J-A20038-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

WILLIAM GAGE JACOBS

                            Appellant                    No. 3 EDA 2015


         Appeal from the Judgment of Sentence of December 2, 2014
            In the Court of Common Pleas of Montgomery County
              Criminal Division at No.: CP-46-CR-0002917-2013


BEFORE: DONOHUE, J., SHOGAN, J., and WECHT, J.

MEMORANDUM BY WECHT, J.:                          FILED OCTOBER 15, 2015

       William Jacobs appeals his December 2, 2014 judgment of sentence,

which was imposed after Jacobs was convicted in a non-jury trial of driving

under the influence (“DUI”), careless driving, and reckless driving.1 For the

reasons contained herein, we affirm the judgment of sentence.

       On October 19, 2012, following a severe traffic accident, Jacobs was

arrested and charged with the above offenses, as well as damage to

unattended vehicle or property and driving at a safe speed.2 The trial court

summarized the relevant facts of this case as follows:

       On October 19, 2012, [Jacobs], Kristopher Lilick and Julie Radliff
       left “The Rib House” restaurant in [Jacobs’] 2004 Jeep Wrangler,
____________________________________________


1
       See 75 Pa.C.S. §§ 3802(c), 3714, and 3736, respectively.
2
       See 75 Pa.C.S. §§ 3745 and 3361, respectively.
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     after imbibing several alcoholic beverages. [Jacobs] drove to
     Radliff’s house, where she exited the vehicle. After dropping
     Radliff off, [Jacobs’] driving became increasingly hazardous as
     he exceeded the speed limit on wet roads.           While driving
     southwest      on   Church    Road,    [Jacobs]  accelerated    to
     approximately sixty-five miles per hour, lost control of the
     vehicle, and struck the guardrail. Upon hitting the guardrail, Mr.
     Lilick was ejected from his passenger seat in the vehicle.
     Because [Jacobs] was wearing a seat belt, he remained in the
     vehicle until it eventually came to a stop.

     Immediately prior to the accident, driver Jeffrey Rawles made a
     left turn onto Church Road. Rawles heard [Jacobs’] vehicle
     strike the guardrail and he turned his car around to see what
     happened. Approaching the accident, Rawles briefly talked with
     Mr. Lilick. Mr. Lilick then left the accident scene and walked to a
     friend’s house for transportation to a hospital. Later, Mr. Lilick
     arrived at Mercy Suburban Hospital where he was treated for
     lacerations to the back of his head, road rash and other
     abrasions.    Subsequently, Mr. Lilick was transferred to the
     Temple University Hospital Emergency Room for further care.

     After speaking with Mr. Lilick, Rawles contacted the Upper
     Merion Police Department. At approximately 2:28 a.m., Upper
     Merion Township Patrol Officer Joseph Davies received a report
     regarding a vehicle accident on Church Road. Upon arrival,
     Officer Davies found a heavily-damaged gray Jeep Wrangler, half
     of which sat off the road. An initial search of the immediate area
     surrounding the accident for anyone involved was unsuccessful.
     As police were leaving the scene, another Upper Merion Police
     Officer, Officer Reiner, discovered [Jacobs] between two tractor
     trailers in a nearby parking lot.

     Officers Davies and Reiner approached [Jacobs]. Officer Davies
     immediately noticed [that Jacobs] had an odor of alcohol, red-
     bloodshot glassy eyes, slurred speech and was unsteady on his
     feet.   [Jacobs] admitted drinking that evening and that he
     operated the vehicle in the accident. At that point, Officer
     Davies requested Emergency Medical Services (“EMS”) to treat
     [Jacobs’] injuries. While waiting for EMS, [Jacobs] was unable to
     identify other passengers in the vehicle or describe what
     happened. Officer Davies concluded that [Jacobs] was driving
     while impaired and informed [Jacobs] that he was under arrest
     for [DUI].


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       Officers Davies and Reiner waited with [Jacobs] until EMS
       arrived. EMS took [Jacobs] to Paoli Hospital where he was
       treated for various cuts and abrasions. At the hospital, Officer
       Davies read the DL-26 form to [Jacobs] and a blood sample was
       taken. The blood sample revealed that [Jacobs’] blood alcohol
       concentration (BAC) was 0.195%.

Trial Court Opinion (“T.C.O.”), 3/4/15, at 1-2.

