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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
RODGER WILLIAM ANTHONY
Appellant No. 1536 WDA 2018
Appeal from the Judgment of Sentence September 20, 2018
In the Court of Common Pleas of Butler County
Criminal Division at No: CP-10-CR-0000423-2017
BEFORE: OLSON, J., STABILE, J. and MCLAUGHLIN, J.
MEMORANDUM BY STABILE, J.: FILED FEBRUARY 28, 2020
Appellant, Rodger William Anthony, appeals from his judgment of
sentence of thirty days’ to six months’ imprisonment for driving under the
influence (“DUI”)—general impairment, driving while operating privilege is
suspended—DUI Related, and harassment.1 The central issue in this appeal
is whether the evidence was sufficient to sustain Appellant’s DUI—general
impairment conviction. We affirm.
During Appellant’s bench trial, the Commonwealth presented two state
troopers as witnesses. Appellant did not present any evidence. The first
Commonwealth witness, Trooper Graham, testified that at 2:57 a.m. on
February 8, 2017, he and Trooper Schmidt were on patrol in Butler,
Pennsylvania when they received a radio dispatch that a woman was lying in
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1 75 Pa.C.S.A. §§ 3802(a)(1), 1543(b), and 18 Pa.C.S.A. § 2709, respectively.
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the middle of a roadway screaming. The location was identified as the middle
of Protzman Road near Herman Road. N.T., 4/24/18, at 4-6. Upon arrival at
approximately 3:20 a.m., id. at 11, they observed the victim, Holly
Thompson,2 lying on the roadway. They determined that Thompson needed
treatment at a hospital and called for an ambulance. Thompson had minor
abrasions and swelling under her right eye and chin, a torn shirt over her left
breast with skin abrasions, and cuts to her knees and elbows that appeared
to be from striking the pavement. She told the troopers that her boyfriend,
Appellant Roger Anthony, with whom she was with that evening, threw her
out of a truck. Id. at 5-6.
After transporting Thompson to the hospital, the troopers proceeded to
Appellant’s residence at 117 Kemar Drive in Butler3 and knocked on his door
at approximately 5:00 a.m. Id. at 6-7. Appellant answered the door in his
boxers and appeared to have just woken up. Id. He had bloodshot, glassy
eyes and a strong odor of alcohol. Id. at 11. Appellant told the troopers “he
figured you [the troopers] would be coming to see me.” Id. at 8. Appellant
stated that earlier that evening, he and Thompson had been at Appellant’s
cousin’s house. Id. Appellant and Thompson started arguing, and Appellant
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2 Thompson did not testify during trial.
3 Appellant’s residence is approximately two miles from where the troopers
found Thompson. The Commonwealth did not present evidence on this point,
but we ascertained this fact by examining Google Maps. See Cubano v.
Sheehan, 146 A.3d 791, 794 n.5 (Pa. Super. 2016) (taking judicial notice of
a Google map depicting distance between attorney’s office and courthouse).
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left to return home. Id. Thompson entered Appellant’s truck without shoes
or socks and refused to get out. Id. Appellant started driving home while
they continued to argue. Id. at 11. Appellant told her to get out of his truck,
but she refused, so Appellant said, “you stupid fucking bitch, if you don’t get
out, I’ll get you out.” Id. Appellant admitted that he stopped his truck, threw
Thompson out of the truck, and left her on the road without shoes or extra
clothes. Id. Appellant admitted drinking beer “that night.” Id.; see also id.
at 10 (Appellant admitted drinking “that evening”).
Trooper Graham arrested Appellant for simple assault, harassment, and
suspicion of DUI. The trooper checked Appellant’s record and discovered that
his license had been suspended for a prior DUI conviction. Id. at 12-13.
The second Commonwealth witness, Trooper Schmidt, did not differ
from Trooper Graham with regard to pre-arrest events. Trooper Schmidt
testified that Appellant underwent a post-arrest breathalyzer test at 5:22 a.m.
that yielded a BAC of .132%.
The trial court found Appellant guilty of DUI—general impairment,
driving while operating privilege is suspended—DUI Related, DUI-high rate of
alcohol4 and harassment. Following sentencing, Appellant filed timely post-
sentence motions. On August 30, 2018, the trial court arrested judgment on
Appellant’s conviction for DUI-high rate of alcohol5 but ordered that the
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4 75 Pa.C.S.A. § 3802(b).
