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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA,                         1   IN THE SUPERIOR COURT OF
                                                                PENNSYLVANIA
                               Appellee

                         v.

TIMOTHY FRANCIS MERRITTS,

                               Appellant                       No. 275 MDA 2016


            Appeal from the Judgment of Sentence January 19, 2016
              in the Court of Common Pleas of Cumberland County
                Criminal Division at No.: CP-21-CR-0000647-2015


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

MEMORANDUM BY PLATT, J.:                                  FILED FEBRUARY 28, 2017

        Appellant, Timothy Francis Merritts, appeals from the judgment of

sentence imposed on January 19, 2016, following his non -jury conviction of

driving    under   the        influence    (DUI)   general   impairment,   DUI   general

impairment with an accident, and DUI highest rate.' We affirm.

        We take the factual and procedural history in this matter from our

review of the certified record, and the trial court's June 30, 2016 opinion. In

its opinion, the trial court summarized the factual history of this matter as

follows:

               On August 21, 2014, Sergeant Keith Stambaugh of the
        Silver Spring Township Police Department was dispatched to the


*   Retired Senior Judge assigned to the Superior Court.

'   75 Pa.C.S.A. §§ 3802(a)(1), (c), respectively.
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        scene of a crash in the area of 40 West Willow Terrace Road.
        West Willow Terrace Road is a private gravel road that is not
        maintained by Silver Spring Township. The two entrances to the
        road are marked with signs that read "PRIVATE ROAD PLEASE 5
        MPH." There are approximately ten to twelve houses along the
        road, there are no barriers at the entrances, and it is open to
        public use.
               Upon arrival, the Sergeant observed a dark blue van stuck
        on an embankment [] on the side of the road next to a steep cliff
        leading down to a creek. Before he could get out of his vehicle,
        [Appellant] came forward and walked up to the driver's side
        window of the police car.        As he approached, [Appellant]
        appeared to stagger. The Sergeant then exited his vehicle and
        asked [Appellant] if he was the driver of the stranded van.
        [Appellant] replied in the affirmative. [Appellant] slurred his
        speech and his eyes were glassy. When asked to provide his
        driver's license, registration, and insurance information,
        [Appellant] had difficulty retrieving the requested documents
        from his van.       He dropped his keys multiple times while
        attempting to unlock his van and the Sergeant could smell the
        strong odor of alcoholic beverages coming from his person.
               After finally locating the requested documents, the
        Sergeant asked [Appellant] to exit the van. Once he got out,
        [Appellant] reached into his pocked, pulled something out, and
        threw it over the van down the cliff. The Sergeant asked him,
        "What was that, your marijuana?" And [Appellant] replied,
        "Maybe." At that point, the Sergeant placed [Appellant] under
        arrest for suspicion of [DUI]. Prior to taking him into custody,
        the Sergeant asked [Appellant] where he was coming from when
        he crashed.     [Appellant] replied that he was coming from a
        friend's house in Mechanicsburg. When asked if that was where
        he did all the drinking, [Appellant] dropped his head, defeated[,]
        and said, "Yeah." [Appellant] also admitted that the alcohol
        contributed to his running off the side of the road.
              [Appellant] declined to perform standardized field sobriety
        tests and was taken to Carlisle Regional Medical Center for a
        blood test that revealed [Appellant's] [b]lood [a]lcohol [c]ontent
        to be 0.237 percent.       During his time with the Sergeant,
        [Appellant] admitted to drinking heavily that day and that
        alcohol likely contributed to his crash. [Appellant] also stated
        that he had not had anything to drink after the crash.


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(Trial Court Opinion, 6/30/16, at 1-3) (record citation and footnote omitted).

        After   a   non -jury trial on November 24, 2015, the trial court found that,

after drinking alcohol such that he was incapable of safely driving his

vehicle, Appellant drove his van from Mechanicsburg, Pennsylvania, to West

Willow Terrace, where it crashed.2 (See N.T. Trial, 11/24/15, at 80-81).           It
also found that his blood alcohol content was 0.237 percent.                The court

found him guilty of all charges. (See id. at 81).

        On January 19, 2016, the court observed         that the DUI counts merged

for the purpose of sentencing, and sentenced Appellant to               a   period of

incarceration of not less than seventy-two hours, nor more than six months

in   Cumberland County Prison for DUI. (See N.T. Sentencing, 1/19/16, at 4).

