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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

    MARK ANTHONY MILLER

                             Appellant               No. 3502 EDA 2019


       Appeal from the Judgment of Sentence entered November 15, 2019
                 In the Court of Common Pleas of Carbon County
                Criminal Division at No: CP-13-CR-0001459-2016


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

MEMORANDUM BY STABILE, J.:                             Filed: August 20, 2020

        Appellant, Mark Anthony Miller, appeals from the judgment of sentence

entered on November 15, 2019 in the Court of Common Pleas of Carbon

County following his convictions of driving under the influence (“DUI”)—

general impairment and careless driving.1 Appellant challenges the sufficiency

of evidence supporting his DUI conviction and contends the trial court abused

its discretion in permitting the arresting officer to testify about admissions

made by Appellant. Upon review, we affirm.
     Appellant was arrested following an intersection accident that occurred

shortly after 5 p.m. on February 28, 2016 in Banks Township, Carbon County,


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*   Retired Senior Judge assigned to the Superior Court.

1   75 Pa.C.S.A. §§ 3802(a)(1) and 3714(a), respectively.
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in which Appellant’s white Infinity sedan collided with a blue Subaru Outback

operated by Caitlyn Kehley (“Kehley”).           On June 2, 2016, Appellant was

charged with various offenses, including the two of which he was ultimately

convicted following an August 9, 2019 bench trial. On November 15, 2019,

the trial court sentenced Appellant to 30 days to six months in the Carbon

County Correctional Facility for DUI and imposed a $25 fine for careless

driving.   Appellant did not file post-sentence motions but did file a timely

appeal on November 26, 2019. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.2

       Appellant asks us to consider two issues in this appeal:

       1. Whether the evidence was insufficient as a matter of law to
          establish the Appellant’s guilt beyond a reasonable doubt on
          the charge of driving under the influence—general impairment.

       2. Whether the trial court abused its discretion in permitting into
          evidence statements from a witness for the Commonwealth
          regarding statements made by the Appellant at the time of the
          incident.

Appellant’s Brief at 3.

       In his first issue, Appellant challenges the sufficiency of evidence

supporting his DUI conviction. As this Court explained in Commonwealth v.

Neysmith, 192 A.3d 184 (Pa. Super. 2018):

       Our standard of review is de novo, and our scope of review is
       plenary, because:


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2We remind Appellant’s counsel of the obligation to append a copy of the Rule
1925(b) statement to an appellant’s brief. See Pa.R.A.P. 2111(a)(11), (d).

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         a claim challenging the sufficiency of the evidence is a
         question of law. . . . When reviewing a sufficiency claim the
         court is required to view the evidence in the light most
         favorable to the verdict winner giving the prosecution the
         benefit of all reasonable inferences to be drawn from the
         evidence.

Id. at 189 (quoting Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa.

2000)). “Evidence will be deemed sufficient to support the verdict when it

establishes each material element of the crime charged and the commission

thereof by the accused, beyond a reasonable doubt.” Widmer, 744 A.2d at

751 (citation omitted).

      With respect to DUI—general impairment, 75 Pa.C.S.A. § 3802(a)(1)

directs that “[a]n 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 individual is rendered incapable of safely driving,

operating or being in actual physical control of the movement of the vehicle.”

      The testimony presented at Appellant’s trial, viewed in the light most

favorable to the Commonwealth as verdict winner reveals that neither

Appellant nor Kehley has any recollection of the moment of impact between

their cars. The Commonwealth presented testimony of eyewitnesses to the

accident as well as video clips from a neighbor’s surveillance camera and the

testimony of Trooper Richard Mrak (“Mrak”) of the Pennsylvania State Police.

Based on our review of the trial testimony, we provide the following summary

of the evidence.




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        The first witness called by the Commonwealth was Tammy Foland

(“Foland”). Foland was driving through Banks Township on Tresckow Road,

which turns into Oak Street, when Appellant pulled out in front of her and

began pulling away. She noticed his car slowing but not stopping at the stop

sign at the intersection of Oak and Chestnut Streets and saw it turn left onto

Chestnut.    Foland also turned left on Chestnut and then turned right onto

Market Street where she again saw Appellant’s car, several blocks ahead of

her by this time.3 She both saw and heard the “crash” when Appellant’s car

collided with Kehley’s Subaru. Notes of Testimony (“N.T.”), Trial, 8/9/19, at

5-12.

