J-S55039-15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,               :    IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                      Appellee              :
                                            :
                      v.                    :
                                            :
WILLIAM LEE BROWN,                          :
                                            :
                       Appellant            :    No. 601 WDA 2015

        Appeal from the Judgment of Sentence Entered March 26, 2015,
               in the Court of Common Pleas of Fayette County,
             Criminal Division, at No(s): CP-26-CR-0000848-2014

BEFORE:       FORD ELLIOTT, P.J.E., BENDER, P.J.E., and STRASSBURGER,* J.

MEMORANDUM BY STRASSBURGER, J.:            FILED NOVEMBER 06, 2015

        William Lee Brown (Appellant) appeals from a judgment of sentence

entered after a jury convicted him of driving under the influence of

marijuana and the trial court convicted him of failing to drive vehicle at safe

speed, careless driving, and direct criminal contempt. We affirm.

        The trial court summarized the background underlying this matter as

follows.1

               On December 29, 2014, Pennsylvania State Trooper
        Patrick Egros and Trooper Josh Mrosko responded to a report of
        a vehicle crash on New Salem Road, Fayette County. Both
        Troopers were dressed in full uniform and drove a marked police
        vehicle. Upon arriving at the scene, the Troopers observed a
        black Kia Optima car [lying] on its roof. Appellant was observed
        sitting in the back of an ambulance, and it was determined that
        he was the driver of the Kia Optima involved in the crash.


1
    We have broken up the trial court’s opinion into several paragraphs.


*Retired Senior Judge assigned to the Superior Court.
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              Appellant was taken to Uniontown Hospital and an accident
        report was created by the Troopers. Appellant was met at the
        Uniontown Hospital by the Troopers, and was given the standard
        form DL-26, or O’Connell warnings,[2] in an attempt to obtain a
        statement and retrieve a blood sample from Appellant.
        Appellant refused to submit to a blood test and upon release
        from the hospital, was transferred to the Pennsylvania State
        Police barracks for an interview and fingerprinting.

              Appellant gave a written statement to the Troopers
        following acknowledgement of his Miranda rights and by signing
        the DL-26 form. [In that statement, Appellant admitted to
        smoking marijuana before driving on December 29, 2014.]

              On January 5, 2015, Appellant was convicted by a jury of
        driving under the influence of a controlled substance, a first

2
    This Court previously has explained that

        [t]he   O'Connell   warnings    were   first  pronounced    in
        Commonwealth, Department of Transportation, Bureau of
        Traffic Safety v. O'Connell, 521 Pa. 242, 555 A.2d 873
        (1989). In a later opinion, our Supreme Court explained both
        the O'Connell warnings and the reasoning behind the warnings:

           in order to guarantee that a motorist makes a knowing and
           conscious decision on whether to submit to testing or
           refuse and accept the consequence of losing his driving
           privileges, the police must advise the motorist that in
           making this decision, he does not have the right to speak
           with counsel, or anyone else, before submitting to
           chemical testing, and further, if the motorist exercises his
           right to remain silent as a basis for refusing to submit to
           testing, it will be considered a refusal and he will suffer the
           loss of his driving privileges[. T]he duty of the officer to
           provide the O'Connell warnings as described herein is
           triggered by the officer’s request that the motorist submit
           to chemical sobriety testing, whether or not the motorist
           has first been advised of his Miranda rights[ pursuant to
           Miranda v. Arizona, 384 US 432 (1966)].

Commonwealth v. Barr, 79 A.3d 668, 670 n.4 (Pa. Super. 2013) (citation
omitted).


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        degree misdemeanor. [The trial court convicted him of failing to
        drive vehicle at safe speed and careless driving.        At his
        sentencing hearing, Appellant became uncooperative and started
        yelling obscenities. After warning Appellant several times to
        cease his behavior and informing him that the court could find
        him in contempt, the court found Appellant in contempt.]

              [For the DUI conviction,] Appellant was sentenced to
        undergo imprisonment at a State Correctional Institution for a
        period of not less than one [] year nor more than two [] years,
        with time served from March 11, 2014 to March 14, 2014. [As
        to the contempt conviction, the court sentenced Appellant to
        serve three to six months in prison consecutive to the DUI
        sentence. The court ordered no further punishment on the
        remaining convictions.]     Appellant’s operator’s license was
        suspended for a period of [18] months. Appellant filed this
        timely appeal thereafter. [Appellant and the trial court complied
        with Pa.R.A.P. 1925.]

