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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MATHEW T. SHIRK
Appellant No. 1942 MDA 2014
Appeal from the Judgment of Sentence July 7, 2014
In the Court of Common Pleas of Centre County
Criminal Division at No(s): CP-14-CR-0000182-2013
BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, J. FILED APRIL 18, 2016
Appellant, Mathew T. Shirk, appeals from the judgment of sentence
entered after a jury convicted him of multiple charges arising from an
incident where Shirk rolled a vehicle that he was operating while under the
influence of alcohol. On appeal, Shirk raises six issues, the most noteworthy
of which involve the legal effect of inconsistent verdicts entered by the jury.
After careful review, we conclude that the trial court erred in accepting the
Commonwealth’s invitation to ignore the verdict actually entered by the jury,
and instead sentencing Shirk according to the verdict that the
Commonwealth desired. On this single issue, we vacate the offending
sentences and remand for re-sentencing. We affirm on all other issues.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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Shirk and several friends, namely Ryan Daniels, Kelly Rider, and
Emilee Neely, were drinking at a bar on the night of the accident. Shortly
after midnight, they left the bar to go on a “mountain ride” in Shirk’s
brother’s heavily modified pickup truck. Shirk bought a six pack of beer to
bring along with them. Shirk did not possess a valid driver’s license at the
time.
After driving off-road for a significant time, it started to rain. Shirk
drove the truck out of the woods and onto Route 144. As he drove through a
curve on Route 144, Shirk lost control of the truck. It left the roadway,
flipped several times, and struck several trees.
Shirk, Daniels and Rider were ejected from the truck. Rider was killed,
while Shirk, Daniels and Neely each suffered injuries. Blood tests at the
hospital that treated Shirk revealed that his blood alcohol concentration was
0.196, more than twice the legal limit.
The Commonwealth charged Shirk with 26 crimes, including homicide
by vehicle while driving under the influence (“DUI”), aggravated assault by
vehicle while DUI, accident involving death or bodily injury – not properly
licensed, and reckless driving. After a trial, the jury found Shirk guilty on all
charges. The jury was also asked to provide a specific finding with regard to
the accident involving bodily injury – not properly licensed charge (“the
license charge”). This finding was intended to address the grading of the
license charge. If the jury found that the victim suffered only bodily injury,
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the crime is graded as a misdemeanor. However, if the jury found that the
victim suffered serious bodily injury, the crime is graded as a felony. The
jury found that Daniels and Neely had suffered only bodily injury, and not
serious bodily injury. This specific finding was in direct conflict with the jury’s
verdicts on the aggravated assault charges, which required the jury to find
that Daniels and Neely had suffered serious bodily injury.
At sentencing, the Commonwealth requested that the trial court
sentence Shirk on the license charge as a felony, in direct contravention of
the jury’s specific finding. The trial court accepted the Commonwealth’s
suggestion, and sentenced Shirk on the license charge as a felony. The trial
court imposed an aggregate term of imprisonment of eight to fourteen
years.
Shirk filed a post-sentence motion, which the trial court denied. This
timely appeal followed. On appeal, Shirk raises two challenges to the
sentences imposed, two challenges to the admission of evidence at trial, and
two challenges to the sufficiency of the evidence.
Shirk raises two distinct issues regarding the sentences he received.
We first address his challenge to the sentences imposed on the license
charges, as this issue challenges the legality of the sentence. A challenge to
an illegal sentence can never be waived. See Commonwealth v. Mathias,
121 A.3d 558, 562 n.3 (Pa. Super. 2015). As a result, Shirk’s failure to raise
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this issue at sentencing or in his post-sentence motion does not prevent him
from raising it on appeal.
“Issues relating to the legality of a sentence are questions of law. . . .
Our standard of review over such questions is de novo and our scope of
review is plenary.” Commonwealth v. Brougher, 978 A.2d 373, 377 (Pa.
Super. 2009) (citation omitted).
Shirk argues that the trial court erred in imposing sentence pursuant
to his convictions under the license charges. Under the statute governing the
license charges, an unlicensed person who causes an accident that results in
bodily injury to another person is guilty of a misdemeanor of the second
degree. See 75 Pa.C.S.A. § 3742.1. If, however, the accident results in
death or serious bodily injury to another person, he is guilty of a felony of
the third degree. See id. “Serious bodily injury” is defined in the Crimes
Code as “[b]odily injury which creates a substantial risk of death or which
causes serious, permanent disfigurement, or protracted loss or impairment
of the function of a bodily member or organ.” 18 Pa.C.S.A. § 2301.
