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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellee          :
                                            :
                  v.                        :
                                            :
CHRISTOPHER ADAM WIRTH,                     :
                                            :     No. 1455 MDA 2013
                          Appellant         :


              Appeal from the Judgment of Sentence April 15, 2013
                 In the Court of Common Pleas of Union County
               Criminal Division No(s).: CP-60-CR-0000110-2012

BEFORE: BOWES, OLSON, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                      FILED OCTOBER 29, 2014

        Appellant, Christopher Adam Wirth, appeals from the judgment of

sentence entered in the Union County Court of Common Pleas.           Appellant

contends that the evidence was insufficient to sustain, inter alia, his

convictions for homicide by vehicle and aggravated assault by vehicle,1

homicide and aggravated assault by vehicle while driving under the

influence,2 and failure to use a restraint system.3 We affirm.

        The factual background to this appeal is well known to the parties and

*
    Former Justice specially assigned to the Superior Court.
1
    75 Pa.C.S. §§ 3732, 3732.1.
2
    75 Pa.C.S. §§ 3735, 3735.1.
3
    75 Pa.C.S. § 4581.
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summarized by the trial court. See Trial Ct. Op., 7/23/13, at 2-3. We need

only reiterate that Appellant’s convictions arise from a single car accident

that resulted in one of his passengers dying and a second suffering severe

injuries.     At a jury trial, the Commonwealth adduced evidence that

Appellant’s blood-alcohol level was 0.138% within two hours of driving and

he lost control of his vehicle while driving around a curve at ninety-one miles

per hour, even though the road was posted with a thirty-five mile per hour

limit.    Appellant was found guilty of all twelve counts presented by the

Commonwealth.4

         The trial court, on April 15, 2013,5 imposed an aggregate sentence of

eight years and ten months’ to twenty-five years’ imprisonment and $1,210

in fines.6 Appellant filed post-sentence motions on April 22, 2013, which the


4
  The jury found Appellant guilty of five offenses, while the trial court found
him guilty of seven summary and misdemeanor offenses.
5
  Although the trial court conducted the sentencing hearing on April 11,
2013, and authored a written sentencing order that same day, the order was
not docketed and served until April 15, 2013. Because Appellant filed post-
sentence motions, we will regard April 15, 2013 as the date judgment of
sentence was entered. See Pa.R.A.P. 108(a)(1), (d)(1)-(2); Pa.R.Crim.P.
720, Note, “Timing.”
6
    The individual sentences imposed on Appellant were:

         Count I: Homicide by vehicle while driving under the influence, 75
         Pa.C.S. § 3735(a)—60 to 120 months’ imprisonment.

         Count II: Aggravated assault by vehicle while driving under the
         influence, 75 Pa.C.S. § 3735.1(a)—24 to 120 months’ imprisonment,
         consecutive to Count I.



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court denied by order entered July 25, 2013. Appellant timely filed a notice

of appeal on August 9th, and a court-ordered Pa.R.A.P. 1925(b) statement

on September 3rd.7 This appeal followed.




     Count III: Homicide by vehicle, 75 Pa.C.S. § 3732(a)—30 to 84
     months’ imprisonment, concurrent to Counts I and II.

     Count VI: Aggravated assault by vehicle, 75 Pa.C.S. § 3732.1(a)—
     merged with Count II.

     Count V: Accident involving death and/or serious bodily injury, not
     properly licensed, 75 Pa.C.S. § 3742.1(a), (b)(2)—22 to 60 months’
     imprisonment.

     Count VI: Driving under the influence, incapable of safely driving, 75
     Pa.C.S. § 3802(a)(1)—merged with Count VII

     Count VII: Driving under the influence, high rate of alcohol, 75 Pa.C.S.
     § 3802(b)—merged with Count I.

