J-A17024-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

JOHN M. KENT,

                            Appellant              No. 2367 EDA 2014


         Appeal from the Judgment of Sentence Entered March 6, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0002771-2013


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OTT, J.

MEMORANDUM BY BENDER, P.J.E.:                        FILED JULY 27, 2015

       Appellant, John M. Kent, appeals from the aggregate judgment of

sentence of 11½ to 23 months’ incarceration following his conviction for

aggravated assault by vehicle while driving under the influence (AA-DUI),

and related offenses arising from a motorcycle accident in which Appellant’s

passenger was seriously injured. Appellant contends the trial court erred by

failing to suppress the results of his blood-alcohol-content (BAC) test taken

in the aftermath of the accident, as well as for failing to suppress his

purportedly un-Mirandized1 statement(s) made to police at that time.

Appellant also contends that the evidence was insufficient to convict him of

AA-DUI. After careful review, we affirm.

____________________________________________


1
    See Miranda v. Arizona, 384 U.S. 436 (1966).
J-A17024-15



The trial court summarized the facts adduced at trial as follows:

            This case involved a motorcycle accident that occurred in
      Philadelphia on [10/4/12]. [Appellant] and a woman he had met
      that night were the only people involved in the accident. Maria
      Galante, the passenger on the motorcycle, testified that she first
      met [] Appellant at Casbar, a bar and restaurant, in
      Conshohocken, Pennsylvania. Ms. Galante explained that she
      went to the bar that evening for a drink and a bite to eat. After
      talking for approximately an hour, [] Appellant offered to take
      Ms. Galante somewhere else to get food, since the kitchen at
      Casbar was closed. [She] stated that she did not remember
      what [] Appellant was drinking at the bar, but that she was sure
      that he did have more than one drink while they were together
      talking.

             Once outside the bar, [] Appellant offered to take Ms.
      Galante to Pat's Steaks on his motorcycle. The witness testified
      that she had been on a motorcycle a few times before, but the
      last time was over 20 years ago. [] Appellant told Ms. Galante
      that he did not have helmets for them to wear, but he assured
      her that she didn't need to worry because he was a good driver.
      Ms. Galante testified that approximately halfway along the ride,
      she asked [] Appellant if she was leaning properly through the
      turns. [] Appellant responded that what she was doing was
      perfect and not to change anything she was doing. The last
      thing the witness remembered from the incident was that the
      motorcycle no longer felt stable and she saw the grass below the
      motorcycle getting closer and closer.

             Ms. Galante testified that she next remembered waking up
      and being questioned in the hospital. She explained that, due to
      the motorcycle accident, she stayed at Hahnemann Hospital for
      10 days to receive treatment. Injuries sustained by Ms. Galante
      from the motorcycle crash included a fracture at the back of her
      head, a tear from her right labia [to her] left buttocks, bleeding
      out of her right ear, and damage to her pelvic wall. These
      injuries required multiple surgeries and numerous stitches. Ms.
      Galante testified that she missed work due to the incident, and
      both the Commonwealth and [] Appellant stipulated that she
      suffered serious bodily injury.

            Officer Karen Lee, a Philadelphia Police Officer for over 24
      years, stated that on the date of the incident, she received a

                                     -2-
J-A17024-15


     radio call regarding an automobile accident involving a
     motorcycle.     When she arrived on the scene, she saw []
     Appellant walking around freely and she was told that the
     passenger on the back of the motorcycle had been taken away
     by rescue personnel. Officer Lee testified that she spoke to []
     Appellant, who seemed very nervous, and that he stated he had
     been the driver and that there was a female on the back of the
     motorcycle. [] Appellant told Officer Lee that, as he was coming
     around the bend of the road, he turned his head to talk to the
     female passenger and at that point the motorcycle veered off
     and slid on its side.

           Officer Lee explained that she did not smell alcohol on the
     Appellant when she initially spoke to him at the scene of the
     crime but that [] Appellant's eyes were glazed over. The Officer
     believed that [] Appellant's eyes were glazed from something
     other than alcohol. [] Appellant was also speaking very fast
     when he spoke with Officer Lee. After interviewing [] Appellant,
     Officer Lee notified the dispatcher and held the scene until the
     investigating officers arrived. Officer Lee testified that she did
     not conduct field sobriety tests on [] Appellant because at no
     time did she smell alcohol on him. [] Appellant also never lost
     his balance and never slurred his speech while in Officer Lee's
     presence.

