utilized to analyze an evidentiary

challenge.”    Commonwealth v. Hicks, 151 A.3d 216, 224 (Pa. Super.

2016) (citing Commonwealth v. Pugh, 101 A.3d 820, 822 (Pa. Super.

2014)).

     “The admission of evidence is solely within the discretion of the
     trial court, and a trial court's evidentiary rulings will be reversed
     on appeal only upon an abuse of that discretion.”
     Commonwealth v. Reid, 627 Pa. 151, 99 A.3d 470, 493
     (2014). An abuse of discretion will not be found based on a
     mere error of judgment, but rather occurs where the court has
     reached a conclusion that overrides or misapplies the law, or
     where the judgment exercised is manifestly unreasonable, or the
     result of partiality, prejudice, bias or ill-will. Commonwealth v.
     Davido, ___ Pa. ___, 106 A.3d 611, 645 (2014).

Commonwealth v. Woodard, 129 A.3d 480, 494 (Pa. 2015), cert. denied

sub nom. Woodard v. Pennsylvania, 137 S.Ct. 92 (2016). “The court may

exclude relevant evidence if its probative value is outweighed by a danger of

one or more of the following:       unfair prejudice, confusing the issues,

misleading the jury, undue delay, wasting time, or needlessly presenting

cumulative evidence. Pa.R.E. 403.” Hicks, 151 A.3d at 224.




                                     -5-
J-A09028-17


       Initially, we are compelled to address the trial court’s assertion that

this interlocutory appeal is improper. The trial court averred in its Pa.R.A.P.

1925(a) opinion that “the Commonwealth’s case will not be terminated or

substantially handicapped by this [c]ourt’s [o]rder dated May 20, 2016[,]

and therefore the Commonwealth’s interlocutory appeal is improper.” Trial

Court Opinion, 8/16/16, at 7.

       As noted supra, the Commonwealth may appeal an interlocutory order

suppressing evidence when it provides a certification that the order

terminates or substantially handicaps the prosecution.       Pa.R.A.P. 311(d).

Furthermore:

       “[t]he Commonwealth’s certification that its prosecution is
       substantially handicapped is ‘not contestable.’ The certification,
       ‘in and of itself, precipitates and authorizes the appeal.’”
       Commonwealth v. Apollo, 412 Pa. Super. 453, 456, 603 A.2d
       1023, 1025 (1992), appeal denied, 531 Pa. 650, 613 A.2d 556
       (1992), quoting Commonwealth v. Dugger, 506 Pa. 537, 545,
       486 A.2d 382, 386 (1985).

Commonwealth v. Surina, 652 A.2d 400, 402 (Pa. Super. 1995). Thus,

we are not permitted to inquire into the Commonwealth’s good-faith

certification, and we reject the trial court’s contention that this appeal is

improper. See Commonwealth v. Belani, 101 A.3d 1156, 1157 n.1 (Pa.

Super. 2014) (appellate court is not permitted to inquire into the

Commonwealth’s good-faith certification); see also Commonwealth v.

Moser, 999 A.2d 602, 605 n.2 (Pa. Super. 2010) (“Both the trial court and

[the   a]ppellee   have   requested    that   this   Court   inquire   into   the


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J-A09028-17


Commonwealth’s good-faith certification; however, we are not permitted to

conduct such an inquiry”) (citing Commonwealth v. White, 910 A.2d 648,

654–655 (Pa. 2006); Commonwealth v. Boczkowski, 846 A.2d 75, 87

(Pa. 2004); Commonwealth v. Cosnek, 836 A.2d 871, 877 (Pa. 2003)).

       The Commonwealth first challenges the trial court’s exclusion of

evidence of Appellee’s refusal to submit to a blood-alcohol test in the

ensuing jury trial of the charges of Accidents Involving Death or Personal

Injury   and    Recklessly     Endangering     Another   Person   (“REAP”). 5   The

Commonwealth maintains that it should be permitted to introduce evidence

of Appellee’s refusal to submit to blood-alcohol testing in order to support its

contention that Appellee knew he was driving while intoxicated and

therefore, was conscious of his guilt related to the charge of REAP.

