J-A24042-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

DREW CARL BODDEN,

                            Appellant                    No. 236 EDA 2014


            Appeal from the Judgment of Sentence August 15, 2013
                in the Court of Common Pleas of Bucks County
              Criminal Division at No.: CP-09-CR-0000865-2013


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                       FILED NOVEMBER 18, 2014

        Appellant, Drew Carl Bodden, appeals from the judgment of sentence

imposed following his bench conviction of third-degree murder, involuntary

manslaughter,      recklessly    endangering   another   person (three   counts),

homicide by vehicle, aggravated assault by vehicle (two counts), and related

traffic offenses.1 We affirm.

        We summarize the most pertinent facts of the case, which stems from

Appellant’s involvement in a fatal traffic accident. On November 21, 2012,

at approximately 6:30 p.m., Appellant was driving his Ford Mustang

northbound on the Route 611 by-pass in Doylestown Township with his
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  18 Pa.C.S.A. §§ 2502(c), 2504(a), 2705; 75 Pa.C.S.A. §§ 3732(a),
3732.1(a), 3736(a), 3361, and 3362(a)(3), respectively.
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girlfriend as his passenger. There were no adverse weather conditions and

traffic was relatively light. Appellant’s vehicle had been modified to allow for

increased speed, and on the night of the collision, he was driving at speeds

ranging from 80 to 155 miles per hour (mph). (See N.T. Trial, 6/03/13, at

269-70; N.T. Trial, 6/04/13, at 90, 92, 252).

        Appellant approached a vehicle driven by Peter Commons, who heard

“what sounded like a racing engine” as Appellant’s vehicle and a Cadillac

Appellant appeared to be racing with passed by him. (N.T. Trial, 6/03/13, at

120).    Both vehicles quickly disappeared out of Mr. Commons’ view.          The

driver of the Cadillac, Jason McKnight2, saw Appellant’s car approach from

behind at a high rate of speed.                Mr. McKnight increased his speed to

approximately 80 mph in order to pass four cars traveling in the right lane,

and then moved his vehicle into the right lane to allow Appellant to pass.

Appellant’s vehicle sped by the Cadillac, and Mr. McKnight commented to his

passenger, “Oh, my God, that car’s going to hit the other [car].”          (Id. at

151).

        Appellant, while traveling in the left lane, collided into the back of a

Honda SUV, which was driven by Suzanne Berry at a speed of approximately

55 mph.      Ms. Berry’s nine-year-old granddaughter, Holly Huynh, was a



____________________________________________


2
  In his trial testimony, Mr. McKnight denied that he was racing with
Appellant. (See N.T. Trial, 6/03/13, at 157).



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passenger in her backseat.            The trial court summarized the pertinent

testimony presented at trial as follows:

       There was no braking before impact and the speed of Appellant’s
       vehicle at that time was between 140-155 mph. The force of the
       collision was so explosive that Appellant’s vehicle literally drove
       through the victim’s vehicle, propelling the back seat of the
       victim’s Honda CRV, up and into the front seat area, breaking
       the child’s neck and either breaking or fracturing most of the
       bones in the child’s body. The child was pronounced dead at the
       scene. The grandmother was trapped in the vehicle. Her
       injuries were so severe that she was thought to have expired at
       the scene. Fortunately, she survived but her injuries were so
       devastating that she remains unable to provide for any of her
       activities of daily living. A passenger in Appellant’s vehicle also
       suffered a fractured ankle, fractured wrist, three fractured ribs,
       head injuries and a fractured sternum.

(Trial Court Opinion, 3/28/14, at 7).3

       On June 3, 2013, Appellant proceeded to a bench trial.       On June 5,

2013, the trial court found Appellant guilty of the above stated offenses.

The court deferred sentencing and ordered preparation of a pre-sentence

investigation (PSI) report.         On August 15, 2013, the court sentenced

Appellant to a term of not less than eight nor more than twenty-five years’

incarceration.    Appellant filed timely post-sentence motions, and the court

held a hearing on the motions on November 1, 2013.           On December 27,


____________________________________________


3
  The Commonwealth also introduced evidence that, prior to the accident,
Appellant had posted a blog in which he bragged about driving 130 mph and
racing other vehicles. (See N.T. Trial, 6/04/13, at 6-8; Commonwealth’s
Exhibit C-49).