           Officer William Lackman was the next officer to arrive at
     the scene of the accident. When he arrived, Officer Lackman
     saw [] Appellant sitting in Officer Lee's car with the window
     down. Officer Lackman testified that he approached [] Appellant
     to get details on the accident so that he could attempt to
     reconstruct the events that had occurred. [] Appellant told
     Officer Lackman that the passenger had shifted her weight,
     which caused the rear end of the motorcycle to slide out.
     Appellant explained that both [he] and the passenger fell to the
     ground, where he found the passenger was bleeding from her
     head.

           [] Appellant told Officer Lackman that his fiancé, not the
     back passenger, owns the motorcycle and that neither rider was
     wearing a helmet at the time of the accident. Officer Lackman
     asked if [] Appellant had been drinking alcohol, because he could
     smell it on [him], but [] Appellant refused to answer.         []
     Appellant denied any drug use and volunteered to give a blood
     test sample to the officers.     Officer Lackman asked Officer


                                   -3-
J-A17024-15


     Strohn, who was now on the scene, to take [] Appellant to the
     Philadelphia Detention Unit to conduct a DUI test.

            At this point, Officer Lackman began a detailed crash
     investigation and attempted reconstruction of the accident. The
     officer measured the roadway, took photographs, observed
     scrapes on the concrete, examined the motorcycle, and took
     notes on damage to the surrounding area.              During his
     investigation, Officer Lackman noticed two bottles of beer
     sticking out of the motorcycle side saddle bag, one bottle which
     was opened and the other bottle which was unopened. Officer
     Lackman testified that another officer seized the bottles of beer,
     the saddle bag, and the motorcycle for future investigation.

            Officer Lackman testified that after concluding his accident
     reconstruction, he was able to determine that the back
     passenger's leg was between the frame of the motorcycle and
     the asphalt, so that when the accident occurred her leg was
     stuck momentarily while her body was thrown. At the time of
     the accident, Officer Lackman reported that there was no
     adverse weather or street conditions that could have contributed
     to the accident. Due to the marks on the road and the distance
     of the motorcycle from the initial impact, Officer Lackman
     estimated that the motorcycle was traveling close to 25 miles
     per hour.      Officer Lackman also stated that there was no
     indication that [] Appellant had been speeding, had run a red
     light, or had violated any other traffic law. Officer Lackman
     stated that the crash could have resulted from the passenger
     leaning to one side of the motorcycle while the driver leaned to
     the other side. He stated that both the actions of [] Appellant
     and the back passenger contributed to the accident. Officer
     Lackman testified that throughout his interview, [] Appellant was
     never read his Miranda rights because at no time during the
     interview was [] Appellant under arrest.

           Officer James Strohn testified that he transported []
     Appellant to the Philadelphia D[eten]tion Unit for voluntary blood
     testing. On the way to the test, Officer Strohn explained that []
     Appellant was staggering and had noticeably slurred speech. []
     Appellant also had the odor of alcohol on his breath and had red
     watery eyes. Officer Strohn explained that [] Appellant's blood
     sample was taken at 5:14 am.           After [] Appellant's blood
     samples were taken, [he] was taken back to the scene of the
     accident. Officer Lee testified that [] Appellant was not read his


                                    -4-
J-A17024-15


     Miranda warnings at any time when the blood sample was
     taken because he was not under arrest.

           Dr. Richard Cohn, an expert in the area of pharmacology
     and toxicology, testified that he prepared a toxicology report
     regarding [] Appellant. Although Dr. Cohn explained that the
     toxicology report had an error on the front page, a date that was
     19 days before the incident occurred; he was able to show that
     the samples belonged to [] Appellant and that the tested
     samples were taken on the day of the incident. Dr. Cohn
     explained that the blood had a 0.156 BAC and contained cocaine
     metabolite, benzoylec[g]onine. Head space gas chromatography
     was used to determine the alcohol level in the blood, and normal
     gas chromatography was used to determine the level of cocaine
     present.