       The two charges to be tried before a jury are as follows:

           § 3742. Accidents involving death or personal injury

       (a) General rule.--The driver of any vehicle involved in an
       accident resulting in injury or death of any person shall
       immediately stop the vehicle at the scene of the accident or as
       close thereto as possible but shall then forthwith return to and in
       every event shall remain at the scene of the accident until he
       has fulfilled the requirements of section 3744 (relating to duty to
       give information and render aid). Every stop shall be made
       without obstructing traffic more than is necessary.

____________________________________________


5
  Given the grading of the DUI offenses, charges one through three will be
determined by a judge. Charges five through nine are summary offenses.
The two remaining charges—charge four, Accidents Involving Death or
Personal Injury, and charge ten, REAP—are to be tried by a jury.



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J-A09028-17


75 Pa.C.S. § 3742. REAP is defined as:

            § 2705. Recklessly endangering another person

     A person commits a misdemeanor of the second degree if he
     recklessly engages in conduct which places or may place another
     person in danger of death or serious bodily injury.

18 Pa.C.S. § 2705. Recklessly is defined as:

               § 302. General requirements of culpability

                                   * * *

     (b) Kinds of culpability defined.—

                                   * * *

            (3) A person acts recklessly with respect to a material
            element of an offense when he consciously disregards a
            substantial and unjustifiable risk that the material element
            exists or will result from his conduct. The risk must be of
            such a nature and degree that, considering the nature and
            intent of the actor’s conduct and the circumstances known
            to him, its disregard involves a gross deviation from the
            standard of conduct that a reasonable person would
            observe in the actor’s situation.

18 Pa.C.S. §302(b)(3).

     Following a hearing on Appellee’s motion in limine, the trial court

determined that the Commonwealth could present evidence to the jury that

Appellee was driving while intoxicated but could not present evidence, inter

alia, that Appellee refused to submit to a blood-alcohol test. The trial court




                                    -8-
J-A09028-17


summarized the May 17, 2016 hearing on Appellee’s motion in limine as

follows:6

             [Appellee] filed a Motion in Limine on May 16, 2016,
       stating he had been informed by the Commonwealth that the
       Commonwealth intended to introduce evidence concerning the
       death of Mr. Webb and seeking the exclusion of that evidence as
       not relevant to the charges as they had been made by the
       Commonwealth.24
              24
                  The evidence the Commonwealth sought to
              introduce included photos of the scene of the
              accident, a photo of the dead body of Mr. Webb
              under a tarp, and the transcript of the 911 call made
              by Ms. Hudson, which includes statements by Ms.
              Hudson that someone (Mr. Webb) had been hit by a
              truck. N.T. at 19, 30.

             At a hearing on the Motion in Limine held on May 17,
       2016, [Appellee] argued the death of Mr. Webb was not relevant
       to the charges against [Appellee], because the Commonwealth
       had not alleged any charges for Mr. Webb’s death. Furthermore
       [Appellee] argued any evidence of Mr. Webb’s death would be
       unfairly prejudicial to the [Appellee]. [Appellee’s] counsel stated
       that he had only been informed of the Commonwealth’s intent to
       introduce the evidence of Mr. Webb’s death in the week before
       the criminal jury trial and non-jury trials were to commence.
       Defense counsel stated that if he had notice that Mr. Webb’s
       death was to be an issue or if the charges were to proceed as
       felony charges instead of misdemeanor charges, he would have
       prepared significantly different evidence and witnesses for trial.
       For example, Defense counsel stated he was in possession of a
       toxicology report showing Mr. Webb was intoxicated at the time
       he entered the roadway.29 Defense counsel credibly stated that
       had he known Mr. Webb’s death was to enter into the trial, he
       would have prepared an expert to testify in support of the
       toxicology report and prepared other additional witnesses.

____________________________________________


6
  A portion of this summary is relevant to the Commonwealth’s second issue
addressed supra, but for the sake of clarity, we reproduce it here.



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J-A09028-17


          29
             N.T. at 7. Such evidence would have supported a
          defense theory of superseding intervening causes,
          where Mr. Webb’s intoxication was the superseding
          intervening cause that broke the causal chain
          between [Appellee’s] actions and Webb’s death.

