J-S33006-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

BRANDON MICHAEL WEIDOW

                            Appellant                  No. 586 WDA 2015


              Appeal from the Judgment of Sentence March 5, 2015
          in the Court of Common Pleas of Elk County Criminal Division
                       at No(s): CP-24-CR-0000393-2012

BEFORE: GANTMAN, P.J., OLSON, J., and FITZGERALD,* J.

MEMORANDUM BY FITZGERALD, J.:            FILED JUNE 29, 2016
    Appellant, Brandon Michael Weidow, appeals from the judgment of

sentence entered in the Elk County Court of Common Pleas following a jury

trial and convictions for homicide by vehicle while driving under the

influence,1 homicide by vehicle,2 two counts of driving under the influence of

alcohol,3 driving vehicle at safe speed,4 maximum speed limits,5 and careless

driving.6    Appellant contends that search warrants were issued without


*
    Former Justice specially assigned to the Superior Court.
1
    75 Pa.C.S. § 3735(a).
2
    75 Pa.C.S. § 3732(a).
3
    75 Pa.C.S. § 3802(a), (a)(1).
4
    75 Pa.C.S. § 3361.
5
    75 Pa.C.S. § 3362.
6
    75 Pa.C.S. § 3714.
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probable cause and with “stale information,” an expert testified beyond his

expertise at trial, and the evidence was insufficient to support his conviction.

We affirm.

      On July 11, 2012, Appellant and Savannah Straub were in a motor

vehicle accident when their car crashed into a tree and a guardrail on State

Route 255 in Elk County, Pennsylvania. Appellant was seriously injured and

Savannah Straub (“Decedent”) died as a result of the accident.         The first

two individuals to arrive at the scene, Brandon Hetrick and Danielle Nesbitt,

testified regarding the positioning of Appellant and Decedent in the car.

N.T., 12/10/14, at 56-60, 97-98. Appellant’s legs and feet were lodged in

the driver’s side foot well, with his stomach on the center consul, and his

head and arms laying across the front passenger seat. Id. Decedent was

ejected from the car and found under the vehicle behind the right front tire.

Id. at 67-68. Hetrick and Nesbitt were able to collectively remove Appellant

from the car, which was in flames. Id. at 64, 95. Nesbitt testified that she

had been drinking with Appellant and Decedent at a local bar that evening.

Id. at 89-92.

      Trooper Emery Faith and Trooper Pat Trunzo were dispatched to the

scene of the crash. Trooper Faith testified that he could smell the odor of

alcohol emanating from Appellant.     Id. at 197.   He further stated that he

had asked Appellant if he had been driving the vehicle during the crash and

Appellant denied that he had even been in the vehicle at all.      Id. at 196.



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Appellant was taken by ambulance to Elk Regional Health Center for care

and was thereafter transferred to Altoona Medical Center in Blair County for

further treatment.     Trooper Matthew Higgins, who was assigned to

investigate the case, directed that the car be removed to an impound lot at

the Ridgway Barracks of the Pennsylvania State Police. Trial Ct. Op.,

11/24/14, at 1-2. Trooper Higgins discovered that the car was registered to

Appellant and obtained a search warrant for the car on July 11, 2012. Id.

      On July 16, 2012, Trooper Higgins applied for and was granted a

search warrant for the complete medical records of Appellant for the period

of treatment when he was a patient at Elk Regional Health Center on July

11, 2012. The application for the search warrant was supported by Trooper

Higgins’ affidavit of probable cause, which stated that physical evidence at

the scene, including Appellant’s positioning in the car, indicated that

Appellant was likely the driver at the time of the accident. Trial Ct. Order,

10/3/13, at 2. Further, the affidavit detailed Trooper Faith’s contention that

he detected the odor of alcohol on Appellant and that Appellant had been

seen drinking at a nearby bar shortly before the crash.       Id.   Therefore,

Trooper Higgins averred in his affidavit that there was probable cause to

believe that Appellant’s medical records would help determine if he was the

operator of the vehicle and intoxicated at the time of the crash. Id.

      On July 18, 2012, Trooper Higgins applied for and was granted a

search warrant for the complete medical records of Appellant for the period



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of treatment when he was a patient at Altoona Hospital beginning on July

11, 2012. The application for this search warrant was identical to one for

the July 16, 2012 warrant for Elk Regional Health Center.          Due to the

acquisition of both search warrants, Appellant’s requested medical records

revealed that he had a blood alcohol content           (“BAC”) of .261.     N.T.

