J-S31032-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                 Appellee                 :
                                          :
                 v.                       :
                                          :
MEGAN NICOLE SCHMITZ,                     :
                                          :
                 Appellant                :     No. 456 MDA 2015

        Appeal from the Judgment of Sentence September 16, 2014,
             in the Court of Common Pleas of Centre County,
           Criminal Division, at No(s): CP-14-CR-0001459-2013

BEFORE:    SHOGAN, OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                      FILED JUNE 21, 2016

     Megan Nicole Schmitz (Appellant) appeals from the judgment of

sentence entered following a non-jury trial after which she was convicted of

driving under the influence (DUI) – general impairment, DUI – high rate of

alcohol, and the summary offense of leaving the scene of an accident

involving damage to an unattended vehicle.1 We affirm.



1
   In its brief, the Commonwealth purports to “move[] to dismiss
[Appellant’s] brief in its entirety as the brief and reproduced record in this
case w[ere] filed untimely.” Commonwealth’s Brief at 6. See Pa.R.A.P. 2188
(providing that an appellee may move for dismissal of the matter if an
appellant fails to file timely his designation of reproduced record, brief, or
any required reproduced record).         To the extent the Commonwealth’s
request is proper, we deny it. See Commonwealth v. Sohnleitner, 884
A.2d 307, 313 n.3 (Pa. Super. 2005) (noting that “dismissal under Rule
2188 is discretionary”); Commonwealth v. Miller, 787 A.2d 1036, 1038
n.5 (Pa. Super. 2001) (“In a footnote, the Commonwealth suggests that
because Appellant’s brief was untimely filed, his appeal should be dismissed.
Although the Commonwealth could have moved for dismissal pursuant to

*Retired Senior Judge assigned to the Superior Court.
J-S31032-16


      The trial court provided the underlying background of this matter as

follows.

            At the non-jury trial, Lieutenant Barrett Smith testified he
      was on uniformed foot patrol detail on June 19, 2013, with
      Officer Michael Williams in connection with previous incidents of
      an unknown male randomly grabbing young females in the area.
      At about 1:20 A.M., he was in the rear parking lot of the police
      station when he observed two females, one blonde and one
      brunette, walking to a vehicle near the Days Inn. He observed
      the lights flash on that vehicle when they used the remote
      keyless entry.     Lieutenant Smith knew at least one of the
      females got into the car. He heard the car start and as it backed
      up he heard a crash and knew that it obviously struck a parked
      vehicle. He saw the vehicle then rapidly “take off” and travel
      eastbound on Foster Avenue. When he heard the crash, he
      looked up and [Appellant’s] car was “up against” a parked truck.
      He observed the car was a silver Mazda and he got into his
      police car to follow the vehicle.

             Lieutenant Smith drove on Pugh Street and then Beaver
      Avenue, eastbound toward Garner Street. Lieutenant Smith
      made a right from Beaver Avenue into the parking lot of Grace
      Lutheran Church to get to Foster Avenue. He drove west on
      Foster Avenue toward Garner Street where the vehicle was
      observed by a public works crew. As he approached Garner
      Street, the silver Mazda “took a pretty quick right hand turn
      from Garner Street onto Foster Avenue.” As the vehicle turned,
      it “came over completely into [his] lane obstructing [his] forward
      travel” and he had to hit the brakes on the police cruiser. When
      the vehicle passed directly in front of him, he observed the
      driver to be the blonde female he had seen earlier; he activated
      his emergency lights and camera at that time. This occurred at
      1:27 A.M. on June 19, 2013. [He agreed the video time stamp
      from his police cruiser reflected at time [sic] of 1:26 in the
      morning.] The vehicle then turned into the Grace Lutheran
      church parking lot. Ultimately, the vehicle was located in the
      Grace Lutheran church parking lot. The vehicle had a parking
      permit inside for 420 East Foster Avenue which is a house
      directly across the street from where the car was parked.

Pa.R.A.P. 2188, it did not do so.    Per our discretion we will address the
merits of the appeal.”).