           Dr. Cohn was able to testify, to a reasonable degree of
     certainty, that [] Appellant was under the impairing effects of
     ethyl alcohol, which was aggravated by the intake of cocaine.
     According to Dr. Cohn, an individual with these things in their
     system would be unfit to perform safety sensitive tasks,
     including operating a motor vehicle in safe operation on a
     highway. Dr. Cohn explained the adverse negative effects of
     alcohol and cocaine on a person's behavior as well as the
     combination of the two. He explained that the combination
     would negatively impact an individual's ability to make a decision
     regarding safety sensitive decisions as well as for the welfare of
     others. The doctor stated that he believed that [] Appellant's
     use of cocaine had been on the same day of the accident, but
     before the intake of alcohol. Finally, Dr. Cohn was unable to
     state how many times the test samples had changed hands
     between the different [o]fficers, but he was sure that the test
     tubes were still sealed when he received them and that the
     samples were not contaminated.

Trial Court Opinion (TCO), 12/18/14, at 2-7 (unnumbered pages) (citations

omitted).

     On March 11, 2013, the Commonwealth filed a criminal information

charging Appellant with AA-DUI, 75 Pa.C.S. § 3735.1; DUI-(general

impairment, first offense), 75 Pa.C.S. § 3802(a)(1); simple assault, 18



                                   -5-
J-A17024-15



Pa.C.S. § 2701; recklessly endanger another person (REAP), 18 Pa.C.S. §

2705; DUI-(high rate of alcohol, first offense), 75 Pa.C.S. § 3802(b); and

DUI-(cocaine, first offense), 75 Pa.C.S. § 3802(d)(ii).                 Following a

preliminary hearing, the simple assault and REAP charges were dismissed.

        Prior to trial, Appellant filed an omnibus pre-trial motion, in which he

requested that the trial court 1) suppress any statements he made to law

enforcement following the accident; 2) suppress the results of the BAC test;

and 3) quash the AA-DUI charge.                Initially, a hearing was scheduled to

address Appellant’s omnibus pre-trial motion on July 15, 2013.            However,

because the Commonwealth was not prepared to litigate a suppression

hearing on that date, the matter was postponed until September 27, 2013.2

N.T., 7/15/13, at 3-6.         For reasons not apparent from the record, the

hearing was later rescheduled for October 25, 2013.              On that date, the

Commonwealth was again unprepared to proceed with a suppression

hearing.3     N.T., 10/25/13, at 5.        However, the trial court proceeded to

address, and then deny, Appellant’s motion to quash.               Id. at 24.   The

suppression hearing was again continued until the first day of trial: January

6, 2014.



____________________________________________


2
  The reason given by the Commonwealth was that a necessary witness,
Officer Lackman, was unavailable to testify.
3
    Once again, Officer Lackman was unavailable to testify.



                                           -6-
J-A17024-15



        On January 6, 2014, Appellant waived his right to a jury trial.             The

court    then   commenced        the   trial   without   addressing    the   unlitigated

suppression issues. On January 8, 2014, Appellant was found guilty of AA-

DUI, DUI-(high rate of alcohol, first offense), and DUI-(cocaine, first

offense). On March 6, 2014, the trial court sentenced Appellant to 11½ to

23 months’ incarceration for AA-DUI, and a concurrent term of 72 hours to 6

months’ incarceration for DUI-(cocaine, first offense).4              Appellant filed a

timely, omnibus post-sentence motion on March 14, 2014, which was denied

by operation of law on July 15, 2014. Appellant subsequently filed a timely

notice of appeal on August 8, 2014, and a timely, court-ordered Pa.R.A.P.

1925(b) statement on September 8, 2014.              The trial court issued its Rule

1925(a) opinion on December 18, 2014.

        Appellant now presents the following questions for our review:

        [1] Did the Lower Court err by failing to quash the charge of
        aggravated assault by DUI despite a lack of evidence to prove
        any driving related criminal negligence, or any causal link
        between the Appellant's driving and the serious bodily injury?

        [2] Did the Lower Court err by failing to conduct a prompt
        suppression hearing as required by Pa.R.Crim.P. 577(B), 580,
        and 581[,] in violation of [] Appellant's due process rights and
        [his] right[] to a fair trial?