12/10/14, at 167-68.      Prior to trial, Appellant filed an omnibus pretrial

motion on April 26, 2013, seeking to suppress evidence obtained from his

medical records and a hearing was held on June 11, 2013. The trial court

denied Appellant’s motion on October 3, 2013, finding that the search

warrants issued to obtain Appellant’s medical records were supported by

probable cause.

      On January 2, 2014, Appellant filed a second motion in limine seeking

to preclude the testimony of expert witness Corporal Kurtis Rummel of the

Pennsylvania State Police.     Specifically, Appellant objected to Corporal

Rummel’s testimony regarding his conclusion that Appellant was the

operator of the vehicle at the time of the crash. On January 27, 2014, the

trial court conducted a hearing. In a March 25, 2014 order, the court denied

Appellant’s   motion,   concluding   that   Corporal   Rummel’s   opinion   was

admissible and would not preclude the factfinder from accepting or rejecting

the conclusion that Appellant was the operator of the vehicle.

      Appellant was first tried before a jury on June 24-26, 2014, but that

jury was unable to reach a verdict and a mistrial was declared. On July 11,



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2014, Corporal Rummel applied for and obtained an additional search

warrant for the vehicle in question. Corporal Rummel’s affidavit of probable

cause in support of his search warrant application listed his training and

experience, his observations of physical evidence at the scene of the crash,

and his consideration of the injuries sustained by both Appellant and

Decedent.   Trial Ct. Op., 11/24/14 at 3-4.    Corporal Rummel specifically

requested that “the search warrant be granted for the purpose of additional

forensic mapping and measuring of the interior/exterior of the vehicle that

was involved in this collision for the purpose of relating damage and its

location to the occupants to assist in the determination of where each person

within the vehicle was seated.” Id.

     Prior to his second trial, on September 10, 2014, Appellant filed a

supplemental omnibus pre-trial motion seeking to suppress evidence

obtained from this additional search. After the trial court held a hearing on

October 1, 2014, Appellant’s motion was denied on November 24, 2014.

The court specifically determined that the vehicle had been lawfully removed

from the accident scene and properly secured at the impound lot. Id. at 7.

     On December 10-12, 2014, Appellant was tried a second time before a

jury. After being convicted of the above referenced charges, Appellant was

sentenced to an aggregate period of incarceration of four to nine years’

imprisonment on March 5, 2015.        Appellant did not file a post-sentence

motion and this timely appeal followed.      Appellant filed a court ordered



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Pa.R.A.P. 1925(b) statement and the trial court filed a responsive Pa.R.A.P.

1925(a) opinion. On appeal, Appellant raises the following issues:

           Whether the application for a search warrant contained
           insufficient information necessary to be considered
           probable cause when blood was taken from the
           [A]ppellant[?]

           Whether the trial court erred in not granting objections
           during trial as to corporal Rummel’s testimony relating to a
           second warrant to search the vehicle resulting from a
           second warrant[?]

           Whether the court erred in permitting Pennsylvania state
           police corporal Kurtis Rummel after he was declared an
           expert for reconstruction, to testify as to his opinion about
           the vehicle operator, and whether that individual had
           control of the vehicle[?]

           Whether the trial court erred by not granting the
           [A]ppellant’s demurrer when requesting a judgment of
           acquittal at the close of the [C]ommonwealth’s case, as
           this case is primarily the identity of the vehicle’s operator
           and this case included evidence for interpretation that
           would have produced reasonable doubt[?]

Appellant’s Brief at iv.7

        In his first two issues, Appellant argues that the trial court erred by

denying his motions to suppress evidence obtained via search warrants.

Appellant claims, in his first issue, that the search warrants used to obtain

Appellant’s medical records, and most specifically his BAC results, were not

supported by probable cause.       He contends that the identical affidavits of

probable cause failed to specify what specific medical results were


7
    Appellant’s issues on appeal have been reordered for ease of disposition.



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requested,   why   Appellant’s   BAC    results   were   necessary,8   and   why

Appellant’s medical records would aid in the investigation.

      In his second issue, Appellant avers that the search warrant obtained

to re-examine the subject vehicle was not supported by probable cause

because the information contained within the affidavit of probable cause was

stale. He contends that the information was stale because the Pennsylvania

State Police had plenty of time previously to examine the evidence.

Appellant also baldly asserts that his vehicle was improperly seized from the

accident scene but presents no legal authority in support of this contention.