            Defense counsel and Commonwealth counsel both
     described discussions they had about possible additional charges
     regarding Mr. Webb that occurred prior to the previous criminal
     trial term; counsel had different understandings of the intent of
     those conversations and defense counsel stated he was never
     definitively notified that the Commonwealth intended to pursue
     charges for the death of Mr. Webb but that he deduced the
     Commonwealth’s intent from discovery he received on the
     Wednesday and Friday afternoon before the trial was scheduled
     to start on Monday morning. The Commonwealth argued that
     [Appellee] had been on notice that evidence of the death of Mr.
     Webb might be introduced since the date the complaint was
     made on July 6, 2016, because Mr. Webb’s death was noted in
     the affidavit of probable cause to the complaint.32          The
     Commonwealth also made a Motion to Amend the Information to
     include a higher grading of the offense of Reckless
     Endangerment of Another Person, but at the same time argued
     the charges in the original complaint did encompass the death of
     Mr. Webb and therefore the evidence of his death was relevant.
          32
             N.T. at 23. The Commonwealth also admitted one
          reason they did not change the grading of the charge
          was because the one year-clock imposed by Rule
          600 would have run out before the next criminal trial
          term.      N.T. at 9.      At another point, the
          Commonwealth also conceded that after the period
          for pre-trial conferences for the instant term had
          passed, it would be fair of defense counsel to
          assume that they were not going to file, for example,
          homicide charges, but that there should have been
          no      corresponding    assumption       that   the
          Commonwealth was “not going to try to hold
          [Appellee] accountable for Mr. Webb’s death in a
          lesser way.” N.T. at 29.

           At the hearing, [Appellee] also requested to exclude from
     the jury trial evidence that he was driving under the influence,
     as the jury was not deciding the DUI charge and the evidence

                                  - 10 -
J-A09028-17


       would be unfairly prejudicial.    The Commonwealth argued
       evidence of [Appellee’s] intoxication was relevant, and not
       unfairly prejudicial with regards to the charge of Reckless
       Endangerment of Another Person.

Trial Court Opinion, 8/16/16, at 4–6 (multiple footnotes omitted).

       The Commonwealth relies upon Commonwealth v. Surina, 652 A.2d

400 (Pa. Super. 1995), suggesting that “[a]llowing BAC results in a REAP

trial enables the Commonwealth to demonstrate [Appellee] consciously

disregarded     a   known     risk   in   driving   with   alcohol   in   his   system.”

Commonwealth’s Brief at 23. Citing to Commonwealth v. Robinson, 324

A.2d 441 (Pa. Super. 1974), as well, the Commonwealth points out that in

DUI prosecutions, evidence of refusal to submit to chemical testing for the

presence of alcohol is admissible as “conduct that may be regarded as

indicating consciousness of guilt.” Commonwealth’s Brief at 24; Robinson,

324 A.2d at 451.7 The Commonwealth also cites 75 Pa.C.S. § 1547(e) of the

Vehicle Code, which provides:

____________________________________________


7
   We agree with the Commonwealth that Birchfield v. North Dakota, 136
S.Ct. 2160 (2016), is not controlling here. In Birchfield, the United States
Supreme Court determined that the Fourth Amendment permitted
warrantless breath tests incident to arrest for driving under the influence of
alcohol, but not blood tests, by drawing a distinction between the level of
intrusion and inconvenience in breath tests as compared to blood tests. See
also Commonwealth v. Evans, 153 A.3d 323, 331 (Pa. Super. 2016)
(reversing and remanding trial court’s refusal to suppress blood test results
based upon Birchfield considerations so that trial court could “reevaluate
[the appellant’s] consent based upon the totality of all the circumstances . . .
given the partial inaccuracy of the officer’s advisory” regarding the potential
penalties). Appellee herein never raised the issue concerning whether his
(Footnote Continued Next Page)


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J-A09028-17


        (e) Refusal 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 fact that the
        defendant refused to submit to chemical testing as required by
        subsection (a) may be introduced in evidence along with other
        testimony concerning the circumstances of the refusal.         No
        presumptions shall arise from this evidence but it may be
        considered along with other factors concerning the charge.