        [3] Did the Lower Court err by failing to suppress the statements
        that were obtained without a warrant, without probable cause,
        and without properly informed consent and/or a knowing,

____________________________________________


4
  No penalty was imposed for Appellant’s conviction for DUI-(high rate of
alcohol, first offense).



                                           -7-
J-A17024-15


      voluntary and intelligent waiver of [] Appellant's constitutional
      rights?

      [4] Did the Lower Court err by failing to suppress the results of a
      [BAC] test that was taken more than 2 hours after [] Appellant
      was in actual physical control of his vehicle and the police did not
      provide any reasonable excuse for the delay?

      [5] Did the Lower Court err by failing to suppress the [BAC] test
      that was obtained without a warrant and [as] a result of police
      coercion?

      [6] Did the Lower Court commit error when it, sua sponte,
      suggested that the Appellant was in possession of two bottles of
      beer in an attached saddle bag despite no evidence to support
      such a conclusion, and then relied on this legal conclusion as a
      basis to find [] Appellant guilty of aggravated assault via DUI?

Appellant’s Brief, at 9.

      Appellant’s first claim concerns the trial court’s denying his pre-trial

motion to quash the charge of AA-DUI. Specifically, Appellant contends that

there was insufficient evidence to establish that he acted with the minimum

mens rea necessary to sustain the offense—criminal negligence.

      “A defendant may challenge the sufficiency of the evidence presented

by the Commonwealth at the preliminary hearing by filing a motion for a

Writ of Habeas Corpus in Common Pleas Court. In Philadelphia County, this

motion is generally referred to as a Motion to Quash the Return of

Transcript.” Commonwealth v. McBride, 595 A.2d 589, 590 (Pa. 1991).

“If in fact it is determined at trial that the evidence of the Commonwealth is

sufficient to be submitted to the jury, then any deficiency in the presentation

before the district justice would have been harmless.” Commonwealth v.

Hess, 414 A.2d 1043, 1048 (Pa. 1980).           Thus, if the trial evidence is



                                     -8-
J-A17024-15



sufficient to convict, a court’s failure to grant a motion to quash on grounds

of insufficient evidence is rendered harmless.      Accordingly, for ease of

disposition, we evaluate Appellant’s claim as a challenge to the sufficiency of

the evidence, for which our standard of review is well-established:

             A claim challenging the sufficiency of the evidence is a
      question of law. 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. 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. 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. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal

citations omitted).

      “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 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. § 3735.1(a) (emphasis

added).

      A person acts negligently with respect to a material element of
      an offense when he should be aware of 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 the actor's failure to perceive it, considering the nature and
      intent of his conduct and the circumstances known to him,



                                     -9-
J-A17024-15


      involves a gross deviation from the standard of care that a
      reasonable person would observe in the actor's situation.

18 Pa.C.S. § 302(b)(4).

      Appellant asserts that in order to sustain a conviction for AA-DUI,

there must be some “indicia of unsafe driving beyond the DUI itself[.]”

Appellant’s Brief, at 17. Appellant argues that the record in this case reveals

he “was not speeding, did not disobey any traffic signs or signals, was not

driving in a dangerous manner, nor did he commit any motor vehicle

citations [sic].” Id. at 18. Rather, he contends:

             The only evidence that the Commonwealth point[ed] to in
      the record at the time of the motion to quash [was] a statement
      from Ms. Galante that, at some point in time during the ride she
      asked [] Appellant[,] "Is there anything I should know?" and
      that [] Appellant said "No, you're doing everything just fine."
      The record is void of any evidence that prior to this question, or
      in fact prior to Ms. Galante's sudden lean to the left during a
      right turn that caused the accident, that she was doing anything
      to create a substantial risk of harm that a reasonable person
      would have warned her about.

Id. at 19.

      The trial court’s Rule 1925(a) opinion simply concludes that Appellant’s

conviction for AA-DUI renders this claim moot.      TCO, at 10 (unnumbered

pages). Indeed, the fact that the trial court found Appellant guilty of AA-DUI

implies that it believed the evidence to be sufficient to demonstrate that

Appellant’s negligence was a cause of the victim’s serious bodily injury.

