J-S35036-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

FRANK J. RUBINO,

                            Appellant                  No. 53 EDA 2015


          Appeal from the Judgment of Sentence November 17, 2014
               in the Court of Common Pleas of Carbon County
              Criminal Division at No.: CP-13-CR-0000017-2004


BEFORE: MUNDY, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                               FILED JULY 20, 2015

        Appellant, Frank J. Rubino, appeals from the judgment of sentence

entered after his jury conviction of two counts of driving under the influence

of alcohol (DUI), 75 Pa.C.S.A § 3731(a)(1) and 75 Pa.C.S.A. § 3731(a)(4). 1

Appellant challenges the sufficiency of the evidence and the admissibility of

certain evidence. We affirm.

        We derive the following recitation of facts from the trial court’s

February 17, 2015 opinion:


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
 The Legislature repealed section 3731 and replaced it with 75 Pa.C.S.A. §
3802 on September 30, 2003. Section 3802 became effective February 1,
2004, after the offense in this case occurred.
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               On August 16, 2003, at approximately 1:19 A.M., Officer
        Michael Fedor of the Kidder Township Police Department was
        dispatched to the scene of a one-car motor vehicle accident
        along Moseywood Road — a two lane road — in Kidder Township,
        Carbon County.      Officer Fedor arrived at the scene at
        approximately 1:31 A.M., whereupon he noted the following:
        there were no adverse weather conditions, the posted speed
        limit was 25 miles per hour, the road curved towards the left,
        [and] a single vehicle had gone off the right side of the road
        striking a tree. At the time Officer Fedor arrived, a second
        vehicle was parked parallel to the road behind where the first
        vehicle had missed the turn. This second vehicle belonged to a
        passing motorist who stopped to render assistance after the
        accident had occurred.

               Maryann Gile, who had been a passenger in the vehicle,
        which struck the tree, was sitting in this other vehicle when
        Officer Fedor arrived and [was] requesting medical assistance.
        Officer Fedor called for an ambulance and Ms. Gile was
        subsequently transported from the scene while Officer Fedor
        continued his investigation. Officer Fedor did not interview Ms.
        Gile about the accident before she was transported for
        treatment, nor was she interviewed afterwards. Ms. Gile died in
        April of 2013 and therefore, was unavailable to testify at trial.2

              After calling for the ambulance, Officer Fedor approached
        [Appellant], whom Officer Fedor witnessed standing between the
        open driver’s door and driver’s side compartment of the crashed
        vehicle when he first arrived at the accident scene. Upon Officer
        Fedor’s request, [Appellant] produced his driver’s license, proof
        of insurance, and a registration evidencing the vehicle was
        [registered] in his name. Officer Fedor detected an odor of
        alcohol on [Appellant’s] breath and asked if [Appellant] had
        consumed any alcohol. In response to the Officer’s questions,
        [Appellant] admitted to drinking that evening and also that he
        was the driver of the car. At trial Officer Fedor opined that
        based upon his training and experience as a police officer, as
        well as his observations of [Appellant], [Appellant] was under
        the influence of alcohol to a degree that rendered him incapable
        of safe driving.
____________________________________________


2
    The death of Ms. Gile was unrelated to the accident.



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           [Appellant] was transported to the Geisinger Wyoming
     Valley Hospital where his blood was drawn at 3:11 A.M. to test
     for alcohol content. Cathy Sweeney, a medical technologist at
     Hazelton General Hospital, tested [Appellant’s] blood using an
     Abbott TDX machine. The results of this test revealed a BAC
     [Blood Alcohol Content] by weight of 102 milligrams per deciliter
     or 0.102%. At trial[,] Ms. Sweeney testified that she believed
     the testing equipment has a margin of error of ten percent based
     upon what her supervisor advised her, but that she had never
     seen any documentation independently corroborating that figure.
     She also testified that given this margin of error, [Appellant’s]
     actual BAC ranged from between 0.092% and 0.112%.

            [Appellant] testified that he was owner of the vehicle but
     was not the driver that night. [Appellant] testified that he
     normally does not drive on the advice of his doctor and that Ms.
     Gile would often drive him around. According to [Appellant],
     that evening a man named John ([Appellant] did not know
     John’s surname) was driving [Appellant’s] vehicle. [Appellant]
     claimed that he and Ms. Gile had met John at a nightclub earlier
     in the evening and invited him to go fishing. [Appellant] further
     testified that he was asleep in the back seat of his vehicle and
     was awakened by the crash.

            [Appellant] testified that approximately five minutes after
     the accident a passing motorist stopped to render assistance.
     According to [Appellant], he was sitting in this vehicle when the
     ambulance arrived, not Ms. Gile, because Ms. Gile was trapped in
     the crashed vehicle.         [Appellant] also testified that the
     ambulance personnel extracted Ms. Gile from the crashed vehicle
     before Officer Fedor’s arrival. Appellant denied standing near
     the crashed car at the time . . . Officer [Fedor] arrived and
     further denied ever stating that he was the driver. Lastly,
     [Appellant] testified that John left the scene of the crash before .
     . . Officer [Fedor] arrived and he never saw John again.