Trial Court Opinion, 6/11/2015, at 1-2 (footnote omitted).

        In his brief to this Court, Appellant asks us to consider the questions

that follow.3

           [1.]   Did the Commonwealth fail to present sufficient
           evidence to prove beyond a reasonable doubt that
           Appellant was driving, operating, or in actual physical
           control of the vehicle at the time of the accident?

           [2.]   Did the Commonwealth fail to present sufficient
           evidence to prove beyond a reasonable doubt that
           Appellant was driving, operating, or in actual physical
           control of the vehicle with any amount of a Schedule I
           substance in Appellant’s blood?

           [3.]   Did the lower court err in admitting Appellant’s
           written confession into evidence when no independent
           evidence was presented by the Commonwealth to establish
           the commission of the alleged offense?

3
    We have reordered Appellant’s issues for ease of discussion.



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          [4.] Did the Commonwealth improperly utilize two of its
          peremptory challenges to strike the only two [] African
          Americans on the prospective jury panel in violation of the
          Equal Protection Clause and Batson v. Kentucky, 476
          U.S. 79 [] (1986)?

          [5.]   Did the sentencing court impose a manifestly
          unreasonable and excessive sentence by sentencing
          Appellant to a consecutive term of three [] to six []
          months for the offense of direct contempt?

Appellant’s Brief at 8 (unnecessary capitalization omitted).

      The jury convicted Appellant of violating 75 Pa.C.S. § 3802(d)(1)(i),

which provides as follows.

      (d) Controlled substances.--An individual may not drive,
      operate or be in actual physical control of the movement of a
      vehicle under any of the following circumstances:

          (1) There is in the individual’s blood any amount of a:

            (i) Schedule I controlled substance, as defined in the
            act of April 14, 1972 (P.L. 233, No. 64), known as The
            Controlled Substance, Drug, Device and Cosmetic
            Act[.]

75 Pa.C.S. § 3802 (footnote omitted). Marijuana is a Schedule I controlled

substance. 35 P.S. § 780-104(1)(iv).

      In support of the first two issues listed above, Appellant argues that

the Commonwealth failed to offer sufficient evidence to prove that he

violated subsection 3802(d)(1)(i).         Appellant’s Brief at 20-22.        More

specifically,   he   claims   that   the   only   evidence   presented   by    the

Commonwealth to establish that he operated a vehicle on the night in

question with a Schedule I controlled substance in his blood was his written


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confession. Appellant “contends that the trial court erred in admitting [the

confession] into evidence.” Id. at 21. Thus, it would seem that Appellant is

asking this Court to review the sufficiency of the evidence admitted at trial

on a diminished record. Our standard of review does not allow us to do so.

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

     Furthermore, [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.

Commonwealth v. Gray, 867 A.2d 560, 567 (Pa. Super. 2005) (emphasis

added) (citations and quotation marks omitted).




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      The Commonwealth presented to the jury Appellant’s statement

wherein he admitted to smoking marijuana before driving and wrecking the

Kia Optima on the night in question.      N.T., 1/5/2015, at 41-42.     The jury

clearly believed this statement, and the statement was sufficient to establish

that Appellant violated 75 Pa.C.S. § 3802(d)(1)(i). Consequently, the first

two issues warrant no relief.

      Appellant does raise an evidentiary issue regarding the admissibility of

his confession.   At trial, before the Commonwealth introduced Appellant’s

statement into evidence, Appellant objected on the basis of the corpus

delecti rule, claiming that the Commonwealth had yet to establish that a

crime had been committed.        The trial court overruled that objection.    On

appeal, Appellant argues that the court erred in this regard.         Appellant’s

Brief at 16-19.

      “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.”

Commonwealth v. Dupre, 866 A.2d 1089, 1097 (Pa. Super. 2005)

(citation omitted).