While the trial court’s finding of mootness is not incorrect, we will address

Appellant’s claim as a challenge to the sufficiency of the evidence, out of an

abundance of caution, because if the evidence was sufficient to convict him


                                    - 10 -
J-A17024-15



at trial, any error with regard to the denial of his motion to quash is also

harmless.5

       When issuing the verdict in this case, the trial court stated that

Appellant’s intoxication due to alcohol and cocaine contributed to the

following negligent conduct:

             Driving a motorcycle with an inexperienced passenger
       without a helmet, assuring her he was a good driver, never
       disclosing the recent use of cocaine or the number of drinks or
       never explicitly telling her what to do. Putting an open bottle of
       beer in a side saddle, in addition to a closed bottle of beer in the
       motorcycle.

             I believe [Appellant]’s statement made to Officer Lee at
       the time the initial -- very first contact he had with police he did
       not indicate the complainant was the one that shifted her weight.
       He said he was the one that had shifted his weight and turn[ed]
       his head to speak to her.


____________________________________________


5
  In this regard, the trial itself presented Appellant with a second opportunity
to litigate the sufficiency of the evidence. Thus, Appellant’s motion to quash
was rendered moot by the trial court’s guilty verdict pursuant to
Commonwealth v. Lee, 662 A.2d 645, 650 (Pa. 1995) (holding that the
appellant’s “adjudication of guilt renders moot any allegation that the
Commonwealth failed to establish a prima facie case” at the preliminary
hearing) (emphasis added). Compare Commonwealth v. McCullough,
461 A.2d 1229 (Pa. 1983) (holding that the Commonwealth’s failure to
present a prima facie case of robbery at the appellant's preliminary hearing
was immaterial where the Commonwealth met its burden of proving the
underlying offense at trial beyond a reasonable doubt); and compare
Hess, supra (“If in fact it is determined at trial that the evidence of the
Commonwealth is sufficient to be submitted to the jury, then any deficiency
in the presentation before the district justice would have been harmless.”)
(emphasis added).         Whether Appellant’s claim is ‘moot’ under Lee,
‘immaterial’ under McCullough, or ‘harmless’ under Hess, we conclude that
he is not entitled to relief under any of these standards.



                                          - 11 -
J-A17024-15


             And it’s those things, all of that while turning at 25 miles
      an hour, making a right hand turn, all of those are the
      contributing factors that [Appellant] is responsible for. There
      can be obviously more than one cause and [Appellant]’s actions,
      as I noted, are just one o[f] many in the series of events that led
      to this accident and I think he’s guilty of [AA-DUI].

N.T., 1/8/14, at 5.

      We agree that the confluence of these acts and omissions adequately

demonstrate that Appellant’s negligent conduct caused the injuries to the

victim.     Contrary to Appellant’s assertions, these facts provide sufficient

evidence of his unsafe driving beyond mere intoxication. Appellant created a

foreseeable risk of injury by having an in- or under-experienced motorcycle

passenger ride helmetless with him, while simultaneously failing to disclose

his own degree of intoxication.         Additionally, the trial court credited

Appellant’s first claim to police—that he had turned his head, causing the

shift in weight that led to the accident—rather than his subsequent, self-

serving claim that the victim had unbalanced the motorcycle by shifting her

weight. Even if Appellant did not perceive these risks, his failure to do so

“involves a gross deviation from the standard of care that a reasonable

person would observe in the actor's situation.” 18 Pa.C.S. § 302(b)(4). This

conclusion is buttressed by Officer Lackman’s testimony, which established

that no adverse weather or street conditions could have contributed to the

accident.

      Appellant    argues   that   several     authorities   run   counter   to   this

conclusion, case law which purportedly demonstrates the proposition that

negligence cannot be proven for purposes of an AA-DUI offense absent

                                      - 12 -
J-A17024-15



evidence of another motor vehicle infraction. First, we note that, apart from

proof of a violation of 75 Pa.C.S. § 3802, a fact which is not contested in this

case, the definition of AA-DUI does not require that a motor vehicle violation

or other illegal conduct be proven in order to demonstrate the requisite

mens rea of negligence necessary to sustain a conviction for that offense,

nor does Appellant offer any argument to this effect.          Thus, Appellant

ostensibly believes that case law establishes such a rule.

      Appellant cites two cases which are simply inapposite to such an

argument, including Commonwealth v. Tanner, 61 A.3d 1043 (Pa. Super.

