J-S53019-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    FREDERIC SAMUEL BALCH III,                 :
                                               :
                       Appellant               :   No. 3122 EDA 2017

            Appeal from the Judgment of Sentence August 16, 2017
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0001516-2017


BEFORE:      GANTMAN, P.J., OTT, J., and PLATT, J.

MEMORANDUM BY OTT, J.:                             FILED SEPTEMBER 26, 2018

        Frederic Samuel Balch, III, appeals from the judgment of sentence

imposed on August 16, 2017, in the Court of Common Pleas of Delaware

County. The trial judge1 found Balch guilty of one count of driving under the

influence (DUI) – highest rate of alcohol, one count of possession of

marijuana, and two counts of use/possession of drug paraphernalia. 2 Balch

was sentenced to 72 hours to six months’ imprisonment and a one-year term

of probation.     Balch contends that based upon the corpus delicti rule, the

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   Retired Senior Judge assigned to the Superior Court.

1 The trial judge, the late Honorable James F. Nilon, retired from the Delaware
County Court of Common Pleas in December of 2017. The case was
reassigned to the Honorable George A. Pagano in January of 2018. See Trial
Court Opinion, 2/13/2017, at 1 n.1.

2 75 Pa.C.S. § 3802(c), 35 P.S. § 780-113(a)(31), and 35 P.S. 780-
113(a)(32), respectively.
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evidence was insufficient to support the trial judge’s DUI guilty verdict. For

the following reasons, we affirm.

     The trial court has aptly summarized the facts of this case, as follows:

     On November 30, 2016 at approximately 12:30 in the afternoon,
     a white Lexus sedan crashed into a PECO pole at 305 Bryn Mawr
     Avenue. Mr. Balch was in the car at the moment of the accident.
     However, a good Samaritan picked up Mr. Balch and took him to
     the Bryn Mawr Hospital before police arrived. Officer Shawn
     Patterson of the Radnor Police Department responded to the
     vehicle crash. Patterson saw that the car had severe damage to
     the impact point on the driver’s side. The driver of the vehicle was
     not present at the accident scene when Patterson arrived. After
     responding to the auto accident on Bryn Mawr Avenue, Patterson
     was dispatched to the hospital to locate the driver of the vehicle.
     When Patterson arrived at the hospital, he found Officer Thomas
     Matijasich with the Defendant, Mr. Balch, in the back room. Mr.
     Balch was in poor physical condition, sustaining both head and
     bodily injuries. Mr. Balch had fresh blood coming from his head
     and there was no one else with him from the car accident. Upon
     speaking to Mr. Balch, both officers identified a strong odor of
     alcohol. The Defendant consented to a blood alcohol test, which
     revealed a BAC of .241. The Defendant also admitted to smoking
     marijuana. After patting him down, the officers found a small
     amount of marijuana and drug paraphernalia on his person.

                                    ****

     On August 16, 2017, a non-jury trial was held in front of this court.
     Officer Patterson, Officer Matijasich, and Mr. Balch testified to the
     facts as set forth above. According to Officer Matijasich, Mr. Balch
     immediately admitted to being the driver of the white Lexus when
     questioned at the hospital. However, at trial, Mr. Balch had no
     recollection of admitting this, and alleged that his cousin was the
     driver of the vehicle, not him. One eye witness testified that she
     saw two men coming out of the vehicle after it had crashed, but
     did not see which man was in actual physical control of the vehicle.
     Furthermore, Mr. Balch testified that his BAC was .241 because
     he had been drinking the night before, but not on the morning of
     the accident. …



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Trial Court Opinion, 2/13/2017, at 1-2. The trial court found, based on the

totality of facts, that the damage to the driver’s side windshield of the vehicle

was consistent with injuries Balch had at the hospital, which was evidence of

Balch being the operator of the vehicle. Therefore, the trial court concluded

the Commonwealth met the elements of DUI – highest rate of alcohol beyond

a reasonable doubt. The trial court sentenced Balch as stated above, and this

appeal followed.3

       Balch contends that under the corpus delicti rule the trial court erred in

admitting his confession that he was the driver of the vehicle “for any

purpose,” because “[a] mere car accident was on the record when the [c]ourt

received [his] confession.” Balch’s Brief at 9. See also id. at 11-12.