           Prior to opening statements at his trial, [Appellant] moved
     to preclude his statements to [Officer Fedor] that he was the
     owner and driver of the car in question on the basis of the
     corpus delicti rule. The court discussed the matter with counsel
     in chambers[,] and the court reserved ruling on the motion until
     the Officer testified. During [Officer Fedor’s] testimony,
     [Appellant] objected to [Officer Fedor] being questioned about

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       [Appellant’s] admission that he was the driver of the vehicle,
       which struck the tree. A discussion at sidebar ensued and the
       court overruled the objection and allowed the question to be
       asked.

(Trial Court Opinion, 2/17/15, at 2-6)           (record citations and footnotes

omitted).

       On September 9, 20143, a jury convicted Appellant of two counts of

DUI. On November 17, 2014, the court sentenced Appellant to a term of not

less than forty-eight hours’, nor more than six months’ imprisonment, plus

fines and costs. Appellant filed post-sentence motions that the court denied.

Appellant timely appealed.4

       Appellant raises two questions for our review:

       I.    Whether the evidence was sufficient to establish that
       [Appellant] operated his vehicle while the amount of alcohol in
       his blood was 0.10% or greater (75 Pa.C.S.A. § 3731(a)(4))
       when [Appellant’s] blood test was 0.102%, only 0.02% above
       0.10%, the margin of error in the test was ten percent, and the
       test was administered two hours after it was alleged [Appellant]
       was driving?


____________________________________________



3
  Following several continuances, the court originally set trial for March 7,
2005. (See Scheduling Order, 2/09/05).       However, Appellant failed to
appear and the court issued a bench warrant for his arrest. He only
appeared over seven years later and the rescheduled trial occurred on
September 9, 2014.
4
   Pursuant to the trial court’s order, Appellant filed a timely concise
statement of errors complained of on appeal on January 7, 2015. See
Pa.R.A.P. 1925(b). The court filed a Rule 1925(a) opinion on February 17,
2015. See Pa.R.A.P. 1925(a).



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       II.    Whether the [t]rial [c]ourt erred by admitting the
       statements of [Appellant] that he owned and operated the
       vehicle because the Commonwealth did not establish the corpus
       delicti of driving under the influence by a preponderance of the
       evidence?

(Appellant’s Brief, at 4).

       In his first question, Appellant challenges the sufficiency of the

evidence to support his conviction under section 3731(a)(4).                 (See

Appellant’s brief at 10).5 He alleges that the two-hour delay in administering

the BAC test and its ten percent margin of error required the jury to turn “to

speculation and conjecture.’ (Id.). We disagree.

       Our standard of review for a claim of insufficient evidence is well-

settled:

              A challenge to the sufficiency of the evidence is a question
       of law, subject to plenary review.            When reviewing [a]
       sufficiency of the evidence claim, the appellate court must
       review all of the evidence and all reasonable inferences drawn
       therefrom in the light most favorable to the Commonwealth, as
       the verdict winner. Evidence will be deemed to support [the]
       verdict when it establishes each element of the crime charged
       and the commission thereof by the accused, beyond a
       reasonable doubt. The Commonwealth need not preclude every
       possibility of innocence or establish the [Appellant’s] guilt to a
       mathematical certainty. Finally, the trier of fact[,] while passing
       upon the credibility of witness and the weight of the evidence
       produced, is free to believe all, part[,] or none of the evidence.


____________________________________________



5
 The trial court only sentenced Appellant for 75 Pa.C.S.A. § 3731(a)(1) —
general impairment. (See Trial Ct. Op. 2/17/15, at 1 n.2). Section
3731(a)(4) merged for sentencing purposes. (See id.)



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Commonwealth v. Teems, 74 A.3d 142, 144-45 (Pa. Super. 2013) appeal

denied, 79 A.3d 1098 (Pa. 2013) (citations omitted).

     Here, the jury convicted Appellant of violating 75 Pa.C.S.A. §

3731(a)(4), driving with a BAC of .10% or higher, and 75 Pa.C.S.A. §

3731(a)(1), general impairment.       In relevant part, the Vehicle Code

provided:

        (a) Offense defined.—A person shall not drive, operate[,] or
           be in actual physical control of the movement of a vehicle
           in any of the following circumstances

                 (1) While under the influence of alcohol to a degree
                 which renders the person incapable of safe driving.

                                       *    *    *

                 (4) While the amount of alcohol by weight in the
                 blood of:
                       (i)the adult is 0.10% or greater.

                                       *    *    *

                 (A.1) Prima facie evidence.—

                 (1) It is prima facie evidence that:

                       (i) an adult had 0.10% or more by weight of
                 alcohol in his or her blood at the time of driving,
                 operating, or being in actual physical control of the
                 movement of any vehicle if the amount of alcohol by
                 weight in the blood of the person is equal to or
                 greater than 0.10% at the time a chemical test is
                 performed on a sample of the person’s breath, blood,
                 or urine

                                       *    *    *

                 (2) For the purposes of this section, the chemical
                 test of the sample of the person’s breath, blood or

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J-S35036-15


                     urine shall be from a sample obtained within three
                     hours after the person drove, operated or was in
                     actual physical control of the vehicle

75 Pa.C.S.A. § 3731(a)(1), (a)(4), (A.1).

       “[O]nce the Commonwealth has established that the driver’s blood

alcohol content reflects an amount above 0.10%, the Commonwealth has

made     a   prima     facie   case   under   75   Pa.C.S.A.   §     3731(a)(4).”

