J-S42040-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
                   Appellee               :
                                          :
             v.                           :
                                          :
JEROD ALAN GREEN,                         :
                                          :
                   Appellant              :           No. 219 WDA 2014

      Appeal from the Judgment of Sentence entered on February 25, 2013
                in the Court of Common Pleas of Greene County,
                 Criminal Division, No. CP-30-CR-0000127-2012

BEFORE: PANELLA, JENKINS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                       FILED AUGUST 11, 2014



entered following his conviction of two counts of driving under the influence

                                                                      -degree

murder, fleeing or attempting to elude a police officer, homicide by vehicle

(DUI),1 homicide by vehicle2 (while committing the offense(s) of (a) fleeing

or attempting to elude police officer; (b) driving at safe speed, 75 Pa.C.S.A.

§ 3761; (c) driving on roadways laned for traffic, see id. § 3309; and/or

(d) duty of driver in emergency response areas, see id. § 3327), and




1
 See 75 Pa.C.S.A. § 3802(a)(1), (c); 18 Pa.C.S.A. § 2502(c); 75 Pa.C.S.A.
§§ 3733 and (c), 3735.
2
    75 Pa.C.S.A. § 3732.
J-S42040-14

related summary offenses.3 We affirm.

        In the early morning hours of February 18, 2012, on Easton Hill near



Toyota Corolla, but did not stop. An ambulance responded to the scene, but

Johnson declined treatment.

        While driving through Morgantown at approximately 1:00 a.m., Kyle

                                    -sized truck, with extensive damage,



a high rate of speed and appeared erratic.         Crace closed the distance



Upon arriving home, Crace telephoned this information to police.



responded to the Johnson accident scene.         Upon the arrival of a West

Virginia State Trooper, Sergeant Burks drove off in search of the truck that



dispatch describing a truck, with a possibly intoxicated driver, near Granville,

West Virginia.    A Granville police officer effectuated a stop of that truck.



advised that he also would report to the location of the stopped truck.4




3
    75 Pa.C.S.A. §§ 101 et seq.
4
                                     nt has county-wide jurisdiction.


                                  -2-
J-S42040-14

Sergeant Burks arrived at the scene of the traffic stop and observed that the

truck, operated by Green, had damage to the front end and passenger side.



he traveled to Easton Hill, where, he claimed, his truck was struck by

another vehicle. Green explained that he did not stay at the accident scene

because he had four prior DUIs. As Sergeant Burks walked away to speak



of the truck window, Green drove away. The officers at the scene pursued



intention to pull in front of the Granville police units, as his department had

primary jurisdiction. Subsequently, a Granville police officer was directed to




60 miles per hour. After avoiding rolling and stationary police road blocks,

                                                -

Green entered Mt. Morris in Greene County, Pennsylvania. Sergeant Burks

testified regarding what next transpired:

      I observed a police vehicle, it appeared to be a[n] SUV. The
      emergency light bar on top of the car was working. It had wig-
      wag headlights. It was evident it was a police vehicle, and
      based on the radio traffic[,] I knew it to be Sergeant [Michael]

      (
      rumble strips along the left-hand side of the northbound lanes
      basically turning into the median, and then coming across the

      [and Green] made a straight line --- he c[a]me diagonally from


                                  -3-
J-S42040-14

      the right-hand side of the road to the left-hand side of the road


      which cau

N.T., 12/10-13/12, at 151-54.      Sergeant May died as a result of brain

injuries sustained in the crash.



                                              at 1:40 a.m.     Because Green

appeared intoxicated, he was taken to the hospital to obtain a blood sample.

The hospital drew the blood sample at 3:03 a.m.5 Green was placed under

arrest in Greene County, Pennsylvania.

      Green filed a pre-trial suppression Motion, which the trial court denied.

After a trial, the jury found Green guilty of the above-described charges.

Thereafter, the trial court sentenced Green to an aggregate prison term of

25-50 years.      Green filed a post-sentence Motion, which the trial court

denied. Thereafter, Green filed the instant timely appeal.

