J-A11035-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

JACQUELINE PAGAN

                            Appellant                  No. 311 EDA 2015


            Appeal from the Judgment of Sentence August 25, 2014
     in the Court of Common Pleas of Philadelphia County Criminal Division
                       at No(s): CP-51-CR-0009876-2012

BEFORE: SHOGAN, MUNDY, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                           FILED JULY 12, 2016

        Appellant, Jacqueline Pagan, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas following her

convictions for driving under the influence1 (“DUI”), aggravated assault by a

vehicle while DUI,2 accidents involving death or personal injury,3 simple

assault,4 recklessly endangering another person5 (“REAP”), and possession




*
    Former Justice specially assigned to the Superior Court.
1
    75 Pa.C.S. § 3802(d)(2).
2
    75 Pa.C.S. § 3735.1.
3
    75 Pa.C.S. § 3742(a).
4
    18 Pa.C.S. § 2701(a).
5
    18 Pa.C.S. § 2705.
J-A11035-16


of an instrument of crime6 (“PIC”). Appellant argues the trial court erred by

(1) refusing to suppress a statement she contends was made in violation of

Miranda v. Arizona, 384 U.S. 436 (1966), (2) admitting hearsay

statements, and (3) concluding there was sufficient evidence to support her

convictions for DUI, aggravated assault while DUI, accidents involving death

or personal injury, and PIC. We affirm in part and vacate in part.

        On February 17, 2012, Appellant was arrested for the above crimes

following an automobile accident she was involved in on the 2900 block of

Kensington Avenue in Philadelphia. On June 19, 2014, the trial court held a

hearing on Appellant’s motion to suppress her refusal to submit to chemical

testing and a statement Appellant made to police.           Counsel stated the

grounds as follows:

           [Appellant] was under custody and she was interrogated
           by police officers and she was interrogated by police
           officers in making statement that she has taken sleeping
           medication.    It is also my contention there was not
           reasonable suspicion or probable cause for having her to
           undergo blood test, thereby . . . suppressing the refusal.

N.T., 6/19/14, at 14-15.

        Officer Jennifer Welch testified that she and her partner, Officer Carlos

Cortez, were at a traffic light at Kensington Avenue when they were

approached by several males and Appellant. Id. at 19. The males informed

the officers that Appellant had been involved in an accident, she hit another


6
    18 Pa.C.S. § 907(a).



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female with her vehicle, and that she left the scene of the accident on foot.

Id. at 19-20. Appellant was approximately one block from the scene when

she encountered police. The Commonwealth inquired about Officer Welch’s

interaction with Appellant:

         Q. When you initially interacted with [Appellant], what if
         anything did [Appellant] tell you?

         A. I had asked [Appellant] what had happened. She said
         she was involved in an auto accident. And injury, I asked
         if she was injured and there was nothing, no about that.
         And then from that point I said, ‘Well, we are going to
         have to return to the location of the auto accident.’

         Q. And what, if anything, happened at that point, Officer
         Welch?

         A. Well, I had put her in the back of my wagon and without
         handcuffs, went back to the location of the auto accident,
         2900 block of Kensington Avenue. Upon arrival there I
         had asked her for information to the vehicle and her
         driver’s license. . . .

         The Court: She was in handcuffs?

         A. She was not in handcuffs; no, sir. So she gave me her
         driver’s license and went to her vehicle and retrieved her
         insurance and registration and all that stuff.

                                 *    *    *

         [The Commonwealth]:         Did   [Appellant]   make   any
         statement to you?

         A. I had asked . . . [Appellant] rather if she had any
         medical conditions that may have caused the accident. I
         had asked her if she was on any type of medication and
         she states that she was, she takes prescribed sleeping
         pills.




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       Q. And at the point in time you are asking her these
       questions, what is the purpose of you asking these
       questions, Officer Welch?

       A. Well, the severity of this auto accident. She said she
       was on sleeping pills or had taken sleeping pill or
       prescribed sleeping pills, so that is reason enough to
       suggest that perhaps she had some in her system.

       Q. After she made that statement to you, what if anything
       did you do?

       A. Placed her under arrest, placed handcuffs on her, and
       placed her in the back of our wagon.

       Q. Now at the point in time you are transporting
       [Appellant] back to the scene of [the] accident, what if
       anything are you and your partner trying to do once you
       responded to the accident?

       A. We observed the scene itself. Observed the vehicle in
       the positions that they were [sic].     Her vehicle, the
       damage to her vehicle, blood on the ground, and trying to
       determine what, if anything, she had any medical
       problems that may have caused her to crash.