                                    -2-
J-S31032-16



            Lieutenant Smith and Officer Williams went to the front
     door at 420 East Foster Avenue and knocked.              Matthew
     Agostinelli [(Agostinelli)], a resident at the home, answered the
     door but did not provide any useful information. Lieutenant
     Smith went to the police station, which was about two and one
     half blocks away, and used JNET to look up the photograph for
     the registered owner of the vehicle. He was able to identify the
     person on the JNET photo, [Appellant], as the same person he
     had observed minutes prior driving the vehicle. He then went
     back to the home, spoke to … Agostinelli again, and [Appellant]
     came out the front door and spoke with him. [Appellant] had an
     odor of alcohol when he spoke to her and he asked her if she
     had been drinking alcoholic beverages. [Appellant] responded
     that she had two vodka drinks at the bar but had nothing else
     after that at the house.

            Officer Michael Williams also testified at the non-jury trial.
     He was assigned to patrol on the early morning of the incident.
     He and Lieutenant Smith were on foot patrol because there had
     been recent incidents of a male grabbing women in public. He
     was with Lieutenant Smith when he observed two females
     walking up the alley from the Mad Mex area towards Foster
     Avenue and proceed to the back parking lot. He observed a
     taller blonde female and a brunette female who was a bit
     shorter. Officer Williams testified that Mad Mex is the restaurant
     and bar that is attached to the Days Inn. He observed the
     blonde female get into the driver’s side of the vehicle and back
     up. He saw the vehicle jolt a bit forward as he heard a crash.
     No one exited the vehicle. He then observed the vehicle pull out
     of the lot and make a quick turn toward the alley and head east.
     He was approximately fifteen to twenty yards away when he
     made these observations.

            Officer Williams chased on foot and got close enough as
     the vehicle was driving away to see that the blonde female was
     still driving. After they located [Appellant] at the Foster Avenue
     home, he spoke with her along with Lieutenant Smith and
     noticed a strong odor of alcohol. He also observed her to sway
     when standing. Field sobriety testing was administered and
     [Appellant] made three clues on the walk and turn test which
     was unsatisfactory and made two clues on the one leg stand
     which was a failure.



                                     -3-
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              Officer Williams had an opportunity to examine the truck
        for damage immediately following the impact and he observed
        damage to the front license plate holder and front bumper. The
        license plate holder was bent to a forty[-]five degree angle. He
        also observed debris on the ground which he described as white
        pieces of clips.

             The parties stipulated that [Appellant’s] blood was drawn
        at Mount Nittany Medical Center at 3:20 A.M., on June [19],
        2013 by Christina Tice.[ Appellant’s BAC was determined to be
        .141% at the time of the blood draw.]

Trial Court Opinion, 6/16/2015, at 2-4 (citations omitted).2

        Following   the   non-jury   trial,   Appellant     was   convicted    of   the

aforementioned crimes.      She was sentenced on September 16, 2014, to a

six-month term of intermediate punishment for her conviction for DUI – high

rate of alcohol.3    The trial court further directed that Appellant’s term of

intermediate     punishment    include   a    period   of   restrictive   intermediate

punishment of 15 days in an in-home detention program effective October

13, 2014, upon completion of which Appellant was to serve the remainder of

her sentence on standard probation under the supervision of the Centre

County Probation and Parole Department.           Appellant filed a post-sentence

motion, which was denied. This appeal followed.


2
  Agostinelli and Amber Pistella (Pistella) testified at the non-jury trial on
behalf of Appellant.     Agostinelli’s testimony mainly related to damage
Appellant’s car had prior to the incident in question and his interactions with
police on that date, as he lived at 420 East Foster Avenue. N.T., 5/30/2014,
at 91-101. Pistella testified as a character witness on behalf of Appellant.
Id. at 102-06.
3
    Appellant received no further penalty for the remaining convictions.


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     On     appeal,   Appellant     presents   the   following   issues   for   our

consideration:

     I.     Did the [trial court] err in denying the defense motion for a
            dismissal pursuant to the corpus delicti rule?