75 Pa.C.S. § 1547(e).             The Commonwealth contends that Appellee’s

consciousness of guilt is relevant to the determination of his guilt related to

REAP.     Commonwealth’s Brief at 27.            It avers that Appellee’s refusal to

submit to blood testing demonstrates his fear that the results of any such

testing could demonstrate “his conscious disregard of obvious and known

risks on the roadway, i.e. his reckless endangerment.”             Commonwealth’s

Brief at 28.

        Appellee responds that evidence of his refusal to submit to blood

testing is not relevant to either of the charges that will be tried to the jury.

Appellee’s Brief at 5.       Appellee asserts that Surina and Robinson do not

compel     an   opposite      result.     Appellee   maintains   that   because   the

Commonwealth has witnesses who will testify that Appellee was driving “at

any extremely high rate of speed” and also ran a red light, it has other
                       _______________________
(Footnote Continued)

refusal should be suppressed because it violated his constitutional rights
before the trial court; thus, the Fourth Amendment issue is waived, and
Birchfield is not implicated. Furthermore, the Birchfield Court stated that
nothing in its opinion “should be read to cast doubt on” implied-consent laws
that “impose civil penalties and evidentiary consequences on motorists who
refuse to comply.” Birchfield, 136 S.Ct. at 2185.



                                           - 12 -
J-A09028-17


evidence sufficient to establish Appellee’s recklessness. Appellee’s Brief at

10.

      The trial court concluded that while evidence of Appellee’s intoxication

could be presented to the jury, evidence of Appellee’s refusal to permit blood

testing could not be admitted because the probative value of such refusal is

outweighed, in this case, “by the danger of unfair prejudice or confusing the

issues.”   Trial Court Opinion, 8/16/16, at 13.    The trial court opined that

there exists other evidence of recklessness the Commonwealth can present,

and it underscores Appellee’s own statement that he had been drinking

alcohol. Id. Finally, the trial court noted that all of the DUI charges are to

be decided by the court, not the jury, due to their relevant grading.

      We conclude that the trial court did not abuse its discretion in granting

Appellee’s motion to exclude from the jury evidence of Appellee’s refusal to

submit to blood-alcohol testing. Surina, its reliance on Commonwealth v.

Scofield, 521 A.2d 40 (Pa. Super. 1987), and Robinson do not compel a

different result. The Surina Court considered breath, not blood-test results,

where the trial court held that such evidence was admissible only to prove a

charge of DUI, which in Surina had been dismissed. The Surina holding,

permitting introduction of the breathalyzer results, actually is consistent with

the trial court’s conclusion in the instant case, where it has permitted

introduction of concrete evidence of Appellee’s intoxication but denied the




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confusing, prejudicial evidence of Appellee’s refusal to undergo blood-

testing.

      Similarly, Scofield does not require a different result. As in Surina,

the Scofield Court considered evidence of a breathalyzer test result, which

this Court found was probative of recklessness. Scofield, 521 A.2d at 43.

Once again, Scofield is merely consistent with the trial court’s admission of

other evidence of Appellee’s intoxication in the case sub judice; it has no

relevance to the situation in the instant matter. Finally, Robinson held that

admission into evidence of the defendant’s refusal to submit to a

breathalyzer test under the implied consent law did not violate his Fifth

Amendment privilege against self-incrimination.     None of these cases is

controlling of the case sub judice.

      As stated by the trial court:

             This [c]ourt recognizes that evidence that a defendant was
      driving while intoxicated does not establish legal recklessness
      per se for the purposes of the Reckless Endangerment of
      Another Person statute, but may be considered among a body of
      indicia of such recklessness.           See Commonwealth v.
      Mastromatteo,      719    A.2d    1081    (Pa.    Super.   1998);
      Commonwealth v. Sullivan, 864 A.2d 1264 (Pa. Super. 2004).
      Accordingly, this [c]ourt ruled that evidence of [Appellee’s]
      intoxication could be submitted to the jury, while excluding from
      the jury, however, evidence of [Appellee’s] refusal to submit to
      blood alcohol testing. This [c]ourt found in this instance the
      probative value of the evidence of [Appellee’s] refusal to submit
      to blood alcohol testing would be outweighed by the danger of
      unfair prejudice or confusing the issues. Because the
      Commonwealth          can    present     other     evidence     of
      [Appellee’s] consciousness of guilt, such as his own
      statement that he had been drinking, the probative value
      of the evidence is mitigated. At the same time, evidence of

