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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                     v.                    :
                                           :
MARCUS DAVID KNIGHT,                       :         No. 1019 MDA 2016
                                           :
                          Appellant        :


             Appeal from the Judgment of Sentence, April 26, 2016,
                 in the Court of Common Pleas of Berks County
               Criminal Division at No. CP-06-CR-0001233-2014


BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J. AND STEVENS, P.J.E.*


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED FEBRUARY 21, 2017

        Marcus Knight appeals the April 26, 2016 judgment of sentence in

which the Court of Common Pleas of Berks County sentenced him to a term

of 2 to 10 years’ imprisonment in a state correctional facility for aggravated

assault by vehicle when driving under the influence and to a concurrent term

of 1 to 7 years’ imprisonment for accidents involving death or personal

injury -- not properly licensed.1

        The relevant facts, as recounted by the trial court, are as follows:

                    The evidence presented at trial established the
              following: On the evening of October 20, 2013, at
              about 7:00 p[.]m[.], Melissa O’Neil (Melissa) was
              meeting a fried [sic], Justin (Justin), at the
              Krumsville Bar in Krumsville, Berks County,

* Former Justice specially assigned to the Superior Court.
1
    75 Pa.C.S.A. § 3735(1)(a) and 75 Pa.C.S.A. § 3742.1(a), respectively.
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          Pennsylvania, when she ran into Appellant.
          Appellant had been drinking.        At approximately
          9:00 p[.]m[.], Melissa and Justin went to a pig roast;
          Appellant followed behind them. At the pig roast,
          the three of them talked and “drank some more,” for
          approximately two more hours.         Andrea Sanchez
          (Andrea) was at the pig roast; Melissa introduced her
          to Justin and Appellant and she joined them. Melissa
          said everyone was “a little bit drunk.” About 11:00
          or 11:30 p[.]m[.], the four of them decided to go
          back to the Krumsville Bar. Melissa and Justin went
          in her car and Appellant and Andrea followed behind
          them. They all arrived at the bar and continued
          drinking beer and shots. At “last call” the four of
          them decided to go back to Melissa’s house in
          Klinesville to continue the party.     Melissa had a
          designated driver for her car, Justin, but Appellant
          and Andrea chose to go in Appellant’s car. Justin
          offered to drive everyone but Appellant got angry;
          he did not want to leave his car.        Melissa saw
          Appellant get into the driver’s seat; Andrea was in
          the passenger’s seat.      She then saw Appellant’s
          vehicle leave the parking lot and drive west.

                At around 11:30 p[.]m[.] on October 19,
          Elise Nash (Nash) had gotten off work and drove to
          Krumsville to have a drink. She was there about
          twenty minutes when she saw Appellant, with some
          other people, come into the bar. She saw Appellant
          have about two or three drinks. She also saw the
          group leave, just before last call, at around 1:30.
          Nash saw Appellant purchase a 12 pack of beer to
          go. She overheard their plan to go back to Melissa’s
          house.

                 At about 3:00 a[.]m[.], Daryl Smith was
          driving his dump truck westbound on old route 22 on
          the west side of Lenhartsville when he saw a car
          parked across the opposite side, with no lights on.
          Then he came upon debris from an accident, so he
          called 911 and got out of his truck. That is when he
          “saw a guy laying [sic] across the road” a good
          fifty (50) feet uphill from the car, on the westbound
          side on the shoulder and the slow lane. The guy was


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          not moving, so the truck driver pushed on him; he
          did respond slightly.   He became conscious, but
          struggled to answer questions. There was blood
          coming out of his head and on the road at his head.
          The blood ran down the slope of the road about an
          inch and a half wide and two feet long, toward the
          vehicle. When the first ambulance showed up, the
          paramedic told the truck driver that there was
          another person in the vehicle.