This timely appeal followed.3

        Appellant raises two questions on appeal.

        I. Did the court abuse its discretion by admitting and then
        considering [Appellant's] statement to police in violation of the
        corpus delecti [sic] rule?
        II. Was the evidence presented at trial sufficient to sustain a
        conviction on all charges when no evidence was offered to prove
        [Appellant] drove the vehicle on anything but a private road?


2 During the trial, Appellant's girlfriend, Erlina Puchalsky, testified; however,

the trial court found her testimony to be not credible and fabricated in an
attempt to create a defense for Appellant. (See Trial Ct. Op., at 3; N.T.
Trial, at 81).
3
  Pursuant to the trial court's order, Appellant filed his concise statement of
errors complained of on appeal on March 9, 2016. See Pa.R.A.P. 1925(b).
The trial court entered its opinion on June 30, 2016. See Pa.R.A.P. 1925(a).


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(Appellant's Brief, at 6) (most capitalization omitted).

        In his first issue, Appellant claims that the trial court erred when it

admitted and considered Appellant's statements to Sergeant Stambaugh,

because the Commonwealth did not meet its burden, pursuant to the corpus

delicti rule.    (See id. at 13-21).      Specifically, Appellant argues that the

Commonwealth did not establish the corpus delicti, that drunk driving

occurred, before the court admitted and considered his confession. (See id.

at 13). We disagree.

                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 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.
Commonwealth v. Rivera, 828 A.2d 1094, 1103-04                 (Pa. Super. 2003),

appeal denied, 842 A.2d 406 (Pa. 2004) (citation omitted).

        "Establishing the corpus delicti is    a   two-step process.       The first is

admission, which requires     a   showing by   a   preponderance of the evidence.

The second is consideration by the fact -finder, which requires        a   showing of

the corpus delicti beyond    a    reasonable doubt."    Commonwealth v. Herb,


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852 A.2d 356, 363 n.3 (Pa. Super. 2004) (citations omitted). Thus, in order

for the court to consider Appellant's statement, the Commonwealth needed

to prove beyond      a   reasonable doubt that there was sufficient independent

evidence that he: (1) drove      a   vehicle, (2) after imbibing   a   sufficient amount

of alcohol such that he was rendered incapable of safely driving.               See 75

Pa.C.S.A.   §   3802(a)(1).

        Here, Sergeant Stambaugh's testimony demonstrated that when he

arrived at the scene, he observed Appellant's van stuck on an embankment

at the end of the road.       (See N.T. Trial, at 7-8).       Appellant walked up to

Sergeant Stambaugh's police vehicle and staggered as he approached. (See

id. at 8). Appellant then confirmed that he was the driver of the van. (See
id.).4 Sergeant Stambaugh testified that Appellant's eyes were glassy, his

speech was slurred, and it took him           a   few seconds to respond to Sergeant

Stambaugh's question whether he was driving or not. (See id. at 9). While

waiting for Appellant to provide insurance and registration information,

Sergeant Stambaugh noticed           a   strong odor of alcohol from Appellant. (See

id. at 10).       Appellant fumbled with his keys, dropping them twice and

unsteadily picking them up, and then produced the registration for              a   trailer



4 "The identity of the person responsible for the criminal act is not part of
the corpus delicti[,]" thus, the rule does not apply to Appellant's statement
that he was the driver of the vehicle. Commonwealth v. Zugay, 745 A.2d
639, 652 (Pa. Super. 2000), appeal denied, 795 A.2d 976 (Pa. 2000)
(citation omitted).


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instead of the van.           (See id.).      Appellant later admitted to Sergeant

Stambaugh that he crashed while coming from                       a    friend's house in

Mechanicsburg, where he drank alcohol, and that the alcohol contributed to

his crash. (See    id. at 12).
        Given this evidence, we conclude that the admission of Appellant's

statements that he was "drinking heavily that day and that alcohol likely

contributed to his crash[,]" and "that he had not had anything to drink after

the crash[,]" was proper under the corpus delicti rule.               (Trial Ct. Op., at 3).