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J-A09028-17


     refusal to submit [to blood-testing] is highly prejudicial.
     Furthermore, this [c]ourt notes a high probability that admitting
     the evidence would confuse the issue for the jury; the jury is not
     charged with deciding whether [Appellee] was in fact guilty of
     DUI, the charge for which refusal to submit to blood alcohol
     testing is specifically admissible under 75 Pa.C.S. § 1547. That
     charge is left to this [c]ourt to decide. The jury is to decide
     whether or not [Appellee] was conscious of his guilt in the
     charge of Recklessly Endangering Another Person. Essentially,
     the Commonwealth is seeking to admit to the jury highly
     prejudicial, minimally probative evidence which is not directly
     relevant to a charge actually before the jury, because that
     evidence indirectly supports the Commonwealth’s argument on a
     different charge that actually is before the jury. This [c]ourt
     finds that, in this particular instance, such evidence is properly
     excluded.

Trial Court Opinion, 8/16/16, at 13–14 (footnotes and internal citations to

the record omitted) (first emphasis added; second emphasis in original).

     The trial court’s determination does not reveal an abuse of discretion.

The court did not override or misapply applicable law, and its ruling is not

the result of the exercise of manifestly unreasonable judgment, partiality,

bias, or ill-will. Commonwealth v. Minich, 4 A.3d 1063, 1068 (Pa. Super.

2010). Therefore, we find that the Commonwealth’s first issue lacks merit.

     In its second issue, the Commonwealth asserts the trial court abused

its discretion in excluding evidence related to the death of Mr. Webb. In the

criminal information, the Commonwealth charged the count of Accident

Involving Death or Personal Injury, 75 Pa.C.S. § 3742, as the default

grading, which is a misdemeanor of the first degree. That crime contains an

element of proof requiring “an accident resulting in injury or death of

another person.”   Id. at § 3742(a).    The Commonwealth avers that the

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charges as written should encompass both the injuries to Ms. Hudson and

the death of Mr. Webb. It argues that it should be permitted to introduce

evidence of Mr. Webb’s death along with evidence of Ms. Hudson’s injuries,

when      attempting   to   prove   the   two   charges    before   the   jury.

Commonwealth’s Brief at 31. The Commonwealth posits that the question

for review is not whether it can prove the case as charged, “but whether the

Commonwealth can attempt to prove the case as charged.” Id. at 31–32.

         The Commonwealth also responds to the trial court’s reliance on

Commonwealth v. Frisbie, 485 A.2d 1098 (Pa. 1984). Frisbie held that a

single act that injures multiple victims may form the basis for multiple

sentences without violating double jeopardy principles. The Commonwealth

suggests that here, Appellee was charged with only one REAP count for

multiple victims, rather than multiple counts, “one for each victim, e.g., Ms.

Hudson, Mr. Webb, Ms. Coder, and other motorists.” Commonwealth’s Brief

at 33.

         The Commonwealth cites Commonwealth v. Martuscelli, 54 A.3d

940 (Pa. Super. 2012), as an example of a case where the defendant was

charged and convicted of one count of REAP even though the facts

supporting his conviction included multiple victims.      Mr. Martuscelli fired

shots at multiple officers in a tree line, and these facts were sufficient to

convict him of one count of REAP. “The Commonwealth was not required to




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mention only one officer who was endangered but could present its full case

and facts relating to multiple victims.” Commonwealth’s Brief at 34.

         The Commonwealth explains that here, Appellee was charged with one

count of REAP without naming a specific victim. However, the Affidavit of

Probable Cause discussed multiple people present, describing Mr. Webb as a

“male victim that was struck after coming to the aid of Ms. Hudson from the

vehicle accident.” Commonwealth’s Brief at 35 (citing Affidavit of Probable

Cause, Attachment B).       The Commonwealth seizes on this as significant,

suggesting that Mr. Webb was clearly described as a “victim” in the Affidavit,

even though a specific victim was not listed in the charging documents. Id.

at 36.