5 The Commonwealth did not appeal this decision.
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evidence was sufficient to sustain Appellant’s conviction for DUI—general
impairment under Section 3802(a)(1). The court reasoned with regard to the
Section 3802(a)(1) conviction:
When tested, [Appellant]’s BAC was 0.132%, and [Appellant]
admitted to [troopers] that he drank alcohol prior to driving.6
Based upon the testimony of experienced [troopers], [Appellant]’s
conduct evidenced he was not in control of himself while operating
the vehicle due to his consumption of alcohol. During [Trooper]
Graham’s interview with [Appellant], he also observed that
[Appellant] had bloodshot, glassy eyes, and a strong odor of
alcohol. Additionally, [Appellant]’s decision to leave Ms.
Thompson on the roadway without shoes or extra clothes is
indicative that he was not exercising appropriate self-control at
the time he was operating the vehicle.
Order, 8/30/18, at 8.
The court resentenced Appellant on the three convictions left intact by
its post-sentence order. Appellant filed a timely notice of appeal, and both
Appellant and the court complied with Pa.R.A.P. 1925.
Appellant raises three issues in this appeal, which we re-order for
purposes of convenience:
1. Did the trial court err in denying Appellant’s motion for
judgment of acquittal, as the Commonwealth failed to prove that
[he] was under the influence of alcohol at the time he allegedly
operated a vehicle where he submitted to a chemical test more
than 2 hours later and had ample time to consume alcohol in the
interim?
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6 Contrary to the trial court’s assertion, Appellant did not admit that he drank
prior to driving. He only admitted drinking “that night” or “that evening.”
N.T., 4/24/18, at 10, 11. As our discussion below demonstrates, however,
this error does not change the outcome of this appeal.
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2. Did the trial court err by overruling Appellant’s objection to an
out of court statement given by Holly Thompson identifying
Appellant as the operator of a motor vehicle, as it constituted
inadmissible hearsay?
3. Did the trial court err by overruling Appellant’s objection to the
admission of a statement [he gave] to police where he admitted
to operating a vehicle, when there was no properly admitted
independent evidence presented to corroborate his statement and
thus a violation of the corpus delecti rule?
Appellant’s Brief at 7.
We first address whether the evidence was insufficient to support
Appellant’s conviction for DUI—general impairment under Section 3802(a)(1).
We determine “whether the evidence admitted at trial, as well as all
reasonable inferences drawn therefrom, when viewed in the light most
favorable to the verdict winner, are sufficient to support all the elements of
the offense.” Commonwealth v. Cline, 177 A.3d 922, 925 (Pa. Super.
2017). “This standard is equally applicable to cases where the evidence is
circumstantial rather than direct so long as the combination of the evidence
links the accused to the crime beyond a reasonable doubt.” Commonwealth
v. Stokes, 78 A.3d 644, 649 (Pa. Super. 2013).
Section 3802(a)(1) provides that “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 individual is rendered incapable of
safely driving, operating or being in actual physical control of the movement
of the vehicle.” Under this statute,
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driving is proscribed after the imbibing of sufficient alcohol such
that the individual is rendered incapable of safely driving. In
contrast to subsections 3802(a)(2), (b), and (c), all of which
require that the offender’s blood alcohol level reach a certain
specified elevation within two hours of driving, there is no time
element explicitly delineated in subsection 3802(a)(1). However,
to avoid absurd applications of subsection 3802(a)(1), a time
element obviously must be inferred . . . [T]he only relevant time
period is that span of time during which an individual is incapable
of safely driving due to alcohol intoxication.
Commonwealth v. Segida, 985 A.2d 871, 879 (Pa. 2009). Section
3802(a)(1) is an “at the time of driving” offense, i.e., an offense requiring
proof that the defendant 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.” Id. The
Commonwealth is not required to prove, however, that the defendant did not
drink any alcohol after he stops driving.7 Id. at 879 n.6.
Section 3802(a)(1) permits, but does not require, the Commonwealth
to introduce BAC evidence as proof of general impairment:
The types of evidence that the Commonwealth may proffer in a
subsection 3802(a)(1) prosecution include 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
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7 Segida held that the Commonwealth does not have the burden to prove that
the defendant did not drink alcohol after “the accident.” Id. The Court used
this phrase because the defendant in that case had been involved in a one-
car accident. Logic dictates that the same principle applies when the
defendant stops driving without being involved in an accident.
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the two hour time limit 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.
