J-S49011-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WILLIAM S. SMITH,
Appellant No. 2143 MDA 2014
Appeal from the Judgment of Sentence Entered November 25, 2014
In the Court of Common Pleas of Cumberland County
Criminal Division at No(s): CP-21-CR-0000779-2014
BEFORE: BENDER, P.J.E., ALLEN, J., and OLSON, J.
MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 18, 2015
Appellant, William S. Smith, appeals from the judgment of sentence
entered November 25, 2014, following his conviction of driving under the
influence, general impairment (.08-.10%) (DUI)1 and driving while operating
privilege is under suspension with a blood alcohol content (BAC) equal to or
greater than .02% (DUS).2 Appellant now challenges whether the corpus
delicti of either offense was established absent his inculpatory statement and
whether there was sufficient evidence of DUI. After careful review, we
affirm the judgement of sentence.
____________________________________________
1
75 Pa.C.S. § 3802(a)(2).
2
75 Pa.C.S. § 1543(b)(1.1)(i).
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The trial court summarized the facts and procedural history of this
case as follows:
[Appellant] was working at the Holly Inn in Mt. Holly
Springs, Pennsylvania late on July 4, 2013, [until] early July 5,
2013. After finishing his work shift, [Appellant] availed himself
of a free beer offered by the Holly Inn. The bartender and owner
of the Holly Inn stated that only the first drink was free and,
further, that [Appellant] bought a can of Labatt Blue brand beer
to take home with him. Pamela Baer, [Appellant]’s girlfriend[,]
with whom he was living at the time, testified that she followed
[Appellant] as he drove his car from the Holly Inn to her home
on Louther Street in Carlisle, Pennsylvania sometime between
12:45 A.M. and 1:00 A.M. on July 5, 2013. Following an
argument, Ms. Baer stated that she locked the front door with
[Appellant] still outside. [Appellant] then proceeded to break
the door down, prompting Ms. Baer to call the police. At 1:09
A.M. on July 5, 2013, police responded by originally heading to
Ms. Baer’s residence on Louther Street. Police dispatch informed
the responding officers that [Appellant] had left the residence
and was located on a nearby bench on the grounds of Dickinson
College. Officer Darhower arrived at the scene and recognized
[Appellant] and his vehicle from a prior encounter. When Officer
Darhower approached [Appellant], he immediately detected the
smell of alcohol. Additionally, [Appellant] had trouble
maintaining his balance and was argumentative and
uncooperative. After restraining [Appellant] and confirming that
the green Toyota nearby was [Appellant]’s vehicle, Officer
Darhower inspected the car and discovered that the hood and
tailpipe were hot to the touch and there were empty beer
containers in plain view of the interior of the vehicle.
Specifically, a can [of] Labatt Blue brand beer was visible on the
floor of the car. Officer Darhower placed [Appellant] under
arrest for driving under the influence. Subsequent to the arrest,
Officer Darhower found a set of keys on [Appellant] which
unlocked the green Toyota, confirming that the car belonged to
[him]. Upon taking [Appellant] to the Booking Center at the
Cumberland County Prison, [Appellant] consented to a blood
draw after having been read the PennDOT DL-26 form. The
blood draw occurred at 1:54 A.M. The results of the blood draw
indicated that [Appellant] had a blood alcohol concentration of
0.085 percent. Officer Darhower also obtained [Appellant]’s
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certified driving record which indicated that on July 5, 2013, the
status of [Appellant]’s license was “suspended.” At the Booking
Center, [Appellant] told Officer Darhower and booking agents
that his boss, Pancho Acorda, drove him home from work.
However, Mr. Acorda testified that he did not drive [Appellant]
home [on] July 5, 2013, and this was confirmed when
[Appellant] responded to a question from the [c]ourt that
[Apppellant] drove himself home[.]
Trial Court Opinion, 1/27/2015, at 1-3.
Based on this evidence, Appellant was convicted of the above stated
offenses. By order dated November 25, 2014, Appellant was sentenced to
an aggregate term of 95 days’ to 6 months’ incarceration and an aggregate
fine of $1,300. Appellant was also ordered to pay the costs of prosecution,
and to complete and comply with the recommendations of a drug and
alcohol evaluation. This timely appeal follows.
Requesting that we reverse the trial court verdicts, Appellant presents
two issues for review:
I. Whether the corpus of the operation of a vehicle was
established to support the trial court’s DUI and DUS
verdicts independent of Appellant’s courtroom admissions.