            It is beyond cavil that, in this Commonwealth, a confession
      is not evidence in the absence of proof of the corpus delicti....
      [W]hen the Commonwealth has given sufficient evidence of the
      corpus delicti to entitle the case to go to the jury, it is competent
      to show a confession made by the prisoner connecting him with
      the crime. “Corpus delicti” means, literally, “the body of a
      crime.” The corpus delicti consists of the occurrence of a loss or



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      injury resulting from some person’s criminal conduct.    The
      corpus delicti rule requires the Commonwealth to present
      evidence that:    (1) a loss has occurred; and (2) the loss
      occurred as a result of a criminal agency. Only then can the
      Commonwealth ... rely upon statements and declarations of the
      accused to prove that the accused was, in fact, the criminal
      agent responsible for the loss. The grounds on which the rule
      rests are the hasty and unguarded character [that] is often
      attached to confessions and admissions and the consequent
      danger of a conviction where no crime has in fact been
      committed.

Commonwealth v. Taylor, 831 A.2d 587, 590 (Pa. 2003) (citations and

some quotation marks omitted).      Thus, before the Commonwealth could

introduce into evidence Appellant’s confession, it was required to establish

that driving under the influence occurred.

      Trooper Egros was the only witness to testify at Appellant’s trial.

Before the Commonwealth sought to introduce Appellant’s statement, the

trooper had testified that:    the Kia Optima was flipped onto its roof;

Appellant was the only non-emergency responder on the scene; Appellant

was being treated in the back of an ambulance by emergency medical

services personnel; while it had been raining out, the roads were free of

snow and ice; Appellant was transported to the hospital for treatment;

Appellant had received his O’Connell warnings; and Appellant had refused

to submit to a blood test.     This evidence was more consistent with a

conclusion that the crash was caused by Appellant driving under the

influence than with a conclusion that the crash was simply the result of an

accident.   Commonwealth v. Friend, 717 A.2d 568, 569-70 (Pa. Super.



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1998) (“[T]he evidence must be more consistent with a crime than an

accident, although the possibility of an accident need not be eliminated. The

corpus delicti may be established by circumstantial evidence.”) (footnote and

citations omitted).   Thus, we conclude that the evidence was sufficient to

establish the corpus delecti for driving under the influence. Consequently,

we are unconvinced that the trial court abused its discretion by overruling

Appellant’s objection.

      Next, we address Appellant’s claim that the trial court erred by

overruling his Batson challenges to the Commonwealth’s use of two of its

peremptory strikes during jury selection.    Appellant’s Brief at 11-15.   In

short, Appellant contends that the trial court erred by concluding that the

Commonwealth presented sufficient race-neutral reasons for striking from

the jury pool two African Americans.

            In Batson, the U.S. Supreme Court held that the Equal
      Protection Clause forbids [a] prosecutor to challenge potential
      jurors solely on account of their race. [Our Supreme Court has]
      explained the framework for analyzing a Batson claim in [its]
      direct appeal opinion in Commonwealth v. Harris, 572 Pa.
      489, 817 A.2d 1033 (2002):

         [F]irst, the defendant must make a prima facie showing
         that the circumstances give rise to an inference that the
         prosecutor struck one or more prospective jurors on
         account of race; second, if the prima facie showing is
         made, the burden shifts to the prosecutor to articulate a
         race-neutral explanation for striking the juror(s) at issue;
         and third, the trial court must then make the ultimate
         determination of whether the defense has carried its
         burden of proving purposeful discrimination.




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                                       ***

           The second prong of the Batson test, involving the
           prosecution’s obligation to come forward with a race-
           neutral explanation of the challenges once a prima facie
           case is proven, does not demand an explanation that is
           persuasive, or even plausible. Rather, the issue at that
           stage is the facial validity of the prosecutor’s explanation.
           Unless a discriminatory intent is inherent in the
           prosecutor’s explanation, the reason offered will be
           deemed race neutral.

           If a race-neutral explanation is tendered, the trial court
           must then proceed to the third prong of the test, i.e., the
           ultimate determination of whether the opponent of the
           strike has carried his burden of proving purposeful
           discrimination. It is at this stage that the persuasiveness
           of the facially-neutral explanation proffered by the
           Commonwealth is relevant.

            [T]he trial court’s decision on the ultimate question of
      discriminatory intent represents a finding of fact of the sort
      accorded great deference on appeal and will not be overturned
      unless clearly erroneous. Such great deference is necessary
      because a reviewing court, which analyzes only the transcripts
      from voir dire, is not as well positioned as the trial court is to
      make credibility determinations. There will seldom be much
      evidence bearing on the decisive question of whether counsel’s
      race-neutral explanation for a peremptory challenge should be
      believed. [T]he best evidence often will be the demeanor of the
      attorney who exercises the challenge. As with the state of mind
      of a juror, evaluation of the prosecutor’s state of mind based on
      demeanor and credibility lies peculiarly within a trial judge’s
      province.

