J-S49011-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

WILLIAM S. SMITH,

                            Appellant                 No. 2143 MDA 2014


      Appeal from the Judgment of Sentence Entered November 25, 2014
             In the Court of Common Pleas of Cumberland County
             Criminal Division at No(s): CP-21-CR-0000779-2014



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

MEMORANDUM BY BENDER, P.J.E.:                        FILED AUGUST 18, 2015

        Appellant, William S. Smith, appeals from the judgment of sentence

entered November 25, 2014, following his conviction of driving under the

influence, general impairment (.08-.10%) (DUI)1 and driving while operating

privilege is under suspension with a blood alcohol content (BAC) equal to or

greater than .02% (DUS).2          Appellant now challenges whether the corpus

delicti of either offense was established absent his inculpatory statement and

whether there was sufficient evidence of DUI.         After careful review, we

affirm the judgement of sentence.


____________________________________________


1
    75 Pa.C.S. § 3802(a)(2).
2
    75 Pa.C.S. § 1543(b)(1.1)(i).
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      The trial court summarized the facts and procedural history of this

case as follows:

             [Appellant] was working at the Holly Inn in Mt. Holly
      Springs, Pennsylvania late on July 4, 2013, [until] early July 5,
      2013. After finishing his work shift, [Appellant] availed himself
      of a free beer offered by the Holly Inn. The bartender and owner
      of the Holly Inn stated that only the first drink was free and,
      further, that [Appellant] bought a can of Labatt Blue brand beer
      to take home with him. Pamela Baer, [Appellant]’s girlfriend[,]
      with whom he was living at the time, testified that she followed
      [Appellant] as he drove his car from the Holly Inn to her home
      on Louther Street in Carlisle, Pennsylvania sometime between
      12:45 A.M. and 1:00 A.M. on July 5, 2013. Following an
      argument, Ms. Baer stated that she locked the front door with
      [Appellant] still outside. [Appellant] then proceeded to break
      the door down, prompting Ms. Baer to call the police. At 1:09
      A.M. on July 5, 2013, police responded by originally heading to
      Ms. Baer’s residence on Louther Street. Police dispatch informed
      the responding officers that [Appellant] had left the residence
      and was located on a nearby bench on the grounds of Dickinson
      College. Officer Darhower arrived at the scene and recognized
      [Appellant] and his vehicle from a prior encounter. When Officer
      Darhower approached [Appellant], he immediately detected the
      smell of alcohol.         Additionally, [Appellant] had trouble
      maintaining his balance and was argumentative and
      uncooperative. After restraining [Appellant] and confirming that
      the green Toyota nearby was [Appellant]’s vehicle, Officer
      Darhower inspected the car and discovered that the hood and
      tailpipe were hot to the touch and there were empty beer
      containers in plain view of the interior of the vehicle.
      Specifically, a can [of] Labatt Blue brand beer was visible on the
      floor of the car. Officer Darhower placed [Appellant] under
      arrest for driving under the influence. Subsequent to the arrest,
      Officer Darhower found a set of keys on [Appellant] which
      unlocked the green Toyota, confirming that the car belonged to
      [him]. Upon taking [Appellant] to the Booking Center at the
      Cumberland County Prison, [Appellant] consented to a blood
      draw after having been read the PennDOT DL-26 form. The
      blood draw occurred at 1:54 A.M. The results of the blood draw
      indicated that [Appellant] had a blood alcohol concentration of
      0.085 percent. Officer Darhower also obtained [Appellant]’s


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      certified driving record which indicated that on July 5, 2013, the
      status of [Appellant]’s license was “suspended.” At the Booking
      Center, [Appellant] told Officer Darhower and booking agents
      that his boss, Pancho Acorda, drove him home from work.
      However, Mr. Acorda testified that he did not drive [Appellant]
      home [on] July 5, 2013, and this was confirmed when
      [Appellant] responded to a question from the [c]ourt that
      [Apppellant] drove himself home[.]

Trial Court Opinion, 1/27/2015, at 1-3.

      Based on this evidence, Appellant was convicted of the above stated

offenses. By order dated November 25, 2014, Appellant was sentenced to

an aggregate term of 95 days’ to 6 months’ incarceration and an aggregate

fine of $1,300. Appellant was also ordered to pay the costs of prosecution,

and to complete and comply with the recommendations of a drug and

alcohol evaluation. This timely appeal follows.

      Requesting that we reverse the trial court verdicts, Appellant presents

two issues for review:

      I.    Whether the corpus of the operation of a vehicle was
            established to support the trial court’s DUI and DUS
            verdicts independent of Appellant’s courtroom admissions.