Id. Significantly, the fact-finder can consider a person’s BAC under Section
3802(a)(1) even if the Commonwealth does not relate the BAC back to the
time of driving. Commonwealth v. Thur, 906 A.2d 552, 565-66 (Pa. Super.
2006). The amount of time elapsed between driving and testing does not
affect the admissibility of the test results but only affects the weight of the
evidence. Id.
In Segida, a police officer investigating a report of a one-vehicle
accident at 12:20 a.m. observed the defendant’s vehicle at the top of a hillside
in some brush, rotated 180 degrees. Although the officer did not observe the
accident and did not know exactly what time it occurred, he testified it was
doubtful the accident occurred more than ten minutes before his arrival due
to the level of traffic. The defendant, who smelled strongly of alcohol,
acknowledged that he owned the vehicle, had been drinking at a local club,
and was driving home when the accident took place. After he failed several
field sobriety tests, the police officer drove the defendant to the hospital,
where a blood draw revealed a BAC of .326. The trial court, sitting without a
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jury, found the defendant guilty under Section 3802(a)(1). Our Supreme
Court affirmed, reasoning:
The undisputed evidence of [the defendant’s] strikingly high blood
alcohol level—0.326 percent—is noteworthy. Although precisely
how much time had elapsed between the accident and [the
defendant’s] blood alcohol measurement is unknown, the fact-
finder is not required to suspend common sense and ignore the
fact that [his] blood alcohol concentration was not just elevated,
but enormously elevated—four times the legal limit of 0.08, and
twice the highest rate of alcohol pursuant to subsection 3802(c).
Furthermore, the accident itself constitutes evidence that [the
defendant] drove when he was incapable of doing so safely. There
was only one vehicle involved in the accident, and [the defendant]
admitted that he had lost control of the vehicle as he was driving
home after drinking at a club.
Id., 985 A.2d at 880. While the facts in Segida are not identical to the present
case (particularly because the defendant’s BAC in Segida more than doubled
Appellant’s BAC herein), Segida teaches us “not . . . to suspend common
sense” when viewing the totality of evidence underlying a Section 3802(a)(1)
conviction. Id.
Here, the evidence and reasonable inferences arising therefrom, viewed
in the light most favorable to the Commonwealth and through the prism of
“common sense,” id., demonstrates that Appellant drove his truck on
Protzman Road shortly before 2:57 a.m. This fact can be inferred or
supported from the following evidence: (1) the troopers received a radio
dispatch at 2:57 a.m. on a winter night that a woman was screaming in the
middle of Protzman Road; (2) the troopers arrived at the scene approximately
twenty minutes later and found Thompson lying in the road with cuts and
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bruises and without shoes or extra clothes; (3) Thompson reported that she
had been with Appellant that night and had been thrown out of a truck; and
(4) Appellant admitted driving his truck home from his cousin’s house with
Thompson as a passenger and had an argument with Thompson that resulted
in him pushing her out of the truck.
The evidence also supports a finding that Appellant continued driving
his truck after ejecting Thompson and eventually arrived at his residence.
Both Thompson’s and Appellant’s testimony established that Appellant drove
away from the scene and that the troopers found him approximately two hours
later at his home.
Finally, the evidence demonstrates that Appellant was incapable of
driving safely at around 3:00 a.m. when this incident occurred. The evidence
viewed most favorably to the Commonwealth permits this determination
based on a combination of factors: (1) Appellant’s admission that he had been
drinking “that night” or “that evening” at his cousin’s house; (2) Thompson’s
statement to the troopers that she had been with Appellant and had been
thrown out of a truck; (3) Appellant’s admission that he had an argument with
Thompson that escalated to the point where he threw Thompson out of his
truck during the drive home, conduct which suggests substantial intoxication
and impaired judgment, (4) Appellant’s groggy demeanor, his bloodshot,
glassy eyes, and his strong odor of alcohol when the troopers arrived at his
house at 5:00 a.m., approximately two hours after he stopped driving, and
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(5) Appellant’s BAC of .132% at 5:22 a.m., a level substantially above the
legal limit of .08%. We emphasize that our affirmance of the trial court’s
finding that defendant was guilty of a DUI-general impairment under Section
3802(a)(1) did not require the Commonwealth to relate Appellant’s BAC at
5:22 a.m. back to when he last drove at around 3:00 a.m. Instead, as fact-
finder, the trial court had the authority to view the BAC in conjunction with
the other evidence and accord the BAC whatever weight it found appropriate.