     II.    Did the [trial court] err in finding [Appellant] guilty of DUI[
            – general impairment], when there was insufficient
            evidence as to her condition at the time of any driving?

     III.   Did the [trial   court] err in finding [Appellant] guilty of DUI[
            – high rate        of alcohol], when there was insufficient
            evidence as       to the timeframe of any driving and the
            timeframe of     any alcohol consumption?

     IV.    Did the [trial court] err in finding [Appellant] guilty of
            [leaving the scene of an accident involving damage to an
            unattended vehicle], when there was insufficient evidence
            that [Appellant] was the driver of the vehicle in question
            when officers heard a mild impact with another vehicle?

     V.     Did the [trial court] err in finding [Appellant] guilty of
            [leaving the scene of an accident involving damage to an
            unattended vehicle], when there was insufficient evidence
            that the vehicle impacted had sustained damage?

Appellant’s Brief at 4-5 (citations and suggested answers omitted).

     Appellant first argues that the Commonwealth would not be able to

establish the elements of her DUI convictions without inculpatory statements

made by her4 and that the trial court erred in denying her motion for a

dismissal pursuant to the corpus delicti rule on the basis that the closely

related crime exception applied.


4
  Appellant states that she “made inculpatory statements to members of the
State College Police Department, including that she recalled taking a wide
turn from Foster Street onto Garner Street, and that she had been drinking
alcohol.” Appellant’s Brief at 8.

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J-S31032-16


     Our standard of review for a challenge to the corpus delicti rule
     is well-settled.

       The corpus delicti rule is designed to guard against the
       “hasty and unguarded character which is often attached to
       confessions and admissions and the consequent danger of
       a conviction where no crime has in fact been committed.”
       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. Establishing the corpus delicti in
       Pennsylvania is a two-step process. The first step concerns
       the trial judge’s admission of the accused’s statements and
       the second step concerns the fact finder’s consideration of
       those statements. In order for the statement to be
       admitted, the Commonwealth must prove the corpus
       delicti by a preponderance of the evidence. In order for the
       statement to be considered by the fact finder, the
       Commonwealth must establish the corpus delicti beyond a
       reasonable doubt.

          Additionally,

       The corpus delicti rule is an evidentiary one. On a
       challenge to a trial court’s evidentiary ruling, our standard
       of review is one of deference.

       The admissibility of evidence is solely within the discretion
       of the trial court and will be reversed only if the trial court
       has abused its discretion. An abuse of discretion is not
       merely an error of judgment, but is rather the overriding
       or misapplication of the law, or the exercise of judgment

                                    -6-
J-S31032-16


        that is manifestly unreasonable, or the result of bias,
        prejudice, ill-will or partiality, as shown by the evidence of
        record.

Commonwealth v. Hernandez, 39 A.3d 406, 410-11 (Pa. Super. 2012)

(citation omitted) (emphasis omitted).

            In addition, an exception to the rule of corpus delicti
     exists, which is commonly referred to as the “closely related
     crimes exception.”       Pursuant to this exception, inculpatory
     statements may be admissible as to all crimes charged even
     though the Commonwealth’s independent evidence is able to
     establish the corpus delicti of only one. For the exception to
     apply, the relationship between the crimes charged must be
     sufficiently close so as to ensure that the purpose underlying the
     corpus delicti rule is not violated.

        The purpose behind the corpus delicti rule is the ultimate
        consideration in determining whether two crimes are
        closely related so as to implicate the exception. Where the
        relationship between the crimes to which the defendant
        has confessed is close and the policy underlying the corpus
        delicti rule—to avoid convictions for crimes that did not
        occur—is not violated, the exception renders the
        confession admissible for all closely related crimes.

            Thus, where the Commonwealth establishes the corpus
     delicti of one crime, an appellant’s inculpatory statements may
     be admissible as evidence for all crimes which are closely
     related. Whether the crimes are sufficiently close to justify
     invoking the exception must be determined on a case by case
     basis.

Commonwealth v. Herb, 852 A.2d 356, 363-64 (Pa. Super. 2004)

(citations and emphasis omitted).