       Prior to trial, Jacobs filed a motion seeking to suppress his admission

to the police that he was the driver of the Jeep. Therein, Jacobs maintained

that he was in custody, and, therefore, should have been provided with his

Miranda3 warnings before being interrogated. Following a hearing, the trial

court denied Jacobs’ motion.

       On October 16, 2014, following a two-day bench trial, Jacobs was

convicted of DUI, careless driving, and reckless driving.         On December 2,

2014, the trial court sentenced Jacobs to eight days to six months’

incarceration on the DUI conviction.            The trial court imposed no further

penalty on the reckless driving conviction.          The Commonwealth agreed to

nolle prosse the careless driving charge, even though the trial court had

found Jacobs guilty of that offense.           On December 12, 2014, Jacobs filed

post-sentence motions, which the trial court denied on December 18, 2014.

       On December 26, 2014, Jacobs filed a notice of appeal. On the same

date, Jacobs filed a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b), even though the trial court did not yet order

____________________________________________


3
       See Miranda v. Arizona, 384 U.S. 436 (1966).



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him to do so. On March 6, 2015, the trial court issued an opinion pursuant

to Pa.R.A.P. 1925(a).

         Jacobs raises the following four questions for our review:

         1. Did the lower court err in failing to suppress [Jacobs’]
            statement to police when it was taken without first giving
            [Jacobs] his Miranda warnings?

         2. Did the lower court err in disregarding all of the testimony of
            [Jacobs’] expert witness, a qualified medical doctor and
            pathologist, even though his testimony raised a reasonable
            doubt as to whether it was [Jacobs] or actually the
            prosecution’s own witness who was driving under the
            influence at the time of the accident?

         3. Was there sufficient evidence to convict [Jacobs] for Reckless
            Driving?

         4. Did the trial court properly exclude from evidence [Jacobs’]
            medical records (even though the Commonwealth had
            stipulated to their authenticity and which showed that
            [Jacobs] had suffered a concussion and a thoracic fracture)
            when [Jacobs] argued that the records were relevant to show
            his physical condition at the time he spoke to the arresting
            officer?

Brief for Jacobs at 5.

         In his first issue, Jacobs challenges the trial court’s denial of his

motion to suppress his admissions that he was the driver of the vehicle and

that he had been drinking alcohol prior to driving.           Specifically, Jacobs

contends that the statements were obtained in violation of his constitutional

rights     pursuant    to   the   United   States   Supreme     Court’s   seminal

pronouncement in Miranda v. Arizona, 384 U.S. 436 (1966). Our standard

of review over such a claim is well-settled.



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      Our standard of review of an order denying a motion to suppress
      evidence is limited to determining whether the findings of fact
      are supported by the record and whether the legal conclusions
      drawn from those facts are in error.          Commonwealth v.
      Crompton, 682 A.2d 286 (Pa. 1996); Commonwealth v.
      Chambers, 598 A.2d 539 (Pa. 1991).                In making this
      determination, this [C]ourt may only consider the evidence of
      the Commonwealth’s witnesses, and so much of the witnesses
      for the defendant, as fairly read in the context of the record as a
      whole, which remains uncontradicted. Id. If the evidence
      supports the findings of the trial court, we are bound by such
      findings and may reverse only if the legal conclusions drawn
      therefrom are erroneous. Id.

Commonwealth v. Ellis, 700 A.2d 948, 954 (Pa. Super. 1997) (citations

modified); see Commonwealth v. McAdoo, 46 A.3d 781, 783-84 (Pa.

Super. 2012), allowance of appeal denied, 65 A.3d 413 (Pa. 2013);

Commonwealth v. Hoppert, 39 A.3d 358, 361-62 (Pa. Super. 2012). “The

Commonwealth need only show by a preponderance of the evidence that a

voluntary, knowing and intelligent waiver of a constitutional right was

made.”        Commonwealth        v.    Davis,   526    A.2d    1205,       1209

(Pa. Super. 1987); see Commonwealth v. Smith, 784 A.2d 182, 185-86

(Pa. Super. 2001) (same in context of challenge to probable cause in

support of warrant).

