J-S30023-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                             Appellee

                        v.

    DAVID LINCOLN LEE

                             Appellant               No. 1636 WDA 2017


        Appeal from the Judgment of Sentence Entered October 20, 2017
                In the Court of Common Pleas of Fayette County
               Criminal Division at No.: CP-26-CR-0000032-2017


BEFORE: BENDER, P.J.E., STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STABILE, J.:                          FILED AUGUST 29, 2018

        Appellant David Lincoln Lee appeals from the October 20, 2017

judgment of sentence entered in the Court of Common Pleas of Fayette County

(“trial court”), following his jury convictions for homicide by vehicle while

driving under the influence of alcohol, accidents involving death or personal

injury, homicide by vehicle, driving under the influence of alcohol (“DUI”)—

general impairment, driving vehicle at safe speed, careless driving, reckless

driving, and DUI—highest rate of alcohol (BAC > .16%).1 Upon review, we

affirm.

        The facts and procedural history of this case are undisputed. Appellant

was charged with various Vehicle Code offenses in connection with a fatal hit-
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*   Retired Senior Judge assigned to the Superior Court.
1 75 Pa.C.S.A. §§ 3735(a), 3742(a), 3732(a), 3802(a)(1), 3361, 3714(a),
3736(a), and 3802(c), respectively.
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and-run accident involving a pedestrian that occurred at 12:14 a.m. on

October 29, 2016. On May 3, 2017, Appellant filed an omnibus pretrial motion

seeking to, inter alia, suppress the results of a blood test under Birchfield v.

North Dakota, 136 S. Ct. 2160 (2016).2           Appellant also argued that the

Commonwealth did not show good cause for failing to obtain his blood test

within two hours after he allegedly stopped driving, as required by 75

Pa.C.S.A. § 3802(g). Following a hearing, the trial court denied Appellant’s

omnibus pretrial motion on September 5, 2017. On September 26, 2017, the

Commonwealth filed a motion to amend the criminal information to add the

charge of DUI – highest rate of alcohol, which the trial court granted on

October 2, 2017. The case proceeded to a four-day jury trial, following which

the jury found Appellant guilty of homicide by vehicle while driving under the

influence of alcohol, accidents involving death or personal injury, homicide by

vehicle, DUI, driving vehicle at safe speed, careless driving, reckless driving,

and DUI – highest rate of alcohol (BAC > .16%). On October 20, 2017, the

trial court sentenced Appellant to an aggregate term of four to ten years’

imprisonment.3       Appellant did not file any post-sentence motions.       On
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2Birchfield held that the Fourth Amendment to the United States Constitution
does not permit warrantless blood tests incident to arrests for drunk driving
and that a state may not criminalize a motorist’s refusal to comply with a
demand to submit to blood testing. Birchfield, 136 S. Ct. at 2185-86.
3 The trial court sentenced Appellant to four to ten years’ imprisonment for
homicide by vehicle while driving under the influence of alcohol and a
concurrent term of three to seven years in prison for accidents involving death
or personal injury. The trial court did not impose any additional penalties for
the remaining convictions.

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November 2, 2017, Appellant appealed to this Court. The trial court ordered

Appellant to file a Pa.R.A.P. 1925(b) statement of errors complained of on

appeal. Appellant complied, raising three assertions of error:

       [I.] Whether the trial court committed reversible error in
       permitting evidence of the results of a chemical test of
       [Appellant’s] blood when the sample was taken more than two
       hours after operation of a vehicle.

       [II.] Whether the evidence was legally and factually sufficient to
       prove that [Appellant] committed the crime of homicide by vehicle
       while driving under the influence beyond a reasonable doubt.
       [III.] Whether the trial court erred in sentencing [Appellant] at
       count 2: accidents involving death or personal injury, when a fact
       that increased the mandatory minimum (death of the victim) was
       an element of the crime that was not submitted to the jury.

Rule 1925(b) Statement, 11/21/17 (unnecessary capitalizations omitted). In

response, the trial court issued a Pa.R.A.P. 1925(a) opinion concluding that

Appellant is not entitled to relief.

       On appeal, Appellant repeats the same issues for our review. We first

address Appellant’s claim that the trial court erred in concluding that the

Commonwealth established good cause under Section 3802(g) for failing to

obtain his blood within two hours of the accident and, consequently, the trial

court erred in failing to suppress the results of his blood draw.4 We disagree.