      Green presents the following claims for our review:

      I.    Whether the Commonwealth produced sufficient evidence
            to prove beyond a reasonable doubt [that Green] is guilty
            of third[-]degree murder, homicide by vehi[cl]e, [and]
            homicide by vehi[cl]e, while driving under the influence,
            and duty of drivers in an emergency zone?

      II.   Whether the trial court erred in allowing evid[en]ce to be
            int[r]oduced   where    the   prejudicial  value    greatly
            outweighed the relevant value, specifically[,] the
            testimony of Franklin May, a picture of the victim with his
            father, and two autopsy photo[]s?

5




                                   -4-
J-S42040-14



        III.

               use of deadly force?

        IV.
               to Suppress based on Sergeant May being outside his
               jurisdiction and not in hot pursuit, thereby illegal[ly]
               seizing [Green]?

        V.     Whether the trial court erred in not suppressing a
               recording of  [Green]   conducted  in violation  of


        VI.
               blood alcohol results that were obtained in violation of
                        Miranda[6] rights?

        VII.   Whether the trial court erred in not suppressing search
               warrants that sought electronically stored data as
               overbroad?

        VIII. Whether the trial court erred in allowing the introduction of


        IX.    Whether the trial court erred in rendering its opinion that
               Sergeant May was in an emergency response area?

Brief for Appellant at 14 (footnote added).

        Green first challenges the sufficiency of the evidence underlying his

convictions of third-degree murder, homicide by vehicle, homicide by vehicle

(DUI) and duty to emergency vehicles. Id. at 22. As to his conviction of

third-degree murder, Green argues that the Commonwealth failed to prove

causation and that he had the requisite mens rea. Id. According to Green,

the Commonwealth failed to prove that he acted with malice, as there was


6
    Miranda v. Arizona, 384 U.S. 436 (1966).


                                      -5-
J-S42040-14

no traffic on the roadway, and when the police left him with an avenue of

escape, he took it.   Id. at 27.     Green contends that he accelerated his

vehicle to a speed of 98 miles per hour on a straight and unoccupied portion

of I-79 for only 2.5 seconds. Id.

      Green also contends that the Commonwealth failed to prove that he



of police training and procedure, as well as his violations of Pennsylvania and

West Virginia law, caused his death.      Id. at 25.   Green claims that the

evidence demonstrated that Sergeant May drove his vehicle into the path of

                   Id.    Green contends that Sergeant May should have

stopped in the median, and that his failure to do so violated 75 Pa.C.S.A.

§ 3105(e), which states that a driver of an emergency vehicle is not relieved

of his duty of safety and care to all persons. Brief for Appellant at 26. Had

Sergeant May followed proper police procedures, Green argues, the accident

would not have occurred. Id. Finally, Green claims that the Commonwealth



necessary to establish his violation of 75 Pa.C.S.A. § 3327(a)(1). Brief for

Appellant at 22, 27-28.

      In reviewing a challenge to the sufficiency of the evidence, we



the prosecution the benefit of all reasonable inferences to be drawn from the




                                    -6-
J-S42040-14

              Commonwealth v. Bibbs, 970 A.2d 440, 445 (Pa. Super.

2009) (citation omitted).

      Evidence will be deemed sufficient to support the verdict when it
      established each element of the crime charged and the
      commission thereof by the accused, beyond a reasonable doubt.
      Nevertheless, the Commonwealth need not establish guilt to a
      mathematical certainty, and may sustain its burden by means of
      wholly circumstantial evidence.     Significantly, [we] may not
      substitute [our] judgment for that of the factfinder; if the record
      contains support for the convictions they may not be disturbed.

Id.



weak and inconclusive that, as a matter of law, no probability of fact can be

                                             Commonwealth v. Scott, 967

A.2d 995, 998 (Pa. Super. 2009).

      Regarding third-degree murder, the Crime Code provides as follows:



§ 2502(c). Our Pennsylvania Supreme Court has explained that,

      [t]o convict a defendant of the offense of third-degree murder,
      the Commonwealth need only prove that the defendant killed
      another person with malice aforethought. This Court has long
      held that malice comprehends not only a particular ill-will, but
      [also a] wickedness of disposition, hardness of heart,
      recklessness of consequences, and a mind regardless of
      social duty, although a particular person may not be intended to
      be injured.