      II.   Assuming proof of operation, did the evidence support the
            trial court’s DUI verdict[,] that Appellant’s BAC was
            between .08-.10% within two hours of operation.

Appellant’s Brief at 6.

      Immediately, we note that Appellant’s initial issue is waived for failure

to preserve it below. Pa.R.A.P. 302(a) provides that, “[i]ssues not raised in

the lower court are waived and cannot be raised for the first time on

appeal.” Appellant argues that the Commonwealth was required to establish

that he drove or operated a vehicle before his testimony, admitting the fact,

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could be considered by the fact-finder; however, no objection was raised

contemporaneous to the testimony at issue. N.T., 9/19/2014, at 75. This

claim, therefore, is waived.

      Regardless of waiver, Appellant’s argument is, fundamentally, a

misapplication of the rule.    “The corpus delicti rule requires that before

introducing an extra-judicial admission, the Commonwealth must establish

by independent evidence that a crime has in fact been committed.           The

purpose of the rule is to prevent the admission of a confession where no

crime has been committed.” Commonwealth v. Fears, 86 A.3d 795, 808

n.17 (Pa. 2014) (internal quotations and citations omitted).     However, the

rule does not apply to in-court admissions. Commonwealth v. Appel, 689

A.2d 891, 909 (Pa. 1997), abrogated on other grounds by Fears. Appellant

does not argue that an extra-judicial admission was improperly admitted,

but that his inculpatory in-court statement should not have been considered;

thus the corpus delicti rule is not implicated. Therefore, Appellant’s claim is

without merit.

      Appellant’s second issue avers that there was insufficient evidence to

support the trial court’s verdict. Appellant contends that the Commonwealth

proved neither the timeliness of the blood draw nor the exception to the

corpus delicti rule.

      Our standard of review is well established.

      When considering a challenge to the sufficiency of the evidence,
      we must determine whether, viewing the evidence in the light
      most favorable to the Commonwealth as verdict winner, together

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      with all reasonable inferences therefrom, the trier of fact could
      have found that each and every element of the crimes charged
      was established beyond a reasonable doubt. We may not weigh
      the evidence and substitute our judgment for the fact-finder. To
      sustain a conviction, however, the facts and circumstances which
      the Commonwealth must prove must be such that every
      essential element of the crime is established beyond a
      reasonable doubt.

Commonwealth v. Bullock, 948 A.2d 818, 823 (Pa. Super. 2008)

(citations omitted).

      The Commonwealth was required to show that Appellant drove,

operated, or was in actual physical control of the vehicle within two hours of

having imbibed enough alcohol such that his BAC was at least .08% but less

than .10%.      75 Pa.C.S. § 3802(a)(2).         Appellant argues that the

Commonwealth failed to establish what time he operated the vehicle;

therefore, an exception to the two-hour requirement had to be shown.

Section 3802(g)(2) is one such exception to the two-hour requirement. It

provides that, “evidence of [BAC taken] more than two hours after the

individual has driven … is sufficient to establish that element of the offense

… where the Commonwealth establishes that the individual did not imbibe

any alcohol … between the time the individual was arrested and the time the

sample was obtained.”     75 Pa.C.S. § 3802(g)(2)     Contrary to Appellant’s

claim, the trier of fact could have found that the Commonwealth proved

every element of the offense beyond a reasonable doubt based on the

testimony provided at trial without reliance on the exception.




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      The Commonwealth’s first witness, Ms. Baer, testified that she

followed Appellant as he drove to her home and that an argument ensued

upon arrival. N.T. at 7-8. Approximately ten to fifteen minutes thereafter,

Ms. Baer called the police. Id. at 8-9. The police arrived two minutes later.

Id. at 10.   The police testified that they were dispatched at 1:09 a.m. in

response to Ms. Baer’s phone call. Id. at 18. Pursuant to being arrested for

DUI, Appellant’s blood was drawn at 1:54 a.m. evincing a BAC of .085%.

Id. at 35.

      Our review reveals that the trial court’s verdict is supported by the

record.   The Commonwealth established that Appellant’s blood was drawn

within two hours of having been in control of the vehicle.           Further,

Appellant’s BAC of .085% is within the .08-.10% range, fully satisfying the

elements of the offense.     As we conclude that the evidence sufficiently

establishes that Appellant’s blood was drawn within the two-hour window,

the Commonwealth did not have to rely on the exception. Thus, considered

in the light most favorable to the verdict winner, the Commonwealth

presented sufficient evidence to sustain the verdict.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/18/2015




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