       Our standard of review for a challenge to the corpus delicti rule is well-

settled.

       The corpus delicti rule is designed to guard against the "hasty and
       unguarded character which is often attached to confessions and
       admissions and the consequent danger of a conviction where no
       crime has in fact been committed." The corpus delicti rule is a rule
       of evidence. Our standard of review on appeals challenging an
       evidentiary ruling of the trial court is limited to a determination of
       whether the trial court abused its discretion. The corpus delicti
       rule places the burden on the prosecution to establish that a crime
       has actually occurred before a confession or admission of the
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3 Review of the record reveals that the trial court, on September 18, 2017,
ordered Balch to file a Pa.R.A.P. 1925(b) statement within 21 days. Since the
21st day was Monday, October 10, 2017, a legal holiday, Balch’s concise
statement was due on October 11, 2017. See 1 Pa.C.S. 1908. On October
11, 2017, Balch filed a motion for extension of time, and the trial court granted
the motion and extended the time for filing the concise statement to October
27, 2017. Balch timely filed his concise statement on that date.

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      accused connecting him to the crime can be admitted. The corpus
      delicti is literally the body of the crime; it consists of proof that a
      loss or injury has occurred as a result of the criminal conduct of
      someone. The criminal responsibility of the accused for the loss
      or injury is not a component of the rule. The historical purpose of
      the rule is to prevent a conviction based solely upon a confession
      or admission, where in fact no crime has been committed. The
      corpus delicti may be established by circumstantial evidence.
      Establishing the corpus delicti in Pennsylvania is a two-step
      process. The first step concerns the trial judge's admission of the
      accused's statements and the second step concerns the fact
      finder's consideration of those statements. In order for the
      statement to be admitted, the Commonwealth must prove the
      corpus delicti by a preponderance of the evidence. In order for the
      statement to be considered by the fact finder, the Commonwealth
      must establish the corpus delicti beyond a reasonable doubt.

Commonwealth v. Hernandez, 39 A.3d 406, 410-411 (Pa. Super. 2012)

(citations omitted).

      Preliminarily, it is important to point out Balch concedes there was no

corpus delicti objection to the admissibility of Balch’s confession, the first step

of the two-step process of establishing the corpus deliciti. However, Balch

contends he did not waive a challenge to the trial court’s consideration of

Balch’s statement, the second step, because he raised the issue in his closing,

albeit without using the term corpus delicti.           In support, Balch cites

Commonwealth v. Chamberliss, 847 A.2d 115 (Pa. Super. 2004), for its

holding that even when there is no timely corpus deliciti challenge to the

admissibility of the defendant’s confession, a defendant may still invoke the

corpus delicti rule prior to the factfinder’s deliberation and argue that the

Commonwealth did not present the “quantum of evidence” necessary for the

factfinder to consider the defendant’s confession.”        Id. at 121.      Balch,

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however, does not provide any citation to identify where he preserved a

corpus delicti issue at trial. Balch only states, “At closing, defense counsel

challenged [Balch’s] statement without us[i]ng the term ‘corpus deliciti’” ….

Balch’s Brief at 12. This Court’s review, however, has not detected a corpus

deliciti argument in Balch’s counsel’s closing argument.4             Accordingly, this

issue has been waived. In any event, it is meritless because, as more fully

discussed below, the Commonwealth established the corpus delicti beyond a

reasonable doubt without Balch’s admission before the trial court began its

deliberation.

