J-S81027-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    BRIAN KEITH CARTER

                             Appellant                No. 464 MDA 2017


          Appeal from the Judgment of Sentence September 12, 2016
                 In the Court of Common Pleas of York County
              Criminal Division at No: CP-67-CR-0003503-2016


BEFORE: PANELLA, STABILE, and PLATT, JJ.*

MEMORANDUM BY STABILE, J.:                           FILED MARCH 20, 2018

        Appellant, Brian Keith Carter, appeals from the judgment of sentence

imposed on September 12, 2016 in the Court of Common Pleas of York County

following his conviction of driving under the influence (“DUI”) and driving

under suspension (“DUS”).1 In this case involving application of the corpus

delicti rule, Appellant argues the trial court erred by admitting his confession

because the Commonwealth failed to establish that a crime had been

committed. Following review, we affirm.




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*   Retired Senior Judge assigned to the Superior Court.

1   75 Pa.C.S.A. §§ 3802(a)(1) and 1501(a), respectively.
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      In its Rule 1925(a) opinion, the trial court provided a “recitation of the

relevant facts elicited [at trial]” as follows:

      At or around 10:03 p.m. on March 5, 2016, Trooper Joshua Koach
      encountered the Appellant and another individual walking
      northbound on I-83 just south of Exit 39. The trooper testified
      that the Appellant appeared intoxicated upon first sight as he was
      seen to lean on his female companion and was stumbling about.
      The pair indicated to the trooper that they were travelling from
      Harrisburg to York when they ran out of gas for the vehicle.
      Confusingly, the pair were walking back in the direction they
      purported to be coming from and they indicated [] the wrong
      direction for Harrisburg. The trooper then testified that the
      Appellant appeared disoriented and confused as to where he was
      and where he was going. The vehicle was eventually located on
      the other side of the highway and directly across from the point
      at which the officer interacted with the Appellant and the female.
      Trooper Koach noted for the court that, rather than having walked
      less than a tenth of a mile back to a Rutter’s gas station, the
      Appellant and the female had walked to Exit 38, had crossed up
      and over the pass, and had then tried walking north and back
      towards the Rutter’s.

      The Appellant initially indicated to the trooper that his female
      companion had been the driver; however, under further
      questioning, the Appellant admitted that he had driven. The
      Appellant went on to confirm that he had been the driver some
      four-to-five times after his initial denial. The Appellant told the
      trooper that he had consumed alcohol at his home in Harrisburg
      prior to operating the vehicle. The Appellant stated that he had
      driven until the vehicle ran out of gas and that he had not
      consumed any alcohol following this event. Under questioning
      from the court, the trooper stated that the keys for the vehicle
      were found within the vehicle.

Trial Court Opinion, 7/30/17, at 3-4 (emphasis in original) (references to notes

of testimony and some capitalization omitted)

      The trial court noted the trooper’s description of Appellant as having a

strong odor of alcohol as well as bloodshot and glassy eyes. His balance was


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severely compromised and he stumbled, falling into the trooper as the trooper

was conducting field sobriety tests. To ensure Appellant’s safety, the trooper

stopped the field sobriety tests and had Appellant sit on the front of the

trooper’s vehicle. Id. at 4.

       The trooper also testified that Appellant’s certified driving record from

PennDOT reflected that his license was suspended. The record did not include

any information about reinstatement but rather revealed several DUS

suspensions that would extend his period of suspension. Although he did not

cite a PennDOT certified record for Appellant’s female companion, records

from NCIC/CLEAN2 revealed that her license was suspended as well. Id. at

5.3

       Appellant was arrested and charged with, inter alia, general impairment

DUI and DUS. Following a September 12, 2016 bench trial, the trial court

found Appellant guilty of both offenses. The trial court sentenced Appellant

to six months’ probation and a $300 fine for DUI as well as a $1,000 fine for

DUS. Appellant filed a post-sentence motion, which was denied by operation



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2 National Crime Information Computer/Commonwealth Law Enforcement
Assistance Network.

3 Although the trooper did not have an opportunity to administer field sobriety
tests to Appellant’s companion, the trooper testified that he “could tell that
they were under the influence of alcohol.” Notes of Testimony, Trial, 9/12/16,
at 25. Further, “[s]he had the odor of an alcoholic beverage about her person”
and “admitted she had some alcohol to drink earlier that night.” Id. at 25-
26.

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of law on March 1, 2017. This timely appeal followed. Both Appellant and the

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

      In   this   appeal,   Appellant   presents   one   issue   for   this   Court’s

consideration:

      The trial court erred in admitting Appellant’s confession under the
      corpus delicti rule that he was the driver of the vehicle when the
      Commonwealth failed to demonstrate by a preponderance of the
      evidence that a crime was committed.

Appellant’s Brief at 4.

      As this Court reiterated in Commonwealth v. Hernandez, 39 A.3d 406

(Pa. Super. 2012):

      The corpus delicti rule is an evidentiary one. On a challenge to a
      trial court’s evidentiary ruling, our standard of review is one of
      deference.
      The admissibility of evidence is solely within the discretion of the
      trial court and will be reversed only if the trial court has abused
      its discretion. An abuse of discretion is not merely an error of
      judgment, but is rather the overriding or misapplication of the law,
      or the exercise of judgment that is manifestly unreasonable, or
      the result of bias, prejudice, ill-will or partiality, as shown by the
      evidence of record.

Id. at 411 (quoting Commonwealth v. Herb, 852 A.2d 356, 363 (Pa. Super.

2004) (citations omitted)).

