Commonwealth v. Verticelli

Concurring and Dissenting Opinion by

CIRILLO, President Judge Emeritus:

I concur with the majority’s initial holding that all statements made by an accused that are material to the prosecution’s ease are subject to the corpus delicti rale; the rule is not limited to confessions by an accused. I disagree, however, with the majority’s ultimate conclusion that appellant’s statement is admissible for the DUI charge by virtue of the independent establishment of corpus de-licti for the summary offense of leaving the scene. I find that the “closely related crime” exception does not apply. Consequently, because there existed no independent evidence of DUI, which the Commonwealth implicitly concedes, the corpus delicti for such a crime has not been established and appellant’s statement is, therefore, inadmissible. Accordingly, I respectfully dissent.

As noted by the majority, Officer Burk-hardt arrived at an accident scene to find a damaged motorcycle, which appeared to have collided with a mailbox and a telephone pole. The operator of the motorcycle was not at the scene. Approximately one half hour after his investigation, Officer Burkhardt, accompanied by Officer Michie, visited appellant’s residence. Responding to the officers’ questions, appellant indicated that he had been travelling to a bar on the motorcycle in question when the accident occurred. While talking with appellant, the officers observed that he exhibited signs of intoxication. Appellant declined to perform a field sobriety test, whereupon he was arrested for DUI and taken to an area hospital. There, appellant refused a blood test; he was then driven to police headquarters. Following a jury trial, appellant was convicted of DUI and two summary violations, namely, driving with a suspended license and leaving the scene of an accident involving property damage.

The well established corpus delicti rule provides that a criminal conviction will not be permitted to stand merely on the out-of-court confession of an accused, and thus a case may not go to the fact finder where independent evidence does not suggest that a crime has occurred. Commonwealth v. Byrd, 490 Pa. 544, 556, 417 A.2d 173, 179 (1980); Commonwealth v. Persichini, 444 Pa.Super. 110, 117-18, 663 A.2d 699, 702 (1995). The rale is rooted in the hesitancy to convict a person of a crime solely on the basis of that person’s statements. Commonwealth v. Turza, 340 Pa. 128, 134, 16 A.2d 401, 404 (1940). The two elements of corpus delicti include: (1) the occurrence of a loss or injury, and (2) some person’s criminal conduct as the source of that loss or injury. Commonwealth v. Ware, 459 Pa. 334, 365, 329 A.2d 258, 274 (1974); Persichini, 444 Pa.Super. at 117-18, 663 A.2d at 702.

The Commonwealth implicitly concedes, as it should, that the corpus delicti for the crime of DUI was not established independent of appellant’s statement. “[T]wo elements combine to establish the corpus delicti of driving under the influence. They are: (1) someone must be in control of a vehicle, and (2) that same person must be under the influence of alcohol at the time. 75 Pa. C.S.A. § 3731.” Commonwealth v. Hogans, 400 Pa.Super. 606, 609, 584 A.2d 347, 349 (1990) (footnote omitted); see also Commonwealth v. Kasunic, 423 Pa.Super. 112, 620 A.2d 525 (1993). Absent appellant’s statements revealing that he was driving the motorcycle at the time of the accident, no evidence was adduced establishing the corpus delicti for DUI. The Commonwealth introduced no independent evidence indicating that appellant drove the motorcycle or that he did so while under the influence of alcohol.

In Commonwealth v. Buck, 426 Pa.Super. 26, 626 A.2d 176 (1993), an analogous case, the appellant was found guilty of driving with a suspended license and without registration or insurance. Appellant was interviewed as a possible witness by a police officer, who *387was investigating another incident. When asked how she had arrived in the area, appellant responded that she had driven there. The officer thereafter realized that the appellant’s driving privileges had been revoked. In appealing her conviction, the appellant claimed that she had been convicted solely on the basis of her own statements and that the Commonwealth faded to establish the corpus delicti of the crimes at issue. This court agreed, and reversed appellant’s judgment of sentence. In support of this conclusion we stated:

In the present case, there was no independent evidence presented to suggest that the crimes were committed. Appellant was not standing close to her car; it was parked in a different location. No witness was presented who observed appellant driving. She was convicted solely on the basis of her statement, made during the course of a criminal investigation of a different incident, that she drove to the area the day prior to the incident.