     The trial court concluded that the above exception applied on the basis

that “the Commonwealth clearly was able to establish the body of [the crime

of leaving the scene of an accident involving damage to an unattended



                                    -7-
J-S31032-16


vehicle] absent any admission of [Appellant] as set forth in the above

summarized testimony of Lieutenant Smith and Officer Williams.” Trial Court

Opinion, 6/16/2015, at 5.      Appellant presents two challenges to the trial

court’s conclusion, arguing that the offense of leaving the scene of an

accident involving damage to an unattended vehicle is (1) not a “crime” and

(2) not closely related to the DUI charges in the instant matter. Appellant’s

Brief at 9-10.    Upon review, we conclude that Appellant’s arguments are

meritless.

        With respect to Appellant’s first challenge, our Supreme Court has held

that “[t]he fact that one of the crimes at issue is of a different grade in

contrast to the other crime sought to be linked to the accused is of no

moment when looking at the general purpose for which the corpus delicti

rule was created.    Thus, we see no logical reason why the closely related

crime    exception   would   not   apply   to   offenses   of   different   grades.”

Commonwealth v. Verticelli, 706 A.2d 820, 825-26 (Pa. 1998), abrogated

on other grounds by Commonwealth v. Taylor, 831 A.2d 587, 595-96 (Pa.

2003).5 In so doing, the Court specifically rejected Verticelli’s argument that

the exception was inapplicable because leaving the scene of an accident

involving damage to an unattended vehicle or property is a summary offense

5
  In Verticelli, the Court held that “the exception applies in situations where
the crimes charged share a common element and are temporally related.”
Verticelli, 706 A.2d at 824. In Taylor, our Supreme Court held that “[t]he
closely related crimes exception does not require that the crimes share a
common element” and adopted the standard as described in Herb above.
Taylor, 831 A.3d at 594-96.

                                      -8-
J-S31032-16


and thus not closely related to the misdemeanor offense of DUI. Id. at 825.

Moreover, in Herb, this Court concluded that “the summary offenses of

double-parking … and driving on a DUI-related license suspension … are

sufficiently close under the facts as they exist in this case to implicate the

‘closely related crimes exception’ to the corpus delicti rule,” further

evidencing the exception’s applicability to summary offenses.        Herb, 852

A.2d at 364-65.

      Appellant acknowledges Verticelli’s holding, but argues that “missing

from the discussion is a determination of whether [leaving the scene of an

accident involving damage to an unattended vehicle] is a crime at all.”

Appellant’s Brief at 9. Appellant argues that it is not a crime, as it is found

in the Motor Vehicle Code and not the Crimes Code, is properly classified as

a summary traffic offense, and would have been listed on the traffic docket

had it been the sole offense charged.      Id.   Appellant cites no authority in

support of her position.   See Commonwealth v. Wrecks, 931 A.2d 717,

722 (Pa. Super. 2007) (“An appellant … has the burden to convince us that

there were errors and that relief is due because of those errors.”). In light

of the foregoing precedent and Appellant’s unsupported argument, no relief

is due.

      As for Appellant’s second challenge, Appellant contends that leaving

the scene of an accident involving an unattended vehicle was not closely

related to the DUI offenses because the offenses “are not only separated by



                                     -9-
J-S31032-16


time and identification of suspect, but they fail to contribute to a fluid series

of events.” Appellant’s Brief at 10. Appellant further contends that “[t]here

is no independent evidence that [she] was under the influence of alcohol

when her vehicle impacted the pickup truck” and that “the only evidence

connecting [her] to the accident scene is Officer … Williams’s testimony that

he observed a blonde female enter the driver side of a vehicle similar to the

one owned by Appellant.” Id. at 9-10.

      To the extent Appellant’s argument is based on the lack of evidence

identifying her as the suspect or placing her at the scene of the accident, we

observe that “[t]he identity of the person responsible for the criminal act is

not part of the corpus delicti.” Commonwealth v. Zugay, 745 A.2d 639,

652 (Pa. Super. 2000).       As for Appellant’s argument that there is no

independent evidence that she was under the influence of alcohol when her

vehicle impacted the truck and that the offenses are separated by time and

fail to contribute to a fluid series of events, we reject it for the following

reasons.