      We begin by noting our standard of review:

           Our standard of review in addressing a challenge to the
         denial of a suppression motion is limited to determining
         whether the suppression court’s factual findings are
         supported by the record and whether the legal conclusions
         drawn from those facts are correct.           Because the
         Commonwealth prevailed before the suppression court, we
         may consider only the evidence of the Commonwealth and
         so much of the evidence for the defense as remains
         uncontradicted when read in the context of the record as a
         whole. The suppression court’s legal conclusions are not
         binding on an appellate court, whose duty it is to
         determine if the suppression court properly applied the law
         to the facts. Thus, the conclusions of law of the courts
         below are subject to our plenary review. Commonwealth
         v. Jones, 605 Pa. 188, 988 A.2d 649, 654 (2010)
         (citations, quotations, and ellipses omitted). Moreover,
         appellate courts are limited to reviewing only the evidence
         presented at the suppression hearing when examining a


8
  To the extent Appellant currently argues that his blood was improperly
drawn without his consent, we note that such argument was not raised
before the trial court and is therefore waived. Pa.R.A.P. 302(a).



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        ruling on a pre-trial motion to suppress. See In re L.J.,
        622 Pa. 126, 79 A.3d 1073, 1083–1087 (2013).

Commonwealth v. Mathis, 125 A.3d 780, 783 (Pa. Super. 2015), appeal

granted, 134 A.3d 51 (Pa. 2016).

     Article I, Section 8 of the Pennsylvania Constitution vests individuals

with the right to be free from unreasonable searches and seizures stating in

pertinent part: “no warrant to search any place or to seize any person or

things shall issue without describing them as nearly as may be, nor without

probable cause[.]” Pa. Const. art. I, § 8. Generally, the protection provided

under Article I, Section 8 extends to areas where an individual has an

expectation of privacy, such as medical records. Commonwealth v. Ruey,

892 A.2d 802, 808 (Pa. Super. 2006).

     When reviewing whether sufficient probable cause supported the

issuance of a search warrant, we adhere to the following precepts:

        The standard for evaluating whether probable cause exists
        for the issuance of a search warrant is the totality of the
        circumstances test as set forth in Illinois v. Gates, 462
        U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983) and
        adopted by the Pennsylvania Supreme Court in
        Commonwealth v. Gray, 509 Pa. 476, 484, 503 A.2d
        921, 925 (1985). Commonwealth v. Jones, 542 Pa.
        418, 424, 668 A.2d 114, 116 (1995). A magistrate is to
        make a practical common-sense decision whether, given
        all the circumstances set forth in the affidavit before him,
        including the veracity and basis of knowledge of persons
        supplying hearsay information, there is a fair probability
        that contraband or evidence of a crime will be found in a
        particular place. . . . In reviewing the validity of a search
        warrant, the reviewing court is limited to determining
        whether there is substantial evidence supporting the
        issuing authority’s decision to approve the warrant.


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Commonwealth v. Hawkins, 45 A.3d 1123, 1127 (Pa. Super. 2012) (some

citations and internal quotations omitted).      Further, we note that “[n]o

search warrant shall issue but upon probable cause supported by one or

more affidavits sworn to before the issuing authority.      . . .    The issuing

authority, in determining whether probable cause has been established, may

not consider any information outside the affidavit.” Pa.R.Crim.P. 203(B).

      Regarding the timing of information used to support an affidavit of

probable cause:

         Settled Pennsylvania law establishes that stale information
         cannot provide cause in support of a warrant.            In
         particular:

            Age of the information supporting a warrant
            application is a factor in determining probable cause.
            If too old, the information is stale, and probable
            cause may no longer exist. Age alone, however,
            does not determine staleness. The determination of
            probable cause is not merely an exercise in counting
            the days or even months between facts relied on and
            the issuance of the warrant. Rather, we must also
            examine the nature of the crime and the type of
            evidence.

Commonwealth v. Janda, 14 A.3d 147, 158-59 (Pa. Super. 2011)

(citations omitted).

      In this case, as aptly noted by the trial court, the affidavit of probable

cause submitted by Trooper Higgins in support of the application for search

warrants to obtain Appellant’s relevant medical records set forth sufficient

facts to establish the requisite probable cause. See Trial Ct. Op., 10/3/13,



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at 7. Trooper Higgins, an officer with over ten years’ experience, observed

that Appellant was only one of two injured persons found at the accident

scene. Id. at 2. Further, the first person to arrive at the scene reported

that Appellant was found lying across the front seat of the car and had to be

helped out of the vehicle.   Id.   In addition, the affidavit also stated that

Trooper Faith had observed Appellant at the scene and had detected an odor

of alcohol emanating from Appellant.         Id.   Accordingly, Trooper Higgins

asserted that the information contained in Appellant’s medical records for

the time directly after the crash would help determine if Appellant was

operating the vehicle while intoxicated at the time of the crash.