Commonwealth v. Fisher, 80 A.3d 1186, 1191 (Pa. 2013) (emphasis

added, citation omitted).


                                    Commonwealth v. Gardner, 490


                                  -7-
J-S42040-14

     Pa. 421, 416 A.2d 1007, 1008 (Pa. 1
     to exist not only in an intentional killing, but also in an

     disregarded an unjustified and extremely high risk that his

     Commonwealth v. Young, 494 Pa. 224, 431 A.2d 230, 232
     (Pa. 1981) (quoting Commonwealth v. Hare, 486 Pa. 123, 404
     A.2d 388, 391 (Pa. 1979)).

Commonwealth v. Ludwig, 874 A.2d 623, 632 (Pa. 2005) (emphasis

omitted).

     In Commonwealth v. Spotti, 2014 PA LEXIS 114, this Court

explained the two-part test for determining criminal causation:



     death cannot be entirely attributable to other factors; rather,
     there must exist a causal connection between the conduct and
     the result of conduct; and causal connection requires something
     more than mere coincidence as to time and place. Second, the
                                                       extraordinarily
     remote or attenuated that it would be unfair to hold the
     defendant criminally responsible.

Id. at *48 (citations and quotation marks omitted).

     At trial, the Commonwealth presented the testimony of Sergeant



                                                          -had side of
     the road into oncoming into the oncoming lane, on to the berm
     of the left-hand side of the road, and back and forth. It was he
     was very erratic.

N.T., 12/10-13/12, at 145. Sergeant Burks further testified that,

     [a]t one point[,] it got to the point where I determined that it
     was no longer safe for me or the units behind me, so I pulled to
     the right as close to the right side of the road as possible, and
     [] Green passed me again on the left side. As he passed me,


                                 -8-
J-S42040-14

      the rear of his vehicle got to the front of my cruiser, he
      slammed on his breaks and cut his wheel hard to the
      right, which caused me to have to slam on my brakes and
      go off the road to keep from being struck

Id.

                                                                   Id. at 146.

      As he pursued Green on Route 19, Sergeant Burks testified, Green

approached a bridge that, because of construction, was reduced to one lane.

Id. at 150. Sergeant Burks stated that,

      [p]rior to getting to [the bridge,] []Green slammed on his   brakes
      again, as he was moving over to go through the single        lane[,]
      slammed on his brakes and cut his wheel hard again[,]        almost
      striking my vehicle to a point where I had to go off the     road a


Id.

      After entering Pennsylvania, Green proceeded to the entrance ramp of

the southbound lanes of I-79. Id. at 151. Sergeant Burks observed that

Sergeant May had parked his vehicle, with emergency lights activated, in the

median.    Id.



Id.

short of being in any lane of traffic. Id.



testified that he observed Green enter southbound I-79.      Id. at 193.     As

Green turned onto I-




                                   -9-
J-S42040-14

                                                       Id. Lieutenant Varndell

described what next transpired as follows:


      off in the distance a set of emergency lights coming northbound
      on I-                           sic] the emergency vehicle going
      into the median. Then start to turn to a 90-degree angle in the
      median. Then I observed the [truck] went from the entrance
      ramp to the slow lane and then with another maneuver went to
      the fast lane.

Id. at 194. Similarly, Sergeant Burks testified that when Green entered the

southbound lanes of I-79, he drove diagonally from the right-hand side of

the road to the left-hand side of the road, across both travel lanes. Id. at



vehicle.    Id. at 152-53.   Green did not atte

vehicle. Id. at 154.



circumstances where a defendant did not have an intent to kill, but

nevertheless displayed a conscious          disregard for   an unjustified and

extremely high risk that his actions might cause death or serious bodily

           Commonwealth v. Santos, 876 A.2d 360, 364 (Pa. 2005) (internal

quotation marks and citation omitted). Upon our review, the above-stated

evidence is sufficient to demonstrate that Green consciously disregarded an

unjustified and extremely high risk that his actions might cause death or

serious bodily injury.   See id.   As such, we conclude that the evidence is

                                                 -degree murder.