       Q. At the point in time as you are trying to make all those
       determinations was [Appellant] under arrest before she
       made that statement to you?

       A. No, no.

       Q. And at the point in time that you responded to the
       accident scene, had you personally observed the accident
       take place, Officer Welch?

       A. I observed the scene and the after effects but not the
       actual accident, no.

       Q. When you arrived on location, were you and your
       partner trying to gather information as to what occurred?

       A. Yes, ma’am.



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        Q. Now, Officer Welch, other than [Appellant’s] statement
        to you that she had taken prescribed sleeping medication,
        did you make any observations of [Appellant] that led to
        you ultimately placing her under arrest for DUI?

        A. For the exception of me having to ask her several times
        to get me her information from her vehicle, she was very
        slow moving. Most people would be like, ‘Oh, let me get
        it.’ And she, you know, I had to repeat myself, have her
        focus more so on what I was saying.

        Q. And was this from the time you had the initial
        interaction with her at Kensington and Orleans?

        A. She was slow, but once she focused, she got the idea of
        what I was requesting.

Id. at 20-23.

     On cross-examination, Officer Welch clarified that when she arrived at

the scene of the accident with Appellant, Appellant was not handcuffed and

was permitted to exit the police vehicle in order to retrieve her paperwork

from her vehicle. Id. at 32.

     Following argument, the trial court denied Appellant’s motion to

suppress, and the case proceeded immediately to a bench trial.        Alberta

Murphy testified that she was on her way to meet her daughter at a

restaurant on Kensington Avenue at approximately 10:45 a.m. on the

morning of February 17, 2011, when she was struck by a vehicle. Id. at 47.

She described the accident: “I was walking in the bike lane. I see a white

car coming up, hit two other cars, and I didn’t get out of the way fast

enough, and that’s all.” Id.   As a result of the accident, she had surgery on

her arm and leg, was bedridden for the first six months following the


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accident, and spent the next six months “learn[ing] how to rewalk [sic]

again.” Id. at 50.

     Tina Murphy witnessed the accident and testified as follows on direct-

examination.

        Q. And when you were going to meet your mom, did
        anything unusual happen that brings you to court today?

        A. When I got out of the car, I heard a real loud bang.
        And then as I get out of the truck, I saw my mom getting
        hit. I saw my mom get hit into a green tow truck and she
        flipped up in the air and her shoe came off.

        Q. Now, when you saw your mom get hit, did she get hit
        by a car?

        A. She got hit by a car.

        Q. Do you know what that car looked like, Tina?

        A. It was a white car.

                                   *    *    *

        Q. Now, Tina when you saw the white car there, did you
        have an opportunity to take any pictures of that car?

        A. I took pictures more of when, I took one picture when I
        was by my mom when I was over there because the car
        started backing up so I took a picture.

        Q. Now I’m going to stop you right there. When you said
        the car started backing up, what do you mean?

        A. The car started backing up and people started banging,
        banging on the car and that is when I took a picture. And
        when the ambulance came, I took a picture of the front
        part of the car.

                                   *    *    *



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         Q. Well, first of all, were there any other people that were
         out on the block that you know?

         A. When it first happened, there was only a couple. But
         then all of a sudden there was, God sent a whole bunch of
         people right there to stop. It is just a whole bunch of
         people came out of nowhere.

Id. at 56-59. She further testified that the day of the accident “was a really

sunny day” and she took a picture in case the driver fled because she

noticed the taillights were blinking and the car was backing up. Id. at 62.

      During Tina Murphy’s direct examination, the Commonwealth played a

video of the scene following the accident. Id. at 65. Appellant objected to

the admission of the audio from the video on the grounds that a statement

heard on the video is inadmissible hearsay and violative of the confrontation

clause. Id. at 70. The trial court summarized the contested statement on

the record: “What I am hearing is screaming and [someone] saying in a loud

voice ‘She is trying to back out.’”   Id. at 71; see Commonwealth’s Ex. 3.

The Commonwealth argued that because the victim of the accident, Alberta

Murphy, was still visibly on the ground in the footage, the temporal lapse

between the accident and the utterance could not have exceeded fifteen

minutes. N.T. at 72-74. The trial court specifically noted, “his tone of voice

seemed pretty excited.” Id. at 74. Appellant then observed, “[b]ut he could




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J-A11035-16


be pretty excited about seeing the blood.” 7 Id. The trial court admitted the

statement pursuant to the excited utterance hearsay exception. Id. at 74.