2013), which is not a sufficiency case at all. In Tanner, the appellant raised

sentencing issues pertaining to an AA-DUI conviction, but those issues were

not resolved by this Court. Instead, acting sua sponte, the Tanner Court

only addressed an illegal sentence. Appellant also cites Commonwealth v.

Johnson, 545 A.2d 349 (Pa. Super. 1988), a case which did not even

involve an AA-DUI offense.

      Appellant fared better with his other citations. In Commonwealth v.

Schmohl, 975 A.2d 1144 (Pa. Super. 2009), the appellant challenged the

sufficiency of the evidence supporting his AA-DUI conviction, arguing that he

“displayed no outward manifestations of reckless driving or a violation of the

motor vehicle code[.]” Id. at 1147. This Court disagreed, noting that the

appellant, after imbibing 5-6 sixteen-ounce cans of beer, drove as fast as 50

m.p.h. in a 35 m.p.h. zone when he struck the victim.             Furthermore,

evidence supported an inference that the appellant had crossed the fog line

                                     - 13 -
J-A17024-15



just before striking the victim. This Court found that evidence sufficient to

demonstrate the appellant’s negligence.

      In Commonwealth v. Miller, 810 A.2d 178 (Pa. Super. 2002), the

Commonwealth appealed from the trial court’s dismissing of Miller’s AA-DUI

charge for lack of sufficient evidence pursuant to a pre-trial habeas corpus

petition.   Miller had collided with a motorcyclist while making a left turn

across the oncoming traffic lane in which the biker was travelling. The trial

court had dismissed the charge, concluding that the Commonwealth could

not prove negligence in the absence of witnesses to the accident. However,

this Court reversed, as physical evidence showed that the biker had been

travelling within the posted speed limit, as demonstrated by the skid marks

left by the motorcycle. From this evidence, along with the undisputed facts

that Miller made a left turn against opposing traffic and that the right side of

his vehicle had struck the biker, this Court concluded that sufficient evidence

showed that Miller had been grossly negligent in “traversing the victim’s

right of way.” Id. at 181.

      In Commonwealth v. Ketterer, 725 A.2d 801 (Pa. Super. 1999), this

Court sustained a conviction for AA-DUI where the appellant was involved in

an accident while speeding.       The appellant’s speeding was particularly

negligent because “minimal visibility caused by severe weather conditions”

led other drivers to travel at approximately 25 m.p.h. in a 45 m.p.h. zone,

whereas the appellant had been driving at an estimated speed of 65 m.p.h.

in the same zone. Id. at 804. However, Ketterer is not directly on point.

                                     - 14 -
J-A17024-15



At issue in that case was the sufficiency of the evidence as it pertained to

the causation element for AA-DUI, not the sufficiency of the evidence

regarding the requisite mens rea for the offense.

      Finally, Appellant cites Commonwealth v. Nicotra, 625 A.2d 1259

(Pa. Super. 1993), which, like Ketterer, addressed causation sufficiency

rather than mens rea sufficiency. Nevertheless, in Nicotra, this Court found

sufficient evidence of AA-DUI where the appellant had been “driving his

vehicle at a high rate of speed and had ignored several stop signs.” We also

concluded that “[t]he factfinder could … infer from the evidence that [the]

appellant’s reflexes and judgment had been adversely affected by his

intoxication.” Nicotra, 625 A.2d at 1264.

      Instantly, we agree with Appellant that most of the above-cited cases

found evidence sufficient to sustain an AA-DUI conviction where the

defendant’s conduct involved motor vehicle code infractions above and

beyond the underlying DUI offense.          However, in none of those cases did

this Court state or imply that negligence for purposes of AA-DUI could not be

proven in the absence of an independent motor vehicle code violation.

Given the absence of such a requirement in the text of 75 Pa.C.S. § 3735.1,

considering   our    conclusion   that    Appellant’s   conduct   satisfied   Section

302(b)(4)’s definition of criminal negligence, and considering the lack of any

case law supporting his position,        we conclude that Appellant’s sufficiency

claim lacks merit.




                                         - 15 -
J-A17024-15



        Appellant’s second, third, fourth, and fifth claims of error all pertain to

his motion to suppress his un-Mirandized statements to police and the

results of his post-accident BAC test.      The trial court found that Appellant

waived all suppression-related claims by failing to adequately preserve

them.

