J-S23040-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                    v.                      :
                                            :
PHILLIP DANIEL TOMSIC                       :
                                            :
                           Appellant        :
                                            :     No. 2061 EDA 2015

             Appeal from the Judgment of Sentence October 10, 2013
        in the Court of Common Pleas of Chester County Criminal Division
                        at No(s): CP-15-CR-0004357-2012

BEFORE: PANELLA, OTT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                          FILED April 21, 2016.

        Appellant, Phillip Daniel Tomsic, appeals from the judgment of

sentence imposed in the Chester County Court of Common Pleas following

his convictions for driving under the influence1 (“DUI”), homicide by vehicle

while DUI,2 homicide by vehicle,3 aggravated assault by vehicle while DUI,4

involuntary manslaughter,5 recklessly endangering another person,6 and



*
    Former Justice specially assigned to the Superior Court.
1
    75 Pa.C.S. § 3802(a)(1)-(2).
2
    75 Pa.C.S. § 3735.
3
    75 Pa.C.S. § 3732.
4
    75 Pa.C.S. § 3735.1.
5
    18 Pa.C.S. § 2504.
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three traffic offenses. Appellant challenges the sufficiency of the evidence

supporting his convictions for DUI, homicide by vehicle while DUI, and

aggravated assault by vehicle while DUI. We affirm.

        A non-jury trial was held on August 12, 13, and 22, 2013.          We

summarize the relevant testimony as follows. Ariel Steele testified that on

the evening of November 4, 2011, she went to Anthony Washington and

Kadeem Fulmore’s suite on the campus of Lincoln University in Chester

County at approximately 7:00 p.m., and each was drinking either gin or

vodka mixed with juice.      N.T., 8/12/13 (“Vol. I”), at 21-23.     Appellant

arrived around 7:30 p.m. with a red “Solo” cup from which he was drinking a

purple “concoction” Steele assumed to be alcohol.      Id. at 24, 34.   Steele

observed Appellant drink two more mixed drinks7 in her presence from a

tumbler glass “about the height of a twenty-ounce Solo” cup. Id. at 25-26.

The cup was filled to the top each time.    Id. at 26. Appellant was acting

“silly” and “a little bit more playful” than Steele recalled him acting when he

was not consuming alcohol. Id. at 29-31.

        Appellant volunteered to drive to a Chinese restaurant, approximately

a ten-minute drive from campus, to pick up food for the group. Id. at 27.



6
    18 Pa.C.S. § 2705.
7
  Steele testified she could not recall which of the two liquors Appellant was
drinking, but testified it was either gin or vodka. N.T. Vol. I at 32.




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Appellant left the suite and returned with keys, and he, Washington, and

Fulmore left to pick up the food shortly after 8:00 p.m. Id. at 34.

      At approximately 9:15 p.m. that evening, Corporal David Williams of

the Lincoln University Police Department received a call from dispatch about

a car accident.    Id. at 78.   He arrived at the scene and encountered “a

vehicle imbedded into a tree, smoking on a hill, [at] about a forty-five

degree angle.”     Id. at 79.   Corporal Williams observed Washington, the

front-seat   passenger,    halfway   outside   the   vehicle,   and   discovered

Washington did not have a pulse.      Id. at 80-82.     He could hear another

voice screaming for help and observed Appellant in the driver’s seat. Id. at

81, 83. The car caught fire, and Corporal Williams was unable to extinguish

it. Id. at 85.     He then observed Appellant climb over Washington to exit

the car. Id. at 86. Appellant’s waist and legs were on fire, and Corporal

Williams and his partner pulled him from the vehicle and extinguished the

flames with their hands.    Id. The fire department responded and put out

the vehicle fire, and the emergency responders pulled Fulmore out from the

back of the car.    Id. at 87-88.    On cross-examination, Corporal Williams

agreed with Appellant’s counsel that the road where the accident occurred

was “a dark, winding country-type of road” and conceded that he did not

detect any indicia of intoxication from Appellant at the time. Id. at 92, 96.

On redirect examination, he clarified that his focus at that point was safety,




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and he was not attempting to assess Appellant’s level of intoxication. Id. at

104.

