J-S31012-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

TAMMY GEISS,

                            Appellant               No. 1072 MDA 2014


              Appeal from the Judgment of Sentence May 1, 2014
               In the Court of Common Pleas of Bradford County
              Criminal Division at No(s): CP-08-CR-0000931-2013


BEFORE: BENDER, P.J.E., ALLEN, J., and WECHT, J.

MEMORANDUM BY BENDER, P.J.E.:                          FILED JUNE 26, 2015

        Tammy Geiss (Appellant) appeals from the May 1, 2014 judgment of

sentence of a minimum of 72 hours and a maximum of 6 months’

incarceration after being found guilty at a bench trial of driving under the

influence (DUI), highest rate,1 DUI, general impairment,2 and public

drunkenness.3       Appellant now challenges the trial court’s discretion in

admitting inculpatory statements against a corpus delicti objection, and the

sufficiency of the evidence regarding the degree of her intoxication.   After

careful review, we affirm the judgement of sentence.

____________________________________________


1
    75 Pa.C.S. § 3802(c).
2
    75 Pa.C.S. § 3802 (a)(1).
3
    18 Pa.C.S. § 5505.
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     The trial court set forth a factual summary of this matter as follows:

     Officers Hoffman and Dekar responded to a report of an
     intoxicated person. Upon arrival, [Appellant] was found in her
     motor vehicle parked on a public street. [Appellant] was in the
     driver’s seat. The car was warm. The [o]fficer initially spoke to
     her through her open window. The [o]fficer asked for drivers’
     license, registration and insurance.       [Appellant] gave [the
     officer] the registration and insurance card and was advised she
     also needed the license.         [Appellant] appeared confused.
     [Appellant] reached for the ignition and the police officer had to
     re-direct her because she did not want [Appellant] starting the
     vehicle. [Appellant] turned on the headlights of the vehicle, the
     officer again redirected her to obtain her drivers’ license.
     [Appellant]’s speech was extremely slurred and her eyes were
     extremely bloodshot and glassy. When [Appellant] was asked to
     step out of the vehicle, the police officer had to hold her up as
     [Appellant] was not able to hold her own balance. [Appellant]
     fell on the officer numerous times. [Appellant] had a very strong
     odor of alcohol from her breath and her person. [Appellant] was
     not able to do the field sobriety tests and stated same to the
     officer. ….

           [Appellant] told the police officer that she had taken two
     oxycodone pills and began drinking at her husband’s house,
     drove around while continuing to consume wine and then drove
     to the place she was parked. ….

           ….

           …[Appellant] was encountered by the police at 8:53 PM.
     …. She consented to have a blood alcohol test and blood was
     drawn at 9:34. Thus her blood was drawn within two hours of
     her being in actual physical control of her vehicle. The BAC
     results were 0.22.      Although [Appellant] testified that she
     consumed wine after arriving to the point where she was
     encountered by the police and there were numerous empty and
     some full small bottles of wine in her vehicle ….

Trial Court Opinion (T.C.O.), 11/2014 at 2-4.

     On February 28, 2014, at the conclusion of a bench trial, Appellant

was found guilty and sentenced as stated above.          Appellant filed post


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sentence motions, which were denied.                Appellant filed a timely notice of

appeal and complied with the trial court’s order to file a Pa.R.A.P. 1925(b)

statement.      The trial court issued its Rule 1925(a) opinion on November,

2014. Appellant now presents the following issues for our review:

       I.     Whether    [Appellant]’s    admission to  driving    was
              inadmissible as a result of the Commonwealth’s failure to
              prove the corpus delicti of DUI?

       II.    Whether the Commonwealth presented sufficient evidence
              that [Appellant] had consumed enough alcohol to establish
              that she had a blood alcohol content exceeding 0.16% at
              the time she was driving?

Appellant’s Brief, at 7.

                                    Corpus Delicti

       The    corpus    delicti   rule   requires    proof   that   a    crime     occurred,

independent      of    self-incriminating      statements    made       by   an    accused.4

Appellant’s argument is that the Commonwealth did not present sufficient

evidence to prove that she had driven her vehicle while under the influence

of alcohol.     She asserts that, without such proof, her statements that she

had been drinking alcohol prior to driving were inadmissible.                 “Essentially,

the Commonwealth failed to prove that a traffic offense had occurred

without the benefit of [Appellant]’s inculpatory statement.”                      Appellant’s

Brief, at 12.


____________________________________________


4
 See Commonwealth v. Hernandez, 39 A.3d 406, 410-411 (Pa. Super.
2012).



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      Our standard of review for a challenge to the corpus delicti rule is well-

settled.

      The corpus delicti rule is designed to guard against the “hasty
      and unguarded character which is often attached to confessions
      and admissions and the consequent danger of a conviction where
      no crime has in fact been committed.” The corpus delicti rule is
      a rule of evidence.        Our standard of review on appeals
      challenging an evidentiary ruling of the trial court is limited to a
      determination of whether the trial court abused its discretion.
      The corpus delicti rule places the burden on the prosecution to
      establish that a crime has actually occurred before a confession
      or admission of the accused connecting him to the crime can be
      admitted. The corpus delicti is literally the body of the crime; it
      consists of proof that a loss or injury has occurred as a result of
      the criminal conduct of someone. The criminal responsibility of
      the accused for the loss or injury is not a component of the rule.
      The 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.            The corpus delicti may be
      established by circumstantial evidence. 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.