Commonwealth v. Cook, 952 A.2d 594, 602-03 (Pa. 2008) (citations,

quotation marks, and footnote omitted).

      The trial court addressed Appellant’s claim of error, in relevant part, as

follows.




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            During voir dire, Appellant, an African-American, raised
     Batson challenges to both of the Commonwealth’s motions to
     strike the only two [] African-American jurors on the prospective
     jury panel.

                                   ***

           This [c]ourt believes that the denial of Appellant’s Batson
     motions was proper. Appellant is in fact African-American, only
     two [] of thirty-five [] potential jurors were African-American,
     and the Commonwealth moved to strike both of those jurors,
     which this [c]ourt granted. However, the Commonwealth stated
     on the record that Juror #383, an African-American man, was
     struck based on a neutral non-racial reason, stating:

       Anticipating, of course, a Batson challenge to that, I will
       note for the record that my race-neutral reason which I
       present is his profession. He is listed as a technician and
       also he is a pastor in addition to a technician. Regardless
       of his race, I would strike the individual because pastors
       are sometimes much more forgiving and dealing in
       redemption rather than just applying facts to law as jurors.

           The Commonwealth also stated on record the non-
     discriminatory reason behind striking Juror #296, an African-
     American man:

       ...I anticipate striking him, unless counsel strikes him,
       which I doubt is likely, because my second race-neutral
       reason for [Juror 296] is he actually checked the box that
       he was less likely to believe a police officer. Though he did
       not raise his hand and state it, as a prosecutor, I make it
       my point to strike all the jurors who say - who check that
       box while they’re alone in their home, they’re not kind of
       placed under the eye of the [c]ourt to stand up and say
       that they chose to check a box that he’s less likely to
       believe police officers. [The Commonwealth’s] case rests
       solely on the testimony of a police officer.

           This [c]ourt denied Appellant’s Batson challenge based on
     the Commonwealth’s ability to articulate unbiased, non-
     discriminatory reasons for striking both Juror Numbers 383 and
     296. Based on the stated facts and case law, this [c]ourt


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      concludes that the Commonwealth’s neutral, non-discriminatory
      reasons for striking the only two [] African-American jurors are
      sufficient to overcome Appellant’s Batson challenge….

Trial Court Opinion, 6/11/2015, at 5 (quotation marks omitted).

      The record supports the trial court’s findings of fact. Moreover, there

is nothing in the record that convinces us that the court’s decision to deny

Appellant’s Batson challenges was clearly erroneous.         Thus, Appellant’s

issue warrants no relief.

      Lastly, Appellant contends that his sentence for criminal contempt is

manifestly unreasonable and excessive.        Thus, Appellant challenges the

discretionary aspects of his sentence.

      It is well settled that, with regard to the discretionary aspects of
      sentencing, there is no automatic right to appeal.

         Before [this Court may] reach the merits of [a challenge to
         the discretionary aspects of a sentence], we must engage
         in a four part analysis to determine: (1) whether the
         appeal is timely; (2) whether Appellant preserved his
         issue; (3) whether Appellant’s brief includes a concise
         statement of the reasons relied upon for allowance of
         appeal with respect to the discretionary aspects of
         sentence; and (4) whether the concise statement raises a
         substantial question that the sentence is appropriate under
         the sentencing code.... [I]f the appeal satisfies each of
         these four requirements, we will then proceed to decide
         the substantive merits of the case.

Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013) (citations

omitted).

      While Appellant timely filed his appeal, his brief does not contain a

concise statement of reasons relied upon for allowance of appeal. Moreover,


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Appellant failed to preserve his challenge, as he did not lodge an objection to

his sentence during the sentencing hearing, nor did he raise such a

challenge in a post-sentence motion; thus, Appellant waived this issue. See

Commonwealth        v.   Griffin,   65     A.3d   932,   935   (Pa.   Super.   2013)

(“Objections to the discretionary aspects of a sentence are generally waived

if they are not raised at the sentencing hearing or in a motion to modify the

sentence imposed.”).

      For these reasons, we affirm Appellant’s judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/6/2015




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