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2013, the trial court entered an opinion and order denying Appellant’s post-

sentence motions. This timely appeal followed.4

       Appellant raises one issue for our review: “Did the [trial] [c]ourt err in

finding, beyond a reasonable doubt, that Appellant acted with malice, which

is required for a conviction of third degree murder?” (Appellant’s Brief, at

4).    Specifically, Appellant contends that the Commonwealth failed to

establish that he acted with malice because there was no proof that he had

knowledge of and consciously disregarded an unjustifiable risk. (See id. at

11, 15). He claims that the evidence instead demonstrates that he did not

see the victims’ vehicle until immediately before the crash, at which point he

applied his brakes in an effort to avoid the accident. (See id.).

       Before we may address the merits of Appellant’s issue, we must

determine     whether     he   properly        preserved   it   for   our   review.   The

Commonwealth contends that because Appellant failed to specify whether he

is challenging the sufficiency or weight of the evidence, his issue is waived.

(See Commonwealth’s Brief, at 29-31). We agree.

       Rule 1925(b) provides, in relevant part:

            (b) Direction to file statement of errors complained
       of on appeal; instructions to the appellant and the trial
____________________________________________


4
   Pursuant to the trial court’s order, Appellant filed a timely concise
statement of errors complained of on appeal on January 23, 2014. See
Pa.R.A.P. 1925(b). The court filed a Rule 1925(a) opinion on March 28,
2014. See Pa.R.A.P. 1925(a).




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      court.—If the judge entering the order giving rise to the notice
      of appeal (“judge”) desires clarification of the errors complained
      of on appeal, the judge may enter an order directing the
      appellant to file of record in the trial court and serve on the
      judge a concise statement of the errors complained of on appeal
      (“Statement”).

                                *     *         *
            (4) Requirements; waiver.


                                   *    *    *
                  (ii) The Statement shall concisely identify each
            ruling or error that the appellant intends to challenge
            with sufficient detail to identify all pertinent issues
            for the judge. The judge shall not require the citation
            to authorities; however, appellant may choose to
            include pertinent authorities in the Statement.


                                  *   *     *
                   (vii) Issues not included in the Statement
            and/or not raised in accordance with the provisions
            of this paragraph (b)(4) are waived.

Pa.R.A.P. 1925(b)(4)(ii),(vii).

      This Court has stated “when issues [in a Rule 1925(b) statement] are

too vague for the trial court to identify and address, that is the functional

equivalent of no concise statement at all.” Commonwealth v. Smith, 955

A.2d 391, 393 (Pa. Super. 2008) (en banc) (citation omitted). Accordingly,

“when an appellant fails to identify in a vague Pa.R.A.P. 1925(b) statement

the specific issue he/she wants to raise on appeal, the issue is waived[.]”

Commonwealth v. Lemon, 804 A.2d 34, 38 (Pa. Super. 2002).

      Here, Appellant’s Rule 1925(b) statement raises the same vague issue

that he presents in his Statement of Questions Involved: “The [c]ourt erred


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in finding, beyond a reasonable doubt, that Appellant acted with malice,

which is required for a conviction of third degree murder.”      (Rule 1925(b)

Statement, 1/23/14, at 1). The trial court apparently interpreted this as a

challenge to the weight of the evidence, and it addressed the weight claim in

its Rule 1925(a) opinion. (See Trial Ct. Op., at 8-11). However, Appellant,

in his brief, sets forth the scope and standard of review applicable to

sufficiency of the evidence claims, and he argues that there was “insufficient

evidence” to support a finding of malice. (Appellant’s Brief, at 22; see also

id. at 3, 43, 47).        Appellant’s post-sentence motions challenged both the

sufficiency and weight of the evidence.         Under these circumstances, we

conclude that Appellant’s Rule 1925(b) statement was impermissibly vague

and inadequate to apprise the trial court of the specific argument he wished

to raise before this Court. Accordingly, his issue on appeal is waived. See

Pa.R.A.P. 1925(b)(4)(ii),(vii); see also Smith, supra at 393; Lemon,

supra at 38.

      Moreover, even if Appellant did not waive his issue on appeal, it would

still not merit relief.

             The standard we apply in reviewing the sufficiency of the
      evidence is whether viewing all the evidence admitted at trial in
      the light most favorable to the verdict winner, there is sufficient
      evidence to enable the fact-finder to find every element of the
      crime beyond a reasonable doubt. In applying the above test,
      we may not weigh the evidence and substitute our judgment for
      the fact-finder.   In addition, we note that the facts and
      circumstances established by the Commonwealth need not
      preclude every possibility of innocence. Any doubts regarding a
      defendant’s guilt may be resolved by the fact-finder unless the


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     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. Cahill, 95 A.3d 298, 300 (Pa. Super. 2014) (citations

omitted).