                 Shawn Danner (Danner) was a full time
          paramedic for the Hamburg Emergency Medical
          Services when he received a call, at around
          3:00 a[.]m[.], of a motor vehicle accident on old
          Route 22 between Hamburg and Lenhartsville. Upon
          arrival, he saw a male lying into the roadway, a
          vehicle further down, and a second patient, a female,
          lying behind the vehicle; she was also on the
          roadway. Danner first interacted with the male; he
          was conscious and alert, but extremely confused.
          The male was unable to explain how he got to the
          location that he was at or even what the location
          was.     Danner did a physical assessment of the
          patient and noted the injuries. Upon the paramedics’
          arrival, the patient attempted to crawl away from the
          vehicle, but he did not move more than 5 or 10 feet.
          The patient was actively bleeding.             Danner
          accompanied Appellant to the Lehigh Valley Hospital
          where he was taken to the trauma unit. Danner also
          went to attend to the female victim, who complained
          of neck and back pain. Because of her altered
          mental status, the victim did not verbalize many
          complaints. She was quickly moved into the back of
          the ambulance because of the cold weather, where
          other crew members discovered the rest of her
          serious bodily injuries.

                Trooper Rebecca Clatch, of the Pennsylvania
          State Police, responded to the accident scene at
          around 3:00 a[.]m[.] on October 20, 2016. She
          stated that the area in which the crash occurred on
          Old Route 22 had a curve in the roadway, and a
          45 mile per hour speed limit. This area was a no
          passing zone with a divided roadway, about


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          five miles west of the Krumsville Inn. The roadway
          was dry and there were no impediments on it. When
          she approached, she saw a silver vehicle on the
          southeast bound side of the road, on the shoulder
          against an embankment. She also saw an EMT with
          a male, approximately 200 feet west of the vehicle.
          The first thing she observed was a tire mark in the
          eastbound lane that went toward the center double
          lines. From there, continuing east, she saw two
          more tire marks that went toward the north
          embankment. There was fresh dirt spattered all
          over. The embankment got higher and Appellant
          had crawled where the brush was, on his hands and
          knees. He kept trying to get up; they urged him to
          stay where he was. He kept saying, “I’m okay.
          Leave me alone.” Also on the embankment was a
          hunting stand in disarray and Appellant’s shoe. His
          wallet was later found in this area. Also located was
          the front bumper of the vehicle. A telephone pole
          was sheered in half and pushed eastbound. The
          vehicle’s rear bumper was on the road and its hood
          was in the eastbound lane, just south of this
          location. The passenger side door was open a little
          bit because it was pushed up against the
          embankment. The front windshield was severely
          cracked and the passenger side window was
          shattered. Both front airbags were deployed. The
          rear windshield was missing. The debris field was
          continuous. There was no evidence of an animal
          having been hit. The vehicle was a manual stick
          shift. The trooper interacted with Appellant at the
          scene and noticed he was bleeding heavily from his
          head and had lacerations on his forearms.
          Trooper Clatch observed that he had a strong odor of
          an alcoholic beverage coming from his person. He
          had bloodshot eyes and was on his hands and knees.
          The trooper felt the engine and it was still warm,
          even though it was a cold night. The blood loss she
          observed, the puddle on the ground, was still wet.
          Trooper Clatch stated that, based on the physical
          evidence she observed and her observations of
          Appellant, it was her opinion that he was not safely
          capable of operating a motor vehicle. Appellant’s
          blood was drawn at approximately 4:25 a[.]m[.] and


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            his whole blood alcohol content was in the range of
            .270% to .332%.      It was later determined that
            Appellant did not have a driver’s license and that the
            damaged vehicle was registered to Appellant.

                   Andrea Sanchez told the jury that, on the night
            in question, she was working at the Stony Run Inn in
            Kempton when she left at around 9:30 or
            10:00 p[.]m[.] and went to a bonfire down the street
            to meet new people. She knew Melissa, but she met
            Appellant for the first time at the bonfire. They were
            all drinking beer. Andrea stayed at the party for
            about an hour and a half. Around 11:00 p[.]m[.],
            they decided to go to the bar down the street,
            minutes away from where they were. Andrea told
            Melissa the only way she would go would be if she
            could get a ride back to her house. Melissa assured
            her that she would. Andrea got into Appellant’s car
            and he drove her to the Krumsville Inn. Appellant
            bought her shots; he drank those beverages as well.
            They stayed at the bar until last call, when they
            decided to leave. Melissa came up to Andrea and
            told her she couldn’t drive because she [Melissa] was
            drunk. At first it was suggested that Andrea come to
            Melissa’s house for the night and that Melissa would
            take her to work in the morning. Then, somehow,
            Andrea testified that she decided that she should go
            with Appellant so he wouldn’t have to ride alone.
            Andrea herself did not know how to drive a stick shift
            vehicle. She got into the front passenger seat. They
            pulled out of the parking lot of the Krumsville Inn;
            Andrea did not know where they were going. The
            next thing she remembered was waking up in the
            hospital two days later. These injuries changed her
            life forever. If left untreated, these injuries could
            have resulted in death or permanent disability or
            disfigurement.

