J-S14022-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellee

                       v.

MATHEW T. SHIRK

                            Appellant                       No. 1942 MDA 2014


              Appeal from the Judgment of Sentence July 7, 2014
                In the Court of Common Pleas of Centre County
              Criminal Division at No(s): CP-14-CR-0000182-2013


BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, J.                                   FILED APRIL 18, 2016

        Appellant, Mathew T. Shirk, appeals from the judgment of sentence

entered after a jury convicted him of multiple charges arising from an

incident where Shirk rolled a vehicle that he was operating while under the

influence of alcohol. On appeal, Shirk raises six issues, the most noteworthy

of which involve the legal effect of inconsistent verdicts entered by the jury.

After careful review, we conclude that the trial court erred in accepting the

Commonwealth’s invitation to ignore the verdict actually entered by the jury,

and     instead   sentencing      Shirk    according   to   the   verdict   that   the

Commonwealth desired. On this single issue, we vacate the offending

sentences and remand for re-sentencing. We affirm on all other issues.
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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        Shirk and several friends, namely Ryan Daniels, Kelly Rider, and

Emilee Neely, were drinking at a bar on the night of the accident. Shortly

after midnight, they left the bar to go on a “mountain ride” in Shirk’s

brother’s heavily modified pickup truck. Shirk bought a six pack of beer to

bring along with them. Shirk did not possess a valid driver’s license at the

time.

        After driving off-road for a significant time, it started to rain. Shirk

drove the truck out of the woods and onto Route 144. As he drove through a

curve on Route 144, Shirk lost control of the truck. It left the roadway,

flipped several times, and struck several trees.

        Shirk, Daniels and Rider were ejected from the truck. Rider was killed,

while Shirk, Daniels and Neely each suffered injuries. Blood tests at the

hospital that treated Shirk revealed that his blood alcohol concentration was

0.196, more than twice the legal limit.

        The Commonwealth charged Shirk with 26 crimes, including homicide

by vehicle while driving under the influence (“DUI”), aggravated assault by

vehicle while DUI, accident involving death or bodily injury – not properly

licensed, and reckless driving. After a trial, the jury found Shirk guilty on all

charges. The jury was also asked to provide a specific finding with regard to

the accident involving bodily injury – not properly licensed charge (“the

license charge”). This finding was intended to address the grading of the

license charge. If the jury found that the victim suffered only bodily injury,


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the crime is graded as a misdemeanor. However, if the jury found that the

victim suffered serious bodily injury, the crime is graded as a felony. The

jury found that Daniels and Neely had suffered only bodily injury, and not

serious bodily injury. This specific finding was in direct conflict with the jury’s

verdicts on the aggravated assault charges, which required the jury to find

that Daniels and Neely had suffered serious bodily injury.

      At sentencing, the Commonwealth requested that the trial court

sentence Shirk on the license charge as a felony, in direct contravention of

the jury’s specific finding. The trial court accepted the Commonwealth’s

suggestion, and sentenced Shirk on the license charge as a felony. The trial

court imposed an aggregate term of imprisonment of eight to fourteen

years.

      Shirk filed a post-sentence motion, which the trial court denied. This

timely appeal followed. On appeal, Shirk raises two challenges to the

sentences imposed, two challenges to the admission of evidence at trial, and

two challenges to the sufficiency of the evidence.

      Shirk raises two distinct issues regarding the sentences he received.

We first address his challenge to the sentences imposed on the license

charges, as this issue challenges the legality of the sentence. A challenge to

an illegal sentence can never be waived. See Commonwealth v. Mathias,

121 A.3d 558, 562 n.3 (Pa. Super. 2015). As a result, Shirk’s failure to raise




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this issue at sentencing or in his post-sentence motion does not prevent him

from raising it on appeal.

      “Issues relating to the legality of a sentence are questions of law. . . .

Our standard of review over such questions is de novo and our scope of

review is plenary.” Commonwealth v. Brougher, 978 A.2d 373, 377 (Pa.

Super. 2009) (citation omitted).

      Shirk argues that the trial court erred in imposing sentence pursuant

to his convictions under the license charges. Under the statute governing the

license charges, an unlicensed person who causes an accident that results in

bodily injury to another person is guilty of a misdemeanor of the second

degree. See 75 Pa.C.S.A. § 3742.1. If, however, the accident results in

death or serious bodily injury to another person, he is guilty of a felony of

the third degree. See id. “Serious bodily injury” is defined in the Crimes

Code as “[b]odily injury which creates a substantial risk of death or which

causes serious, permanent disfigurement, or protracted loss or impairment

of the function of a bodily member or organ.” 18 Pa.C.S.A. § 2301.