        As noted above in the procedural history of this case, Appellant filed

an omnibus suppression motion seeking the exclusion of both the BAC test

results and his un-Mirandized statements. See Appellant’s Omnibus Pre-

Trial Motion, filed 4/22/13 (refiled 9/3/13).       The Commonwealth was not

prepared to litigate Appellant’s suppression motions on two occasions,

leaving Appellant’s omnibus suppression motion unresolved when his trial

began on January 6, 2014.          Thus, the trial court clearly erred when it

proceeded to trial without first resolving Appellant’s pending suppression

issues. It is also apparent from the record, however, that the defense did

not object to the court’s oversight in this regard.

        Appellant also failed to object when the Commonwealth sought

admission of Appellant’s BAC test results and his un-Mirandized statements

at trial.     Officer Lackman testified extensively regarding Appellant’s

statements to him immediately after the accident. N.T., 1/6/14, at 20-24.

At no time during this testimony did Appellant or his counsel lodge an

objection. Id. Similarly, Appellant failed to object when the Commonwealth

introduced Appellant’s BAC test results through the testimony of Dr. Cohn.

Id. at 92.       Indeed, Appellant made no mention of the unaddressed

                                       - 16 -
J-A17024-15



suppression   issues    until   his   closing   argument.    Id.   at   111-112.

Consequently, the trial court found that Appellant waived any suppression

claim by failing to bring the unaddressed motion(s) to the court’s attention

prior to the admission of the BAC test results and un-Mirandized

statements. TCO, at 8-9. We agree.

      “Issues not raised in the lower court are waived and cannot be raised

for the first time on appeal.”    Pa.R.A.P. 302(a).    Furthermore, “[i]t is well

established that trial judges must be given an opportunity to correct errors

at the time they are made.” See Commonwealth v. Clair, 326 A.2d 272,

274 (Pa. 1974).        In this regard, “a party may not remain silent and

afterwards complain of matters which, if erroneous, the court would have

corrected.” Id. (quoting Commonwealth v. Marlin, 305 A.2d 14, 16 (Pa.

1973) (citations omitted)).      “Even where a defendant objects to specific

conduct, the failure to request a remedy such as a mistrial or curative

instruction is sufficient to constitute waiver.” Commonwealth v. Strunk,

953 A.2d 577, 579 (Pa. Super. 2008).

      Instantly, defense counsel’s failure to bring the unlitigated suppression

issues to the court’s attention prior to the admission of the purportedly

suppressible evidence deprived the trial court of the ability to correct its own

error in a timely fashion. Moreover, a reasonable inference could have been

drawn from counsel’s failure to object to the admission of the disputed

evidence that the related suppression motions had been abandoned.

Accordingly, we conclude that Appellant’s second, third, fourth, and fifth

                                       - 17 -
J-A17024-15



claims have not been adequately preserved for direct appellate review.6 As

such, they are deemed waived.

       Finally, Appellant contends that the trial court erred when it concluded

that the beer found in Appellant’s motorcycle’s saddlebags belonged to him.

Appellant believes that his purported ownership or possession of the beer

bottles in question was in impermissible inference drawn from the evidence.

We disagree.

       The Commonwealth argues that the inference was proper since the

beer in question “was found in [Appellant’s] motorcycle, he had been

drinking earlier in the night, [and] he was intoxicated at the time of the

accident[.]”     Commonwealth’s Brief, at 8 n.3.        We agree.   The court’s

inference was patently reasonable given the circumstances in which the beer

was discovered. Appellant’s final claim is meritless.

       Judgement of sentence affirmed.




____________________________________________


6
  Due to counsel’s failure to bring this matter to the trial court’s attention in
a timely fashion, Appellant’s only recourse, if he is entitled to relief at all,
lies in an ineffective assistance of counsel claim which may only be raised
during collateral review in a petition filed pursuant to the Post Conviction
Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq. See Commonwealth v.
Holmes, 79 A.3d 562, 576 (Pa. 2013) (holding that, absent special
circumstances outlined in Holmes, “claims of ineffective assistance of
counsel are to be deferred to PCRA review; trial courts should not entertain
claims of ineffectiveness upon post-verdict motions; and such claims should
not be reviewed upon direct appeal”).



                                          - 18 -
J-A17024-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/27/2015




                          - 19 -