       At approximately 10:00 p.m. that evening, Trooper Jose Lebron of the

Pennsylvania State Police responded to Crozer-Chester Medical Center,

where Appellant and Fulmore were airlifted,8 to investigate the accident. Id.

at 107. Steele informed Trooper Lebron that Appellant and his friends had

been drinking alcohol prior to driving.     Id. at 109.    At 12:15 a.m. on

November 5, 2011,9 Appellant’s blood was drawn and provided to Trooper

Lebron. Id. at 110-11. The parties stipulated that the blood was properly

handled and analyzed “using standard, accurate and reliable methodology

and testing equipment” and had a blood alcohol concentration (“BAC”) of

.089 percent. Id. at 197. The parties also stipulated that as a result of the

accident, Washington died and Fulmore sustained a traumatic brain injury,

amputations of the right leg below the knee and the left leg above the knee,

complete loss of the use of his left hand and arm, among other injuries. Id.

at 194-95.

       Corporal Louis Robinson, of the Pennsylvania State Police, testified as

an expert in accident reconstruction. He testified that the data from the air

8
  Washington was pronounced dead at the scene of the accident and was
transported to a different location. Id. at 112.
9
 Trooper Lebron testified this was the first opportunity to draw blood from
Appellant, as there had been a shooting that evening and the scene at the
hospital was “hectic.” Id. at 110-11.




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bag control module revealed that “[t]he vehicle’s peak speed five seconds

before impact was eighty-seven miles an hour,” and that speed was

maintained for two seconds before the vehicle began decelerating.    Id. at

149-50.   He utilized two methods in determining the speed at which the

vehicle struck the tree.   Id. at 159.   The speed was estimated at either

49.64 miles per hour or approximately fifty-two miles per hour. Id. at 159-

60. The speed limit on that road was thirty-five miles per hour. Id. at 162.

The Commonwealth asked for Corporal Robinson’s opinion on the cause of

the accident:

           Q. What is your opinion as to how this accident
           occurred and what factors, speed or any other input,
           you heard testimony about alcohol consumption,
           speed, driver’s input. Taking all those things into
           consideration, what is your opinion as to how this
           accident occurred on this night?

           A. My opinion is that the operator of this vehicle, for
           reasons which have been demonstrated outside of
           my reconstruction, introduced excessive steering
           input to the vehicle, which is consistent with an
           intoxicated operator.      There was no reasonable
           explanation as to why the vehicle was steered to the
           left after having successfully negotiated the curve [in
           the road], and that the vehicle was continuing to
           decelerate] to a speed which should have been
           manageable for it to continue its negotiation on the
           roadway. Also, the function that speed played in
           that crash is very simply that the amount of ground
           that was being traversed while the operator of this
           vehicle was attempting to operate it passed more
           quickly and that the collision was more catastrophic.

Id. at 158-59.




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     Dr. Richard Cohn testified on behalf of the Commonwealth as an

expert in forensic toxicology.10 Dr. Cohn performed a retrograde or “back”

calculation to determine Appellant’s BAC at the time of the crash.   Id. at

204. He testified to a reasonable degree of scientific certainty “that at or

around the time of the incident, [Appellant’s] circulating blood alcohol

concentration was 0.12 percent.” Id. at 207; see also id. at 213, 218. He

further opined as to the effect of that level of alcohol on a person’s

cognition:

                 Certainly every individual at and above the .08
             percent has measurable impairment. You couple
             that with the fact that this is a .089 to .12 percent
             [BAC], then it’s an absolute scientific certainty
             that this individual was unfit to perform a
             safety sensitive task. A person doesn’t have to be
             falling over drunk, sitting on the sidewalk slumped
             over to be impaired to perform driving tasks. Just
             because somebody may not have exhibited outward
             signs that a layperson would have recognized doesn’t
             mean he’s not impaired.

Id. at 214 (emphasis added).

     Dr. Cohn opined specifically regarding Appellant’s BAC in relation to

the car accident, based on his review of all the reports of the accident,

witness statements, and independent calculations:

                Considering    all those   facets that   [the
             Commonwealth] indicated, it’s my expert forensic
             toxicological opinion that alcohol was at least

10
   Dr. Cohn testified Drugscan, Inc., his employer, is a Commonwealth
certified and federally certified toxicology laboratory. Id. at 198.




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              causally related to the accident. And in the absence
              of any demonstrable documentation as to roadway
              conditions or other vehicle problems associated with
              this event, then that alcohol was directly causally
              related to the accident.        That concentration of
              alcohol is impairing.        And together with the
              chronology of events, the actions that were
              attributed to this individual prior to the driving of the
              vehicle and the concentration of alcohol found about
              two hours and forty minutes or so following the
              incident, following the collision, then this is an
              alcohol-related incident, at least, and could be totally
              related to the alcohol.