      The factual issues of whether Shirk caused serious bodily injury to

Emilee Neely and Ryan Daniels were presented to the jury in several

different contexts on the verdict sheet. First, under the DUI charges, the

verdict sheet presented explicit questions as to whether Daniels and Neely

suffered serious bodily injury. In both instances, the jury answered “Yes.”

Next, the jury was asked to determine whether Shirk was guilty of


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aggravated assault by vehicle while DUI. While there is no explicit finding of

serious bodily injury on the verdict sheet, the trial court properly instructed

the jury that serious bodily injury was an element of the crime. See N.T.,

Trial, 5/13/14, at 920. The jury found Shirk guilty of aggravated assault

while DUI.

      The genesis of this issue on appeal is the jury’s response to the third

time it answered the question of whether Neely and Daniels suffered serious

bodily injury. For the license charges, the verdict sheet presented explicit

questions asking whether Neely and Daniels suffered serious bodily injury. In

both instances, the jury responded “No.”

      At sentencing, the Commonwealth argued that the trial court should

disregard the jury’s explicit finding, and instead sentence Shirk as if the jury

had convicted him of causing serious bodily injury under the license charges.

See N.T., Sentencing, 7/7/14, at 27. Surprisingly, the trial court agreed with

the Commonwealth. The trial court then overrode the jury’s explicit finding

to sentence Shirk as if he had been convicted of causing serious bodily injury

under the license charges.

      “Other than the fact of a prior conviction, any fact that increases the

penalty for a crime beyond the prescribed statutory maximum must be

submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v.

New Jersey, 530 U.S. 466, 490 (2000). The United States Supreme Court

has stated that “the statutory maximum for Apprendi purposes is the


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maximum sentence a judge may impose solely on the bases of the facts

reflected in the jury verdict or admitted by the defendant.” Blakely v.

Washington, 542 U.S. 296, 303-304 (2004).

      A conviction under the license charges for causing only bodily injury

has a statutory maximum sentence of two years. See 18 Pa.C.S.A. §

106(b)(7). In contrast, a conviction for causing serious bodily injury has a

statutory maximum sentence of seven years. See 18 Pa.C.S.A. § 106(b)(4).

Thus, the sentencing court’s action in disregarding the explicit verdict of the

jury and instead sentencing Shirk as if he had caused serious bodily injury to

Neely and Daniels increased the statutory maximum sentence. Under

Apprendi and its progeny, this was illegal.

      On appeal, the Commonwealth does not address Apprendi. Instead, it

contends that “a [s]entencing [c]ourt has the implicit authority to apply a

sentence enhancer to a defendant’s sentence when the facts adduced at trial

clearly support that the sentence enhancer has been established.” In support

of this stunning assertion, the Commonwealth cites to two opinions

published by this Court. First, the Commonwealth cites to an appeal from a

civil verdict where the trial court molded a verdict to reflect its legal

conclusion that there was insufficient evidence to support an award of future

medical expenses. See Mendralla v. Weaver Corp., 703 A.2d 480, 486

(Pa. Super. 1997).




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      Mendralla is clearly inapposite, for multiple reasons. First, it involved

a civil verdict, and therefore was not concerned with the Constitutional

issues that motivate Apprendi and its progeny. Furthermore, even if we

were to ignore this palpable distinction, the molding of the verdict that was

approved in Mendralla involved the trial court concluding that the plaintiff,

who bore the burden of proof at trial, failed as a matter of law to meet that

burden regarding future medical expenses. The trial court rectified this error

by reducing the verdict instead of granting a new trial since the verdict sheet

explicitly set forth the amount the jury awarded for future medical expenses.

      In the present case, it was the Commonwealth that bore the burden of

proof, not Shirk. As such, the trial court could not conclude, as a matter of

law, that Shirk had failed to meet his non-existent burden. Furthermore, the

trial court overrode an explicit factual finding made by jury and instead

substituted its own factual finding to increase Shirk’s liability. Even in civil

cases, a judge may not mold a verdict in a manner that increases liability.

See Raymond L.J. Rilling, Inc. v. Schuck, 29 A.2d 693, 694 (Pa. 1943).

Thus, Mendralla cannot logically support the trial court’s action in this case.

      The other case cited by the Commonwealth on appeal involves,

thankfully, a criminal appeal. See Commonwealth v. Kleinicke, 895 A.2d

562 (Pa. Super. 2006) (en banc). The Commonwealth quotes the following

passage of Kleinicke: “a sentencing court has broad discretion to consider

evidence   in   determining   a   sentence….”   Id.,   at   568.   However,   the


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Commonwealth fails to note the en banc panel’s explicit distinction between

the case before it, involving imposition of a mandatory minimum, and cases

where the statutory maximum had been increased. See id., at 575.