The factual issues of whether Shirk caused serious bodily injury to
Emilee Neely and Ryan Daniels were presented to the jury in several
different contexts on the verdict sheet. First, under the DUI charges, the
verdict sheet presented explicit questions as to whether Daniels and Neely
suffered serious bodily injury. In both instances, the jury answered “Yes.”
Next, the jury was asked to determine whether Shirk was guilty of
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aggravated assault by vehicle while DUI. While there is no explicit finding of
serious bodily injury on the verdict sheet, the trial court properly instructed
the jury that serious bodily injury was an element of the crime. See N.T.,
Trial, 5/13/14, at 920. The jury found Shirk guilty of aggravated assault
while DUI.
The genesis of this issue on appeal is the jury’s response to the third
time it answered the question of whether Neely and Daniels suffered serious
bodily injury. For the license charges, the verdict sheet presented explicit
questions asking whether Neely and Daniels suffered serious bodily injury. In
both instances, the jury responded “No.”
At sentencing, the Commonwealth argued that the trial court should
disregard the jury’s explicit finding, and instead sentence Shirk as if the jury
had convicted him of causing serious bodily injury under the license charges.
See N.T., Sentencing, 7/7/14, at 27. Surprisingly, the trial court agreed with
the Commonwealth. The trial court then overrode the jury’s explicit finding
to sentence Shirk as if he had been convicted of causing serious bodily injury
under the license charges.
“Other than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v.
New Jersey, 530 U.S. 466, 490 (2000). The United States Supreme Court
has stated that “the statutory maximum for Apprendi purposes is the
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maximum sentence a judge may impose solely on the bases of the facts
reflected in the jury verdict or admitted by the defendant.” Blakely v.
Washington, 542 U.S. 296, 303-304 (2004).
A conviction under the license charges for causing only bodily injury
has a statutory maximum sentence of two years. See 18 Pa.C.S.A. §
106(b)(7). In contrast, a conviction for causing serious bodily injury has a
statutory maximum sentence of seven years. See 18 Pa.C.S.A. § 106(b)(4).
Thus, the sentencing court’s action in disregarding the explicit verdict of the
jury and instead sentencing Shirk as if he had caused serious bodily injury to
Neely and Daniels increased the statutory maximum sentence. Under
Apprendi and its progeny, this was illegal.
On appeal, the Commonwealth does not address Apprendi. Instead, it
contends that “a [s]entencing [c]ourt has the implicit authority to apply a
sentence enhancer to a defendant’s sentence when the facts adduced at trial
clearly support that the sentence enhancer has been established.” In support
of this stunning assertion, the Commonwealth cites to two opinions
published by this Court. First, the Commonwealth cites to an appeal from a
civil verdict where the trial court molded a verdict to reflect its legal
conclusion that there was insufficient evidence to support an award of future
medical expenses. See Mendralla v. Weaver Corp., 703 A.2d 480, 486
(Pa. Super. 1997).
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Mendralla is clearly inapposite, for multiple reasons. First, it involved
a civil verdict, and therefore was not concerned with the Constitutional
issues that motivate Apprendi and its progeny. Furthermore, even if we
were to ignore this palpable distinction, the molding of the verdict that was
approved in Mendralla involved the trial court concluding that the plaintiff,
who bore the burden of proof at trial, failed as a matter of law to meet that
burden regarding future medical expenses. The trial court rectified this error
by reducing the verdict instead of granting a new trial since the verdict sheet
explicitly set forth the amount the jury awarded for future medical expenses.
In the present case, it was the Commonwealth that bore the burden of
proof, not Shirk. As such, the trial court could not conclude, as a matter of
law, that Shirk had failed to meet his non-existent burden. Furthermore, the
trial court overrode an explicit factual finding made by jury and instead
substituted its own factual finding to increase Shirk’s liability. Even in civil
cases, a judge may not mold a verdict in a manner that increases liability.
See Raymond L.J. Rilling, Inc. v. Schuck, 29 A.2d 693, 694 (Pa. 1943).
Thus, Mendralla cannot logically support the trial court’s action in this case.
The other case cited by the Commonwealth on appeal involves,
thankfully, a criminal appeal. See Commonwealth v. Kleinicke, 895 A.2d
562 (Pa. Super. 2006) (en banc). The Commonwealth quotes the following
passage of Kleinicke: “a sentencing court has broad discretion to consider
evidence in determining a sentence….” Id., at 568. However, the
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Commonwealth fails to note the en banc panel’s explicit distinction between
the case before it, involving imposition of a mandatory minimum, and cases
where the statutory maximum had been increased. See id., at 575.