                                   - 10 -
J-S42040-14

      We fu




demonstrated a causal connection between Gre

police officers, while intoxicated, at high speeds and in violation of multiple



                                                                             e




Although Green argues that Sergeant May drove his vehicle into the path of



police procedures, the jury, by its verdict, did not credit the defense theory

and evidence. We cannot substitute our judgment for that of the jury, as

the trier of fact.   Commonwealth v. Manley, 985 A.2d 256, 262 (Pa.

Super. 2009); see also Commonwealth v. Toland, 995 A.2d 1242, 1245

(Pa. Super. 2010) (stating that the trier 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).



homicide by vehicle. The Motor Vehicle Code defines homicide by vehicle as

follows:



                                  - 11 -
J-S42040-14

      Any person who recklessly or with gross negligence causes the
      death of another person while engaged in the violation of any
      law of this Commonwealth or municipal ordinance applying to
      the operation or use of a vehicle or to the regulation of traffic
      except section 3802 (relating to driving under influence of
      alcohol or controlled substance) is guilty of homicide by vehicle,
      a felony of the third degree, when the violation is the cause of
      death.



above, while committing multiple violations of the Motor Vehicle Code, 7 is

sufficient to sustain his conviction.



homicide by vehicle while violating section 3327(a) of the Motor Vehicle

Code. Section 3327(a) provides that,

      [w]hen approaching or passing an emergency response area, a
      person, unless otherwise directed by an emergency service
      responder, shall:

      (1) pass in a lane not adjacent to that of the emergency
      response area, if possible; or

      (2) if passing in a nonadjacent lane is impossible, illegal or
      unsafe, pass the emergency response area at a careful and
      prudent reduced speed reasonable for safely passing the
      emergency response area.



statute as

      the area in which emergency service responders render
      emergency assistance to individuals on or near a roadway or a

7
  See, e.g., 75 Pa.C.S.A. §§ 3733 (fleeing or attempting to elude police
officer), 3761 (driving at safe speed), 3309 (driving on roadways laned for
traffic).



                                   - 12 -
J-S42040-14

     police officer is conducting a traffic stop or systematic check of
     vehicles or controlling or directing traffic as long as the
     emergency vehicle is making use of visual signals meeting the
     requirements of Subchapter D of Chapter 45.

Id. § 3327(f) (footnote omitted).8 The statute provides that

     [a]n emergency response area shall be clearly marked with road
     flares, caution signs or any other traffic-control device which law
     enforcement officials may have at their immediate disposal or
     visual signals on vehicles meeting the requirements of
     subchapter D of Chapter 45 (relating to equipment of authorized
     emergency vehicles).

Id. § 3327(c) (emphasis added).

      Sergeant Burks testified at trial that as Green approached the entrance

ramps to I-79,

     [Green] turned right and [] onto the I-79 southbound entrance
     ramp, and as soon as he turned right[,] he sped up. That was
     evident, you could hear the roar of his engine, visually see him
     speeding up, at which time I did the same. As we went up the
     entrance ramp, I would estimate I was two to three car lengths
     behind him.




     As you progress up the entrance ramp closer to the top, then

     northbound lanes coming from West Virginia in to Pennsylvania.



     I observed a police vehicle, it appeared to be a[n] SUV. The
     emergency light bar on the top of the car was working. It had


8
  Chapter 45 outlines the appropriate visual signals for police as one or more
flashing or revolving red lights or a combination of red and blue lights. 75
Pa.C.S.A. § 4571(a)-(b). Green did not contest that the lights on Sergeant



                                 - 13 -
J-S42040-14

      wig-wag headlights. It was evident it was a police vehicle, and
      based on the radio traffic I knew it to be Sergeant May.

N.T., 12/10-13/12, at 151-52. Sergeant Burks testified that that Sergeant

                                                                             -

headlights, all of which were activated. Id. at 152-53. Even though there

were no vehicles in the right lane, upon entering I-

crossed from the slow lane to the fast lane, and then drove straight into

                           Id. at 153.