     Count VIII: Unauthorized transfer or use of registration, 75 Pa.C.S. §
     1372(3)—$500 fine

     Count IX: Driving while operating privileges suspended or revoked, 75
     Pa.C.S. § 1543(a)—$200 fine

     Count X: Operating vehicle without required financial responsibility, 75
     Pa.C.S. § 1786(f)—$300 fine

     Count XI: Reckless driving, 75 Pa.C.S. § 3736(a)—$200 fine

     Count XII: Restraint systems, 75 Pa.C.S. § 4581(a)(2)—$10 fine.

Sentencing Order, 4/15/13, at 1-3.
7
  Appellant’s Rule 1925(b) statement, which was filed on September 3,
2013, did not comply with the trial court’s directive to file a statement by
September 2, 2013. However, the court’s order requiring the filing of a Rule
1925(b) statement was issued on August 12, 2013, but was not served until



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      Preliminarily, we note that the Commonwealth has suggested that

Appellant waived all arguments in this appeal due to a vague Pa.R.A.P.

1925(b) statement.      Commonwealth’s Brief at 13; Commonwealth v.

Dowling, 778 A.2d 683, 686 (Pa. Super. 2001) (stating, “When a court has

to guess what issues an appellant is appealing, that is not enough for

meaningful review.”    “When an appellant fails adequately to identify in a

concise manner the issues sought to be pursued on appeal, the trial court is

impeded in its preparation of a legal analysis which is pertinent to those

issues.”).

      Appellant’s Pa.R.A.P. 1925(b) statement reads, in relevant part:

         1. Error occurred at both trial and sentencing where
         references were made to [Appellant’s] supposed familiarity
         with the area, but no evidence had been presented
         regarding his familiarity with the road in question.

         2. Error occurred at both trial and sentencing where
         references were made to [Appellant’s] supposed anger, but
         no evidence was presented establishing such anger at the
         time of the incident in question.

                                  *    *    *

         4. Error occurred where the Trial Court and the jury were
         able to consider [Appellant’s] failure to use a seat belt, but
         were not permitted to factor into their consideration the
         victims’ failure to do so.

         5. Error occurred where [Appellant] was convicted of
         various counts, including but not limited to, Homicide by

the following day, August 13th. Therefore, because September 3rd was the
twenty-first day after August 13th, Appellant’s Rule 1925(b) statement was
timely filed. See Pa.R.A.P. 108(a)(1), (d)(1), 1925(b)(2).



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         Vehicle (DUI related), Aggravated Assault (DUI related),
         Homicide by Vehicle and Aggravated Assault, but there
         was no evidence as to what specifically caused the vehicle
         crash that led to the above charges.

                                 *    *    *

         7.   Error occurred where, incorporating the above,
         [Appellant] was convicted despite the fact that conviction
         was not supported by sufficient evidence.

Appellant’s Pa.R.A.P. 1925(b) Statement (“Rule 1925(b) Statement”),

9/3/13, at 1-2.

      Appellant presently argues that the evidence was insufficient to sustain

his conviction for the summary offense of failing to use a restraint system.

Appellant’s Brief at 7. He concedes, however, that he did not specify this

claim in his post-sentence motions, his brief in support of his post-sentence

motions, or his Pa.R.A.P. 1925(b) statement.       Id. at 13.   Following our

review, we are compelled to conclude that this argument was not preserved

or fairly suggested in Appellant’s Rule 1925(b) statement. See Rule 1925(b)

Statement at 2.      Accordingly, this argument is waived.      See Pa.R.A.P.

1925(b)(4)(ii), (vii); Commonwealth v. Fulton, 921 A.2d 1239, 1242 n.7

(Pa. Super. 2007); see also Commonwealth v. Spruill, 80 A.3d 453, 461-

62 (Pa. 2013) (distinguishing challenges to legality of conviction from non-

waivable challenges to legality of sentence).

      However, Appellant’s Rule 1925(b) statement identified a sufficiency of

the evidence issue with supplemental arguments that the Commonwealth did

not prove he was familiar with the road, he was angry at his passengers, or


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that his conduct was the cause of the accident.     We further note that the

trial evidence was straightforward.      Moreover, although Appellant was

charged with multiple offenses, the primary challenges to the homicide and

aggravated assault by vehicle, whether or not involving a driving under the

influence offense, were evident and not unduly complicated.      See Trial Ct.