Furthermore, the Commonwealth is apparently unaware that the explicit
holding of Kleinicke, that judicial fact-finding that results in the imposition
of mandatory minimums does not offend the right to a jury trial, has since
been overruled by Alleyne v. United States, 133 S.Ct. 2151 (U.S. 2013).
Thus, Kleinicke does not buttress the Commonwealth’s position.
Having reviewed the sentencing transcript in light of the law under
Apprendi and its progeny, we conclude that the trial court imposed an
illegal sentence for the license charges. We therefore vacate the sentences
for counts seven and eight and remand for re-sentencing on these two
convictions. As these two sentences were imposed entirely concurrent to
other sentences, we do not believe that we have upset the trial court’s
sentencing scheme, and we need not vacate all of the sentences imposed.
Turning to Shirk’s remaining issues, we note that Shirk argues that the
same inconsistencies in the jury’s verdict that led the Commonwealth to
request the trial court to increase the grading of the license charges should
instead inure to his benefit and void the jury’s verdict on the charges of
aggravated assault while DUI of Neely and Daniels. “Consistency in verdicts
is not required” and Pennsylvania courts are not to speculate as to the
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nature of the jury’s deliberations in the face of inconsistent verdicts.
Commonwealth v. Moore, 103 A.3d 1240, 1247 (Pa. 2014).
Shirk attempts to escape the application of Moore by arguing that the
present case is distinguishable because the inconsistency is in a factual
finding, and not a verdict. We disagree that this case is distinguishable from
Moore. While the verdict sheet is more explicit than usual regarding the
license charges, the reality is that the jury returned a not guilty verdict on
the third degree felony license charges stemming from Neely and Daniels.
Moore is therefore directly on point, and we conclude that Shirk’s argument
merits no relief.
Next, Shirk argues that the trial court erred in permitting the
Commonwealth’s medical expert, Harry Kamerow, M.D., to testify as to the
expert opinion of the emergency room physician, Michael Henry, M.D., who
treated Shirk after the accident. In particular, Shirk objects to Dr.
Kamerow’s testimony that Dr. Henry indicated in his written notes that Shirk
was intoxicated when he presented at the emergency room the night of the
accident. See N.T., Trial, 5/13/14, at 520.
We note “the admission of evidence is within the sound discretion of
the trial court and will be reversed only upon a showing that the trial court
clearly abused its discretion.” Commonwealth v. Fransen, 42 A.3d 1100,
1106 (Pa. Super. 2012), appeal denied, 76 A.3d 538 (Pa. 2013) (citation
omitted). A trial court abuses its discretion if it misapplies the law or rules
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in a manner lacking reason. See Commonwealth v. Rega, 856 A.2d 1242,
1244 (Pa. Super. 2004).
Pennsylvania Rule of Evidence 703 states the following.
The facts or data in the particular case upon which an expert
bases an opinion or inference may be those perceived by or
made known to the expert at or before the hearing. If of a type
reasonably relied upon by experts in the particular field in
forming opinions or inferences upon the subject, the facts or
data need not be admissible in evidence.
An expert may not simply act as “a mere conduit for the opinion of another,”
under Rule 703. Pa.R.E., Comment.
Here, it is clear that Dr. Kamerow’s testimony regarding Dr. Henry’s
opinion rendered Dr. Kamerow a mere conduit for Dr. Henry’s opinion. This
was error. However, we conclude that any prejudice suffered by Shirk from
this testimony was de minimus, and therefore harmless. “The harmless error
doctrine, as adopted in Pennsylvania, reflects the reality that the accused is
entitled to a fair trial, not a perfect trial. Harmless error exists if the record
demonstrates, inter alia, that the error did not prejudice the defendant or
the prejudice was de minimis.” Commonwealth v. Gonzalez, 109 A.3d
711, 731, (Pa. Super. 2015) (citation and internal quotation marks omitted).
The Commonwealth presented a bounty of evidence suggesting that Shirk
was intoxicated that night, including the results of two blood tests,
eyewitness testimony of Shirk’s actions, and Dr. Kamerow’s independent
expert opinion. The brief mention of Dr. Henry’s opinion in the notes was but
a drop in an overflowing bucket.