Commonwealth v. Yarger, 648 A.2d 529, 531 (Pa. 1994). Additionally,

       [T]he [L]egislature amended section 3731 by inserting
       subsection (a.1). Section 3731(a.1) modifies section 3731(a)(4)
       by providing that the BAC at the time of testing is prima facie
       evidence of BAC when driving as long as testing is obtained
       within three hours after the person drove.

Commonwealth v. Lippert, 887 A.2d 1277, 1280 (Pa. Super. 2005).

       Section 3731(a.1) was the pertinent statute in effect the night of the

accident.

       Here, Officer Fedor found Appellant standing next to the driver’s side

of the crashed vehicle. (See N.T. Trial, 9/09/14, at 65). When questioning

Appellant, he detected the odor of alcohol. (See id. at 66). Further, the

vehicle’s registration indicated Appellant owned the vehicle and he admitted

to Officer Fedor that he was driving that night. (See id. at 66, 68-69). Less

than two hours after the arrest, Officer Fedor had Appellant’s blood drawn.

(See id. at 69-70).      Cathy Sweeney, a medical technologist at Hazelton

General Hospital tested the blood.       (See id. at 85-87).       The blood test

returned a result of .102% BAC. (See id. at 89-91).


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J-S35036-15


      Appellant argues that a purported ten percent margin of error on the

BAC test renders the results insufficient. (See Appellant’s Brief at 10). We

note the trial court’s reasoning that any testimony on the margin of error

implicates the weight of the evidence, not the sufficiency. (See Trial Ct. Op.

at 8). See Commonwealth v. Sibley, 972 A.2d 1218, 1219-20 (Pa. Super.

2009). Appellant did not raise a weight of the evidence challenge in the trial

court and therefore waived the issue. See Commonwealth v. Thomas, 93

A.3d 478, 490 (Pa. Super. 2014) (citing Commonwealth v. Sherwood,

982 A.2d 483, 494 (Pa. 2009)). (“Failure to properly preserve [a weight of

the evidence] claim will result in waiver”).

      Under our standard of review for sufficiency, the Commonwealth

receives the benefit of all reasonable inferences.        See Teems, supra.          at

144-45.    Here, the prima facie evidence was sufficient to support both of

Appellant’s convictions for DUI because his BAC was over .10% less than

three hours after he drove. See Lippert, supra. Appellant’s first claim is

without merit.

      In his second question, Appellant claims the trial court erred by

admitting inculpatory statements he made before the Commonwealth

established   the   corpus   delicti   of   driving   under   the   influence   by   a

preponderance of the evidence. (See Appellant’s Brief, at 4). We disagree.

      Our standard of review for a challenge to corpus delicti is also well

settled:


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           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.

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

citations omitted). Further:

           An abuse of discretion will not be found based on a mere
     error of judgment, but rather exists where the court has reached
     a conclusion [that] overrides or misapplies the law, or where the
     judgment exercised is manifestly unreasonable, or the result of
     partiality, prejudice, bias, or ill-will.

Commonwealth v. Davido, 106 A.3d 611, 645 (Pa. 2014) (citations and

quotation marks omitted).

     The corpus delicti test is two-pronged; the Commonwealth must prove

an occurrence of a loss, and criminality as the source of the loss.        See

Commonwealth v. Taylor, 831 A.2d 590, 590 (Pa. 2003).           Further, “the

injury or loss need not be tangible.” Commonwealth v. Kasunic, 620 A.2d

525, 529.     (Pa. Super. 1993).    The Commonwealth must prove by a

preponderance of the evidence that the event resulted from criminal

conduct. See Commonwealth v. McMullen, 681 A.2d 717,720 (Pa. 1996).

     Here, Officer Fedor found Appellant next to his crashed vehicle at 1:31

A.M. (See N.T. Trial, 9/09/14 at 59). The weather conditions were clear and

the posted speed limit was low. (See id. 60-61).

     The Commonwealth produced evidence that convinced the trial court

by a preponderance of the evidence that corpus delicti existed for DUI. (See

Trial Ct. Op. 2/17/15, at 15). The trial court reasoned that the lateness of

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the hour, the lack of adverse weather conditions, the low speed limit at the

place of the accident, and the condition of Appellant were consistent with a

DUI related crash.   (See id. at 15).    On our review, we find no basis to

conclude that the court’s decision was unreasonable, nor the result of

partiality, prejudice, bias, or ill-will. See Davido, supra at 645.

      Therefore, we conclude that the trial court properly admitted the

evidence of inculpatory statements made by Appellant. Appellant’s second

issue is without merit.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/20/2015




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