Furthermore, the Commonwealth is apparently unaware that the explicit

holding of Kleinicke, that judicial fact-finding that results in the imposition

of mandatory minimums does not offend the right to a jury trial, has since

been overruled by Alleyne v. United States, 133 S.Ct. 2151 (U.S. 2013).

Thus, Kleinicke does not buttress the Commonwealth’s position.

      Having reviewed the sentencing transcript in light of the law under

Apprendi and its progeny, we conclude that the trial court imposed an

illegal sentence for the license charges. We therefore vacate the sentences

for counts seven and eight and remand for re-sentencing on these two

convictions. As these two sentences were imposed entirely concurrent to

other sentences, we do not believe that we have upset the trial court’s

sentencing scheme, and we need not vacate all of the sentences imposed.

      Turning to Shirk’s remaining issues, we note that Shirk argues that the

same inconsistencies in the jury’s verdict that led the Commonwealth to

request the trial court to increase the grading of the license charges should

instead inure to his benefit and void the jury’s verdict on the charges of

aggravated assault while DUI of Neely and Daniels. “Consistency in verdicts

is not required” and Pennsylvania courts are not to speculate as to the




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nature of the jury’s deliberations in the face of inconsistent verdicts.

Commonwealth v. Moore, 103 A.3d 1240, 1247 (Pa. 2014).

      Shirk attempts to escape the application of Moore by arguing that the

present case is distinguishable because the inconsistency is in a factual

finding, and not a verdict. We disagree that this case is distinguishable from

Moore. While the verdict sheet is more explicit than usual regarding the

license charges, the reality is that the jury returned a not guilty verdict on

the third degree felony license charges stemming from Neely and Daniels.

Moore is therefore directly on point, and we conclude that Shirk’s argument

merits no relief.

      Next, Shirk argues that the trial court erred in permitting the

Commonwealth’s medical expert, Harry Kamerow, M.D., to testify as to the

expert opinion of the emergency room physician, Michael Henry, M.D., who

treated Shirk after the accident. In particular, Shirk objects to Dr.

Kamerow’s testimony that Dr. Henry indicated in his written notes that Shirk

was intoxicated when he presented at the emergency room the night of the

accident. See N.T., Trial, 5/13/14, at 520.

       We note “the admission of evidence is within the sound discretion of

the trial court and will be reversed only upon a showing that the trial court

clearly abused its discretion.” Commonwealth v. Fransen, 42 A.3d 1100,

1106 (Pa. Super. 2012), appeal denied, 76 A.3d 538 (Pa. 2013) (citation

omitted). A trial court abuses its discretion if it misapplies the law or rules


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in a manner lacking reason. See Commonwealth v. Rega, 856 A.2d 1242,

1244 (Pa. Super. 2004).

      Pennsylvania Rule of Evidence 703 states the following.

      The facts or data in the particular case upon which an expert
      bases an opinion or inference may be those perceived by or
      made known to the expert at or before the hearing. If of a type
      reasonably relied upon by experts in the particular field in
      forming opinions or inferences upon the subject, the facts or
      data need not be admissible in evidence.

An expert may not simply act as “a mere conduit for the opinion of another,”

under Rule 703. Pa.R.E., Comment.

      Here, it is clear that Dr. Kamerow’s testimony regarding Dr. Henry’s

opinion rendered Dr. Kamerow a mere conduit for Dr. Henry’s opinion. This

was error. However, we conclude that any prejudice suffered by Shirk from

this testimony was de minimus, and therefore harmless. “The harmless error

doctrine, as adopted in Pennsylvania, reflects the reality that the accused is

entitled to a fair trial, not a perfect trial.   Harmless error exists if the record

demonstrates, inter alia, that the error did not prejudice the defendant or

the prejudice was de minimis.”         Commonwealth v. Gonzalez, 109 A.3d

711, 731, (Pa. Super. 2015) (citation and internal quotation marks omitted).

The Commonwealth presented a bounty of evidence suggesting that Shirk

was intoxicated that night, including the results of two blood tests,

eyewitness testimony of Shirk’s actions, and Dr. Kamerow’s independent

expert opinion. The brief mention of Dr. Henry’s opinion in the notes was but

a drop in an overflowing bucket.

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      Next, Shirk raises another challenge to the trial court’s admission of

evidence. This time, it concerns the admission of post-mortem photographs

of Kelly Rider. We review challenges to the admission of photographic

evidence as follows.