        The Commonwealth next called Mrak. Mrak acknowledged he was not

an expert accident reconstructionist but explained his accident investigation

training and experience. Id. at 14-19.

        Mrak testified that he received a call about an accident at the

intersection of Market and Pine Streets in Banks Township. When he arrived,

he observed the Infinity with front-end damage and the Subaru with

passenger-side damage and a large debris field. Kehley already had been

transported to the hospital, but Appellant was still at the scene being attended

to by EMS personnel in an ambulance. When Mrak opened the door to the

ambulance, he smelled a strong odor of alcohol and observed that Appellant’s



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3   Foland noted she was observing the speed limit.

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eyes were bloodshot. Appellant, whose speech was slurred and deliberate,

acknowledged that he was the driver of the Infinity and stated he had

consumed six to eight beers before driving his car that day.         In light of

Appellant’s injuries and the treatment he was receiving, Mrak did not conduct

field sobriety tests. Id. at 19-28.

      After Appellant was taken from the scene, Mrak conducted a crash scene

investigation. He observed there were no tire marks leading up to the point

of impact. After the point of impact, Appellant’s car left 26 feet of tire marks,

including four feet of marks from “speed braking,” meaning there was no

attempt to slow the car prior to impact. He also noted that the large debris

field indicated a high-speed collision. Id. at 30-33.

      During   Mrak’s   testimony,    the   Commonwealth     introduced Mrak’s

photographs of the accident scene and played the video clips showing the

moment of impact. Id. at 33-37; 40- 41. Mrak expressed his opinion that

Appellant was driving impaired and was incapable of operating his vehicle

safely due to alcohol consumption. Id. at 41-47. The trial court summarized

the basis for Mrak’s opinion as follows:

      [Mrak’s] opinion was based on the totality of the circumstances:
      strong odor of alcohol in the ambulance where [Appellant] was
      getting medical attention, bloodshot eyes, slurred and deliberate
      speech, [Appellant’s] admission that he drank 6-8 beers before
      driving, the fact that the evidence suggested a high speed collision
      (confirmed by the video), the distance traveled by [Appellant’s]
      vehicle after impact, speed braking from [Appellant’s] vehicle and
      the lack of tire marks before the point of impact.




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Trial Court Opinion, 1/10/20, at 5 n.6.4

       The Commonwealth next called Kehley.        She explained that she was

very familiar with the intersection where the accident occurred. Although at

age 16 she was a relatively new driver, she had been through the intersection

on a daily basis. She testified that she came up to the stop sign and then

moved forward slowly to look for cross traffic that was obscured by parked

cars. She saw a white car approximately four or five blocks away and believed

she had sufficient time to drive through the intersection safely ahead of that

car. She proceeded into the intersection where she was struck by Appellant’s

car. N.T., Trial, 8/9/19, at 73-76. She believes she misjudged the speed at

which Appellant’s vehicle was traveling and that she would have made it

through the intersection safely if Appellant were not speeding. Id. at 79-80.

       The Commonwealth’s final witness was Michael Nagy (“Nagy”). Nagy

testified that he was talking with a friend when he heard a vehicle coming up

Market Street. He described the sound as “normal motor acceleration” and

then engine noise he explained as “somebody laying on it.” Id. at 83. He

commented to his friend, “I don’t know who this is or where he is going, but

he is going in a hurry.” Id. He then heard a “smash” and saw a car in the



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4 On cross-examination, Mrak acknowledged that he initially cited Kehley for
failure to stop at a stop sign controlling her direction of travel. However, after
observing videos of the accident, receiving BAC results (which were
suppressed by the trial court), and completing his investigation, he withdrew
the citation against Kehley and filed the charges against Appellant.

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middle of the street and another car farther down the street, on his neighbor’s

steps.   Id. He approached the cars and saw Appellant in the Infinity and

Kehley in the Subaru. Id. at 84. By Nagy’s testimony, the Commonwealth

confirmed that Appellant was, in fact, operating the vehicle.

      Appellant’s only witness was a retired police officer who offered his

expert opinion as an accident reconstructionist that the primary cause of the

accident was Kehley’s action in “proceeding [into the intersection] without

clearance after the stop.” Id. at 98. A contributing factor would be the speed

at which Appellant was driving. Id. at 97. However, there was “nothing to

indicate that alcohol or being under the influence contributed to the severity

of the crash.” Id. at 104.