         The Commonwealth further maintains that if it cannot proceed with

evidence of Mr. Webb’s death solely because the Commonwealth did not

charge the heightened grading of the Accident-Involving-Death-or-Personal-

Injury charge, the evidence should be admitted under the res gestae

exception for admission of other crimes. Commonwealth’s Brief at 42. See

Commonwealth v. Brown, 52 A.3d 320, 326 (Pa. Super. 2012) (Res

gestae exception to prohibition of evidence of other crimes is admissible to

“complete the story of the crime on trial by proving its immediate context of

happenings near in time and place.”).

         The trial court ruled that the Commonwealth could not add additional

charges or amend the charges to explicitly refer to the death of Mr. Webb,


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and significantly, the Commonwealth does not appeal that ruling herein.

The trial court held that evidence of Mr. Webb’s death should be admitted

only if it is 1) relevant to the injuries to Ms. Hudson, and 2) the probative

value of such evidence is not unfairly outweighed by its prejudicial effect.

Trial Court Opinion, 8/16/16, at 16.     The trial court determined that the

grading of the offenses and Appellee’s alleged conduct, as it was described

in the criminal complaint, “reflect charges relating only to the injuries to Ms.

Hudson and not for the death of Mr. Webb.”           Id.   The court found it

significant that the Commonwealth proceeded on only one count of each

charge, stating that:

      where a statute defines a crime as a harm against an individual
      person, such as simple assault, reckless endangerment, or
      criminal homicide, the number of offenses depends on the
      number of victims rather than on the number of acts committed
      by the defendant. [Commonwealth v.] DeSumma, [559 A.2d
      521, 522 (Pa. 1989),] citing Commonwealth v. Williams, 522
      A.2d 1095 (1987) (an attempt to murder three people by a
      single act of arson would constitute three separate offenses of
      attempted murder because criminal homicide is defined as
      causing the death of “another human being”); Commonwealth
      v. Frisbie, 485 A.2d 1098, 1100) [(Pa. 1984)] (18 Pa.C.S. §
      2705, recklessly endangering another person, is defined “with
      respect to an individual person being placed in danger of death
      or serious bodily injury, and . . . a separate offense is committed
      for each individual person placed in such danger.”) (emphasis
      added).

Trial Court Opinion, 8/16/16, at 16–17. Thus, the trial court held that this

principle supported its conclusion that the REAP charge applied only to one

victim. Id. at 17.




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         We conclude that the trial court correctly precluded reference to the

death of Mr. Webb under the factors present in this case.                     The

Commonwealth charged one count of REAP. In the criminal complaint “Acts

of the accused associated with this Offense” section of the REAP charge, the

affiant listed the victim of this offense as the person whose vehicle was

struck, referring sub silentio to Ms. Hudson as follows: “Def[endant] did

place victim in danger of death or serious injury via driving intoxicated and

driving into the side of victim[’]s vehicle.”           Complaint, 6/29/15, at 6

(emphasis added).        The later-filed criminal information is silent as to the

identity of the victim. The Commonwealth could have charged Appellee with

an additional count for Mr. Webb’s death, but did not do so. Moreover, the

Commonwealth did not appeal the trial court’s refusal to permit the

Commonwealth to amend the charges to explicitly refer to the death of Mr.

Webb.      Finally, regarding the Commonwealth’s res gestae argument, that

claim is waived by the Commonwealth’s failure to raise it in the trial court,

either     at   oral   argument   or   in   its   Pa.R.A.P.   1925(b)   statement.

Commonwealth v. Sauers, 159 A.3d 1 (Pa. Super. 2017) (issue waived for

failure to preserve it in trial court); Commonwealth v. Riggle, 119 A.3d

1058 (Pa. Super. 2015) (issue not advanced in Pa.R.A.P. 1925(b) statement

is waived).

         In conclusion, we hold that the trial court did not abuse its discretion

in   granting    Appellee’s   motion   to   preclude   the    Commonwealth   from


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presenting to the jury evidence of Appellee’s refusal to submit to blood-

alcohol testing and the death of Mr. Webb. Thus, we affirm the rulings of

the Honorable Christylee L. Peck and remand this matter to the trial court

for proceedings consistent with this Opinion.

      Order affirmed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/17/2017




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