      The Commonwealth recalled Officer Welch, and she testified that when

the males first approached her vehicle, they were screaming and moving

their hands.    Id. at 81.   Officer Welch was approximately one block away

from the scene of the accident at the time. Id. Appellant objected to the

statements as hearsay, and following argument, the trial court permitted the

testimony.     Officer Welch summarized the statements of the males: “the

[Appellant] just hit a woman with her car. She just left the scene or left the

accident. And we are walking with her to stop her from leaving[.]” Id. at

85.

      Officer Cortez testified that Appellant refused to submit to chemical

testing of her breath and blood, and the parties stipulated that Appellant

was appropriately advised of her rights regarding chemical testing and

signed the chemical testing form. Id. at 104, 117; see Commonwealth’s Ex.

8 (“Warnings to be given by police”).

      The Commonwealth also admitted a surveillance video that captured

the accident; the parties stipulated that if shown in its entirety, the video

would not show Appellant running away from the scene or backing up her

7
  A review of Commonwealth’s Exhibit 3 indeed shows the victim on the
ground with blood visible and aid being rendered; an ambulance is visible in
the background. Commonwealth’s Ex. 3. Further, the person who indicated
Appellant tried to back out is heard exclaiming, “this car was in the air.” Id.




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J-A11035-16


vehicle.8    Id. at 118.   The trial court found Appellant guilty of the above

crimes.9

      On August 25, 2014, the trial court sentenced Appellant to an

aggregate sentence of eleven and one-half to twenty-three months’

incarceration, followed by seven years’ probation.10 Appellant’s timely post-

sentence motion was denied by operation of law on January 12, 2015. Trial

Ct. Order, 1/12/15; accord Pa.R.Crim.P. 720(B)(3). On January 21, 2015,

Appellant filed a timely notice of appeal. Appellant filed a Pa.R.A.P 1925(b)

statement, and the trial court authored a responsive opinion.

      On appeal, Appellant raises the following issues for our consideration.

            1. Did not the [trial] court err by refusing to suppress the
            incriminating statement of [A]ppellant and evidence of her
            refusal to submit to chemical testing because the
            statement was taken in violation of Miranda where

8
 The video is not contained in the certified record. However, we note, the
Commonwealth posits that the stipulation is “misleading because the video
does not show [Appellant’s] car at all after it hits the victim, as there is a
post blocking the view.” Commonwealth’s Brief at 25 n. 4.
9
  The trial court acquitted Appellant of aggravated assault, 18 Pa.C.S.
§ 2702.
10
  Specifically, the trial court imposed eleven and one-half to twenty-three
months’ incarceration for the aggravated assault while DUI count, and 72
hours to six months’ imprisonment on DUI. Sentencing Order, 8/25/14;
N.T., 8/25/14, at 41. On accidents involving death or personal injury and
PIC, the trial court sentenced Appellant to seven years’ probation and five
years’ probation, respectively, to be served consecutive to the prison
sentence but concurrent to each probationary sentence. Sentencing Order,
8/25/14; N.T., 8/25/14, at 41-42. No further penalty was imposed on the
REAP count. Sentencing Order, 8/25/14.




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         [A]ppellant had been placed in police custody prior to
         being questioned and without being advised of her
         Miranda rights, and because the refusal was fruit of the
         poisonous tree?

         2. Did not the [trial] court err by admitting hearsay
         statements from unidentified, out-of-court declarants
         regarding [A]ppellant’s alleged attempts to leave the scene
         of the accident where the statements did not meet the
         admissibility requirements for excited utterances?

         3. Was not there insufficient evidence as a matter of law
         to convict [A]ppellant of [DUI] and aggravated assault
         while [DUI] where the Commonwealth failed to prove that
         [A]ppellant was under the influence of a controlled
         substance at the time she was driving or that the
         substance rendered her incapable of safely operating a
         motor vehicle?

         4. Was not there insufficient evidence as a matter of law
         to convict [A]ppellant of accident involving death or
         personal injury where the evidence showed [A]ppellant
         substantially complied with her duty to stop and render
         aid?

         5. Was not there insufficient evidence as a matter of law
         to convict [A]ppellant of [PIC] where the Commonwealth
         failed to prove that [A]ppellant intended to use the car
         criminally?

Appellant’s Brief at 4-5.

      Appellant first argues the trial court erred in denying her motion to

suppress because she was subject to custodial interrogation at the time she

made the statement about prescription sleeping pills without being advised

of Miranda rights.    Id. at 17-25.   She further posits that her refusal to

submit to chemical testing should have been suppressed because “she was




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not arrested on suspicion of [DUI] until she made the incriminating

statement regarding the sleeping pills.” Id. at 25. We disagree.