Op. at 9 (noting while difficult to understand, Appellant’s claim that there

was no evidence as to what caused accident was belied by record evidence

demonstrating “the cause of the accident was [Appellant’s] operation of the

vehicle at an excessive rate of speed when he was under the influence of

alcohol”).

      We thus decline to find waiver under Pa.R.A.P. 1925(b)(4)(vii). See

Commonwealth v. Laboy, 936 A.2d 1058, 1060 (Pa. 2007) (per curiam).

Accordingly, we will consider Appellant’s arguments the evidence was

insufficient because it did not prove that he was familiar with the road, he

was angry at his passengers, and he caused the accident.

             The standard of review for claims of insufficient
         evidence is well-settled. With respect to such claims, we
         consider the evidence in the light most favorable to the
         Commonwealth as verdict winner. In that light, we decide
         if the evidence and all reasonable inferences from that
         evidence are sufficient to establish the elements of the
         offense beyond a reasonable doubt. We keep in mind that
         it was for the trier of fact to determine the weight of the
         evidence and the credibility of witnesses. The jury was
         free to believe all, part or none of the evidence. This Court
         may not weigh the evidence or substitute its judgment or
         that of the factfinder.

Commonwealth v. Thur, 906 A.2d 552, 568-69 (Pa. Super. 2006)


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(citations omitted).

      The crimes challenged by Appellant are defined as follows.

         § 3732. Homicide by vehicle

            (a) Offense.—Any person who recklessly or with gross
         negligence causes the death of another person while
         engaged in the violation of any law of this Commonwealth
         or municipal ordinance applying to the operation or use of
         a vehicle or to the regulation of traffic except section 3802
         (relating to driving under influence of alcohol or controlled
         substance) is guilty of homicide by vehicle, a felony of the
         third degree, when the violation is the cause of death.

75 Pa.C.S. § 3732(a).

         § 3732.1. Aggravated assault by vehicle

            (a) Offense.—Any person who recklessly or with gross
         negligence causes serious bodily injury to another person
         while engaged in the violation of any law of this
         Commonwealth or municipal ordinance applying to the
         operation or use of a vehicle or to the regulation of traffic,
         except section 3802 (relating to driving under influence of
         alcohol or controlled substance), is guilty of aggravated
         assault by vehicle, a felony of the third degree when the
         violation is the cause of the injury.

75 Pa.C.S. § 3732.1(a).

         § 3735. Homicide by vehicle while driving under
         influence

             (a) Offense defined.—Any person who unintentionally
         causes the death of another person as the result of a
         violation of section 3802 (relating to driving under
         influence of alcohol or controlled substance) and who is
         convicted of violating section 3802 is guilty of a felony of
         the second degree when the violation is the cause of death

75 Pa.C.S. § 3735(a).




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         § 3735.1. Aggravated assault           by      vehicle   while
         driving under the influence

             (a) Offense defined.—Any person who negligently
         causes serious bodily injury to another person as the result
         of a violation of section 3802 (relating to driving under
         influence of alcohol or controlled substance) and who is
         convicted of violating section 3802 commits a felony of the
         second degree when the violation is the cause of the
         injury.

75 Pa.C.S. § 3735.1(a).

      Appellant’s first two arguments, which we discuss collectively, focus on

his convictions for homicide and aggravated assault by vehicle.       Appellant

states that in the criminal information filed against him, the Commonwealth

“noted that an element of the[se] offense[s] was that Appellant was

traveling a ‘known road.’”   Appellant’s Brief at 10.    He then avers, “There

was literally no evidence that [he] was familiar with the road or had ever

traveled upon that road.”       Id.    Appellant also contends that while

“references were made to [his] supposed anger,” there was no evidence

“establishing such anger at the time of the incident.” Id. at 11.