      Considering the totality of the circumstances, we conclude that the

trial court properly found that ample probable cause supported the search

warrants used to acquire Appellant’s medical records.        See Hawkins, 45

A.3d at 1127.   A common-sense view of the contentions presented within

the four-corners of the affidavits established that physical evidence at the

crash scene provided probable cause that (1) Appellant was likely the driver

during the crash and was likely intoxicated, and (2) the medical records,

including the toxicology report, would likely provide evidence thereof. See

id.; see also Pa.R.Crim.P. 203(B).      Therefore, Appellant’s first issue on

appeal must fail.

      Turning to Appellant’s second issue, we conclude that the trial court

properly considered Corporal Rummel’s affidavit and correctly decided that



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probable cause supported the search warrant utilized to re-examine

Appellant’s vehicle.   See Trial Ct. Op., 11/24/14, at 7.        Contrary to

Appellant’s contention, the information contained in Corporal Rummel’s

affidavit was not stale.     Corporal Rummel presented evidence that

Appellant’s vehicle had been involved in the crash and that the vehicle had

been securely impounded after the crash.     Id. at 2.   Further, Corporal

Rummel indicated that additional forensic mapping and measuring of the

interior/exterior of the vehicle would assist in the determination of where

each person was sitting in the vehicle.    Id. at 2-3.   As the trial court

emphasized, the length of time between the vehicle accident and the

warrant application did not render the information in Corporal Rummel’s

affidavit “stale” because the vehicle had been impounded and secured, thus

greatly reducing any potential for spoliation of the evidence.    Therefore,

considering the totality of the circumstances, we conclude that probable

cause supported the application for the search warrant utilized for the re-

examination of Appellant’s car. See Hawkins, 45 A.3d at 1127; Janda, 14

A.3d at 158-59. Accordingly, Appellant’s second issue on appeal also lacks

merit.9



9
  We note that Appellant asserts, within his second issue, that his vehicle
was improperly seized from the accident scene. However, Appellant fails to
develop his argument via any citation to the record or to a single legal
authority. Therefore, his argument regarding the seizure of his car is
waived. See Pa.R.A.P. 2101.



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      In his third issue, Appellant broadly argues that the trial court erred by

not sustaining his objection to Corporal Rummel’s expert testimony

regarding his opinion that Appellant was the operator of the vehicle.

Appellant presents a general argument, unsupported by legal citation,

wherein he plainly asserts that Corporal Rummel was unqualified to testify

that Appellant was the operator of the vehicle and that such testimony was

improper because the ultimate issue was thereby “taken away from the

jury.” Appellant’s Brief at 6.

      In cases involving the admission of expert testimony we note:

         Generally speaking, the admission of expert testimony is a
         matter left largely to the discretion of the trial court, and
         its rulings thereon will not be reversed absent an abuse of
         discretion. An expert’s testimony is admissible when it is
         based on facts of record and will not cause confusion or
         prejudice.

Commonwealth v. Huggins, 68 A.3d 962, 966 (Pa. Super. 2013) (citation

omitted).

      In addition, it is beyond cavil that “when expert opinion evidence is

admitted, the factfinder is free to reject it, accept it, or give it some weight

between the two.” Commonwealth v. Stephens, 74 A.3d 1034, 1041 (Pa.

Super. 2013) (citation omitted).      Moreover, the Pennsylvania Rules of

Evidence provide that “[a]n opinion is not objectionable just because it

embraces an ultimate issue.” Pa.R.E. 704.

      As a prefatory matter, Appellant’s failure to develop his argument and

to provide any legal citation in support thereof, results in waiver under the


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Pennsylvania Rules of Appellate Procedure.     See Pa.R.A.P. 2101 (when the

defects in the Appellant’s brief are substantial “the appeal or other matter

may be quashed or dismissed”).     This Court has held “[w]hen issues are not

properly raised and developed in briefs, when the briefs are wholly

inadequate to present specific issues for review[,] a Court will not consider

the merits thereof.” Branch Banking and Trust v. Gesiorski, 904 A.2d

939, 942-943 (Pa. Super. 2006) (citation omitted). Thus, Appellant’s third

issue is waived. See id.