     The following principles guide our review:

            Our standard of review in addressing a challenge to the
        denial of a suppression motion is limited to determining
        whether the suppression court’s factual findings are
        supported by the record and whether the legal conclusions
        drawn from those facts are correct.           Because the
        Commonwealth prevailed before the suppression court, we
        may consider only the evidence of the Commonwealth and
        so much of the evidence for the defense as remains
        uncontradicted when read in the context of the record as a
        whole. The suppression court’s legal conclusions are not
        binding on an appellate court, whose duty it is to
        determine if the suppression court properly applied the law
        to the facts. Thus, the conclusions of law of the courts
        below are subject to our plenary review.          Moreover,
        appellate courts are limited to reviewing only the evidence
        presented at the suppression hearing when examining a
        ruling on a pre-trial motion to suppress.

Commonwealth v. Mathis, 125 A.3d 780, 783 (Pa. Super. 2015) (citations

omitted), appeal granted, 134 A.3d 51 (Pa. 2016).

            Statements made during custodial interrogation are
        presumptively involuntary, unless the accused is first
        advised of her Miranda rights. Custodial interrogation is
        questioning initiated by law enforcement officers after a
        person has been taken into custody or otherwise deprived
        of [her] freedom of action in any significant way. [T]he
        Miranda safeguards come into play whenever a person in
        custody is subjected to either express questioning or its
        functional equivalent. Thus, [i]interrogation occurs where
        the police should know that their words or actions are
        reasonably likely to elicit an incriminating response from
        the suspect. [I]n evaluating whether Miranda warnings
        were necessary, a court must consider the totality of the
        circumstances. In conducting the inquiry, we must also
        keep in mind that not every statement made by an
        individual during a police encounter amounts to an


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       interrogation. Volunteered or spontaneous utterances by
       an individual are admissible even without Miranda
       warnings.

          Whether a person is in custody for Miranda
          purposes depends on whether the person is
          physically denied of [her] freedom of action in any
          significant way or is placed in a situation in which
          [she] reasonably believes that [her] freedom of
          action    or   movement       is restricted by    the
          interrogation.     Moreover, the test for custodial
          interrogation does not depend upon the subjective
          intent of the law enforcement office interrogator.
          Rather, the test focuses on whether the individual
          being interrogated reasonably believes [her] freedom
          of action is being restricted.

                                  *   *    *

          Said another way, police detentions become
          custodial when, under the totality of the
          circumstances, the conditions and/or duration of the
          detention become so coercive as to constitute the
          functional equivalent of arrest.

       Thus, the ultimate inquiry for determining whether an
       individual is in custody for Miranda purposes is whether
       there [was] a formal arrest or restraint on freedom of
       movement of the degree associated with a formal arrest.
       Under the totality of the circumstances approach, the
       following factors are relevant to whether a detention has
       become so coercive as to constitute the equivalent of a
       formal arrest: the basis for the detention; its length;
       whether the suspect was transported against his or her
       will, how far, and why; whether restraints were used;
       whether the law enforcement officer showed, threatened,
       or used force; and the investigative methods employed to
       confirm or dispel suspicions.

          Additionally, motorists have certain statutory
       obligations to provide officers with information at an
       accident scene.      75 Pa.C.S.A. §§ 3743 (relating to
       accidents involving damage to attended vehicle) and 3744
       (referring to duty to give information and render aid).


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J-A11035-16


       Thus, a motorist is not in custody for Miranda
       purposes when her freedom is restricted to the
       extent of her statutory obligation to remain at the
       scene and provide required information.

              In [Commonwealth v.] Gonazalez[, 546 A.2d 26
       (Pa. 1988)], police officers responded to the [scene] of a
       nearby accident. Upon arrival, the officers observed two
       heavily damaged vehicles. . . . [T]he officers approached
       Gonzalez’s vehicle, which appeared to have minimal
       damage only to its front end. Initially, the officers asked
       Gonzalez if he w[as] hurt. Gonzalez responded that he
       was not injured. Then, the officers requested Gonzalez to
       step out of the vehicle.      Gonzalez complied with the
       officers’ request. The officers next asked Gonzalez, “what
       happened?”       As Gonzalez relayed the information
       concerning the accident to the officers, they observed a
       strong odor of alcohol on his breath. The officers noticed
       that [Gonzalez’s] eyes were watery and blood shot; that
       his conduct was stuporous and sleepy; and, he was
       unsteady and swaying. Id. at . . . 28. The officers also
       asked Gonzalez to provide them with his driver’s license
       and registration; however, Gonzalez failed to produce
       either item.

