J-S94040-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                      v.

FLOYD SMITH, JR.

                               Appellant               No. 950 MDA 2016


              Appeal from the Judgment of Sentence May 25, 2016
      in the Court of Common Pleas of Lycoming County Criminal Division
                       at No(s): CP-41-CR-0001030-2015

BEFORE: LAZARUS, RANSOM, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                         FILED MARCH 03, 2017

        Appellant, Floyd Smith, Jr., appeals from the judgment of sentence

entered in the Lycoming County Court of Common Pleas following his

convictions for two counts of driving under the influence of alcohol (“DUI”) 1

and two counts of endangering the welfare of children.2 He contends that

the trial court improperly admitted his inculpatory statements because the

Commonwealth did not establish the corpus delicti of DUI. We affirm.

        We glean the relevant facts from the trial court opinion and the

certified record.    On February 8, 2015, Trooper Tyler Morse and Trooper

Adam Kirk received a report about an individual possibly driving while

intoxicated.    N.T., 3/10/16, at 45.      The person was described as a black

*
    Former Justice specially assigned to the Superior Court.
1
    75 Pa.C.S. § 3802(a)(1), (b).
2
    18 Pa.C.S. § 4304(a)(1).
J-S94040-16


male driving a silver car with two minor children in the car. Id. Appellant’s

name was provided in the report, and Trooper Kirk knew Appellant and the

location of his home.   Id.   at 58.   The troopers proceeded to Appellant’s

home and arrived at 11:11 pm, approximately eleven minutes after

receiving the call about the intoxicated driver. Id. at 45.

      Outside the house, the troopers encountered Appellant standing

outside his silver vehicle within arms-length of the driver’s side door. Id. at

58-60. Appellant’s two minor daughters were also standing next to the car.

Id. Trooper Morse detected a moderate odor of alcohol emanating from

Appellant and saw that he had bloodshot, glassy eyes.          Id. at 45.   The

trooper also noticed that Appellant kept dropping his keys and it took him

four times to retrieve his driver’s license. Id. Suspecting that Appellant was

under the influence of alcohol, Trooper Morse conducted several field

sobriety tests with Appellant.    Id. at 46-49.      Appellant was not able to

successfully complete the tests. Id. As a result, Appellant was arrested and

transported to Williamsport Hospital.        Id. at 49.   Once there, Appellant

consented to a blood draw and his blood alcohol content (“BAC”) was found

to be at .15. Id.   At the hospital, Appellant admitted to Trooper Morse that

he had consumed six Budweiser 16 oz. beer cans prior to driving. Id. at 50-

51.

      A jury trial was conducted on March 10, 2016, at which both troopers

testified. Both troopers conceded that they had not felt the vehicle to see if



                                       -2-
J-S94040-16


it was warm, or heard any noise coming from the car “as if it were cooling

down.”    Id. at 44, 63.      However, Trooper Kirk did state that Appellant

appeared to be “locking the vehicle up” when they confronted him at his

home.    Id. at 64.       After the jury found Appellant guilty of the above

referenced charges, the trial court sentenced him to an aggregate term of

forty days to eighteen months’ incarceration on May 25, 2016. This timely

appeal   followed.    Appellant    filed   a   court-ordered   Pa.R.A.P.   1925(b)

statement of errors complained of on appeal, and the trial court filed a

responsive opinion.

      Appellant raises the following issue for our review:

         Whether the trial court abused its discretion when it
         admitted Appellant’s admission to driving under the
         influence as a result of the Commonwealth’s failure to
         prove, by a preponderance of the evidence, the corpus
         delicti of DUI?

Appellant’s Brief at 4.

      Appellant argues that the trial court erred by admitting testimony

regarding his confession to DUI with his two children in the car. Specifically,

Appellant claims that because the trooper’s did not see Appellant driving or

indicate Appellant’s car was recently driven, the Commonwealth could not

prove, even by a preponderance of the evidence, that Appellant was

operating the car at issue.       Id. at 10.     Therefore, Appellant avers, the

Commonwealth failed to present sufficient evidence to establish the corpus

delicti of DUI. Id. at 17-18.



                                       -3-
J-S94040-16


      In furtherance of his argument, Appellant cites to several cases,

including Commonwealth v. Kasunic, 620 A.2d 525 (Pa. Super. 1993) and

Commonwealth v. Verticelli, 706 A.2d 820 (Pa. Super 1998).                  In

Kasunic, this Court concluded that ample evidence established the corpus

delicti of DUI where the defendant was found lying on the side of a roadway,

next to his pick-up truck, while highly intoxicated with no one else around.