Hernandez, 39 A.3d at 410-411 (internal citations omitted) (emphasis in

original).

      With this standard in mind, our first step in assessing Appellant’s claim

is determining the corpus delicti of DUI. The pertinent law provides that the

Commonwealth had to prove, independent of Appellant’s statement, that (1)

an individual was driving, operating, or in actual physical control of the

movement of a vehicle, (2) after imbibing a sufficient amount of alcohol such

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that the individual was rendered incapable of safely driving. 5            If the

Commonwealth established both prongs by a preponderance of the

evidence, we shall find no abuse of discretion in the introduction of

Appellant’s inculpatory statements at trial.6

       We have found actual physical control of a vehicle when a defendant

was in driver’s seat, alone in the vehicle, while the vehicle was at the bottom

of an embankment, and the hood was warm. Commonwealth v. Wilson,

660 A.2d 105, 107 (Pa. Super. 1995).             In the case at bar, the hood and

fender well were warm, indicating to police that the vehicle was driven

recently.    Appellant was alone in the vehicle, sitting in the driver’s seat.

When asked for her driver’s license, registration, and insurance, Appellant

reached for the ignition and turned on the vehicle’s headlights.        Appellant

was away from her home, parked in front of her friend’s residence.           The

vehicle was pointed in the wrong direction with the driver’s side tires next to

the curb. Finally, police were responding to a call that an intoxicated person

was causing a “problem.”           As in Wilson, this evidence establishes that

____________________________________________


5
  “An individual may not drive, operate or be in actual physical control of the
movement of a vehicle after imbibing a sufficient amount of alcohol such
that the individual is rendered incapable of safely driving, operating or being
in actual physical control of the movement of the vehicle.” 75 Pa.C.S. §
3802(a)(1)
6
 Appellant was charged with both general impairment and highest rate DUI.
For our analysis, we have applied the general impairment corpus delicti,
however, the evidence satisfies highest rate DUI as well.



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Appellant was in actual physical control of the vehicle, thus satisfying the

first prong of analysis.

      Regarding her ability to drive safely, Appellant appeared to be heavily

intoxicated with empty bottles of alcohol in the vehicle. She could not stand

without assistance and repeatedly fell on a police officer.      She recognized

that she would not pass a field sobriety test and expressed that to the

police. We find this evidence satisfies the second prong of the analysis.

      We conclude that the Commonwealth presented independent evidence

sufficient to establish the corpus delicti of DUI by a preponderance of the

evidence.     Accordingly, we find that the trial court did not abuse its

discretion    in   allowing   testimony   establishing   Appellant’s   inculpatory

statements.

                           Sufficiency of the Evidence

      Appellant argues, in the alternative, that the evidence was insufficient

to prove that she was in violation of the highest rate of DUI. She contends

that the empty bottles of alcohol in her vehicle create reasonable doubt as to

whether her BAC was in excess of the limit within two hours of driving the

vehicle. Without evidence that established that she was driving under the

influence, as opposed to becoming intoxicated afterward, Appellant avers

that the verdict cannot stand.

      We review Appellant’s challenge to the sufficiency of the evidence

under the following, well-settled standard of review:




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       We must determine whether the evidence admitted at trial, and
       all reasonable inferences drawn therefrom, when viewed in a
       light most favorable to the Commonwealth as verdict winner,
       support the conviction beyond a reasonable doubt. Where there
       is sufficient evidence to enable the trier of fact to find every
       element of the crime has been established beyond a reasonable
       doubt, the sufficiency of the evidence claim must fail.

       The evidence established at trial need not preclude every
       possibility of innocence and the fact-finder is free to believe all,
       part, or none of the evidence presented. It is not within the
       province of this Court to re-weigh the evidence and substitute
       our judgment for that of the fact-finder. The Commonwealth's
       burden may be met by wholly circumstantial evidence and 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. Mobley, 14 A.3d 887, 889-890 (Pa. Super. 2011)

(citation omitted).

       Appellant’s argument relies entirely on the “driving” condition of the

offense.    Because the Code provides that a violation occurs while driving,

operating, or in actual physical control of the vehicle, we will deem the

evidence sufficient if it establishes that Appellant had a BAC of 0.16% or

higher within two hours of having been in actual physical control of the

movement of the vehicle.7


____________________________________________


7
  “An individual may not drive, operate or be in actual physical control of the
movement of a vehicle after imbibing a sufficient amount of alcohol such
that the alcohol concentration in the individual’s blood or breath is 0.16% or
higher within two hours after the individual has driven, operated or been in
actual physical control of the movement of the vehicle.” 75 Pa.C.S. §
3802(c).



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      When viewed in the light most favorable to the verdict winner, the

evidence sufficiently established all of the elements of the offense. Appellant

was alone in her vehicle, sitting in the driver’s seat, reaching for the ignition,

turning on the lights, and not at her own residence. Based on reasonable

inferences drawn from this evidence, the fact-finder could have determined

that Appellant was in actual physical control of the vehicle.            Further,

Appellant’s blood was drawn within two hours of her first encounter with the

police and her BAC was 0.22%. Accordingly, we conclude that the evidence

was sufficient to support the verdict.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/26/2015




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