        Here, Balch was convicted of DUI - highest rate of alcohol pursuant to

Section 3802(c).5       Therefore, the Commonwealth had to prove Balch “(1) …

drove, operated or was in actual physical control of a motor vehicle; and (2)

that such action was conducted after imbibing enough alcohol that the

[defendant’s]     BAC    reached     0.16%     within   two   hours    after   driving.”

Commonwealth v. Thur, 906 A.2d 552, 564 (Pa. Super. 2006), citing 75

Pa.C.S. § 3802(c)). The term “operates” necessitates evidence of actual,

physical control of either the machinery of the motor vehicle or the

management of the vehicle’s movement, but does not require evidence that



____________________________________________

4
  While Balch’s Pa.R.A.P. 1925(b) statement cites to pages 96 and 97 of the
trial transcript, Balch’s counsel is not presenting closing argument at that
record citation.

5   Balch mistakenly cites 75 Pa.C.S. § 3802(a)(1). See Balch’s Brief at 10.

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the vehicle was in motion. Commonwealth v. Young, 904 A.2d 947, 954

(Pa. Super. 2006). In order to find that a person had actual physical control

of an automobile, a combination of the following factors is required: the motor

running, the location of the vehicle, and additional evidence showing that the

defendant was driving. Commonwealth v. Brotherson, 888 A.2d 901, 904

(Pa. Super. 2005).

        At trial, prior to the admission of Balch’s statement that he was driving

the vehicle, the Commonwealth presented the following evidence.               On

November 30, 2016, at approximately 12:30 in the afternoon, Officer

Patterson responded to a one-car accident in which a white Lexus sedan had

crashed into a PECO pole. The operator of the vehicle was not present at the

scene. Officer Patterson observed damage to the left front side where the

vehicle made impact with the pole, and damage to the driver’s front

windshield, specifically, an impact point with spider effect. Officer Matijacich,

who had been dispatched to Bryn Mawr Hospital, notified Officer Patterson he

had found the operator of the vehicle. Within 15 minutes, Officer Patterson

proceeded to the hospital, found Balch and began a conversation with Balch.

At that time, he noticed a strong odor of alcohol coming from Balch. Officer

Patterson also noticed a laceration to Balch’s forehead that was consistent

with the damage to the driver’s side windshield of the vehicle.           Officer

Patterson read Balch Form DL-26, and obtained Balch’s consent to a blood

test.    The blood test revealed a blood alcohol level (BAC) of .241.


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Furthermore, while one eyewitness reported to police there were two men in

the vehicle, no one else was found at the hospital with injuries consistent with

the damage to the vehicle.

      On this record, the circumstantial evidence and the reasonable inference

drawn therefrom, even without Balch’s admission, were sufficient evidence to

establish that Balch was driving while intoxicated.      As Judge Nilon aptly

explained, in stating his decision on the record:

      [T]here was obviously an auto accident with damage to the front
      windshield on the driver’s side. And the investigating officer
      described the damage. That damage would be consistent with a
      person’s head striking the windshield of the vehicle. Also I think
      that the testimony with regard to the other injuries suffered by
      [Balch], being fractured ribs, would be consistent with a person
      behind the wheel of a vehicle having their torso strike the driver's
      wheel on the vehicle. So that evidence would be consistent with
      [Balch] being the operator of the vehicle, since [Balch] was
      treated at the hospital for injuries that would be consistent with
      the damage to the vehicle. …

N.T., 8/16/2017, at 96-97. We agree with this analysis. Had the issue been

preserved, we would find the Commonwealth’s circumstantial evidence

established that Balch was the driver who crashed the vehicle and the

Commonwealth’s direct evidence established Balch was intoxicated with a BAC

of .241. As such, the Commonwealth established beyond a reasonable doubt

the corpus delicti, that drunk driving occurred.      Hence, the trial court’s

consideration of Balch’s statement that he had been driving the vehicle was

proper under the corpus delicti rule.

      Judgment of sentence affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/26/18




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