      The testimony elicited from Lieutenant Smith and Officer Williams

establishes that at approximately 1:20 A.M., the officers saw a blonde

female walking from the area of the Mad Mex restaurant and bar and get

into the driver’s seat of a Mazda. N.T., 5/30/2014, at 8-11, 54-55, 62-63,

75-77. As she pulled out of her parking space, she hit another vehicle and

then proceeded to drive away without exiting the Mazda. Id. at 9-11, 33-



                                     - 10 -
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34, 63-65. Officer Williams observed damage to the vehicle the Mazda had

hit. Id. at 66-68. This evidence establishes the corpus delicti of the offense

of leaving the scene of an accident.

      Additionally, Lieutenant Smith testified that, while in pursuit of the

Mazda shortly after the incident, he encountered the Mazda when it turned

onto Foster Avenue.    Id. at 12-17.       In so doing, the Mazda “came over

completely into [his] lane obstructing [his] forward travel” and he had to hit

the brakes on the police cruiser so the vehicle did not hit him. Id. at 14. At

that point, he “had a clear unobstructed view of the driver” and “saw that it

was the blond[e] female who was driving the car.” Id. at 15. Lieutenant

Smith eventually located the Mazda parked in the Grace Lutheran Church

parking lot and, upon investigation, he identified the owner of the parked

Mazda as the woman he had seen driving it, Appellant.       Id. at 15, 21-22,

26-27, 56. Lieutenant Smith and Officer Williams then located Appellant at a

house across the street from where the Mazda was parked, where they both

detected an odor of alcohol on Appellant and Officer Williams noted her

swaying as she stood. Id. at 22, 29-31, 46, 71, 79, 87. Officer Williams

performed field sobriety tests on Appellant, which she failed and/or

performed unsatisfatorily.   Id. at 72-73, 81, 87.    At 3:20 A.M., Appellant

had her blood drawn at Mount Nittany Medical Center and her BAC was

determined to be .141%. Id. at 88-89.




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      Upon review, we conclude that the DUI offenses share a sufficiently

close relationship with the offense of leaving the scene of an accident

involving damage to an unattended vehicle as, contrary to Appellant’s

assertion, the offenses were all part of one continuing incident. Taylor, 831

A.2d at 596 (concluding that crimes shared sufficiently close relationship

because “there was one continuing incident occurring at roughly the same

time, and the victim of each crime … was the same”).                   Appellant’s

statements    “and    [the]    independent      evidence   presented     by   the

Commonwealth are sufficient to overcome the danger of a conviction where

no crime was in fact committed.” Id. Because the crimes at issue herein

were sufficiently close so as to render the closely related crime exception

applicable, Appellant’s claims fail.

      The remainder of Appellant’s issues on appeal challenge the sufficiency

of the evidence to support her convictions.

      Our standard of review for challenges to the sufficiency of the
      evidence is well-settled:

      [W]hether[,] viewing all the evidence admitted at trial in the
      light most favorable to the [Commonwealth as 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 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



                                       - 12 -
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      burden of proving every element of the crime beyond a
      reasonable doubt by means of wholly circumstantial evidence.

Commonwealth v. Eichler, 133 A.3d 775, 787 (Pa. Super. 2016).

      Appellant’s first two sufficiency challenges relate to her convictions for

DUI – general impairment and DUI – high rate of alcohol.              Appellant

essentially argues that absent her inculpatory statements,6 which should be

excluded, there is insufficient evidence demonstrating that she drank prior to

driving her vehicle and that she was impaired at the time she was driving.

      With respect to the offense of DUI – general impairment, 75 Pa.C.S.

§ 3802(a)(1), the following is applicable.