Nor did the Commonwealth have the burden of proving that Appellant did not
drink after he stopped driving. It only had to prove that at the time of driving,
Appellant was incapable of driving safely due to consumption of alcohol.
Construed in the light most favorable to the Commonwealth, the evidence
demonstrates that the Commonwealth met this burden.
For these reasons, we hold that the evidence was sufficient to sustain
Appellant’s conviction under Section 3802(a)(1).
In his second argument, Appellant asserts that Thompson’s statement
to the troopers in the roadway that Appellant threw her out of his truck was
not admissible under the excited utterance exception to the hearsay rule as
found by the trial court. We disagree.
Hearsay is “a statement that (1) the declarant does not make while
testifying at the current trial or hearing; and (2) a party offers in evidence to
prove the truth of the matter asserted in the statement.” Pa.R.E. 801.
Hearsay is inadmissible except as provided by the Rules of Evidence. Pa.R.E.
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802. The excited utterance exception to the hearsay rule provides that “[a]
statement relating to a startling event or condition, made while the declarant
was under the stress of excitement that it caused,” is admissible “regardless
of whether the declarant is available as a witness.” Pa.R.E. 803(2). The
following factors are pertinent to whether the excited utterance exception
applies:
1) whether the declarant, in fact, witnessed the startling event;
2) the time that elapsed between the startling event and the
declaration; 3) whether the statement was in narrative form
(inadmissible); and, 4) whether the declarant spoke to others
before making the statement, or had the opportunity to do so.
These considerations provide the guarantees of trustworthiness
which permit the admission of a hearsay statement under the
excited utterance exception. It is important to note that none of
these factors, except the requirement that the declarant have
witnessed the startling event, is in itself dispositive. Rather, the
factors are to be considered in all the surrounding circumstances
to determine whether a statement is an excited utterance.
Commonwealth v. Keys, 814 A.2d 1256, 1258 (Pa. Super. 2003). “There
is no set time interval following a startling event or condition after which an
utterance relating to it will be ineligible for exception to the hearsay rule as
an excited utterance.” Pa.R.E. 803(2) cmt.
The declaration need not be strictly contemporaneous with the
existing cause, nor is there a definite and fixed time limit . . .
Rather, each case must be judged on its own facts, and a lapse of
time of several hours has not negated the characterization of a
statement as an “excited utterance.” . . . The crucial question,
regardless of the time lapse, is whether, at the time the statement
is made, the nervous excitement continues to dominate while the
reflective processes remain in abeyance.
Id. (citation omitted).
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We review the trial court’s evidentiary rulings for abuse of discretion.
Commonwealth v. Belani, 101 A.3d 1156, 1160 (Pa. Super. 2014). Here,
the troopers received a dispatch at 2:57 a.m. regarding a woman lying and
screaming in the middle of a public roadway. Upon arriving approximately
twenty minutes later, they observed the woman, identified as Holly Thompson,
still lying in the middle of the road suffering from fresh injuries that warranted
an ambulance. Although this incident occurred on a winter night, February 8,
2017, Thompson had no shoes or socks. Thompson told the troopers that it
was her boyfriend, Appellant, who threw her out of his truck. There is no
suggestion in the evidence that Thompson had time to reflect upon what
occurred during the short interval between her ejectment from the truck and
the troopers’ arrival to undermine the trustworthiness of her statement to the
troopers. In fact, just the opposite may be inferred because Thompson was
still lying in the roadway suffering from fresh injuries requiring an ambulance.
Under these circumstances, the trial court acted within its discretion in
admitting Thompson’s statements to the troopers as an excited utterance, a
well-known exception to the hearsay rule. See Commonwealth v. Jones,
912 A.2d 268, 282 (Pa. 2006) (shooting victim’s statement identifying
defendant both ten minutes after being shot and thirty minutes later were
admissible under excited utterance exception); Commonwealth v.
Blackwell, 494 A.2d 426, 435-36 (Pa. Super. 1985) (victim’s statement to
police and emergency room nurse one-half hour to 45 minutes after he was
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robbed was spontaneous reaction to a startling event, even though he told
dispatcher he did not think he needed to go to hospital), Commonwealth v.
Hess, 411 A.2d 830, 833-34 (Pa. Super. 1979) (in prosecution for simple and
aggravated assault, statement by defendant’s wife after defendant had been
apprehended, approximately one half hour after incident, admissible as
excited utterance).