Id. at 222.

       Dr. Lawrence J. Guzzardi testified on Appellant’s behalf as an expert in

medical toxicology and emergency medicine. In his opinion, Appellant’s BAC

at the time of the accident is indeterminable. N.T., 8/13/13 (“Vol. II”), at

273.   He agreed with Dr. Cohn’s calculation of Appellant’s BAC assuming

there was little or no alcohol absorbed subsequent to the accident, but he

disagreed that the assumption was warranted in this case.                 Id.   He

summarized his disagreement with Dr. Cohn’s analysis: “In short, you need

to know the time of the drinking relative to the time of the incident before

you can estimate, before you can do reliable extrapolation testimony.” Id.

at 275.

       Corporal Robinson was called as a witness for Appellant and testified

he could not say if there were any distractions just before Appellant crashed

or whether or not Appellant was using a cell phone.          N.T., 8/22/15 (“Vol.




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III”), at 317-18.     Following, Corporal Robinson’s testimony, the defense

rested.

        On August 28, 2013, the trial court convicted Appellant of the

aforementioned crimes.           On October 10, 2013, the trial court sentenced

Appellant to an aggregate term of five to ten years’ imprisonment plus fines.

Appellant did not file post-sentence motions or a timely direct appeal.

        On November 10, 2014, Appellant filed a timely, pro se petition

pursuant to the Post Conviction Relief Act11 (“PCRA”).                Counsel was

appointed     and   filed   an    amended    petition   seeking   reinstatement   of

Appellant’s direct appeal rights nunc pro tunc, based on prior counsel’s

failure to file a requested direct appeal. On June 10, 2015, the PCRA court

reinstated Appellant’s direct appeal rights nunc pro tunc.         Appellant filed a

notice of appeal on July 8, 2015 and a court-ordered Pa.R.A.P. 1925(b)

statement on July 31, 2015. The trial court filed a responsive opinion.

        Appellant raises the following claims of error:

              I. The trial court erred in finding sufficient evidence
              for a conviction on the charge of [DUI] of Alcohol
              pursuant to 75 Pa.C.S.[] § 3802(a)(1) and 75
              Pa.C.S.[] § 3802(a)(2).

11
     42 Pa.C.S §§ 9541-9546.

     We note the 30th day from Appellant’s judgment of sentence was
Saturday, November 9, 2013, and the Court was closed on Monday,
November 11, 2013 in observation of Veterans Day. Therefore, Appellant’s
judgment of sentence became final on November 12, 2013. See 42 Pa.C.S.
§ 9545(b)(3); 1 Pa.C.S. § 1908; Pa.R.A.P. 903.




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              II. The trial court erred in finding sufficient evidence
              for convictions, specifically in terms of causation, on
              the charges of Homicide by Vehicle While [DUI]
              pursuant to 75 Pa.C.S.[] § 3735 and Aggravated
              Assault by Vehicle While [DUI] pursuant to 75
              Pa.C.S.[] § 3735.1.

Appellant’s Brief at 18.12

        Appellant first challenges his convictions for DUI.              Specifically,

Appellant contends Dr. Cohn’s “unproven assumptions,” on which he

premised his expert opinion, render the evidence insufficient to prove

Appellant committed DUI. See id. at 25-34. For Appellant’s second issue,

he “concedes that he unintentionally caused the death of Anthony

Washington and that he negligently caused serious bodily injury to Kadeem

Fulmore.”     Id. at 19.     However, he argues the Commonwealth failed to

sufficiently prove that Appellant’s violation of Section 3802 was the cause of

Washington’s death and Fulmore’s injuries.        See id. at 19-25.       He argues

the trial testimony indicated that the cause of the accident “could very

rationally be road conditions, driver inexperience and speed[,]” and he

challenges the expert opinion of Dr. Cohn. Id. at 20-25.        For the following

reasons, we hold Appellant is not entitled to relief.

        Our standard of review is well settled:

              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

12
     We have reordered Appellant’s issues for ease of discussion.



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

Commonwealth v. Talbert, 129 A.3d 536, 542-43 (Pa. Super. 2015)

(citation omitted).   We further consider all reasonable inferences derived

from the evidence in the light most favorable to the Commonwealth.