      Moreover, even if we were not to conclude that waiver is appropriate,

Appellant’s thinly developed issue is devoid of merit. The trial court was well

within its purview when finding that Corporal Rummel was qualified to testify

regarding whether Appellant was the operator of the vehicle in question

during the crash. Corporal Rummel testified regarding his twenty-two years

of experience with the Pennsylvania State Police and his over six years of

advanced experience as an officer specifically trained to be a member of the

Collision Analysis and Reconstruction Section Unit.   N.T., 12/11/14, at 203-

04. As a member of that unit, Corporal Rummel was specifically trained to,

inter alia, identify roadway evidence and determine how occupants of a

vehicle will move inside that vehicle in the event of a collision. Id. at 108,

113. Moreover, as noted by the trial court, Corporal Rummel testified that

the basis for his opinion was rooted in his experience and in the facts of

record. See id. at 208; Trial Ct. Op., 9/18/15, at 3. Specifically, Corporal



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Rummel confirmed that he considered Appellant’s injuries and medical

records, the damage to the vehicle observed and recorded by forensic

mapping, and the location where Decedent was found at the initial crash

scene. N.T. 12/11/14, at 208-12.

     Thus, the trial court properly determined that Corporal Rummel’s

expert testimony, having been based on his expertise and the facts of

record, was admissible. See Huggins, 68 A.3d at 966. Further, the fact

that Corporal Rummel’s testimony concerned a critical fact in dispute in this

case was of no moment because Pennsylvania Rule of Evidence 704 provides

that such testimony regarding the ultimate issue in contention is admissible.

Pa.R.E. 704.   Therefore, Appellant’s third issue on appeal also lacks merit.

     In his fourth issue, Appellant presents a woefully underdeveloped

sufficiency of the evidence argument.10      Appellant does not cite to the

record, provides a very scant reference to legal authorities, and sets forth

almost no argument.      Instead, Appellant simply baldly asserts that “the

identity of the vehicles operator is necessary for the Commonwealth to

convict the Appellant of Homicide by Vehicle and Driving After Imbibing.”

10
   Although Appellant purports to challenge the trial court’s denial of his
“demurrer when requesting a judgment of acquittal at the close of the
Commonwealth’s case,” the proper procedure for such a claim lies in a
challenge to the sufficiency of the evidence. See Commonwealth v.
Zambelli, 695 A.2d 848, 849 n.1 (Pa. Super. 1997) (holding “when a
defendant does not rest following a denial of a demurrer, but instead
presents a defense, the correctness of the ruling on the demurrer is not
preserved for appellate review, the proper procedure is to challenge the
sufficiency of evidence”).



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Appellant’s Brief at 11.      Accordingly, he has waived this issue.       See

Pa.R.A.P. 2101; Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super.

2009) (holding sufficiency of the evidence claim waived where appellant

failed to set forth the elements of the crimes he was challenging and failed

to cite to legal authority). Moreover, even if he had not waived this issue,

Appellant’s claim that the Commonwealth did not present sufficient evidence

of his identity as the driver of the vehicle during the crash is belied by the

record.

      When examining a challenge to the sufficiency of the evidence, our

standard of review is well settled:

          The standard we apply in reviewing the sufficiency of the
          evidence is whether viewing all the evidence admitted at
          trial [] in the light most favorable to the verdict winner,
          there is sufficient evidence to enable the fact-finder to find
          every element of the crime beyond a reasonable doubt. In
          applying the above test, we may not weigh the evidence
          and substitute our judgment for the fact-finder.            In
          addition, we note the facts and circumstances established
          by the Commonwealth need not preclude every possibility
          of innocence. Any doubts regarding a defendant’s guilt
          may be resolved by the fact-finder unless the evidence is
          so weak and inconclusive that as a matter of law no
          probability of fact may be drawn from the combined
          circumstances.       The Commonwealth may sustain its
          burden of proving every element of the crime beyond a
          reasonable doubt by means of wholly circumstantial
          evidence. Moreover, in applying the above test, the entire
          record must be evaluated and all evidence actually
          received must be considered. Finally, the finder of fact[,]
          while passing upon the credibility of witnesses and the
          weight of the evidence produced is free to believe all, part
          or none of the evidence.




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Commonwealth v. Talbert, 129 A.3d 536, 542-43 (Pa. Super. 2015)

(citation omitted).

      In this case, viewing all the evidence in the light most favorable to the

Commonwealth as the verdict winner, sufficient evidence supported the

conclusion that Appellant was the driver of the vehicle at the time of the

crash. See id. Testimony established that Appellant was found at the crash

site with his legs lodged in the driver’s side of the front passenger

compartment.     Further, expert testimony was presented which supported

the contention that Appellant was the driver. Corporal Rummel testified that

based on his experience as a member of the Collision Analysis and

Reconstruction Section Unit, Appellant’s injuries, the damage to the vehicle

observed and recorded by forensic mapping, and the location where

Decedent was found at the initial crash scene, all indications are that

Appellant was the driver. Accordingly, Appellant’s fourth issue also must fail

and we affirm his judgment of sentence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/29/2016




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