      It is a fundamental precept of constitutional law that a suspect subject

to a custodial interrogation by police must be warned that he has the right to

remain silent, that anything he says may be used against him in court, and

that he is entitled to the presence of an attorney.    Miranda, 348 U.S. at

469. If an individual is not advised of his Miranda rights prior to a custodial

interrogation by law enforcement officials, evidence obtained through the

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interrogation cannot be used against him. In re K.Q.M., 873 A.2d 752, 755

(Pa. Super. 2005). “[I]n order to trigger the safeguards of Miranda, there

must be both custody and interrogation. Statements not made in response

to custodial interrogation are classified as gratuitous and are not subject to

suppression for lack of Miranda warnings.” Commonwealth v. Heggins,

809 A.2d 908, 914 (Pa. Super. 2002).

      Jacobs focuses his argument upon his contention that he was in

custody for Miranda purposes.      Jacobs highlights the facts that he was

injured, that two police officers questioned him, that the officers arrived in

separate vehicles, and that the officers did not seek medical assistance until

after speaking with him about the accident. See Brief for Jacobs at 18-25.

None of these assertions compels us to conclude that Jacobs was in custody

for Miranda purposes.

      In deeming an interaction to be a custodial interrogation, “the police

officer’s subjective intent does not govern the determination but rather the

reasonable belief of the individual being interrogated.” Commonwealth v.

Zogby, 689 A.2d 280, 282 (Pa. Super. 1997). An individual is deemed to be

in custody for Miranda purposes when he “is physically denied . . . his

freedom of action in any significant way or is placed in a situation in which

he reasonably believes that his freedom of action or movement is restricted

by the interrogation.” K.Q.M., 873 A.2d at 755 (citing Commonwealth v.

Williams, 650 A.2d 420, 427 (Pa. Super. 1994)). The court must consider

the totality of circumstances, including factors such as “the basis for the

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detention; the duration; the location; whether the suspect was transferred

against his will, how far, and why; whether restraints were used; the show,

threat or use of force; and the methods of investigation used to confirm or

dispel suspicions.”     Commonwealth v. Busch, 713 A.2d 97, 101

(Pa. Super. 1998).

      Viewing the totality of the circumstances, it is clear that Jacobs was

not in custody. When the police arrived at the scene, they were unable to

locate anyone involved in the crash.      However, during a search of the

surrounding area, they found Jacobs hiding between two tractor trailers. In

an attempt to investigate the accident, and not for the purposes of detaining

or confining Jacobs, the police approached the hiding Jacobs and asked him

if he was involved in the crash. The officers did not relocate him, nor did

they show force or detain him for an unreasonable period of time.        The

purpose of the brief detention was to investigate the accident, not to

coercively interrogate Jacobs.   Jacobs readily admitted to driving the Jeep

and to drinking seven or eight beers.       Considering the totality of the

circumstances, as well as the factors delineated in Busch, Jacobs was not in

custody. The officers merely asked him some questions for the purpose of

investigating the accident.

      Jacobs’ assertions to the contrary are unpersuasive.    The facts that

two officers approached him, and that they arrived in two separate vehicles,

do not create a coercive environment such that Miranda would be triggered.

Nor do they create a situation where a reasonable person would feel

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involuntarily detained, as would be the case if, for example, Jacobs was

surrounded by a team of officers with their weapons drawn. We also are not

persuaded by the fact that Jacobs was injured. That he was injured and was

unable to leave the scene does not, ipso facto, mean that the police created

an environment where he could not leave. The officers simply approached

Jacobs and asked him some questions for the purposes of investigating a

traffic accident. They did not place him in custody for Miranda purposes.

Jacobs is not entitled to relief.

      In his second issue, Jacobs argues that the trial court abused its

discretion by disregarding the testimony of Jacobs’ expert, Dr. Jonathan

Briskin.   Dr. Briskin testified as an expert at trial that, to a reasonable

degree of medical certainty, Jacobs was a restrained passenger in the Jeep,

and not the driver.       The trial court elected not to credit Dr. Briskin’s

testimony.    In its Rule 1925(a) opinion, the court provided the following

explanation of Dr. Briskin’s testimony and the court’s reasoning for

disregarding that testimony:

      Dr. Briskin opined that [Jacobs’] injuries to his lower left
      abdomen and right shoulder could be consistent with [Jacobs]
      being restrained in the passenger seat.         In reaching this
      conclusion, Dr. Briskin reviewed medical records of both [Jacobs]
      and Mr. Lillick, as well as photographs of [Jacobs’] injuries and
      the damaged vehicle.       Dr. Briskin did not personally view
      [Jacobs’] injuries nor did he inspect [Jacobs’] vehicle.      Dr.
      Briskin’s analysis was based on his review of a limited amount of
      evidence and Dr. Briskin was unable to conclude what actually
      happened. Dr. Briskin did, however, note that the injuries
      sustained by [Jacobs] could occur if [Jacobs] was a restrained
      passenger in a head[-]on collision.