      Lieutenant   Varndell   testified    regarding   the    events   immediately

preceding the collision:

      As I was cresting the entrance ramp, it has a slight incline, and
      as I was cresting the peak of the incline[,] I could see off in the
      distance a set of emergency lights coming northbound on I-79.
      At the time that the
      department vehicle from Mon[ongalia] County. At that time[,] I
      seen [sic] the emergency vehicle going into the median. Then
      start to turn to a 90-degree angle in the median. Then I
      observed the [truck] went from the entrance ramp to the slow
      lane and then with another maneuver went to the fast lane.

Id. at 194. On cross-examination, Lieutenant Varndell stated that, when he



Id.

                                                             vehicle while violating

section 3327(a) of the Motor Vehicle Code.

      In his second claim of error, Green asserts that the trial court



of Sergeant May. Brief for Appellant at 28. Green also argues that the trial


                                  - 14 -
J-S42040-14

court erred in allowing the Commonwealth to introduce a photo of the victim

and his father, as well as autopsy photos. Id.

       Admission of evidence is a matter within the sound discretion of the

trial court, and will not be reversed absent a showing that the trial court

clearly abused its               Commonwealth v. Cooper, 941 A.2d 655,

667 (Pa. 2007).      Not merely an error in judgment, an abuse of discretion



is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-

                                              Id. (quoting Commonwealth v.

McAleer, 748 A.2d 670, 673 (Pa. 2000) (citation omitted)).

      In its February 26, 2014 Opinion, the trial court explained its ruling

regarding the testimony of Mr. May as follows:

      [The trial court] believe[s] this evidence was admissible, first of


      and in fact the cause of his own death; and second, to establish
      some background.

Trial Court Opinion, 2/26/14, at 2 (citation omitted).     The record supports




testimony to counter the suggestion that Sergeant May intentionally rammed

                                                    -13/12, at 30-31. Further,

the testimony was not inflammatory or prejudicial, nor was the family




                                  - 15 -
J-S42040-14

photograph of Sergeant May and his father. Thus, we discern no basis upon

which to grant Green relief on these arguments.

       Green also contends that the trial court improperly admitted autopsy

photographs at trial.    Brief for Appellant at 31.    Green asserts that any

                                                                     impact, in

light of testimony presented by the medical examiner. Id.

       Green does not identify where, in the record, he preserved this claim

for appellate review. Our review of the record discloses that Green did not

object to the introduction of the photographs. N.T., 12/10-13/12, at 320-21

(wherein the photographs were admitted without objection by defense

counsel). Because Green failed to preserve this claim, we cannot grant him

relief.9 See Pa.R.A.P. 302(a) (stating that a claim cannot be raised for the

first time on appeal).

       In his third claim, Green argues that the trial court erred in dismissing



through the use of his police vehicle improperly used excessive force. Brief

for Appellant at 32-33. In support, Green asserts that Sergeant May, who

was outside of his jurisdiction, was not part of the pursuit and drove his

                                                    Id. at 33. Green contends




9
    Even if Green had preserved his claim, we would conclude that it lacks

See Trial Court Opinion, 2/26/14, at 2.


                                  - 16 -
J-S42040-14

that he was not afforded the opportunity to develop a record, because the

trial court improperly dismissed his Motion without a hearing. Id.

      The appellate standard of review of suppression rulings is well-



findings which find support in the record, but we are not bound by the

                             Commonwealth v. Millner, 888 A.2d 680, 685

(Pa. 2005); see also Commonwealth v. Booze, 953 A.2d 1263, 1269 (Pa.

Super. 2008) (stating that        here the record supports findings of the

suppression court, we are bound by those facts and may reverse only if the



      In his Motion to Suppress, Green argued that the collision constituted

an illegal vehicle stop by Sergeant May.    Motion to Suppress, 6/26/12, at

¶¶ 3-7. In the brief accompanying his Motion, Green offered no supporting

argument. Although the suppression court did not conduct a hearing on

                                               ion or error of law.



implicated a question of fact, which required the weighing of the evidence as

to an ultimate issue in the case. It is the exclusive province of the jury, as

fact-finder, to determine the weight of relevant evidence. Commonwealth

v. Mitchell, 883 A.2d 1096, 1110-11 (Pa. Super. 2005). Here, the jury, as

fact-finder, was required to resolve conflicts in the evidence and determine

                                                  or whether Sergeant May



                                 - 17 -
J-S42040-14




judgment for that of the jury. See Cooper, 941 A.2d at 662 (stating that

 [w]e may not substitute our judgment for the

province to weigh the evidence, determine the credibility of witnesses, and

believe all, part, or none

claim fails.