      Although Appellant suggests that knowledge of the road and anger at

his passengers are “elements” of the offense, our review of Section 3732

and 3732.1 reveal no support for such a claim.       Rather, the elements of

homicide by vehicle are (1) causing the death of another (2) by acting

recklessly or with gross negligence (3) while engaging in a violation of a law

regulating the operation or use of a vehicle.           75 Pa.C.S. § 3732(a);

Commonwealth v. Matroni, 923 A.2d 444, 446 (Pa. Super. 2007).              The


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aggravated assault by vehicle statute is nearly identical to the homicide by

vehicle statute, but requires the Commonwealth to prove a defendant

caused “serious bodily injury” to another rather than death.      Compare 75

Pa.C.S. § 3732.1(a) with 75 Pa.C.S. § 3732.          Because knowledge of the

road or anger toward the victims are not elements of the offenses Appellant

challenges, his present arguments are meritless.

      Appellant’s third argument focuses on his convictions for homicide and

aggravated assault by vehicle while driving under the influence and the

causation element of those offenses.        Appellant’s Brief at 13.   Appellant

asserts that the Commonwealth’s case focused on excessive speed as a

direct cause of the accident and failed to present evidence that his drinking

caused the accident.

      Both Sections 3735(a) and 3735.1(a) require the Commonwealth to

prove that the driving under the influence violation caused death or serious

bodily injury.     75 Pa.C.S. §§ 3735(a), 3735.1(a); Commonwealth v.

McCurdy, 735 A.2d 681, 685 (Pa. 1999); Commonwealth v. Ketterer,

725 A.2d 801, 804 (Pa. Super. 1999).          We have discussed causation as

follows:

           “Criminal responsibility is properly assessed against one
           whose conduct was a direct and substantial factor in
           producing the death.” This is true even though “other
           factors combined with that conduct to achieve the result.” .
           ....

              In order to impose criminal liability, causation must
              be direct and substantial. Defendants should not be


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           exposed to a loss of liberty based on the tort
           standard which only provides that the event giving
           rise to the injury is a substantial factor. Although
           typically the tort context refers only to substantial
           and not to direct and substantial as in the criminal
           context, the additional language in the criminal law
           does not provide much guidance. Therefore, criminal
           causation has come to involve a case-by-case social
           determination; i.e., is it just or fair under the
           facts of the case to expose the defendant to
           criminal sanctions. In other words, was the
           defendant’s       conduct     so    directly     and
           substantially linked to the actual result as to
           give rise to the imposition of criminal liability
           or was the actual result so remote and
           attenuated that it would be unfair to hold the
           defendant responsible for it?

           In seeking to define the requirement that a criminal
        defendant’s conduct be a direct factor in the death of
        another, the courts of this Commonwealth have held that
        “so long as the defendant’s conduct started the chain
        of causation which led to the victim’s death, criminal
        responsibility for the crime of homicide may properly
        be found.”

Commonwealth v. McCloskey, 835 A.2d 801, 807-08 (Pa. Super. 2003)

(citations omitted) (second emphasis added). “[I]t has never been the law

of this Commonwealth that criminal responsibility must be confined to a sole

or immediate cause of death.”     Commonwealth v. Nicotra, 625 A.2d

1259, 1263 (Pa. Super. 1993).

     Here, the Commonwealth proffered evidence that Appellant had

consumed several alcoholic drinks before driving, which caused his blood

alcohol content to reach 0.138% within two hours of the crash. Moreover,

the trial evidence, when reviewed in a light most favorable to the



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Commonwealth, established that Appellant reached speeds over eight-five

miles per hour on a two-lane, thirty-five mile per hour road. He ignored the

request of his backseat passenger to slow down.       He ultimately failed to

negotiate a curve at over ninety miles per hour. In light of this evidence, we

conclude that the jury could reasonably find that Appellant was operating his

vehicle with an impaired judgment reflective of driving under the influence.

Thus, because we find sufficient evidence for the jury to conclude that

Appellant’s intoxication started an “unbroken chain of causation leading

directly to the accident[,]” no relief is due. See Nicotra, 625 A.2d at 1264.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/29/2014




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