Trial court opinion, 8/8/16 at 3-7 (citations to record omitted).

      On December 8, 2015, the jury found appellant guilty of the

aforementioned crimes as well as for driving under the influence of alcohol,



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incapable of safe driving; driving under the influence of alcohol, high rate;

drivers required to be licensed, and failure to keep right.2      The trial court

imposed appellant’s sentence on April 25, 2016. On May 2, 2016, appellant

filed a post-sentence motion which the trial court denied on May 26, 2016.

Appellant then appealed to this court.

        On appeal, appellant raises the following issues for this court’s review:

              [1.]   Whether the evidence presented at trial was
                     sufficient to support the guilty verdicts where
                     the Commonwealth failed to establish, beyond
                     a reasonable doubt, that Appellant was the
                     driver of the vehicle at the time of the
                     accident[?]

              [2.]   Whether the Court erred and abused its
                     discretion by not granting judgment of
                     acquittal or dismissing the charges in light of
                     the Brady [v. Maryland, 373 U.S. 83 (1963)]
                     violation    that     occurred     when      the
                     Commonwealth failed to preserve potentially
                     exculpatory evidence, the unavailability of
                     which caused prejudice to Appellant in that
                     Appellant was deprived of his ability to conduct
                     independent testing that may have, among
                     other things, conclusively excluded Appellant
                     as the driver of the vehicle[?]

Appellant’s brief at 7.

        Initially, appellant contends that the evidence presented by the

Commonwealth was insufficient to sustain convictions for aggravated assault

by vehicle when driving under the influence and for accidents involving

death or personal injury -- not properly licensed because the Commonwealth


2
    75 Pa.C.S.A. §§ 3802(a)(1), 3802(c), 1501(c), and 3301(a), respectively.


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failed to present evidence that appellant was operating the vehicle when the

accident took place.

                    A claim challenging the sufficiency of the
              evidence is a question of law. Commonwealth v.
              Widmer, 560 Pa. 308, 319, 744 A.2d 745, 751
              (2000). In that case, our Supreme Court set forth
              the sufficiency of the evidence standard:

                    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.
                    Commonwealth v. Karkaria, 533 Pa.
                    412, 625 A.2d 1167 (1993). Where the
                    evidence offered to support the verdict is
                    in contradiction to the physical facts, in
                    contravention to human experience and
                    the laws of nature, then the evidence is
                    insufficient as a matter of law.
                    Commonwealth v. Santana, 460 Pa.
                    482, 333 A.2d 876 (1975).           When
                    reviewing a sufficiency claim the court is
                    required to view the evidence in the light
                    most favorable to the verdict winner
                    giving the prosecution the benefit of all
                    reasonable inferences to be drawn from
                    the evidence.       Commonwealth v.
                    Chambers, 528 Pa. 558, 599 A.2d 630
                    (1991).

              Id. at 319, 744 A.2d at 751.

Commonwealth v. Morgan, 913 A.2d 906, 910 (Pa.Super. 2006).

     Aggravated assault by vehicle when driving under the influence is

defined as:

              Any person who negligently causes serious bodily
              injury to another person as the result of a violation
              of section 3802 (relating to driving under influence of


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            alcohol or controlled substance) and who is convicted
            of violating section 3802 commits a felony of the
            second degree when the violation is the cause of the
            injury.