      Appellant did not testify. At the close of evidence, the trial court heard

closing arguments and then took a recess to review Appellant’s expert report,

watch the video clips, and review its notes.      “Based upon the testimony

presented,” the trial court found Appellant “guilty of both the driving under

the influence and careless driving charges.” Id. at 143.

      To sustain a conviction under § 3802(a)(1), “the Commonwealth must

show: (1) that the defendant was the operator of a motor vehicle and (2)

that while operating the vehicle, the defendant was under the influence of

alcohol to such a degree as to render him incapable of safe driving.”

Commonwealth v. Smith, 831 A.2d 636, 638 (Pa. Super. 2003) (quoting

Commonwealth v. Palmer, 751 A.2d 223, 228 (Pa. Super. 2000)).                As


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noted, Nagy’s testimony—even without Appellant’s admission—established

that Appellant was operating a motor vehicle. Therefore, the first element is

satisfied.

      As this Court explained in Commonwealth v. Gause, 164 A.3d 532

(Pa. Super. 2017) (en banc), in order to “establish the second element [of

§ 3802(a)(1)], the Commonwealth must show that alcohol has substantially

impaired the normal and physical faculties required to safely operate the

vehicle.”    Id. at 541 (quoting Palmer, 751 A.2d at 228).          “Substantial

impairment, in this context, means a diminution or enfeeblement in the ability

to exercise judgment, to deliberate or to react prudently to changing

circumstances and conditions.” Id. (quoting Palmer, 751 A.2d at 228).

      In its Rule 1925(a) opinion, the trial court looked to this Court’s opinion

in Commonwealth v. Teems, 74 A.3d 142 (Pa. Super. 2013), in which we

considered the “type, quantum, and quality of evidence required to prove a

general impairment violation under § 3802(a)(1).”       Rule 1925(a) Opinion,

1/10/20, at 12 (quoting Teems, 74 A.3d at 145).         In Teems, we in turn

looked to Commonwealth v. Segida, 985 A.2d 871 (Pa. 2008), where our

Supreme Court stated:

      Section 3802(a)(1), like its predecessor [statute], is a general
      provision and provides no specific restraint upon the
      Commonwealth in the manner in which it may prove that an
      accused operated a vehicle under the influence of alcohol to a
      degree which rendered him incapable of safe driving. . . . The
      types of evidence that the Commonwealth may proffer in a
      subsection 3802(a)(1) prosecution include but are not limited to,
      the following: the offender’s actions and behavior, including

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     manner of driving and ability to pass field sobriety tests;
     demeanor, including toward the investigating officer; physical
     appearance, particularly bloodshot eyes and other physical signs
     of intoxication; odor of alcohol, and slurred speech.

Teems, 74 A.3d at 145 (quoting Segida, 985 A.2d at 879).

     The trial court stated:

     In this case, the evidence presented by the Commonwealth
     consisted of: 1) observations by a disinterested third party
     (Foland), the investigation of Mrak and his opinion on whether
     [Appellant] was under the influence of alcohol to such a degree
     that it rendered him incapable of driving safely, videos of the
     collision, the testimony of Kehley, and Nagy, a third party who
     witnessed the collision.

Rule 1925(a) Opinion, 1/10/20, at 13-14 (footnotes omitted). In footnotes,

the trial court summarized Foland’s observations as well as Mrak’s

investigation and opinion, consistent with our summary above, and included

an excerpt from the trial testimony in which Mrak explained his conclusions.

Id. at 13-14 n. 15 (quoting N.T., Trial, 8/9/19, at 42-44). The court stated:

     [T]he court is tasked with determining what effect or role alcohol
     may have had on [Appellant’s] ability to drive safely on the date
     in question.      The court must consider what affect alcohol
     consumption had or did not have on such human actions as:
     judgment, concentration, comprehension, coordination, vision
     and hearing and reaction time. It is not unreasonable for a court
     in hearing and seeing the evidence presented by the
     Commonwealth that [Appellant’s] consumption of alcohol: 1)
     reduced his ability to think clearly, reason and make smart
     decisions and exercise caution. . . ; 2) limited his ability to
     concentrate on multiple tasks . . .; 3) lessened his ability to
     comprehend things such as stop signs or a potentially dangerous
     driving situation . . .; 4) reduced coordination of fine motor skills
     . . . ; 5) lowered auditory or visualization skills and ability to judge
     distances . . .; and 6) reduced reaction times . . . due to alcohol
     consumption.