       Section 3802(c) of the Vehicle Code provides:

       An individual may not drive, operate or be in actual physical
       control of the movement of a vehicle after imbibing a sufficient
       amount of alcohol such that the alcohol concentration in the
       individual’s blood or breath is 0.16% or higher within two hours
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4 Our scope of review in suppression matters is limited to the suppression
hearing record, and excludes any evidence elicited at trial. In re L.J., 79 A.3d
1073, 1085 (Pa. 2013).

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       after the individual has driven, operated or been in actual physical
       control of the movement of the vehicle.

75 Pa.C.S.A. § 3802(c). Section 3802(c)’s requirement to take a defendant’s

blood test within two hours after the individual has driven is subject to a “good

cause” exception set forth within Section 3802(g), which provides:

       Notwithstanding the provisions of subsection . . . (c) . . . where
       alcohol or controlled substance concentration in an individual’s
       blood or breath is an element of the offense, evidence of such
       alcohol or controlled substance concentration more than two hours
       after the individual has driven, operated or been in actual physical
       control of the movement of the vehicle is sufficient to establish
       that element of the offense under the following circumstances:
          (1) where the Commonwealth shows good cause explaining
          why the chemical test sample could not be obtained within
          two hours; and

          (2) where the Commonwealth establishes that the individual
          did not imbibe any alcohol or utilize a controlled substance
          between the time the individual was arrested and the time
          the sample was obtained.

75 Pa.C.S.A. § 3802(g).5 As we explained in Commonwealth v. Eichler,

133 A.3d 775 (Pa. Super. 2016), appeal denied, 161 A.3d 791 (Pa. 2016):

       In a section 3802(c) prosecution, when the blood test does not
       take place within two hours after the defendant drives, operates
       or is in actual physical control of the vehicle, test results are
       subject to suppression unless the Commonwealth proves good
       cause for the delay in obtaining a blood test and the defendant did
       not imbibe alcohol between his arrest and his blood test.

Eichler, 133 A.3d at 786 (citing 75 Pa.C.S.A. § 3802(g)). In Eichler, the

appellant was operating his vehicle when he swerved off the road, struck the

victim who was in a motorized wheelchair, and left the scene. Id. at 789,


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5Instantly, Appellant does not challenge the no-imbibing element of Section
3802(g)(2) of the Vehicle Code. As a result, we will confine our review to
Section 3802(g)(1)’s good cause element.

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790. A police sergeant went to the appellant’s home and observed damage

to the right front corner and passenger side door of the appellant’s

vehicle. Id. at 790. Upon speaking to the appellant, the sergeant noticed he

had bloodshot eyes, was slurring his speech, and appeared to be highly

intoxicated. Id. The sergeant asked the appellant why he left the scene of

the accident, and the appellant responded that he had been drinking. Id. at

790–91. The appellant was arrested and taken to a hospital where his BAC

was found to be .30%. Id. at 791. Ultimately, the appellant was convicted

of, inter alia, DUI—general impairment, DUI—highest rate of alcohol, and

accidents involving death or personal injury. On appeal, the appellant argued,

among other things, that the trial court erred by denying his motion to

suppress his blood alcohol test results on the ground that it was taken more

than two hours after driving. We disagreed. In so doing, we reasoned that

the appellant’s “flight from the accident scene, and the consequential delay in

finding him, constituted good cause for the failure to obtain his blood test

within two hours after he stopped driving.” Id. at 787.

      Here, like the appellant in Eichler, Appellant fled the scene of a fatal

accident, occasioning a delay in the Commonwealth’s ability to obtain his blood

for purposes of the chemical test. As the trial court noted, “troopers were

delayed in finding Appellant after he fled the scene of the accident.” Trial

Court Opinion, 1/10/18, at 5. Thus, consistent with Eichler, the trial court

did not err in concluding that the Commonwealth established good cause




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under Section 3802(g) for its failure to obtain the chemical test within two

hours of the accident. Accordingly, Appellant’s first issue fails.