          The officers placed Gonzalez under arrest and
       transported him to the police station and then eventually
       to the Police Administration Building.       At the Police
       Administration Building, the officers administered Gonzalez
       two breathalyzer tests, registering a reading of .082% and
       .087%, respectively.       The officers then transported
       Gonzalez to the hospital, where he consented to a blood
       test. Tests on the blood sample revealed a .09% BAC.

           The Commonwealth charged and tried for [DUI]. The
       trial court found Gonzalez guilty of DUI, and he appealed.
       This Court affirmed the DUI conviction. . . .

          The Supreme Court considered Gonzalez’s argument
       concerning admission of his statement made at the
       accident scene prior to Miranda warnings. The Court
       analyzed the totality of the circumstances in the Gonzalez
       case as follows:



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           Although [Gonzalez] had a duty under the Motor
           Vehicle Code to stay at the scene of the accident and
           identify himself and his vehicle, and exhibit his
           operator’s license and proof of insurance, he was not
           under arrest, nor was he in custody. His freedom
           was restricted only to the extent of his statutory
           obligation to stay and provide the required
           information. When the police officers approached
           [Gonzalez] at the accident scene and asked him if he
           was hurt and what had happened, [Gonzalez] was
           not in custody, nor could he have reasonably
           believed he was in custody for purposes of Miranda.

           At that time, [Gonzalez] was not under arrest and he
           has not shown that he was subjected to retraints
           comparable to those associated with arrest.
           [Gonzalez] was asked a minimal number of
           questions at the scene of an accident on a public
           street. Those questions cannot be characterized as
           custodial interrogation. It follows that the statement
           made by [Gonzalez] in response to the police
           questioning was admissible evidence, and the trial
           court did not err in receiving it.

     Id. at . . . 29-30.

Commonwealth v. Williams, 941 A.2d 14, 30-32 (Pa. Super 2008) (en

banc) (quotation marks and some citations omitted and emphases added).

     Considering the totality of the circumstances, we conclude Officer

Welch did not subject Appellant to a custodial interrogation at the time she

made the incriminating statement.      See id. at 31.    The uncontradicted

evidence presented at the suppression hearing established that Officer Welch

and Officer Cortez were approached by unidentified males on Kensington

Avenue who indicated Appellant had just left the scene of an accident where

she struck a person.       N.T. at 20. Officer Welch asked Appellant what



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happened, and Appellant indicated she was involved in an auto accident. Id.

Officer Welch informed Appellant they had to return to the accident scene

and put Appellant, without handcuffs, in the back of her police car. Id. at

20-21. At the scene, Officer Welch asked Appellant to produce her driver’s

license and paperwork, and Appellant was permitted to leave the police

vehicle.   Id. at 21.   Officer Welch then asked Appellant if she had any

medical conditions that may have caused the accident and if she was on any

medication,    to   which   Appellant    replied   that   she   takes   prescription

medication. Id.

      Appellant was under a statutory obligation to remain at the scene, and

we conclude the brief transport of Appellant by Officer Welch to comply with

that obligation did not rise to such level of coerciveness as to constitute the

functional equivalent of an arrest. See Williams, 941 A.2d at 31-32.

Moreover, the incriminating statement was made during Officer Welch’s

attempt to “obtain general information concerning the accident,” in “public

view at the accident scene,” while Appellant was free of any physical

restraints.   See id. at 33    (applying a totality of circumstances test and

concluding the defendant’s questioning at the scene of a traffic accident did

not constitute custodial interrogation necessitating Miranda warnings).

Therefore, the trial court did not err in admitting the statement.             See

Mathis, 125 A.3d at 783. Because of our conclusion, Appellant’s argument




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that her refusal to submit to chemical testing should have been suppressed,

as fruit of the poisonous tree, must also fail.

      Next, Appellant argues the trial court erred by admitting hearsay

statements into evidence over defense counsel’s objection. Appellant’s Brief

at 26.   Specifically, Appellant argues the trial court erred in admitting the

testimony of Officer Welch during the suppression hearing and during trial

that unidentified males approached her yelling that Appellant had struck a

woman with her car and left the scene. Id. at 26-27. Appellant also argues

the admission of an audible statement within Commonwealth’s Exhibit 3, a

video recording made at the scene of the accident, was error. Id. at 27.

      We employ a well-settled standard of review over evidentiary

challenges.

            The admission of evidence is solely within the province
         of the trial court, and a decision thereto will not be
         disturbed absent a showing of an abuse of discretion. 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 discretion . . . is abused.