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      Accordingly, [the trial court] chose to disregard much of Dr.
      Briskin’s testimony because it was inconclusive and based on
      conjecture.     Furthermore, whatever significance [the court]
      allotted to Dr. Briskin’s testimony was weighed against [Jacobs’]
      stipulation to his BAC and his admission to driving, in addition to
      the other evidence [in the case.]

T.C.O. at 13 (emphasis in original).

      Jacobs maintains that the trial court abused its discretion by not

accepting wholesale Dr. Briskin’s testimony. This amounts to a challenge to

the weight of the evidence. When reviewing a weight of the evidence claim,

we consider the following:

      A motion for a new trial based on a claim that the verdict is
      against the weight of the evidence is addressed to the discretion
      of the trial court. Commonwealth v. Widmer, 744 A.2d 745,
      751-52 (Pa. 2000); Commonwealth v. Brown, 648 A.2d 1177,
      1189 (Pa. 1994) A new trial should not be granted because of a
      mere conflict in the testimony or because the judge on the same
      facts would have arrived at a different conclusion. Widmer,
      744 A.2d at 752. Rather, “the role of the trial judge is to
      determine that ‘notwithstanding all the facts, certain facts are so
      clearly of greater weight that to ignore them or to give them
      equal weight with all the facts is to deny justice.’” Id. (citation
      omitted). It has often been stated that “a new trial should be
      awarded when the jury’s verdict is so contrary to the evidence as
      to shock one’s sense of justice and the award of a new trial is
      imperative so that right may be given another opportunity to
      prevail.” Brown, 648 A.2d at 1189.

      An appellate court’s standard of review when presented with a
      weight of the evidence claim is distinct from the standard of
      review applied by the trial court:

         Appellate review of a weight claim is a review of the
         exercise of discretion, not of the underlying question of
         whether the verdict is against the weight of the evidence.
         Brown, 648 A.2d at 1189. Because the trial judge has
         had the opportunity to hear and see the evidence
         presented, an appellate court will give the gravest


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        consideration to the findings and reasons advanced by the
        trial judge when reviewing a trial court’s determination
        that the verdict is against the weight of the evidence.
        Commonwealth v. Farquharson, 354 A.2d 545 (Pa.
        1976). One of the least assailable reasons for granting or
        denying a new trial is the lower court’s conviction that the
        verdict was or was not against the weight of the evidence
        and that a new trial should be granted in the interest of
        justice.

     Widmer, 744 A.2d at 753.

Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013) (citations

modified).

     Our task in evaluating a weight challenge is as follows:

     To determine whether a trial court’s decision constituted a
     palpable abuse of discretion, an appellate court must examine
     the record and assess the weight of the evidence; not however,
     as the trial judge, to determine whether the preponderance of
     the evidence opposes the verdict, but rather to determine
     whether the court below in so finding plainly exceeded the limits
     of judicial discretion and invaded the exclusive domain of the
     jury. Where the record adequately supports the trial court, the
     trial court has acted within the limits of its judicial discretion.

Brown, 648 A.2d at 1190 (citation omitted).

     We discern no abuse of discretion by the trial court.         The court

carefully considered the testimony of Dr. Briskin, and weighed the contents,

both favorable and unfavorable to Jacobs, against the other evidence

presented in the case and reached a verdict. That Dr. Briskin was an expert

in no way binds the trial court to credit any, all, or even some of his

testimony.   The trial court astutely considered the evidence, and weighed




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the value of that evidence against the remaining evidence. The court did not

abuse its discretion, and this claim fails.

        In his third issue, Jacobs argues that the evidence presented at trial

was insufficient to sustain his conviction for reckless driving. Our standard

of review governing sufficiency challenges is well-settled.              We must

determine:

        whether[,] viewing all the evidence admitted at trial in the light
        most favorable to the [Commonwealth as 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 that 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.

Commonwealth v. Troy, 832 A.2d 1089, 1092 (Pa. Super. 2003) (citations

omitted).

        Pursuant to 75 Pa.C.S. § 3736(a), “[a]ny person who drives any

vehicle in willful or wanton disregard for the safety of persons or property is

guilty of reckless driving.”       As a preliminary matter, we note that the

evidence, viewed in the light most favorable to the Commonwealth,

demonstrates that Jacobs was the driver of the vehicle and that he was

substantially intoxicated when driving.         However, “evidence of intoxication

alone     is   insufficient   to   support    a    reckless   driving   conviction.”