II. Assuming proof of operation, did the evidence support the
trial court’s DUI verdict[,] that Appellant’s BAC was
between .08-.10% within two hours of operation.
Appellant’s Brief at 6.
Immediately, we note that Appellant’s initial issue is waived for failure
to preserve it below. Pa.R.A.P. 302(a) provides that, “[i]ssues not raised in
the lower court are waived and cannot be raised for the first time on
appeal.” Appellant argues that the Commonwealth was required to establish
that he drove or operated a vehicle before his testimony, admitting the fact,
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could be considered by the fact-finder; however, no objection was raised
contemporaneous to the testimony at issue. N.T., 9/19/2014, at 75. This
claim, therefore, is waived.
Regardless of waiver, Appellant’s argument is, fundamentally, a
misapplication of the rule. “The corpus delicti rule requires that before
introducing an extra-judicial admission, the Commonwealth must establish
by independent evidence that a crime has in fact been committed. The
purpose of the rule is to prevent the admission of a confession where no
crime has been committed.” Commonwealth v. Fears, 86 A.3d 795, 808
n.17 (Pa. 2014) (internal quotations and citations omitted). However, the
rule does not apply to in-court admissions. Commonwealth v. Appel, 689
A.2d 891, 909 (Pa. 1997), abrogated on other grounds by Fears. Appellant
does not argue that an extra-judicial admission was improperly admitted,
but that his inculpatory in-court statement should not have been considered;
thus the corpus delicti rule is not implicated. Therefore, Appellant’s claim is
without merit.
Appellant’s second issue avers that there was insufficient evidence to
support the trial court’s verdict. Appellant contends that the Commonwealth
proved neither the timeliness of the blood draw nor the exception to the
corpus delicti rule.
Our standard of review is well established.
When considering a challenge to the sufficiency of the evidence,
we must determine whether, viewing the evidence in the light
most favorable to the Commonwealth as verdict winner, together
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with all reasonable inferences therefrom, the trier of fact could
have found that each and every element of the crimes charged
was established beyond a reasonable doubt. We may not weigh
the evidence and substitute our judgment for the fact-finder. To
sustain a conviction, however, the facts and circumstances which
the Commonwealth must prove must be such that every
essential element of the crime is established beyond a
reasonable doubt.
Commonwealth v. Bullock, 948 A.2d 818, 823 (Pa. Super. 2008)
(citations omitted).
The Commonwealth was required to show that Appellant drove,
operated, or was in actual physical control of the vehicle within two hours of
having imbibed enough alcohol such that his BAC was at least .08% but less
than .10%. 75 Pa.C.S. § 3802(a)(2). Appellant argues that the
Commonwealth failed to establish what time he operated the vehicle;
therefore, an exception to the two-hour requirement had to be shown.
Section 3802(g)(2) is one such exception to the two-hour requirement. It
provides that, “evidence of [BAC taken] more than two hours after the
individual has driven … is sufficient to establish that element of the offense
… where the Commonwealth establishes that the individual did not imbibe
any alcohol … between the time the individual was arrested and the time the
sample was obtained.” 75 Pa.C.S. § 3802(g)(2) Contrary to Appellant’s
claim, the trier of fact could have found that the Commonwealth proved
every element of the offense beyond a reasonable doubt based on the
testimony provided at trial without reliance on the exception.
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The Commonwealth’s first witness, Ms. Baer, testified that she
followed Appellant as he drove to her home and that an argument ensued
upon arrival. N.T. at 7-8. Approximately ten to fifteen minutes thereafter,
Ms. Baer called the police. Id. at 8-9. The police arrived two minutes later.
Id. at 10. The police testified that they were dispatched at 1:09 a.m. in
response to Ms. Baer’s phone call. Id. at 18. Pursuant to being arrested for
DUI, Appellant’s blood was drawn at 1:54 a.m. evincing a BAC of .085%.
Id. at 35.
Our review reveals that the trial court’s verdict is supported by the
record. The Commonwealth established that Appellant’s blood was drawn
within two hours of having been in control of the vehicle. Further,
Appellant’s BAC of .085% is within the .08-.10% range, fully satisfying the
elements of the offense. As we conclude that the evidence sufficiently
establishes that Appellant’s blood was drawn within the two-hour window,
the Commonwealth did not have to rely on the exception. Thus, considered
in the light most favorable to the verdict winner, the Commonwealth
presented sufficient evidence to sustain the verdict.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/18/2015
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