Id. at 29, 626 A.2d at 177. Similarly, in the instant case, the Commonwealth presented evidence of a motorcycle accident and evidence of appellant’s intoxication. The Commonwealth did not establish the corpus de-licti, however, because it failed to present independent evidence that appellant had driven the motorcycle or that he did so while under the influence of alcohol.

The majority properly rejected the Commonwealth’s first argument, ie., that the type of statement made by appellant is not subject to the corpus delicti rule because such statement was not a confession to DUI, but merely an admission to being the operator of the motorcycle. The majority, however, chose to affirm appellant’s judgment of sentence based upon the Commonwealth’s alternative argument, specifically, the “closely related crime” exception to the corpus delicti rule. The majority concludes that because the corpus delicti for “leaving the scene,” see 75 Pa.C.S.A. § 3745 (Accidents involving damage to unattended vehicle or property), was established independently of appellant’s statement that he was the operator of the motorcycle, the statement is admissible against appellant for the DUI charge. While I do not disagree with the cases in which this exception has been applied, I believe that its application to the instant ease is unjust.

Where a defendant’s confession relates to two 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 crime. This will be the case only where the relationship between the two crimes is sufficiently close to ensure that the policies underlying the corpus delicti rule are not violated.

Commonwealth v. Tessel, 347 Pa.Super. 37, 46, 500 A.2d 144, 148-49 (1985) (emphasis added). ' In Tessel, the relationship between the charged theft and burglary was sufficiently close to allow the court, upon proof of the corpus delicti of the theft, to admit appellant’s confession as evidence that appellant had committed not only the theft but also the burglary. Id. at 46-48, 500 A.2d at 149. As pointed out in Tessel, this court first discussed the circumstances surrounding when a confession of one crime is admissible as evidence of another crime in Commonwealth v. Stokes, 225 Pa.Super. 411, 311 A.2d 714 (1973). There, the defendant was charged with playfully or wantonly pointing a firearm and attempting to discharge a loaded firearm with intent to commit murder. We held that, on the basis of the evidence presented,1 the Commonwealth had established the corpus delicti of the crime of pointing a firearm, and it was therefore appropriate to admit appellant’s confession of that crime. The confession, however, was the only evidence of intent necessary to prove the com*388mission of the crime of “attempting to discharge.” We nonetheless held the confession admissible to establish that crime as well, reasoning that the two crimes were closely-related in that they “arose from a single transaction” and had an element “in common.” Stokes, 225 Pa.Super. at 414-15, 311 A.2d at 715; accord Tessel, 347 Pa.Super. at 46-48, 500 A.2d at 149. “We cautioned, however, that ‘[pjerhaps if the two crimes were distinct, in time or nature or both, the case would be different.’ ” Tessel, 347 Pa.Super. at 47, 500 A.2d at 149 (quoting Stokes, 225 Pa.Super. at 415, 311 A.2d at 715 (emphasis added)).

Here, it is perhaps arguable that the crimes of DUI and leaving the scene arose from the same transaction; however, these two crimes are certainly distinct in nature. Stokes, supra; Tessel, supra. The distinct nature of the two offenses is clear not only from an examination of the elements of each offense,2 but also in the more general purposes behind the laws governing each crime. The purpose of drunk driving laws is to keep intoxicated drivers off of the road and protect the public at large. Commonwealth v. Byers, 437 Pa.Super. 502, 508-09, 650 A.2d 468, 471 (1994). In contrast, the summary offense of leaving the scene seeks to ensure that violators do not evade their responsibilities with regard to damaged vehicles or property. See 75 Pa.C.S.A. § 3745; see also Commonwealth v. Buechele, 298 Pa.Super. 418, 424-25, 444 A.2d 1246, 1249 (1982) (a charge pursuant to 75 Pa.C.S.A. § 3745 does not require proof of the same facts as drunk driving; the two statutes are aimed at different perils).