                                   *     *      *

             As is well-settled, excited utterances fall under the
         common law concept of res gestae.              Res gestae
         statements, such as excited utterances, present sense
         impressions, and expressions of present bodily conditions
         are normally excepted out of the hearsay rule, because the
         reliability of such statements are established by the
         statement being made contemporaneous with a provoking
         event. While the excited utterance exception has been
         codified as part of our rules of evidence since 1988, see


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        Pa.R.E. 803(2), the common law definition of an excited
        utterance remains applicable, and has been often cited by
        this Court:

           [A] spontaneous declaration by a person whose mind
           has been suddenly made subject to an overpowering
           emotion caused by some unexpected and shocking
           occurrence, which that person has just participated
           in our closely witnessed, and made in reference to
           some phase of that occurrence which he perceived,
           and this declaration must be made so near the
           occurrence both in time and place as to exclude the
           likelihood of its having emanated in whole or in part
           from his reflective faculties. . . . Thus, it must be
           shown first, that [the declarant] had witnessed an
           event sufficiently startling and so close in point of
           time as to render her reflective thought processes
           inoperable and, second, that her declarations were a
           spontaneous reaction to that starting event.

        Commonwealth v. Sherwood, . . . 982 A.2d 483, 495-
        96 ([Pa.] 2009) . . . . The circumstances surrounding the
        statements may be sufficient to establish the existence of
        a sufficiently startling event. See Commonwealth v.
        Counterman, . . . 719 A.2d 284, 299 ([Pa.] 1988)
        (statement by children, who ultimately perished in a house
        fire, that their father was lighting a fire inside the house
        was admissible when, minutes later, the house became
        ablaze); Commonwealth v. Sanford, . . . 580 A.2d 784,
        788 ([Pa.] 1990) (finding the excited utterance exception
        applicable where the testimony of the child’s mother and
        physician circumstantially established the event evincing
        that the child perceived “some unexpected or shocking
        occurrence”).

Commonwealth v. Murray, 83 A.3d 137, 155-56, 157-58 (Pa. 2013)

(quotation marks and some citations omitted).




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      We conclude the trial court did not abuse its discretion in admitting

either statement11 under the excited utterance exception to hearsay.      See

id. at 155-56. With regard to the statement made to Officer Welch, Officer

Welch testified the males approached her one block away from the accident

scene, waving their hands, gesturing, yelling, and using “a high voice stating

what had occurred.”    N.T. at 81.   The video at the scene of the accident,

where the declarant yelled Appellant tried to back out, was taken while the

victim who was struck by Appellant’s vehicle was still on the ground, and the

trial court specifically found the declarant to be speaking in an excited tone.

Id. at 71; see Commonwealth’s Ex. 3. The circumstances surrounding the

statements, including the tone and volume of declarants, the proximity from

the scene of the accident where the victim was seriously injured, and the

close temporal relationship, are sufficient to establish the declarants

witnessed the startling event of the accident. See Murray, 83 A.3d at 157-

58. Thus, this claim fails.

      Appellant’s three remaining issues challenge the sufficiency of the

Commonwealth’s evidence.

            The standard we apply in reviewing the sufficiency of
         the evidence is whether viewing all the evidence admitted
         at trail 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

11
   Although Appellant’s issues involve three instances of testimony, they
concern two objectionable statements.



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J-A11035-16


         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 credibility of the witnesses and the
         weight of the evidence produced, is free to believe all, part
         or none of the evidence.

Commonwealth v. LaBenne, 21 A.3d 1287, 1289 (Pa. Super. 2011)

(citation omitted).

      For her third issue, Appellant submits the evidence was insufficient to

find her guilty of DUI and aggravated assault by DUI. Appellant’s Brief at

33.   Appellant argues there is insufficient evidence to demonstrate she

“actually had drugs in her system or that she was impaired.”        Id. at 36.

Appellant posits, “the only evidence that [Appellant] was under the influence

was her statement regarding sleeping pills.” Id. We disagree.

      The trial court found Appellant guilty of DUI under Section 3802(d)12

which provides:


12
  The trial court also convicted Appellant of aggravated assault while DUI
which provides:

         § 3735.1 Aggravated Assault by vehicle while driving
         under the influence



                                    - 19 -
J-A11035-16


        § 3802. Driving under the influence of alcohol or
        controlled substance

                                    *      *      *

        (d) Controlled substances.—An individual may not drive,
        operate or be in actual physical control of the movement of
        the vehicle under any of the following circumstances:

                                    *      *      *

        (2) The individual is under the influence of a drug or
        combination of drugs to a degree which impairs the
        individual’s ability to safely drive, operate or be in actual
        physical control of the movements of the vehicle.