         [S]ubsection 3802(a)(1) is an ‘at the time of driving’ offense,
      requiring that the Commonwealth prove the following elements:
      the accused was driving, operating, or in actual physical control
      of the movement of a vehicle during the time when he or she
      was rendered incapable of safely doing so due to the
      consumption of alcohol. With respect to the type, quantum, and
      quality of evidence required to prove a general impairment
      violation under Section 3802(a)(1), [we note that]:

         Section 3802(a)(1), like its predecessor [DUI statute], is a
         general provision and provides no specific restraint upon
         the Commonwealth in the manner in which it may prove
         that an accused operated a vehicle under the influence of
         alcohol to a degree which rendered him incapable of safe
         driving.... The types of evidence that the Commonwealth
         may proffer in a subsection 3802(a)(1) prosecution include

6
  Appellant proffers an improper standard. We may not grant an arrest of
judgment on a diminished record. See Commonwealth v. Gray, 867 A.2d
560, 567 (Pa. Super. 2005) (“[I]n evaluating the sufficiency of the evidence,
we do not review a diminished record. Rather, the law is clear that we are
required to consider all evidence that was actually received, without
consideration as to the admissibility of that evidence or whether the trial
court’s evidentiary rulings are correct.”) (citation and internal quotation
marks omitted).

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        but are not limited to, the following: the offender’s actions
        and behavior, including manner of driving and ability to
        pass field sobriety tests; demeanor, including toward the
        investigating officer; physical appearance, particularly
        bloodshot eyes and other physical signs of intoxication;
        odor of alcohol, and slurred speech. Blood alcohol level
        may be added to this list, although it is not necessary and
        the two hour time limit [present in other subsections in
        section 3802] for measuring blood alcohol level does not
        apply. Blood alcohol level is admissible in a subsection
        3801(a)(1) case only insofar as it is relevant to and
        probative of the accused’s ability to drive safely at the time
        he or she was driving. The weight to be assigned these
        various types of evidence presents a question for the fact-
        finder, who may rely on his or her experience, common
        sense, and/or expert testimony. Regardless of the type of
        evidence that the Commonwealth proffers to support its
        case, the focus of subsection 3802(a)(1) remains on the
        inability of the individual to drive safely due to
        consumption of alcohol—not on a particular blood alcohol
        level.

Eichler, 133 A.3d at 790 (citation omitted).

     The offense of DUI – high rate of alcohol is defined as follows:

     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 0.10% but less than
     0.16% 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(b).

     Put simply, based on the evidence as summarized above establishing

Appellant’s involvement in the accident, her dangerous driving thereafter,

the officers’ observations as to the odor of alcohol on Appellant and her

swaying, her performance on the field sobriety tests, the results from the



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blood draw, and her inculpatory statements, the evidence was sufficient to

support her DUI convictions. See Eichler, 133 A.3d at 790-91 (concluding

that the evidence was sufficient to support convictions for DUI – general

impairment and DUI – highest rate of alcohol where eyewitness observed a

truck driving erratically, swerving off the road, and striking an object; a little

more than an hour after the accident, an officer observed Eichler’s black

pickup truck in his driveway with heavy damage; Eichler staggered towards

the officer with a strong odor of alcoholic beverage and blood shot eyes,

slurring his speech and appearing highly intoxicated; Eichler stated he had

been drinking; and his blood taken less than 2½ hours after the accident

revealed a BAC of .30%). Appellant’s arguments to the contrary are without

merit.

      In her final two issues, Appellant argues that the evidence was

insufficient to support her conviction for leaving the scene of an accident

involving damage to an unattended vehicle.         Appellant specifically argues

that the evidence is insufficient to establish that she was the driver of the

vehicle at the time of the accident, that the vehicle impacted had sustained

“damage” as a result of the accident, or that she caused that damage.

Appellant’s Brief at 12-13. Appellant further argues that if the vehicle did

sustain damage, it was de minimis and “the harm was ‘too trivial to warrant

the   condemnation    of   conviction.’”   Id.   at   13   (quoting   18   Pa.C.S.

§ 312(a)(2)).



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      The offense of leaving the scene of an accident involving damage to an

unattended vehicle is defined as follows.