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Commonwealth v. Jeter, 937 A.2d 466, 468 (Pa. Super. 2007).              The

Commonwealth must present additional “indicia of unsafe driving” in order to

prove that the defendant exhibited a “willful or wanton disregard for the

safety of persons or      property.”   Id.; 75   Pa.C.S. §   3736(a).    The

Commonwealth clearly has met that burden here.

      In addition to driving while intoxicated, the testimony at trial

demonstrated Jacobs’ recklessness. The witnesses testified that Jacobs was

speeding on wet roads at 2:30 in the morning.           Additionally, in his

intoxicated state and with these dangerous conditions, Jacobs decided to “do

donuts” in the center of a public intersection. He then drove into a quarry,

where he drove the Jeep into piles of gravel and stone, and then did more

donuts in the gravel. One of the passengers in the car pleaded with Jacobs

to take her home. Jacobs then sped away, and drove into a guardrail. This

evidence undoubtedly was sufficient to demonstrate that Jacobs was guilty

of reckless driving.

      In his final issue, Jacobs contends that the trial court abused its

discretion by ruling that his medical records were inadmissible at trial. The

records at issue were produced following a visit to the doctor approximately

one week after the accident. According to Jacobs, the records would show

that he suffered from a concussion and a fracture of one of his vertebra.

Jacobs maintains that the records, and the injuries described therein, were

relevant to the question of whether his admissions to the police after the

accident were credible.

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      Our standard of review of challenges to the admissibility of evidence is

well settled:

      Admission of evidence is within the sound discretion of the trial
      court and will be reversed only upon a showing that the trial
      court clearly abused its discretion. Admissibility depends on
      relevance and probative value. Evidence is relevant if it logically
      tends to establish a material fact in the case, tends to make a
      fact at issue more or less probable or supports a reasonable
      inference or presumption regarding a material fact.

      Judicial discretion requires action in conformity with law, upon
      facts and circumstances judicially before the court, after hearing
      and due consideration. An abuse of discretion is not merely an
      error of judgment, but if in reaching a conclusion the law is
      overridden or misapplied or the judgment exercised is manifestly
      unreasonable, or the result of partiality, prejudice, bias, or ill
      will, as shown by the evidence or the record, discretion is
      abused.

Commonwealth v. Borovichka, 18 A.3d 1242, 1253 (Pa. Super. 2011)

(citation omitted).   “In determining the admissibility of evidence, the trial

court must decide whether the evidence is relevant and, if so, whether its

probative value outweighs its prejudicial effect.”        Commonwealth v.

Hawk, 709 A.2d 373, 376 (Pa. 1998) (citing Commonwealth v. Crews,

640 A.2d 395 (Pa. 1994); Commonwealth v. Dollman, 541 A.2d 319 (Pa.

1988)). “Evidence is relevant if it logically tends to establish a material fact

in the case, tends to make a fact at issue more or less probable, or supports

a reasonable inference or presumption regarding the existence of a material

fact.” Commonwealth v. Spiewak, 617 A.2d 696, 699 (Pa. 1992).

      The Commonwealth stipulated to the authenticity of the records, but

not the admissibility of them.      Despite their authenticity not being in

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question, the trial court ruled them inadmissible primarily because Jacobs

did not intend to call his diagnosing physician to explain the injuries and how

injuries that were diagnosed one week after the accident would have

impacted Jacobs at the time of the accident. Hence, the court ruled that the

evidence was irrelevant. We agree with the trial court.

      The primary issue at trial was whether Jacobs, or someone else, was

driving the Jeep at the time of the accident.            Eyewitness testimony

overwhelmingly placed Jacobs in the driver’s seat. Jacobs also admitted to

the police that he was the driver. However, with the medical records, Jacobs

wanted to show that his admission should not have been believed.           The

records simply were not relevant for that purpose.       As noted, evidence is

relevant if it tends to make one fact more or less likely. By this definition,

the records would have had to show that he suffered substantially from an

illness or injury at the time of the accident. The records only would have

proven Jacobs’ mental and physical condition one week after the accident.

Without supporting testimony to explain to the trial court that his injuries

derived from the accident, that he suffered them in the accident, and that

the effects of those injuries would have impaired his ability to accurately

recall and relay to the officers the events that led to the crash, the records

simply were not legally relevant. Consequently, the trial court did not abuse

its discretion in ruling that the records were inadmissible.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/15/2015




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