      In his Statement of Questions Involved, Green lists a fourth claim,

which asserts that Sergeant May was outside of his jurisdiction and not in

hot pursuit at the time, when he illegally seized Green. Brief for Appellant at

14.   However, this issue is not addressed in the Argument section of his

brief. Accordingly, Green has abandoned this claim. See Commonwealth

v. Love, 896 A.2d 1276, 1287 (Pa. Super. 2006) (stating that an appellate

court is required to deem abandoned those issues which have been identified

on appeal but are unsupported by argument in the brief).

      In his fifth claim, Green argues that the trial court improperly applied

West Virginia law in determining whether to suppress an audio recording

made by Deputy Wilfong. Brief for Appellant at 30-31. Green asserts that



of both parties to a recording, see 18 Pa.C.S.A. § 5704(2)(ii), while West

                                                         see W. Va. Code § 62-

1d-3(e).       Brief for Appellant at 34.    Green claims that Pennsylvania law



                                    - 18 -
J-S42040-14

should apply because Pennsylvania has the most interest in the outcome of

the proceeding.    Id.

purpose in introducing the recording was to prove motive and intent as to

the Pennsylvania charges. Id. at 35.

       The Pennsylvania approach to conflict of law issues varies depending

upon    whether   the    laws   are   procedural   or   substantive    in    nature.

Commonwealth v. Houseman, 986 A.2d 822, 841 (Pa. 2009).

       [W]here a conflict of law arises regarding procedural matters,
       Pennsylvania will apply its procedural laws when it is the forum
       state. However, where a conflict exists regarding substantive
       laws, such as here, Pennsylvania courts take a flexible approach
       which permits analysis of the policies and interests underlying
       the particular issue before the court. This approach gives the
       state having the most interest in the question paramount control
       over the legal issues arising from a particular factual context,
       thereby allowing the forum to apply the policy of the jurisdiction
       most intimately concerned with the outcome.

Id. at 841-42 (citations and internal quotation marks omitted).



Motion to Suppress the recorded evidence and concluded that it lacks merit.

Memorandum, 6/5/12, at 1-

                                                                      See id. We

additionally note the following.



Monongalia County, West Virginia, obtained the recording after West Virginia

                                                                            -and-run

accident in West Virginia. N.T., 12/10-13/12, at 176-78. The evidence of


                                   - 19 -
J-S42040-14




Virginia has the most interest in the recording of a vehicle stop on its

highways, by its public officials, in the course of investigating an accident

that occurred in West Virginia.       Accordingly, we discern no abuse of



the audio recording.




secured by handcuffs and placed in a police car, and not having been

apprised of his Miranda warnings, Trooper Popielarcheck asked whether

Green had been drinking and/or felt drunk.      Id. at 36.   Green states that

                                                                          , and



sample for analysis.    Id. at 37.    According to Green, because the blood

alcohol test results were the fruit of the poisonous tree, the trial court erred

in not suppressing the results. Id.

      In its Memorandum filed on September 4, 2012, the trial court



Memorandum, 9/4/12, at 5-7.       We agree with the sound reasoning of the




                                 - 20 -
J-S42040-14

trial court, as set forth in its Memorandum, and affirm on this basis with

regard to this claim. See id.

      In his seventh claim, Green asserts that three search warrants

obtained by police were overbroad and failed to offer any link between the

crime charged and the evidence sought to be obtained. Brief for Appellant

at 37-38. Green argues that although an affidavit prepared by Pennsylvania

State Police Corporal John Weaver stated that a traffic crash had occurred

and that a vehicle operated by Green was actively fleeing from police, the

affidavit failed to establish probable cause that a criminal homicide had

occurred. Id.

seeking electronic data devices and other evidence relevant to the collision

investigation. Id. at 39. According to Green, the second warrant is nearly

identical, and the third warrant did not indicate the relationship between the

crimes and the items to be searched. Id. at 40.