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Next, Shirk raises another challenge to the trial court’s admission of
evidence. This time, it concerns the admission of post-mortem photographs
of Kelly Rider. We review challenges to the admission of photographic
evidence as follows.
The admissibility of photographs falls within the discretion of the
trial court and only an abuse of that discretion will constitute
reversible error. The test for determining whether photographs
are admissible involves a two-step analysis. “First, the court
must decide whether a photograph is inflammatory by its very
nature. If the photograph is deemed inflammatory, the court
must determine whether the essential evidentiary value of the
photograph outweighs the likelihood that the photograph will
improperly inflame the minds and passions of the jury.”
Commonwealth v. Lowry, 55 A.3d 743, 753 (Pa. Super. 2012) (internal
citations omitted).
In the instant case, the trial court concedes that the photographs of
Kelly Rider were inflammatory. However, the trial court reasoned that the
photographs were “necessary to assist the jury in showing the nature,
location, and extent of the wounds sustained by Ms. Rider, and to help the
jury understand the forensic pathologist’s process of deduction.” We cannot
conclude that this reasoning represents an abuse of discretion, and therefore
Shirk’s argument merits no relief on appeal.
Shirk next challenges the sufficiency of the evidence supporting his
conviction for reckless driving. In order to support a conviction for reckless
driving, the Commonwealth was required to present evidence that Shirk
drove his “vehicle in a willful or wanton disregard for the safety of persons or
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property.” 75 P.S. 3736(a). Shirk argues that the evidence was insufficient
to establish that he acted in a willful or wanton manner.
The following standard governs our review of a challenge to the
sufficiency of the evidence.
As a general matter, our standard of review of sufficiency claims
requires that we evaluate the record in the light most favorable
to the verdict winner giving the prosecution the benefit of all
reasonable inferences to be drawn from the evidence. Evidence
will be deemed sufficient to support the verdict when it
establishes each material 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. [T]he facts and circumstances
established by the Commonwealth need not be absolutely
incompatible with the defendant’s innocence. Any doubt about
the defendant’s guilt is to be resolved by the fact finder unless
the evidence is so weak and inconclusive that, as a matter of
law, no probability of fact can be drawn from the combined
circumstances.
Commonwealth v. Mauz, 122 A.3d 1039, 1040-41 (Pa. Super. 2015)
(citation omitted).
Shirk contends that the only evidence of willful or wanton behavior on
his part was the evidence that he was intoxicated. He argues that under
Commonwealth v. Jeter, 937 A.2d 466 (Pa. Super. 2007), evidence of
intoxication alone is insufficient to support a conviction for reckless driving.
However, we note that the Commonwealth presented significant evidence of
wanton behavior apart from Shirk’s intoxication. At the time of the accident,
it was drizzling and the roadway was wet. See N.T., 5/12/14, at 99. The
vehicle was travelling at a speed in excess of 60 miles per hour. See id., at
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350. The speed limit for the section of road Shirk was driving on was 45
miles per hour. See id., at 355. As he approached the left hand curve where
the accident occurred, Shirk was driving between 60 and 65 mile per hour.
See id., at 99. This evidence was sufficient, independent of Shirk’s
intoxication, to support a conviction for reckless driving.
Finally, Shirk contends that the trial court abused its discretion in
imposing a five to ten year sentence of imprisonment on the homicide by
vehicle – DUI conviction. Shirk concedes that this issue raises a challenge to
the discretionary aspects of the sentence. See Appellant’s Brief, at 8.
“A challenge to the discretionary aspects of a sentence must be
considered a petition for permission to appeal, as the right to pursue such a
claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.
Super. 2004) (citation omitted).
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test:
[We] conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
and 903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence,
see Pa.R.Crim.P. [720]; (3) whether appellant’s brief has a fatal
defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial
question that the sentence appealed from is not appropriate
under the Sentencing Code, 42. Pa.C.S.A. § 9781(b).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)
(quotation marks and some citations omitted).
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Here, Shirk failed to raise this issue either in a post-sentence motion
or at sentencing. As such, Shirk has failed to preserve this issue for our
review.
In summary, we conclude that the trial court erred in imposing
sentence on counts seven and eight, and therefore vacate those sentences
and remand for re-sentencing. In all other regards, we affirm the judgment
of sentence.
Judgment of sentence affirmed in part and vacated in part. Case
remanded for proceedings consistent with this memorandum. Jurisdiction
relinquished.
President Judge Emeritus Ford Elliott joins the memorandum.
President Judge Emeritus Stevens concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/18/2016
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