J-S56021-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

KYLE W. SHAFFER

                            Appellant               No. 72 MDA 2014


        Appeal from the Judgment of Sentence of December 17, 2013
             In the Court of Common Pleas of Columbia County
             Criminal Division at No.: CP-19-CR-0000443-2012


BEFORE: PANELLA, J., WECHT, J., and PLATT, J.*

MEMORANDUM BY WECHT, J.:                       FILED SEPTEMBER 23, 2014

       Kyle Shaffer appeals the December 17, 2013 judgment of sentence.

We affirm.



morning one-vehicle accident that resulted in the

passenger, Russell Hack. As the alleged driver of the vehicle, Shaffer was
                                                    1
                                                        homicide by vehicle,2

homicide by vehicle while DUI,3 and various summary offenses.

____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
1
       75 Pa.C.S. § 3802(b).
2
       75 Pa.C.S. § 3732.
3
       75 Pa.C.S. § 3735.
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      Prior to trial, Shaffer filed a motion in limine seeking to prohibit the

Commonwealth from introducing forty-nine graphic photographs that were

taken after the truck was removed from the original location of the accident.

During the accident, Shaffer, while driving at a high rate of speed, failed to

negotiate a turn in a road. The truck went over an embankment, and came

to rest on its roof. The truck was towed up a hill before being flipped over

onto its tires. This was done while the deceased victim was still inside of the

vehicle.   Shaffer contended that, because moving the truck altered the



to the issue of guilt, which rendered the photographs overly prejudicial. On

November 5, 2013, the trial cour

conclusion of the hearing, the trial court denied the motion.

      On the same day, the parties and the trial court began jury selection.

During selection, one prospective juror expressed her discomfort with

observing graphic photographs:



      water or something like that, I have no problem. . . . I just want
      you to be aware that I might need something like that.




she was placed on the jury and became juror number twelve. Shaffer did

not object to juror number twelve being selected as a competent juror.

      Trial began on November 13, 2013. When photographs of the accident

and the victim were displayed during the trial, juror number twelve became


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squeamish, and did not look at a significant amount of the photographs.

During a break in the testimony, the following exchange occurred between



juror number twelve:

     THE COURT:
                           counsel right now. And I noted during
                           the entire time the photographs were
                           shown that juror No. 12, [], did not look
                           at the photos save for a couple of the
                           collision photographs which she glanced
                           at.     But the great majority of the
                           photographs she was just staring at
                           Trooper [Todd] Tolan listening to him
                           and looking at him. I made a point of
                           keeping an eye on her and she missed a
                           lot of the photographs, particularly the
                           one
                           where his leg was stuck in there.

     [DEFENSE COUNSEL]:

     THE COURT:
                           Everybody else was, by the way.

     [DEFENSE COUNSEL]: Should we just confirm that with her and
                        I would not object to her being struck for
                        cause.

     THE COURT:            Should we do that?

     [DEFENSE COUNSEL]:

     THE COURT:            No, I think we should have a talk with
                           her definitely.

     [DEFENSE COUNSEL]: My guess, she will probably confirm,

                           through.

     THE COURT:            I think she was very uncomfortable




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                            conference room or       someplace   back
                            there and talk to her.

     (Whereupon , Juror No. 12 [] was brought into Chambers.)

     BY THE COURT:

     Q.
          pictures?

     A.

     Q.   You got to look at the pictures.

     A.   I tried.

     Q.

     A.


     Q.   I noticed you were having a tough time with it and I
          thought you were having a tough time with this.

     A.

     Q.   I know you could be fair but the fairness we were

          but you said you would be fair and honest.

     A.

     Q.   But the issue was I think looking at the photos.

     A.

     Q.   Some people have a tough time doing that.

     A.   I told [the jury selection judge] when they were picking

          floor. It gets me too worked up. I tried to look. I glanced
          and kept my head down.

     Q.   I could tell there were some you would glance at and most
          of them

     A.

     Q.


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J-S56021-14


      A.    I tried to listen to what he was saying as far as the gist of
            it.

      [DEFENSE COUNSEL]:
                              them more.

      Juror 12:               Let me calm down.

      (Whereupon, Juror No. 12 was excused from further service.)

N.T., 11/13/2013, at 222-24. Notably, defense counsel did not object, nor

did he explicitly acquiesce further, to the exclusion of juror number twelve

and the replacement of her with an alternate juror.