Commonwealth v. Cruz, 71 A.3d 998, 1009 (Pa. Super.), appeal denied,

81 A.3d 75 (Pa. 2013). The fact-finder determines the relevancy and weight

to assign to expert testimony.      Id.      Moreover, sufficiency of evidence

analyses do not require a reviewing court to ask whether it believes the

evidence; rather, we determine whether the evidence presented, if believed

by the fact-finder, was sufficient to support the verdict. Commonwealth v.

Ratsamy, 934 A.2d 1233, 1235-36 (Pa. 2007).




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     The   trial   court   convicted   Appellant   of   DUI   under   Subsections

3802(a)(1) and (2), which provide:

           (a) General impairment.—

                 (1) An 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.

                 (2) An 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 alcohol concentration in the
                 individual’s blood or breath is at least 0.08% but
                 less than 0.10% within two hours after the
                 individual has driven, operated or been in actual
                 physical control of the movement of the vehicle.

75 Pa.C.S. § 3802(a)(1)-(2).

     Homicide by vehicle while DUI is codified, in relevant part, as follows:

           (a)     Offense       defined.—Any        person   who
           unintentionally causes the death of another person
           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 is guilty of a felony of the second degree when
           the violation is the cause of death . . . .

Id. § 3735(a).

     Finally, aggravated assault by vehicle while DUI provides:

           (a) Offense defined.—Any person who negligently
           causes serious bodily injury to another person as the
           result of a violation of Section 3802 . . . and who is
           convicted of violating section 3802 commits a felony



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           of the second degree when the violation is the cause
           of the injury.

Id. § 3735.1(a).

     Instantly, the Commonwealth presented the testimony of Ariel Steele

who personally observed Appellant drinking liquor mixed with soft drinks

beginning approximately one-half hour before Appellant left campus to pick

up food. N.T. Vol. I at 25-26, 34. It is undisputed that Appellant was the

driver of the vehicle and that the one-vehicle crash into a tree resulted in

Washington’s death and Fulmore’s serious bodily injury. Id. at 194-95. It is

further undisputed that when Appellant’s blood was drawn, approximately

three hours after Corporal Williams received a dispatch about the accident,

Appellant had a BAC of .089 percent. Id. at 197. Corporal Roinson opined

that “there was no reasonable explanation as to why the vehicle was steered

to the left” after it had successfully maneuvered a curve in the roadway, and

the operation of the vehicle was consistent with an intoxicated driver. Id. at

158-59. Dr. Cohn testified to a reasonable degree of medical certainty that

Appellant’s BAC was .12 percent at the time of the incident and alcohol was

a causal factor in the crash.   Id. at 207, 222.   He further opined, to “an

absolute scientific certainty,” that a person with a BAC between .089 percent

and .12 percent is “unfit to perform a safety sensitive task.”    Id. at 214.

Appellant’s attempts to discredit Dr. Cohn’s opinion challenge the weight of

that evidence not its sufficiency. See Cruz, 71 A.3d at 1008. We further

note, “Pennsylvania’s DUI law does not require relation-back evidence as a


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matter of law, nor does it specify the manner by which the Commonwealth

must prove that the accused operated a vehicle while having a BAC over

0.08%.” Id.

     Viewing   all   the   evidence   in   the   light   most   favorable   to   the

Commonwealth, we conclude there was sufficient evidence to prove

Appellant operated a vehicle after imbibing a sufficient amount of alcohol to

render him incapable of safely operating the vehicle and that his BAC was at

least .08 percent within two hours of his operation of the vehicle. See 75

Pa.C.S. § 3802(a)(1), (2); Talbert, 129 A.3d at 542. The trial court was

free to assess and weight the expert testimony of Corporal Robinson and Dr.

Cohn and conclude Appellant was impaired when operating his vehicle. See

Talbert, 129 A.3d at 543; Cruz, 71 A.3d at 1009. Moreover, viewing all the

evidence and reasonable inferences derived therefrom in the light most

favorable to the Commonwealth, we conclude there was sufficient evidence

to prove Appellant’s violation of Section 3802 was the cause of Washington’s

death and Fulmore’s serious bodily injury.         See 75 Pa.C.S. § 3735; id.

§ 3735.1; Talbert, 129 A.3d at 543; Cruz, 71 A.3d at 1009.                   While

Appellant suggests driver inexperience, speed, or road conditions “could”

have caused the accident, it was the within the purview of the trial court to

resolve any doubts as to Appellant’s guilt. See Talbert, 129 A.2d at 543.

Accordingly, we affirm.

     Judgment of sentence affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/21/2016




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