       Appellant next argues that the evidence was insufficient to support his

conviction for homicide by vehicle while driving under the influence of alcohol

under Section 3735 of the Vehicle Code.6 We, however, are unable to consider

this issue because Appellant has failed to preserve it for our review.7 It is

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6We observe that Appellant seemingly committed a typographical error in his
brief where he mistakenly refers to Section 3732(a) instead of Section
3735(a). Appellant’s Brief at 11. Section 3735 provides in pertinent part:
       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 and
       the sentencing court shall order the person to serve a minimum
       term of imprisonment of not less than three years.
75 Pa.C.S.A. § 3735(a).

7“A claim challenging the sufficiency of the evidence is a question of law.”
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).

       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 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. 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



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settled that to preserve a challenge to the sufficiency of the evidence on

appeal, an appellant’s Rule 1925(b) statement must state with specificity the

element or elements of the crime upon which the appellant alleges the

evidence was insufficient. See Commonwealth v. Garland, 63 A.3d 339,

344 (Pa. Super. 2013); See also Commonwealth v. Garang, 9 A.3d 237,

246 (Pa. Super. 2010) (“[W]hen challenging the sufficiency of the evidence

on appeal, the Appellant’s 1925 statement must specify the element or

elements upon which the evidence was insufficient in order to preserve the

issue for appeal.”) (quotations and citation omitted). “Such specificity is of

particular importance in cases, where, as here, the appellant was convicted of

multiple crimes each of which contains numerous elements that the

Commonwealth must prove beyond a reasonable doubt.” Garland, 63 A.3d

at 344 (citations omitted).          In Garland, the appellant’s Rule 1925(b)

statement simply stated, “[t]he evidence was legally insufficient to support

the convictions.” Id. The panel found the claim waived, noting, among other

things, that the appellant “failed to specify which elements he was challenging

in his Rule 1925(b) statement.” Id. Moreover, given this Court’s desire to

apply Rule 1925 in a “predictable, uniform fashion,” we have determined that

waiver applies even where, as here, the Commonwealth fails to object and the

trial court addresses the issue in its Rule 1925(a) opinion. Commonwealth
____________________________________________


       credibility of witnesses and the weight of the evidence produced,
       is free to believe all, part or none of the evidence.
Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014), appeal
denied, 95 A.3d 275 (Pa. 2014).

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v. Roche, 153 A.3d 1063, 1071-72 (Pa. Super. 2017), appeal denied, 169

A.3d 599 (Pa. 2017); see Commonwealth v. Tyack, 128 A.3d 254, 260 (Pa.

Super. 2015) (holding that Tyack’s “boilerplate” concise statement declaring

“that the evidence was insufficient to support his conviction” was too vague

even where Tyack was convicted only of one crime).

      Instantly, Appellant’s sufficiency challenge, as set forth in his Rule

1925(b) statement, and reasserted in his statement of questions involved on

appeal, lacks specificity. In particular, Appellant only generally challenges the

sufficiency of the evidence underlying his conviction for homicide by vehicle

while driving under the influence. Appellant also fails to list the elements of

the crime in his brief upon which he contends the evidence is insufficient.

Accordingly, we conclude that Appellant has failed to preserve his sufficiency-

of-the-evidence claim for lack of specificity.

      Even if his claim were preserved, he still would not be entitled to relief.

As the trial court found:

      [Appellant’s girlfriend, Betty George] testified that Appellant drove
      his truck after imbibing alcohol at the Sportmen’s Club and later
      at Smitty’s Bar and Restaurant. Dr. [Laura] Labay testified that
      National Medical Services lab received Appellant’s blood sample
      and performed a gas chromatography test on the sample. The
      test showed that Appellant’s [blood alcohol content] at the time
      of [chemical test] was 0.17%. Furthermore, she testified that,
      based on scientific calculations, Appellant’s BAC at the time of the
      accident was in the range of 0.19% -- 0.25%. Finally, Ms. George
      testified that Appellant hit the victim with his vehicle. The victim
      died from the injuries sustained after being struck by Appellant’s
      vehicle.

Trial Court Opinion, 1/10/18, at 6 (record citations and footnote omitted).

When viewed in the light most favorable to the Commonwealth as the verdict


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winner, the evidence at trial, as recited above by the trial court, is sufficient

to establish that Appellant was guilty of homicide by vehicle while under the

influence of alcohol. Thus, Appellant’s sufficiency claim fails.