75 Pa.C.S. § 3802(d)(2). We note that, “subsection 3802(d) does not limit,

constrain, or specify the type of evidence that the Commonwealth can

proffer to prove its case.” Commonwealth v. Griffith, 32 A.3d 1231, 1239

(Pa. 2011).

     The      evidence,   viewed    in     the    light    most   favorable    to     the

Commonwealth,      established     Appellant      was     operating   her   vehicle    at

approximately 10:45 a.m. on February 17, 2012, it was a sunny day, and



        (A) Offense defined.—Any person who negligently
        causes serious bodily injury to another as the result of a
        violation of Section 3802 (relating to driving under the
        influence of alcohol or controlled substance) and who is
        convicted of violating section 3802 commits a felony of the
        second degree when the violation is the cause of the
        injury.

75 Pa.C.S. § 3735.1. As Appellant only challenges the DUI element of the
offense, we need only address the sufficiency of her conviction under Section
3802.



                                         - 20 -
J-A11035-16


she struck two vehicles before striking the victim, who was standing in a

bike lane.   N.T. at 47, 62.   The force with which Appellant hit the victim

caused her to “flip[] up in the air.”    Id. at 56-57.    Officer Welch asked

Appellant if “she had any medical conditions which may have caused the

accident” and whether “she was on any type of medication,” and Appellant

informed her “she takes prescription sleeping pills.”    Id. at 21; see id. at

89, 91.      Further, Appellant was “very slow moving” and had to be asked

“several times” for her information before she complied.      Id. at 23.    We

recognize Appellant did not submit to a blood test, but we conclude the

combined circumstances demonstrate Appellant’s ingestion of prescription

sleep medication impaired her ability to safely operate her vehicle. See 75

Pa.C.S. § 3802; LaBenne, 21 A.3d at 1289; see also Commonwealth v.

DiPanfilo, 993 A.2d 1262, 1267-68 (Pa. 2010) (considering the sufficiency

of evidence under Section 3802(d) and noting, “we cannot ignore the fact

that [a]ppellant refused a blood test[13]” because finding insufficient evidence

for DUI based on the absence of a blood test “would permit [drug users] to

drive under the influence of those drugs and avoid prosecution entirely”).

Moreover, our review of the entire record reflects no other cause for the

accident. See DiPanfilo, 993 A.2d at 1268. Accordingly, there is sufficient

13
   In prosecutions for DUI under Section 3802, the refusal to submit to
chemical testing “may be introduced in evidence along with other testimony
concerning the circumstances of refusal. No presumption shall arise from
this evidence but it may be considered along with other factors concerning
the charge.” 75 Pa.C.S. § 1547(e).



                                     - 21 -
J-A11035-16


evidence to support Appellant’s convictions for DUI and aggravated assault

while DUI. See LaBenne, 21 A.3d at 1289.

      For Appellant’s fourth issue, she contends there was insufficient

evidence to convict her of accident involving death or personal injury.

Appellant’s Brief at 38. Appellant notes she “left the scene on foot after the

complainant was removed by an ambulance.” Id. at 41. She argues that a

reasonable inference for her departure from the scene is “she . . . no longer

felt safe.” Id. at 42. We conclude Appellant is not entitled to relief.

      The relevant statute provides:

         § 3742. Accidents involving death or personal injury

         (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 accidence 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.

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

         Section 3742 is a hit-and-run statute, . . . and is aimed at
         punishing drivers who attempt to flee the scene of an
         accident in which they had been involved without fulfilling
         their legal duty to stop, give information, and render aid.
         Section 3742 was intended to deal with a very serious
         problem-the hit-and-run driver, who is seeking to evade
         responsibility. While § 3742 is a ‘penal’ statute and should
         be strictly construed, it should not be so narrowly and
         technically construed as to reach an absurd result.




                                     - 22 -
J-A11035-16


Commonwealth v. Klein, 795 A.2d 424, 429 (Pa. Super. 2002) (citation

omitted).

     Section 3744 provides, in relevant part:

          § 3744. Duty to give information and render aid

          (a) General rule.— The driver of any vehicle involved in
          an accident resulting in injury to or death of any person or
          damage to any vehicle or other property which is driven or
          attended by any person shall give his name, address and
          the registration number of the vehicle he is driving, and
          shall upon request exhibit his driver's license and
          information relating to financial responsibility to any
          person injured in the accident or to the driver or occupant
          of or person attending any vehicle or other property
          damaged in the accident and shall give the information and
          upon request exhibit the license and information relating to
          financial responsibility to any police officer at the scene of
          the accident or who is investigating the accident and shall
          render to any person injured in the accident reasonable
          assistance, including the making of arrangements for the
          carrying of the injured person to a physician, surgeon or
          hospital for medical or surgical treatment if it is apparent
          that treatment is necessary or if requested by the injured
          person.