     The Pennsylvania Crimes Code defines third-degree murder as “[a]ll

other kinds of murder” other than first or second-degree murder. 18

Pa.C.S.A. § 2502(c). “Murder in the third degree is an unlawful killing with

malice but without the specific intent to kill.” Commonwealth v. Dunphy,

20 A.3d 1215, 1219 (Pa. Super. 2011) (citations omitted).

          To convict an accused of third degree murder, the
     Commonwealth must prove that the accused killed another
     person with malice.

                   The elements of third degree murder, as
            developed by case law, are a killing done with legal
            malice but without specific intent to kill required in
            first degree murder. Malice is the essential element
            of third degree murder, and is the distinguishing
            factor between murder and manslaughter.

            Malice under the law comprehends not only a particular ill-
     will, but every case where there is wickedness of disposition,
     hardness of heart, cruelty, recklessness of consequences, and a
     mind regardless of social duty, although a particular person may
     not be intending to be injured. Malice may be inferred from the
     attending circumstances of the act resulting in death. Otherwise
     stated, malice may be found where the defendant has
     consciously disregarded an unjustified and extremely high risk


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       that h[is] conduct might cause death or serious injury to
       another.

Commonwealth v. Geiger, 944 A.2d 85, 90 (Pa. Super. 2008), appeal

denied, 964 A.2d 1 (Pa. 2009) (citations and quotation marks omitted).

“Motor    vehicle   cases,   where    our   appellate   courts   have   sustained

malice/murder convictions, all contain the element of sustained recklessness

by the actor in the face of perceptible risk of harm to another person or

persons who became victims.” Commonwealth v. Scales, 648 A.2d 1205,

1207 (Pa. Super. 1994), appeal denied, 659 A.2d 559 (Pa. 1995).

       Here, the record reflects that, prior to the date of the accident,

Appellant had modified his vehicle to allow for increased speed and that he

had written a blog post in which he bragged about driving 130 mph and

racing other vehicles. (See N.T Trial, 6/03/13, at 269-71; Exhibit C-49).

       The testimony presented at trial established that, on the evening of

the accident, Appellant was driving his vehicle on a public roadway at speeds

reaching 155 mph. (See N.T Trial, 6/03/13, at 121; N.T. Trial, 6/04/13, at

90).     Mr. Commons and another witness testified that they observed

Appellant and the driver of the Cadillac, Mr. McKnight, racing their vehicles

at high rates of speed. (See N.T Trial, 6/03/13, at 121-22, 138-39). Mr.

McKnight denied racing Appellant, and testified that he was driving at

approximately 80 mph in the left hand lane when he noticed Appellant’s

vehicle approach from behind.        (See id. at 147-49, 157).     Mr. McKnight

moved into the right lane because he “thought [Appellant’s] car . . . was

actually going to run into the back of me.”        (Id. at 156).   Mr. McKnight

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J-A24042-14



stated that Appellant was driving fast and “fl[ew] by me . . . like I was

standing still.” (Id. at 149). Mr. McKnight then observed the victims’ SUV

traveling approximately 100 yards ahead in the left lane, and he said to his

passenger “Oh, my God, that car’s going to hit the other one.” (Id. 151;

see also id. at 150).      Appellant crashed into the victims’ SUV, and Mr.

McKnight testified that Appellant did not apply his brakes before impact and

that the “brake lights and the impact were simultaneous.” (Id. at 152; see

also id. at 158).     The force of the collision was so great that Appellant’s

vehicle drove through the victims’ vehicle, propelling the backseat into the

front area, killing Holly Huynh and seriously injuring Suzanne Berry. (See

id. at 198, 219-20, 224, 226).

      Appellant testified that he was concentrating on the roadway ahead of

him and that he applied his brakes “milliseconds” before crashing into the

victims’ vehicle.    (N.T. Trial, 6/04/13, at 281; see also id. at 272).

However, Appellant acknowledged that he made a conscious choice to

disregard the posted speed limit, and that he was aware of and disregarded

the risk that he would cause an accident by driving at high speeds. (See id.

at 274, 279, 282).

      Based on the foregoing, and viewing the evidence in the light most

favorable to the Commonwealth, see Cahill, supra at 300, we would

conclude that Appellant’s challenge to the sufficiency of the evidence does

not merit relief.    The record supports the trial court’s determination that

Appellant consciously disregarded an unjustified and extremely high risk that

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driving at excessive speeds on a public roadway might cause death or

serious injury to other drivers and passengers. See Geiger, supra at 90;

(see also Trial Court Op., at 11). Accordingly, Appellant’s issue on appeal

would not merit relief, even if we did not find it waived.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/18/2014




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