        We finally address Appellant’s third issue on appeal. Appellant argues

that his minimum sentence of three years relating to his conviction for

accidents involving death or personal injury under Section 3742 of the Vehicle

Code violates Alleyne v. United States, 133 S. Ct. 2151, 2161-63 (2013)

(holding that any fact other than a prior conviction that triggers a mandatory

minimum sentence must be found by a jury beyond a reasonable doubt). In

particular, Appellant argues that the trial court erred in failing to submit to the

jury the element of “death” under Section 3742, which provides in relevant

part:

        (a) General rule.--The driver of any vehicle involved in an
        accident resulting in injury or death of any person shall
        immediately stop the vehicle at the scene of the accident or as
        close thereto as possible but shall then forthwith return to and in
        every event shall remain at the scene of the accident until he has
        fulfilled the requirements of section 3744 (relating to duty to give
        information and render aid). Every stop shall be made without
        obstructing traffic more than is necessary.
        (b) Penalties.--

               (1) Except as otherwise provided in this section, any person
        violating this section commits a misdemeanor of the first degree.

               (2) If the victim suffers serious bodily injury, any person
        violating subsection (a) commits a felony of the third degree, and
        the sentencing court shall order the person to serve a minimum
        term of imprisonment of not less than 90 days and a mandatory
        minimum fine of $1,000, notwithstanding any other provision of
        law.

              (3)(i) If the victim dies, any person violating subsection
        (a) commits a felony of the second degree, and the sentencing
        court shall order the person to serve a minimum term of
        imprisonment of not less than three years and a mandatory

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      minimum fine of $2,500, notwithstanding any other provision of
      law.

            (ii) In addition to the minimum term of imprisonment
      provided for in subparagraph (i), the Pennsylvania Commission on
      Sentencing shall provide within its guidelines a sentencing
      enhancement if the victim dies as the result of a violation of
      subsection (a). The provisions of this subparagraph shall not be
      an element of the crime, and notice of the provisions of this
      subparagraph shall not be required prior to conviction, but
      reasonable notice of the Commonwealth’s intention to proceed
      under this subparagraph shall be provided after conviction and
      before sentencing.

75 Pa.C.S.A. § 3742(a) and (b) (emphasis added).

      Here, based on our review of the record, especially the trial transcript,

we conclude that the trial court not only submitted to the jury the element of

death under Section 3742, but that the jury also found beyond a reasonable

doubt that the victim died as a result of the accident. Indeed, the trial court

provided the following instructions to the jury with respect to Section 3742:

      [Appellant] has been charged at count 2, with accidents involving
      death also known as hit-and-run. To convict [Appellant] of this
      crime, you must be satisfied that the Commonwealth has proven
      the following elements beyond a reasonable doubt. First, that
      [Appellant] was driving a vehicle that he knew or should have
      known was involved in an accident that resulted in injury or death
      to any person. Second, that [Appellant] must have violated his
      two duties. The duty to stop and remain at the scene of the
      accident and the duty to give information and render aid to the
      injured person. And third, that [the victim] died as a result of
      the accident. The duty to stop requires the driver to immediately
      stop his vehicle at the scene of the accident, while obstructing
      traffic as little as possible or as close to the scene as possible and
      he must remain at the scene until he performs the second duty,
      the duty to give information and render aid. The duty to give
      information requires the driver to give his name and address and
      registration number of the vehicle he is driving and upon request,
      present his driver’s license and proof of insurance to any person
      injured in the accident, and to any police officer at the scene of
      the accident or who is investigating the accident.

N.T. Trial, 10/5/17, at 20-21 (emphasis added).         The trial court correctly

explained that “the jury found that: 1) Appellant was driving a vehicle while

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under the influence; 2) that while he operated the vehicle under the influence

he struck the victim; and 3) that the victim died as a result of being struck by

the vehicle driven by Appellant.”              Trial Court Opinion, 1/10/18, at 7-8.

Because death was an element of multiple offenses for which Appellant was

charged sub judice, including accidents involving death or personal injury, we

conclude that the jury found the element of death beyond a reasonable doubt

in accordance with Alleyne. As a result, his mandatory minimum sentence

of three years’ imprisonment is constitutional.8 Accordingly, Appellant’s third

issue merits no relief.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/29/2018




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8 Even if we had found an Alleyne violation, it still would not have upset the
trial court’s sentencing scheme here because Appellant’s sentence under
Section 3742 runs concurrently with his sentence of four to ten years’
imprisonment for homicide by vehicle while driving under the influence of
alcohol.

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