The majority’s attempt to bootstrap the DUI offense via the summary offense of leaving the scene is tenuous at best. Admittedly, there exists independent evidence of leaving the scene to establish the corpus delicti of that offense. Upon arriving at the accident scene, the officers found property damage and the absence of the motorcycle operator. See 42 Pa.C.S.A. § 3745. To conclude, however, that appellant’s admission that he left the scene of the accident implicates him in both the leaving the scene charge and the DUI charge defies reason, is purely circumstantial, and is unsupported by existing case law. The majority bases the connection between these two offenses on “common sense” and “logic.” This reasoning is insufficient, especially when viewed in light of the cases that have applied the exception at issue. Notably, none of these eases invoked the exception by using independent evidence of a summary offense to admit a statement for a more serious crime. See Tessel, supra; Stokes, supra; see also Commonwealth v. Donton, 439 Pa.Super. 406, 654 A.2d 580 (1995) (where appellant was convicted for attempted murder and aggravated assault, the Commonwealth’s establishment of a corpus delicti for the crime of carrying a loaded weapon was closely related to appellant’s plan to kill his wife and arose out of the same transaction); Commonwealth v. DiSabatino, 399 Pa.Super. 1, 581 A.2d 645 (1990) (crimes of possession of a controlled substance and possession with intent to deliver were determined to be closely related, shared the common element of possession, and arose out of the same incident); Commonwealth v. Rieland, 324 Pa.Super. 115, 471 A.2d 490 (1984) *389(crimes of burglary and conspiracy arose from a common transaction; it did not defeat the purpose of the corpus delicti rule where the Commonwealth established the corpus delicti of burglary, thereby admitting appellant’s statement that he was involved in a criminal conspiracy to commit burglary).

The relationship between DUI and leaving the scene is not “sufficiently close to ensure that the policies underlying the corpus delicti rule are not violated.” Tessel, 347 Pa.Super. at 46, 500 A.2d at 148-49. Again, the policy behind the corpus delicti rule is grounded in a reluctancy to convict a person of a crime solely on the basis of that person’s statements. Turza, swpra. In my view, a violation of such a policy exists where, as here, an admission relevant to a summary offense relating to property damage is utilized as a tool to convict a person for a distinctly unrelated second-degree misdemeanor DUI offense, where no independent evidence exists for the DUI crime. I find that a potentially dangerous precedent has been set where an absence of corpus delicti for one crime (DUI) is so easily disregarded by the finding of independent evidence for a separate, unrelated crime (leaving the scene); such a determination places the future of the corpus delicti doctrine at risk.

I would not, therefore, apply the “closely related crimes” exception and, because no corpus delicti was established for DUI, I would reverse appellant’s judgment of sentence.

. The evidence was as follows:

When two police officers entered an apartment at the request of the tenant, they observed appellant in the bedroom pointing a rifle at them. As the officers retreated from the apartment, one officer fired a shot. Venturing back in, the officer saw appellant "raising his rifle again.” Appellant closed the bedroom door. The officers called for reinforcement, and when these arrived, appellant threw out his rifle and surrendered.

Stokes, 225 Pa.Super. at 413, 311 A.2d at 715; accord: Tessel, 347 Pa.Super. at 46-48, 500 A.2d at 149.

. The pertinent elements of the offenses at issue provide:

§ 3731. Driving under the influence of alcohol or controlled substance
(a) Offense defined. — A person shall not drive, operate or be in actual physical control of the movement of any vehicle:
(1) while under the influence of alcohol to a degree which renders the person incapable of safe driving[.]
§ 3745. Accidents involving damage to unattended vehicle or property
(a) General rule. — The driver of any vehicle which collides with or is involved in an accident with any vehicle or other properly 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.