      The trial court summarized the basic facts that were presented to the

jury as follows:

      [Shaffer] and the victim were out drinking one evening. In the
      early morning hours[,] the victim and [Shaffer] were traveling

      that time[, Shaffer] was driving and the victim was in the
      passenger seat. [Shaffer] allege[d] that he changed seats with
      the victim and that the victim was driving. Shortly thereafter,
      the vehicle failed to negotiate a turn (speeding) and landed on
      its roof over an embankment. [Shaffer] got out of the vehicle.
      When the police arrived, the victim was trapped and hanging
      upside down in the passenger seat. He was deceased.




that established the above general factual scenario, the Commonwealth also

presented testimony from Trooper Tolan, who testified as an expert in

collision analysis and accident reconstruction.   Trooper Tolan testified that

                                                                       r at the

time of the accident. Moreover, based upon his analysis of the location of




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state of the vehicle after the crash, Trooper Tolan opined that Shaffer had

been the driver of the vehicle at the time of the crash.

      At the close of evidence, the jury found Shaffer guilty of all of the

above-referenced charges. Additionally, the trial court found Shaffer guilty

of the summary offenses. On December 17, 2013, the trial court sentenced

Shaffer      to    an   aggregate    sentence   of   forty   to   ninety-

imprisonment.

      On January 7, 2014, Shaffer filed a notice of appeal. On January 9,

2014, the trial court directed Shaffer to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).                 Following one

request for an extension of time, Shaffer timely filed a concise statement on

February 25, 2014. On February 28, 2014, the trial court issued an opinion

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

      Shaffer raises the following four issues for our consideration:

      I.          Whether the trial court erred when it unilaterally excused
                  juror number twelve at the end of the first day of trial
                  without good cause and without any competent evidence
                  of her inability to continue to serve as a juror?

      II.
                  juror substitution process was prejudicially erroneous?

      III.
                  motion in limine to preclude the introduction of certain
                  photographs of the vehicle that were taken after the
                  vehicle had been removed from its resting place where
                  these photographs were misleading, irrelevant and their
                  probative value was substantially outweighed by the
                  prejudice?




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      IV.   Whether the evidence presented to support the charges
            was insufficient because it failed to establish that Shaffer
            was the individual operating the vehicle at the time of the
            accident?

Brief for Shaffer at 4.



pertaining to the removal and replacement of juror number twelve. Hence,

we consider them in tandem. However, we do not reach the merits of either

claim, because Shaffer has waived both challenges for failure to object to the



      It is both a bedrock and axiomatic principle in appellate jurisprudence




foundational tenet most recently in Commonwealth v. Akbar, 91 A.3d 227

(Pa. Super. 2014):

      Preliminarily, we observe that to preserve a claim of error for
      appellate review, a party must make a specific objection to the
      alleged error before the trial court in a timely fashion and at the
      appropriate stage of the proceedings; failure to raise such
      objection results in waiver of the underlying issue on appeal.
      Commonwealth v. Charleston, 16 A.3d 505 (Pa. Super.
      2011); Commonwealth v. Shamsud Din, 995 A.2d 1224 (Pa.
      Super. 2010). See also Commonwealth v. Arroyo, 723 A.2d
      162, 170 (Pa. 1999) (explaining if ground upon which objection
      is based is specifically stated, all other reasons for its exclusion
      are waived).

Akbar, 91 A.3d at 235.

      We have reviewed the record in this case thoroughly, and have found

that Sha

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twelve, or the process that the trial court utilized to replace that juror.4 In

his reply brief, Shaffer seeks to overcome waiver by maintaining that the

                                   e truth that trial counsel did not concur in the




                             Id. at 5.    However, Shaffer does not point to one

location in the trial record where he actually objected or opposed the trial



manifestly is not the same as lodging an objection to that action.             Our

jurisprudence and rules of procedure require parties to formally announce a



properly may be contested on appeal.5              Here, Shaffer did not object,

explicitly or implicitly, after the trial court removed juror number twelve, nor

did Shaffer object to any procedure utilized by the trial court in doing so and


____________________________________________


4
       Regarding the replacement process, Shaffer argues that the process
was flawed constitutionally and procedurally, inter alia: (1) because he was
not present during the questioning of juror number twelve; (2) because he
was not given adequate opportunity to question her; and (3) because the
alternate juror was not adequately apprised that her role had changed from
alternate to primary juror. Again, Shaffer raised none of these objections
first before the trial court. Thus, they are waived.
5
      Our rules also require parties to identify in their appellate brief the
precise location in the record where that party objected or contested an
action or ruling. See Pa.R.A.P. 2117(c). Conspicuously, Shaffer has not
complied with this rule.



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waived.

      In his third issue, Shaffer argues that the trial court erred by denying

his motion in limine, and subsequently permitting the Commonwealth to

introduce at trial many photographs of the damaged truck and the victim

that were taken after the truck had been winched up from the embankment

and flipped

and the inevitable movement of the lifeless body of the victim after it was

pulled up the hill and flipped over were starkly different than that at the time

of the accident and were simply m

at 21. Because the only issue in the case was who was driving the car at the

time of the accident, Shaffer also maintains that showing photographs

                                                                    ipped over

were overly prejudicial. We disagree.