Prior to introducing the statements, the Commonwealth established that

Appellant's van was crashed on an embankment, and that Appellant showed

signs of intoxication.            Thus, it established   by   a   preponderance of the

evidence that      a   crime, drunk driving, occurred, and admission of the

confession was proper.            See Rivera, supra at 1103-04; 75 Pa.C.S.A. §§

3802(a)(1), (c).
        Furthermore, although the trial court did not specifically state on the

record whether it was satisfied that the corpus delicti of the crimes charged

were proven beyond        a       reasonable doubt before it considered Appellant's

admissions, the circumstantial evidence and reasonable inferences drawn

therefrom, even without the admission, were sufficient to convict Appellant

of driving under the influence.           We are satisfied that the Commonwealth

demonstrated beyond           a    reasonable doubt the corpus delicti, that drunk

driving occurred. See Herb, supra at 363 n.3; Rivera, supra at 1103-04.

Thus, we conclude that the trial court did not abuse its discretion by

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admitting and considering Appellant's statements.                      Appellant's first issue

does not merit relief.

        In his second issue, Appellant claims that the evidence was insufficient

to convict him of driving under the influence.              (See Appellant's Brief at 22-

26). Specifically, he argues that the Commonwealth failed to prove that the

road on which he drove was        a   trafficway.5 (See id.). We disagree.

        Our standard of review for           a    challenge to the sufficiency of the

evidence is well settled.        "In evaluating such        a    claim, we must determine

whether,    viewing   the       evidence     in   the    light    most favorable         to   the

Commonwealth as verdict winner, together with all reasonable inferences

therefrom, the trier of fact could have found that each and every element of

the    crimes    charged    was       established       beyond     a     reasonable      doubt."
Commonwealth v. Zabierowsky, 730 A.2d 987, 988-89                                 (Pa.   Super.

1999) (citations omitted).

        Appellant was convicted of three counts of DUI, violations of Chapter

38 of the Pennsylvania Vehicle Code, which "apply upon highways and

trafficways throughout this Commonwealth." 75 Pa.C.S.A.                    §   3101(b). Thus,

the Commonwealth must establish that Appellant's offenses occurred on                          a

highway or trafficway.          See Zabierowsky, supra at 989.                   Trafficway    is

defined in 75 Pa.C.S.A.     §   102 as     "[t]he entire width between property lines


5
  Appellant does not allege that the Commonwealth failed to prove any of
the other elements of his offenses. (See Appellant's Brief, at 22-26).


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or other boundary lines of every way or place of which any part is open to

the public for purposes of vehicular travel as                    a    matter of right or custom."

75 Pa.C.S.A.     §       102. "Pennsylvania law recognizes that roadways in private

areas, or areas restricted to permit -holders, can still meet the 'public use'

requirement for purposes of              .   .   .   the DUI statute."           Commonwealth v.
Lees, 135 A.3d 185, 189 (Pa. Super. 2016) (collecting cases) (holding that

parking lot serving housing complexes that was marked with sign stating

"Private Property," but which non-residents such as mailmen, deliverymen,

and visitors used, was trafficway).

        Preliminarily, we note that, viewing the evidence in the light most

favorable to the Commonwealth as verdict winner, we agree with the trial

court's conclusion that the Commonwealth clearly established that Appellant

drove his vehicle from Mechanicsburg, Pennsylvania, to the place where it

crashed    on     West        Willow Terrace            Road,     in    Silver    Spring   Township,

Pennsylvania.        (See N.T. Trial, at 80). Thus, Appellant's claim that he only

drove on West Willow Terrace Road, which he alleges                          is a   private road and

therefore not        a   trafficway,   is belied by          the record.    Moreover, we find no

merit to Appellant's argument that West Willow Terrace Road                                 is   not   a

trafficway.

        Here, the evidence established that, the township considered West

Willow Terrace Road            a   private road, and it contained signs at either end

stating "private road, please,           5   miles per hour." (N.T. Trial, at 51; see id.

at 33-36).       However, it was open to the public and served the eleven or

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twelve private residences located along it.          Thus, we conclude that it "is

open to the public for purposes of vehicular travel as        a   matter of right or

custom[,]" and therefore    is a    trafficway for purposes of Chapter 38 of the

Vehicle Code.    75 Pa.C.S.A.   §   102; see Lees, supra at 189; Zabierowsky,

supra at 988-89; 75 Pa.C.S.A.         §   3101(b).   Accordingly, we conclude that

the evidence established that Appellant drove his van on          a   trafficway after

imbibing alcohol such that he could not safely operate it. See 75 Pa.C.S.A.

§§ 3802(a)(1). Appellant's second issue does not merit relief.

        Judgment of sentence affirmed.

Judgment Entered.




J    seph D. Seletyn,
Prothonotary


Date: 2/28/2017




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