      In Herb, this Court explained the corpus delicti rule as follows:

      Pennsylvania law precludes the admissibility of a confession
      absent proof of the corpus delicti, literally, “the body of a crime.”
      Commonwealth v. Taylor, 574 Pa. 390, 395, 831 A.2d 587, 590
      (2003) (citation omitted). However, the rule is not “a condition
      precedent to the admissibility of the statements” of an accused.
      Id. “Rather, the rule seeks to ensure that the Commonwealth has
      established the occurrence of a crime before introducing the


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      statements or confessions of the accused to demonstrate that the
      accused committed the crime. The rule was adopted to avoid the
      injustice of a conviction where no crime exists.” Id.

      Only inculpatory statements fall within the scope of the corpus
      delicti rule. Commonwealth v. McMullen, 545 Pa. 361, 368,
      681 A.2d 717, 721 (1996). Before such a statement may be
      admitted into evidence, the Commonwealth must establish: 1) a
      loss has occurred and 2) the loss occurred as a result of criminal
      activity. Taylor, supra at 395, 831 A.2d at 590. Only then may
      the Commonwealth introduce a statement to show that the
      defendant is responsible for the loss. Id. For the purpose of
      admission, the corpus delicti may be established by a
      preponderance of the evidence. Commonwealth v. Reyes, 545
      Pa. 374, 681 A.2d 724, 727 (1996), cert. denied, 520 U.S. 1174,
      117 S.Ct. 1445, 137 L.Ed.2d 551 (1997).           Moreover, the
      Commonwealth may establish the corpus delicti with
      circumstantial evidence.    Id. at 380–82, 681 A.2d at 727;
      Commonwealth v. Rivera, 828 A.2d 1094, 1103–04 (Pa. Super.
      2003), appeal denied, 577 Pa. 672, 842 A.2d 406 (2004)
      (quotation omitted).

Herb, 852 A.2d at 363 (footnotes omitted). Importantly, “[t]he identity of

the person responsible for the criminal act is not part of the corpus delicti.”

Commonwealth v. Zugay, 745 A.2d 639, 652 (Pa. Super. 2000), appeal

denied, 795 A.2d 976 (Pa. 2000).

      In the case before us, the trial court reasoned there were potentially

two crimes that would make Appellant’s statements about driving the vehicle

admissible. First, based on the trooper’s testimony and backed by records he

obtained, neither Appellant nor his female companion had a valid license.

There is no suggestion that someone other than Appellant or his companion

drove the vehicle until it ran out of gas.   Second, circumstantial evidence

supported a finding that an intoxicated person—whether Appellant or his


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companion—drove past a gas station and ran out of gas less than one-tenth

of a mile later. “It is not typical for sober individuals to run out of gas in such

a fashion.” Trial Court Opinion, 7/30/17, at 7-8.

      The trial court explained:

      Lending an indicia of veracity to this conclusion, both Appellant
      and the female then walked away from the Rutter’s in order to
      reach an overpass, cross said overpass, and begin a circuitous
      return toward[] the Rutter’s. Tellingly, the Appellant and his
      female companion were confused as to where they were and the
      direction in which they travelled, which was shown by their
      responses to the trooper’s queries as to the direction of
      Harrisburg. The Appellant himself performed poorly on the [field
      sobriety tests] and, possessing a strong odor of alcohol and glassy
      bloodshot eyes, was unsteady throughout the encounter.
      Additionally, we remember that the trooper felt the Appellant and
      the female were incapable of operating a motor vehicle—so
      incapable that the Appellant was arrested and the female was
      deemed too intoxicated for anything beyond being dropped off at
      the Rutter’s. So, whether by dint of suspended licenses or
      intoxication, either of the potential operators of the vehicle should
      not have operated said vehicle. By a preponderance of the
      evidence standard, we have no trouble believing that the
      Commonwealth established that it was more likely than not that
      both the Appellant and his companion, lacking active licenses,
      were disallowed from driving and/or under the influence to the
      extent that they would not be allowed to drive. Ergo, the
      Appellant’s statements were admissible under the test laid out in
      Hernandez, supra.

Id. at 8.

      As noted above, corpus delicti involves a two-tiered process. In the first

step, “[b]efore introducing an extra-judicial admission, the Commonwealth is

not required to prove the existence of a crime beyond a reasonable doubt.

. . . Rather, it is enough for the Commonwealth to prove that the injury or

loss is more consistent with a crime having been committed than not.”

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Zugay, 745 A.2d at 652 (quotations and citations omitted). Recognizing that

the corpus delicti rule is an evidentiary rule and that our standard of review is

one of deference, see Hernandez, 39 A.3d at 411, we cannot find that the

trial court abused its discretion in determining that the Commonwealth

demonstrated by a preponderance of the evidence that a crime had been

committed.

       In the issue as presented in this appeal, Appellant has challenged only

the first tier of the corpus delicti rule, i.e., whether the Commonwealth

demonstrated by a preponderance of the evidence that a crime occurred.

Therefore, it is not necessary for us to consider the second part of the corpus

delicti rule, i.e., whether the Commonwealth proved, beyond a reasonable

doubt, that Appellant—or someone—drove the vehicle while under the

influence and under suspension.4

       Finding no abuse of discretion in the trial court’s determination that a

crime occurred, we shall affirm the trial court’s ruling.

       Judgment of sentence affirmed.




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4 In his Rule 1925(b) statement of errors complained of on appeal, Appellant
also asserted error based on the sufficiency and weight of evidence supporting
Appellant’s convictions of DUI and DUS. Appellant’s Rule 1925(b) Statement,
4/19/17, at ¶¶ 2-3. In his brief filed with this Court, Appellant explains that
“[a]fter further review, counsel has proceeded only with Issue #1 of the
1925(b) Statement of Errors.” Appellant’s Brief at 4 n.1.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/20/2018




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