      The admissibility of photographs falls within the discretion of the
      trial court and only an abuse of that discretion will constitute
      reversible error. The test for determining whether photographs
      are admissible involves a two-step analysis. “First, the court
      must decide whether a photograph is inflammatory by its very
      nature. If the photograph is deemed inflammatory, the court
      must determine whether the essential evidentiary value of the
      photograph outweighs the likelihood that the photograph will
      improperly inflame the minds and passions of the jury.”

Commonwealth v. Lowry, 55 A.3d 743, 753 (Pa. Super. 2012) (internal

citations omitted).

      In the instant case, the trial court concedes that the photographs of

Kelly Rider were inflammatory. However, the trial court reasoned that the

photographs were “necessary to assist the jury in showing the nature,

location, and extent of the wounds sustained by Ms. Rider, and to help the

jury understand the forensic pathologist’s process of deduction.” We cannot

conclude that this reasoning represents an abuse of discretion, and therefore

Shirk’s argument merits no relief on appeal.

      Shirk next challenges the sufficiency of the evidence supporting his

conviction for reckless driving. In order to support a conviction for reckless

driving, the Commonwealth was required to present evidence that Shirk

drove his “vehicle in a willful or wanton disregard for the safety of persons or


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property.” 75 P.S. 3736(a). Shirk argues that the evidence was insufficient

to establish that he acted in a willful or wanton manner.

      The following standard governs our review of a challenge to the

sufficiency of the evidence.


      As a general matter, our standard of review of sufficiency claims
      requires that we evaluate the record in the light most favorable
      to the verdict winner giving the prosecution the benefit of all
      reasonable inferences to be drawn from the evidence. Evidence
      will be deemed sufficient to support the verdict when it
      establishes each material element of the crime charged and the
      commission thereof by the accused, beyond a reasonable doubt.
      Nevertheless, the Commonwealth need not establish guilt to a
      mathematical certainty. [T]he facts and circumstances
      established by the Commonwealth need not be absolutely
      incompatible with the defendant’s innocence. Any doubt about
      the defendant’s guilt is to be resolved by the fact finder unless
      the evidence is so weak and inconclusive that, as a matter of
      law, no probability of fact can be drawn from the combined
      circumstances.

Commonwealth v. Mauz, 122 A.3d 1039, 1040-41 (Pa. Super. 2015)

(citation omitted).

      Shirk contends that the only evidence of willful or wanton behavior on

his part was the evidence that he was intoxicated. He argues that under

Commonwealth v. Jeter, 937 A.2d 466 (Pa. Super. 2007), evidence of

intoxication alone is insufficient to support a conviction for reckless driving.

However, we note that the Commonwealth presented significant evidence of

wanton behavior apart from Shirk’s intoxication. At the time of the accident,

it was drizzling and the roadway was wet. See N.T., 5/12/14, at 99. The

vehicle was travelling at a speed in excess of 60 miles per hour. See id., at

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350. The speed limit for the section of road Shirk was driving on was 45

miles per hour. See id., at 355. As he approached the left hand curve where

the accident occurred, Shirk was driving between 60 and 65 mile per hour.

See id., at 99. This evidence was sufficient, independent of Shirk’s

intoxication, to support a conviction for reckless driving.

      Finally, Shirk contends that the trial court abused its discretion in

imposing a five to ten year sentence of imprisonment on the homicide by

vehicle – DUI conviction. Shirk concedes that this issue raises a challenge to

the discretionary aspects of the sentence. See Appellant’s Brief, at 8.

      “A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal, as the right to pursue such a

claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.

Super. 2004) (citation omitted).

      An appellant challenging the discretionary aspects of his
      sentence must invoke this Court’s jurisdiction by satisfying a
      four-part test:

      [We] conduct a four-part analysis to determine: (1) whether
      appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
      and 903; (2) whether the issue was properly preserved at
      sentencing or in a motion to reconsider and modify sentence,
      see Pa.R.Crim.P. [720]; (3) whether appellant’s brief has a fatal
      defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial
      question that the sentence appealed from is not appropriate
      under the Sentencing Code, 42. Pa.C.S.A. § 9781(b).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)

(quotation marks and some citations omitted).




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      Here, Shirk failed to raise this issue either in a post-sentence motion

or at sentencing. As such, Shirk has failed to preserve this issue for our

review.

      In summary, we conclude that the trial court erred in imposing

sentence on counts seven and eight, and therefore vacate those sentences

and remand for re-sentencing. In all other regards, we affirm the judgment

of sentence.

      Judgment of sentence affirmed in part and vacated in part. Case

remanded for proceedings consistent with this memorandum. Jurisdiction

relinquished.

      President Judge Emeritus Ford Elliott joins the memorandum.

      President Judge Emeritus Stevens concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/18/2016




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