Id. at 526. Appellant attempts to distinguish Kasunic from the instant case

by pointing out that, there, the defendant’s vehicle was found running with

the door open.    Appellant’s Brief at 9-10.    Conversely, in Verticelli, this

Court concluded that the corpus delicti of DUI had not been established

where the defendant was not found at the site of the motorcycle accident at

issue, but was instead discovered by police officers intoxicated at his home.3

Id. at 822.   Appellant likens his case to that of Verticelli because, here,

Appellant also was not directly observed driving the vehicle at issue.

Appellant’s Brief at 14-15. No relief is due.

      As a prefatory matter, we note our standard of review:

         [t]he 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


3
  We note that in Verticelli the defendant’s confession was ultimately
deemed admissible under the “closely-related crimes” exception to the
corpus delicti rule. Id. at 826.



                                      -4-
J-S94040-16


         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.

Commonwealth v. Hernandez, 39 A.3d 406, 411 (Pa. Super. 2012)

(citations omitted).

      Our review of a corpus delicti challenge is guided by the following legal

precepts:

         [The corpus delicti] rule prohibits the introduction of
         statements made by a defendant before independent
         evidence establishing the crime is introduced. The corpus
         delicti is established upon evidence of (1) the occurrence
         of the specific kind of injury or loss; and (2) someone’s
         criminality as the source of loss.       If the independent
         evidence points to an unlawful act, the Commonwealth
         need not affirmatively exclude the possibility of an accident
         in order to establish the corpus delicti. . . . , the injury or
         loss need not be tangible. Rather, in order to establish
         the corpus delicti of the crime of driving while
         intoxicated, the Commonwealth need only show that
         someone operated a motor vehicle while under the
         influence of alcohol.

Kasunic, 620 A.2d at 529 (citations omitted) (emphasis added).

      It is axiomatic that “[t]he historical purpose of the rule is to prevent a

conviction based solely upon a confession or admission, where in fact no

crime has been committed.” Verticelli, 706 A.2d at 823 (citation omitted).

Further, “[t]he criminal responsibility of the accused for the loss or injury is

not a component of the rule.” Id. at 822-23 (citation omitted). “The corpus




                                      -5-
J-S94040-16


delicti may be established by circumstantial evidence.” Id. at 823 (citation

omitted). Further, we note:

         Establishing the corpus delicti in Pennsylvania is a two-step
         process. The first step concerns the trial judge’s admission
         of the accused’s statements and the second step concerns
         the fact finder’s consideration of those statements. In
         order    for   the   statement     to   be   admitted,    the
         Commonwealth must prove the corpus delicti by a
         preponderance of the evidence. In order for the statement
         to be considered by the fact finder, the Commonwealth
         must establish the corpus delicti beyond a reasonable
         doubt.

Commonwealth v. Young, 904 A.2d 947, 956 (Pa. Super. 2006) (citation

omitted).

      In the case sub judice, it is significant that Appellant was discovered in

close proximity to the silver car in question, seemingly in the process of

locking-up the vehicle, while in an intoxicated state.      Further, Appellant’s

two daughters were standing next to the car.            Moreover, the troopers

encountered Appellant only eleven minutes after receiving a call regarding

an intoxicated driver, in a silver car, with two children in the car.

      Contrary to Appellant’s assertions, we conclude that the instant facts

are not readily distinguishable from those in Kasunic. Although the car, in

that case, was found running while here, Appellant’s car was not, in both the

instant case and Kasunic, the accused was found intoxicated and in close

proximity to the vehicle in question.       See Kasunic, 620 A.2d at 526.

Furthermore, Appellant fails to acknowledge that unlike the driver in

Verticelli, who was not found with his vehicle but at his home, Appellant


                                      -6-
J-S94040-16


here was discovered close in time, both physically and temporally, to the

vehicle and to the report that he was driving.   See Verticelli, 706 A.2d at

823.

       Thus, we conclude that the trial court had ample evidence upon which

to find that the facts presented were more consistent with an unlawful act

then with a mistake and were therefore sufficient to establish the corpus

delicti of DUI. See Kasunic, 620 A.2d at 529; Verticelli, 706 A.2d at 823;

Hernandez, 39 A.3d at 411. Accordingly, Appellant’s lone issue on appeal

lacks merit and we affirm his judgment of sentence.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/3/2017




                                    -7-
J-S94040-16




              -8-