      The driver of any vehicle which collides with or is involved in an
      accident with any vehicle or other property which is unattended
      resulting in any damage to the other vehicle or property shall
      immediately stop the vehicle at the scene of the accident or as
      close thereto as possible and shall then and there either locate
      and notify the operator or owner of the damaged vehicle or other
      property of his name, address, information relating to financial
      responsibility and the registration number of the vehicle being
      driven or shall attach securely in a conspicuous place in or on
      the damaged vehicle or other property a written notice giving his
      name, address, information relating to financial responsibility
      and the registration number of the vehicle being driven and shall
      without unnecessary delay notify the nearest office of a duly
      authorized police department. Every stop shall be made without
      obstructing traffic more than is necessary.

75 Pa.C.S. § 3745.

      Again, the evidence summarized above establishes that a blonde

female got into the driver’s seat of the Mazda, hit a vehicle, and drove away

without exiting the vehicle. Shortly thereafter, a blonde female was spotted

driving the Mazda while being pursued by police. The police then identified

the registered owner of the Mazda as the female they had seen driving it and

further identified that female as Appellant. Further, Appellant “eventually …

did state that she was driving the vehicle.”   N.T., 5/30/2014, at 71. This

evidence was sufficient to establish Appellant’s identity as the driver of the

Mazda at the time of the accident.

      With respect to whether the evidence was sufficient to establish that

the vehicle impacted had sustained damage, Officer Williams testified that



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he examined the truck following the impact. Id. at 66. Upon doing so, he

observed damage to the front license plate holder, in that it was bent to a

forty-five degree angle, damage to the front bumper, and debris on the

ground which he described as “portions of white plastic that looked like clips

to something.” Id. at 66-68. This evidence was sufficient to establish that

the truck sustained damage.         In reaching this conclusion, we are

unconvinced by Appellant’s argument based on the de minimus nature of the

damage caused.    See Commonwealth v. Smith, 69 A.3d 259, 264 (Pa.

Super. 2013) (rejecting the appellant’s argument that the evidence was

insufficient to support conviction for leaving the scene of an accident

involving damage to an unattended vehicle where “there were no witnesses

called, no report on any paint scrapes matching the SUV, no testimony from

the vehicle owners on the damage caused or ability to cross examine them

on the prior condition of the automobiles, there was [sic] only bald

assertions from police that [there] were two damaged vehicles,” concluding

that although not substantial, the evidence “was sufficient to support the

reasonable inference that the damage was caused by [the a]ppellant”

because, inter alia, the police officer “observed two damaged parked cars”

and the owners “confirmed the damage to the vehicles”).7


7
  To the extent that Appellant relies on 18 Pa.C.S. § 312, that provision
relates to the court’s dismissal of a prosecution under certain circumstances,
including where the conduct of the defendant “did not actually cause or
threaten the harm or evil sought to be prevented by the law defining the
offense or did so only to an extent too trivial to warrant the condemnation of

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     Moreover, we likewise conclude that the evidence was sufficient to

establish that Appellant caused that damage. Lieutenant Smith testified that

he heard the Mazda start in the parking lot and as it backed up he heard a

crash; when he looked up he saw the Mazda “up against” the truck. N.T.,

5/30/2014, at 9-11, 33-34. Officer Williams also heard the crash and saw

the Mazda “jolt a little bit forward” while it happened. Id. at 63-65, 77. The

officers further testified that there was damage on the Mazda, and Officer

Williams testified that he identified white clamps on the Mazda that were

consistent with the ones he had seen on the ground. Id. at 40, 69-71. This

evidence, together with the evidence establishing Appellant’s identity as the

driver and the testimony regarding the damage observed following the

impact, is sufficient to establish that Appellant caused the damage to the

truck. Smith, 69 A.3d at 264.

     Based on the foregoing, Appellant has failed to establish that she is

entitled to relief on any of her claims. Accordingly, we affirm the judgment

of sentence.

     Judgment of sentence affirmed.




conviction.” 18 Pa.C.S. § 312(a)(2). Appellant has failed to preserve
properly any issue with respect whether the trial court was required to
dismiss the charge of leaving the scene of an accident involving damage to
an unattended vehicle pursuant to this provision.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/21/2016




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