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Id. at 15-16 (some capitalization omitted).       “Based on the totality of the

testimony and evidence presented by the Commonwealth and the reasonable

inferences that can be drawn from that testimony,” the trial court reiterated

that the evidence was sufficient to sustain Appellant’s conviction of DUI—

general impairment.      Id. at 16.     Viewing the evidence in the light most

favorable to the Commonwealth, as well as the reasonable inferences drawn

therefrom, we find the evidence sufficient to support Appellant’s DUI

conviction. Appellant is not entitled to relief on his sufficiency claim.

      In his second issue, Appellant argues trial court error for allowing Mrak

to testify as to Appellant’s statements while in the ambulance, claiming

violation of the corpus delicti rule.

      The corpus delicti rule is an evidentiary one. On a challenge to a
      trial court’s evidentiary ruling, our standard of review is one of
      deference.

      The admissibility of evidence is solely within the discretion of the
      trial court and will be reversed only if the trial court has abused
      its discretion. An abuse of discretion is not merely an error of
      judgment, but is rather the overriding or misapplication of the law,
      or the exercise of judgment that is manifestly unreasonable, or
      the result of bias, prejudice, ill-will or partiality, as shown by the
      evidence of record.

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

(quoting Commonwealth v. Herb, 852 A.2d 356, 363 (Pa. Super. 2004)).

      As we explained in Hernandez:

      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

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        places the burden on the prosecution to establish that a crime has
        actually occurred before a confession or admission of the 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 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.

Id. at 410-11 (quoting Commonwealth v. Young, 904 A.2d 947, 956 (Pa.

Super. 2006) (additional citations and internal quotations omitted)).

        Appellant asserts the trial court erred when it permitted Mrak to repeat

Appellant’s admission that he drank six to eight beers before driving. Quoting

Commonwealth v. Zugay, 745 A.2d 639 (Pa. Super. 2000), the trial court

recognized that “[b]efore introducing an extra judicial admission, the

Commonwealth is not required to prove the existence of a crime beyond a

reasonable doubt. Rather, it is enough for the Commonwealth to prove that

the injury or loss is more consistent with a crime having been committed than

not.”    Rule 1925(a) Opinion, 1/10/20, at 20 (quoting Zugay, 745 A.2d at

652).

        As the Commonwealth observes, before Mrak testified, Foland testified

as to Appellant’s erratic driving, pulling out in front of her, failing to stop at a

posted stop sign, and driving in excess of the speed limit in a very residential


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area up until he      crashed at an intersection blocks ahead of her.

Commonwealth Brief at 7-8.      Further, before offering alcohol consumption

testimony, Mrak testified as to observing the intersection and debris field at

the accident scene and also as to being immediately met with a strong odor

of alcohol when he opened the door to the ambulance where Appellant was

receiving medical attention. Id. at 8. Moreover, as the prosecution noted,

Mrak’s question to Appellant about whether he had been drinking (a question

prompted by the odor of alcohol emanating from Appellant) was asked as part

of Mrak’s investigation into the accident, which he was laying out in

chronological order. N.T., Trial, 6/9/19, at 24.

      The trial court concluded that, based upon circumstantial evidence

observed at the intersection and the odor of alcohol detected in the

ambulance, “the Commonwealth proved by a preponderance of the evidence

the corpus delicti of the crime of D.U.I. without [Appellant’s] admission

regarding his alcohol consumption[,]” thereby satisfying the first prong of the

rule. Rule 1925(a) Opinion, 1/10/20, at 23. Further, the court indicated it

would have considered Appellant’s admissions as to alcohol consumption

because “we believe the quantity of the other evidence presented, including

Mrak’s statement regarding his smelling of a strong odor of alcohol in the

ambulance where [Appellant] was being treated and other evidence of

[Appellant] driving, would be sufficient to prove [Appellant] guilty of D.U.I.

beyond a reasonable doubt.” Id. In light of the evidence, the court posited


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that Appellant’s admissions could be viewed as corroborative surplusage. Id.

at 24. We find no abuse of discretion in the trial court’s conclusions. Appellant

is not entitled to relief based on the corpus delicti rule.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/20/20




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