75 Pa.C.S. § 3744(a).

     Instantly, Appellant does not dispute the accident involved injury to

the victim.    See Appellant’s Brief at 42.     The evidence established that

following the accident, Appellant attempted to leave in her car before

eventually walking away from the accident on foot. See N.T. at 20, 62, 80-

81, 85.     Appellant was approximately one block away from the accident

when she encountered Officer Welch. See id. at 20, 80-81, 85, 91. Viewing

the evidence and all inferences in the light most favorable to the



                                      - 23 -
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Commonwealth, we conclude there was sufficient evidence to show

Appellant left the scene of the accident without fulfilling her requirements

pursuant to Section 3744(1).    See   75 Pa.C.S. § 3742(a); LaBenne, 21

A.3d at 1289. We do not believe our construction of the statute under the

facts before us leads to an absurd result. See Klein, 795 A.2d at 429.

     Finally, Appellant contends there was insufficient evidence to establish

that she is guilty of PIC by the use of her vehicle. Appellant’s Brief at 43.

She argues PIC “requires a specific intent to employ the instrument

criminally” and “[n]o such intent [was] demonstrated by [Appellant’s]

negligent actions.” Id. at 47. We agree.

        A person commits the offense of PIC when he “possesses
        any instrument of crime with intent to employ it
        criminally.” 18 Pa.C.S.A. § 907(a). An instrument of
        crime is defined as (1) anything specially made or specially
        adapted for criminal use, or (2) anything used for criminal
        purposes and possessed by the actor under circumstances
        not manifestly appropriate for lawful it may have. 18
        Pa.C.S.A. § 907(d).

Commonwealth v. Brown, 23 A.3d 544, 561 (Pa. 2011).

        Our Supreme Court has held that “an actor’s criminal
        purpose . . . provides the touchstone of his liability for
        possessing an instrument of crime. Such purpose may be
        inferred from the circumstances surrounding the
        possession.” Commonwealth v. Andrews, . . . 768 A.2d
        309, 317-18 ([Pa.] 2001) . . .          Our courts have
        emphasized that mere possession of an instrument of
        crime, standing alone, cannot support an inference that
        the defendant intended to use the instrument of crime for
        a criminal purpose. Commonwealth v. Hardick, . . . 380
        A.2d 1235, 1237 ([Pa.] 1977) (providing that “proof of
        intent requires more than possession”); Commonwealth
        v. Foster, . . . 651 A.2d 163, 165 ([Pa. Super.] 1994)


                                   - 24 -
J-A11035-16


         (stating “[a]lthough criminal intent can be inferred beyond
         a reasonable doubt from the surrounding circumstances, it
         cannot be inferred from mere possession”).

In re A.V., 48 A.3d 1251, 1253-54 (Pa. Super. 2012).

      Viewing all the evidence and reasonable inferences in the light most

favorable to the Commonwealth, we conclude there was insufficient evidence

to support Appellant’s PIC conviction.        See LaBenne, 21 A.3d at 1289.

Indeed, the Commonwealth did not present any evidence to show that

Appellant had the requisite intent to employ her vehicle criminally.            18

Pa.C.S. § 907(a).     Although intent may properly be inferred from the

surrounding   circumstances,   the   Commonwealth        failed   to   prove   that

Appellant possessed her vehicle with the intent to employ it in a criminal

manner. See id.; Brown, 23 A.3d at 561; In re A.V., 48 A.3d at 1253-54.

Accordingly, we vacate Appellant’s conviction for PIC.

      Based on the foregoing, we affirm Appellant’s judgment of sentence

with respect to her convictions for DUI, aggravated assault by a vehicle

while DUI, accidents involving death or personal injury, simple assault, and

REAP. We vacate Appellant’s conviction for PIC; however, because Appellant

was sentenced to five years’ probation on PIC concurrent to a seven year

probationary sentence, we need not remand for resentencing.                    See

Commonwealth v. Thur, 906 A.2d 552, 569 (Pa. Super. 2006) (noting,

“[i]f our disposition upsets the overall sentencing scheme of the trial court

we must remand so that the court can restructure its sentence plan.             By



                                     - 25 -
J-A11035-16


contrast, if our decision does not alter the overall scheme, there is no need

for a remand.” (citations omitted)).

      Judgment of sentence for PIC vacated; judgment of sentence affirmed

in all other respects.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/12/2016




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