75 Pa.C.S.A. § 3735.1(a).

      Appellant does not contest that he was convicted of driving under the

influence. However, he argues that there is no evidence to establish that he

was driving the vehicle at the time of the accident. Melissa O’Neill (“O’Neill”)

and Andrea Sanchez (“Sanchez”), the other person in the vehicle at the time

of the accident, both testified that appellant was behind the wheel of his

vehicle when he and Sanchez left the Krumsville Inn. (Notes of testimony,

12/7/15 at 20-21, 122.)        Further, appellant’s vehicle had a manual

transmission, and Sanchez testified that she did not know how to drive a

“stick shift.” (Id. at 124.) The jury found credible the testimony of Sanchez

and O’Neill that appellant was driving when he left the Krumsville Inn. Given

that Sanchez did not know how to operate a manual transmission and there

is no evidence of anyone else riding in the vehicle, this court agrees with the

trial court that the evidence presented by the Commonwealth was sufficient

to sustain the conviction.

      Appellant also asserts that there was insufficient evidence to support

his conviction for Accidents Involving Death or Personal Injury while not

properly licensed.

      This offense is defined as:




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            A person whose operating privilege was disqualified,
            canceled, recalled, revoked or suspended and not
            restored or who does not hold a valid driver’s license
            and applicable endorsements for the type and class
            of vehicle being operated commits an offense under
            this section if the person was the driver of any
            vehicle and caused an accident resulting in injury or
            death of any person.

75 Pa.C.S.A. § 3742.1.

      Appellant does not challenge the determination that he lacked a

driver’s license. Once again, he challenges the determination that he was

driving the car when the accident took place.          This court has already

determined that the evidence was sufficient to support that conclusion.

      Appellant next contends that the Commonwealth failed to provide any

potentially exculpatory evidence to him in violation of Brady, 373 U.S. 83,

in which the Supreme Court held that “suppression by the prosecution of

favorable evidence to an accused upon request violates due process where

the evidence is material either to guilt or to punishment . . . .” Id. at 87.

      This court has explained that, “to establish a Brady violation, a

defendant must demonstrate that: (1) the evidence was suppressed by the

Commonwealth, either willfully or inadvertently; (2) the evidence was

favorable to the defendant; and (3) the evidence was material, in that its

omission resulted in prejudice to the defendant.”          Commonwealth v.

Haskins, 60 A.3d 538, 547 (Pa.Super. 2012) (citations omitted).             The

burden rests with the defendant to “prove by reference to the record, that

evidence was withheld or suppressed by the prosecution.” Id.


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      Specifically, appellant argues that the potentially exculpatory evidence

was the vehicle and all of the exculpatory evidence contained therein.

Appellant asserts that an investigation would help resolve ambiguities such

as why both the driver and passenger seats of the vehicle were reclined,

why a sneaker that did not belong to appellant was found near the driver’s

side area of the car, and whether the position of the clutch would have

allowed Sanchez to reach the clutch had she been driving. Appellant admits

that the Commonwealth neither hid nor destroyed the evidence. However,

he argues that the Commonwealth failed to properly preserve the vehicle

and did not provide it to appellant.

      Trooper Clatch testified that the State Police did not impound the

vehicle and it was towed to Wensel’s Towing Company (“Wensel’s”) where it

remained.    At some point, it was ready to be released to the owner,

appellant.   Trooper Clatch testified that he told appellant that he could

recover the vehicle at Wensel’s. (Notes of testimony, 12/7/15 at 88.)

      A Brady violation does not occur when a defendant knew or could

have discovered evidence with reasonable diligence.      Commonwealth v.

Morris, 822 A.2d 684, 696 (Pa. 2003).           Based on Trooper Clatch’s

testimony, appellant could have recovered the vehicle but did not exercise

reasonable diligence.   This court determines that the trial court properly

denied appellant’s motion for judgment of acquittal because appellant failed




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to demonstrate that evidence (the vehicle) was suppressed by the

Commonwealth, a necessary element to prove a Brady violation.3

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/21/2017




3
  Because appellant failed to satisfy the first prong of Haskins, this court
need not address whether appellant established that he met the other two
prongs.


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