      Article I, Section 8 of the Pennsylvania Constitution provides, in

pertinent

or things shall issue without describing them as nearly as may be, nor



      It is a fundamental rule of law that a warrant must name or
      describe with particularity the property to be seized and the

      prohibits a warrant that is not particular enough and a warrant
      that is overbroad. These are two separate, though related,
      issues. A warrant unconstitutional for its lack of particularity
      authorizes a search in terms so ambiguous as to allow the



                                 - 21 -
J-S42040-14

     possessions to find which items to seize. This will result in the

     warrant unconstitutional for its overbreadth authorizes in clear or
     specific terms the seizure of an entire set of items, or
     documents, many of which will prove unrelated to the crime

     because it authorizes a general search and seizure.

     The language of the Pennsylvania Constitution requires that a
     warrant describe the items to be seized

     describe the items as specifically as is reasonably possible. This
     requirement is more stringent than that of the Fourth
     Amendment, which merely requires particularity in the
     description. The Pennsylvania Constitution further requires the

     Consequently, in any assessment of the validity of the
     description contained in a warrant, a court must initially
     determine for what items probable cause existed.        The
     sufficiency of the description must then be measured against
     those items for which there was probable

Commonwealth v. Orie, 88 A.3d 983, 1003 (Pa. Super. 2014) (quoting

Commonwealth v. Rivera, 816 A.2d 282, 290-91 (Pa. Super. 2003)).

      In its September 4, 2012 Memorandum, the trial court addressed this

claim and concluded that it lacks merit. Trial Court Memorandum, 9/4/12,

at 7-8.   We agree with the reasoning of the trial court, and affirm on the

basis of its Memorandum with regard to this claim. See id.

     In his eighth claim, Green argues that the trial court erred in allowing

the Commonwealth to introduce his prior DUI convictions.            Brief for

Appellant at 40.     Green contends that the prejudicial impact of such

evidence outweighed any relevant value.      Id.   According to Green, the

Commonwealth sought to introduce his DUI convictions as his motive for



                                - 22 -
J-S42040-14

fleeing the scene of the first accident. Id. at 41. Green asserts that such



introducing the prior convictions is to present Green as a habitual drunk.

Id.

       Admission of evidence is a matter within the sound discretion of the

trial court, and will not be reversed absent a showing that the trial court

clearly abused its            Cooper, 941 A.2d at 667.

      Generally, evidence of prior bad acts or unrelated criminal activity is

inadmissible to show that a defendant acted in conformity with those past



of prior bad acts may be admissible when offered to prove some other

relevant fact, such as motive, opportunity, intent, preparation, plan,

                                                           Commonwealth

v. Sherwood

determining whether evidence of other prior bad acts is admissible, the trial

court is obliged to balance the probative value of such evidence against its

                      Sherwood

other crimes may be admitted where such evidence is part of the history of

the case and forms part of t

Commonwealth v. Watkins, 843 A.2d 1203, 1215 (Pa. 2003).




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police officers in West Virginia. See N.T., 12/10-13/12, at 180 (admission of

Exhibit 45); Exhibit 45 at page 6 (where, in a recording of the vehicle stop,

Green explains that he failed to stop after an accident because he had four

prior DUI convictions), 9 (wherein Deputy Wilfong asks Green to step out of

his vehicle for a field sobriety test, and Green flees from the scene). The



Finally, the relevance of this evidence is not outweighed by its prejudicial

impact. Under these circumstances, we discern no error by the trial court in

admitting this evidence at trial.

      Finally, Green argues that the trial court erred in rendering an opinion,

in its jury instructions, that Sergeant May was in an emergency response

area. Brief for Appellant at 42. However, our review of the record discloses

that Green offered no objection to the jury charge. Accordingly, this claim is

waived. See Pa.R.A.P. 302(a) (stating that a claim cannot be raised for the

first time on appeal).

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/11/2014




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