                                                              Commonwealth

v. Ogrod, 839 A.2d 294, 334 (Pa. 2003) (citing Commonwealth v. Baez,



merely because an appellate court might have reached a different

conclusion, but requires a result of manifest unreasonableness, or partiality,

prejudice, bias, or ill-will, or such lack of support so as to be clearly

              Commonwealth v. Barnett, 50 A.3d 176, 182 (Pa. Super.

2012) (citing Commonwealth v. Brougher, 978 A.2d 373, 376 (Pa. Super.

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                                                                              fact

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



Commonwealth v. Fransen, 42 A.3d 1100, 1106 (Pa. Super. 2012).

                                                   luded if its probative value is

                                            Id.

     The photographs that were admitted at trial are contained in the

certified record, and we have reviewed them extensively. Although a few of



blood, Shaffer does not contest their admission based upon their gruesome

nature.   Rather, Shaffer argues that they were irrelevant and misleading

because they were taken after the vehicle had been moved and flipped over.

However, the fact that the pictures were taken after the vehicle had been

moved, and with the body still inside the vehicle, does not render the

photographs per se irrelevant. As noted by Shaffer, the central issue in this

case was whether Shaffer or the victim was driving the vehicle at the time of

the accident. The photographs clearly were relevant to this issue.

     The photographs depict not only the damage done to the vehicle, but

                                                                    the body may

have shifted slightly during the process of moving the vehicle, the pictures



passenger   side,   with   his   derriere   on    the   passenger   seat.    See

                           -5G, C-5H, C-5D, and C-5E. Moreover, in one of

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the pictures, the victim is holding in his right hand a handle that is typically

affixed to the roof of the interior of a vehicle that was broken off in the

accident.   See                           -5H.    Although not conclusive, the

fact that the victim was holding the handle in his right hand is suggestive

that he was sitting in the passenger seat at the time of the accident. Finally,

the pictures of the vehicle demonstrate that the most significant damage to

the vehicle was on the passenger side.        The passenger side was crushed

from the top, supporting the premise that whoever was sitting on the

passenger side would be pinned to that location by the damage.             See

                         -5A.

      These pictures clearly were relevant to the issue of who was driving

the vehicle at the time of the accident. The jury also knew that they were

taken after the vehicle was moved. The fact that the pictures were taken

after the vehicle was moved, in this case at least, affects the weight

assigned to the photographs by the jury, but does not render them per se

inadmissible or irrelevant. For the preceding reasons, the photographs were

neither irrelevant nor overly prejudicial. Hence, the trial court did not abuse

its discretion by denying                        in limine or by admitting the

photographs at trial.

      In his final issue, Shaffer argues that the evidence presented at trial

was insufficient to prove beyond a reasonable doubt that he was the driver

of the vehicle. We disagree.




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      When reviewing challenges to the sufficiency of the evidence, our

standard of review is as follows:

      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
                                                     -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.

Commonwealth v. Phillips, 93 A.3d 847, 856 (Pa. Super. 2014) (citations

omitted). Further, in viewing the evidence in the light most favorable to the

Commonwealth as the verdict winner, the court must give the prosecution

the benefit of all reasonable inferences to be drawn from the evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).

      Shaffer was convicted of DUI, homicide by vehicle, and homicide by

vehicle while DUI. Shaffer contends that the proof for each of these crimes

was insufficient because the Commonwealth failed to prove that he was




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driving the vehicle at the time of the accident.    Viewed in the light most

favorable to the Commonwealth, the evidence proves otherwise.

      First, the photographic evidence depicts the victim pinned in the

passenger side of the vehicle with his legs under the dashboard and his

derriere in the passenger seat.   Second, the medical reports presented by

the Commonwealth at trial demonstrate that Shaffer had blood on the

outside of his clothing that did not come from him, and was only present on

the right side of his body. In other words, drawing all reasonable inferences



                                             use, if he was in the passenger



not the right. Finally, and most importantly, based upon the damage to the

                                                                         ody,

Trooper Tolan, an expert in collision analysis and accident reconstruction,

opined that Shaffer was the driver of the vehicle and that the victim was the

passenger at the time of the accident.       This evidence was sufficient to

demonstrate that Shaffer was the driver of the vehicle beyond a reasonable

doubt.



belief that the jury should have believed his testimony that he and the victim

switched places after dropping off the third member of their party, and upon

challenging other credibility determinations reached by the jury. However, a




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                                          Commonwealth v. Gibbs,

981 A.2d 274, 281 82 (Pa. Super. 2009).

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/23/2014




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