Appellant’s reliance on Commonwealth v. Keys, 814 A.2d 1256 (Pa.
Super. 2003), is misplaced. Keys is clearly distinguishable. We held in Keys
that a statement by the defendant’s wife to police that the defendant held a
sword to her throat, threatened to cut her throat, dragged her by her hair,
and prevented her from leaving home, did not constitute an excited utterance,
because (1) thirty minutes elapsed between time she escaped home and her
statement to the police, (2) an officer elicited her statement eight to ten blocks
from the scene of the incident, (3) her statement was in response to the
officer’s query, and (4) her statement was a narrative of events that occurred
the previous evening. Id. at 1259. In contrast, the evidence herein indicates
that Thompson’s statement took place approximately twenty minutes after
Appellant threw her out of the truck, and while she remained under the
influence of a startling event.
In his final argument, Appellant argues that the trial court violated the
corpus delicti rule by admitting his confession to the troopers that he was
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operating a vehicle. Based on this claim of error, Appellant seeks a new trial
on his Vehicle Code convictions. No relief is due.
The corpus delicti rule prohibits the admission of the accused’s extra-
judicial inculpatory statement unless it is corroborated by independent
evidence that a crime actually occurred. Commonwealth v. McMullen, 681
A.2d 717, 720 (Pa. 1996). The rule guards 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.” Id. at 721.
In addition, “under the closely related crimes exception to the corpus
delicti rule, where a defendant’s confession relates to separate crimes with
which he is charged, and where independent evidence establishes the corpus
delicti of only one of those crimes, the confession may be admissible as
evidence of the commission of the other crimes as well.” Commonwealth v.
Hernandez, 39 A.3d 406, 413 (Pa. Super. 2012). Proof of one corpus delicti
will suffice for both offenses if the two offenses are “closely related” and “the
policy underlying the corpus delicti rule—to avoid convictions for crimes that
did not occur—is not violated.” Commonwealth v. Taylor, 831 A.2d 587,
596 (Pa. 2003). Thus, in Taylor, the Supreme Court held that the defendant’s
confession to robbery and conspiracy was admissible under the closely related
exception, reasoning:
[B]efore seeking to admit the confession of Taylor [as to robbery
and conspiracy], the Commonwealth introduced into evidence that
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police found [the victim] Michie dead in the trunk of his own car
as the result of multiple gunshot wounds to the head and neck.
The police had been looking for Michie, who had been reported
missing, for more than a day. The coroner determined that the
manner of Michie’s death was homicide. These facts provide, at
the least, independent corroboration of a homicide and, possibly,
kidnapping, the principal crimes in this heinous criminal episode.
Additionally, the confession of James, Taylor’s co-conspirator,
offered during the course of the trial of Taylor, was consistent with
the confession of Taylor. The other crimes to which Taylor
confessed (robbery and conspiracy) share a sufficiently close
relationship with the other charges because, as the Superior Court
and PCRA court determined, “there was one continuing incident
occurring at roughly the same time, and the victim of each crime
[Michie] was the same.” . . . The confession and independent
evidence presented by the Commonwealth are sufficient to
overcome the danger of a conviction where no crime was in fact
committed.
Id.
Here, before introducing Appellant’s statement, the Commonwealth
introduced the corpus delicti of harassment through the officers’ testimony
about the radio dispatch at 2:57 a.m., their arrival at the scene at 3:20 a.m.,
their observations of Thompson lying in the road on a winter night with cuts
and bruises that required medical treatment, and her statement that Appellant
threw her out of his truck during an argument. The officers arrived at
Appellant’s residence at 5:00 a.m. and obtained his confession that he was
drinking that night and was operating his truck when he got into an argument
with Thompson and ejected her from the truck. The crime to which Appellant
confessed, DUI, shares a close relationship with his crime of harassment
because they took place at the same time. Taylor, supra (confession to
robbery and conspiracy admissible because they took place during “one
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continuing incident” involving murder, the crime for which prosecution
established corpus delicti). Therefore, Appellant’s confession to operating the
truck was admissible under the closely related exception to the corpus delicti
rule.8
Judgment of sentence affirmed.
Judge Olson joins the memorandum.
Judge McLaughlin concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/28/2020
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8It also deserves mention that Appellant’s admission that he threw Thompson
out of the truck was admissible under the corpus delicti rule, because, as
discussed above, the Commonwealth introduced the corpus delicti of this
offense prior to introducing his confession.
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