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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
MARCUS DAVID KNIGHT, : No. 1019 MDA 2016
:
Appellant :
Appeal from the Judgment of Sentence, April 26, 2016,
in the Court of Common Pleas of Berks County
Criminal Division at No. CP-06-CR-0001233-2014
BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J. AND STEVENS, P.J.E.*
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 21, 2017
Marcus Knight appeals the April 26, 2016 judgment of sentence in
which the Court of Common Pleas of Berks County sentenced him to a term
of 2 to 10 years’ imprisonment in a state correctional facility for aggravated
assault by vehicle when driving under the influence and to a concurrent term
of 1 to 7 years’ imprisonment for accidents involving death or personal
injury -- not properly licensed.1
The relevant facts, as recounted by the trial court, are as follows:
The evidence presented at trial established the
following: On the evening of October 20, 2013, at
about 7:00 p[.]m[.], Melissa O’Neil (Melissa) was
meeting a fried [sic], Justin (Justin), at the
Krumsville Bar in Krumsville, Berks County,
* Former Justice specially assigned to the Superior Court.
1
75 Pa.C.S.A. § 3735(1)(a) and 75 Pa.C.S.A. § 3742.1(a), respectively.
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Pennsylvania, when she ran into Appellant.
Appellant had been drinking. At approximately
9:00 p[.]m[.], Melissa and Justin went to a pig roast;
Appellant followed behind them. At the pig roast,
the three of them talked and “drank some more,” for
approximately two more hours. Andrea Sanchez
(Andrea) was at the pig roast; Melissa introduced her
to Justin and Appellant and she joined them. Melissa
said everyone was “a little bit drunk.” About 11:00
or 11:30 p[.]m[.], the four of them decided to go
back to the Krumsville Bar. Melissa and Justin went
in her car and Appellant and Andrea followed behind
them. They all arrived at the bar and continued
drinking beer and shots. At “last call” the four of
them decided to go back to Melissa’s house in
Klinesville to continue the party. Melissa had a
designated driver for her car, Justin, but Appellant
and Andrea chose to go in Appellant’s car. Justin
offered to drive everyone but Appellant got angry;
he did not want to leave his car. Melissa saw
Appellant get into the driver’s seat; Andrea was in
the passenger’s seat. She then saw Appellant’s
vehicle leave the parking lot and drive west.
At around 11:30 p[.]m[.] on October 19,
Elise Nash (Nash) had gotten off work and drove to
Krumsville to have a drink. She was there about
twenty minutes when she saw Appellant, with some
other people, come into the bar. She saw Appellant
have about two or three drinks. She also saw the
group leave, just before last call, at around 1:30.
Nash saw Appellant purchase a 12 pack of beer to
go. She overheard their plan to go back to Melissa’s
house.
At about 3:00 a[.]m[.], Daryl Smith was
driving his dump truck westbound on old route 22 on
the west side of Lenhartsville when he saw a car
parked across the opposite side, with no lights on.
Then he came upon debris from an accident, so he
called 911 and got out of his truck. That is when he
“saw a guy laying [sic] across the road” a good
fifty (50) feet uphill from the car, on the westbound
side on the shoulder and the slow lane. The guy was
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not moving, so the truck driver pushed on him; he
did respond slightly. He became conscious, but
struggled to answer questions. There was blood
coming out of his head and on the road at his head.
The blood ran down the slope of the road about an
inch and a half wide and two feet long, toward the
vehicle. When the first ambulance showed up, the
paramedic told the truck driver that there was
another person in the vehicle.
Shawn Danner (Danner) was a full time
paramedic for the Hamburg Emergency Medical
Services when he received a call, at around
3:00 a[.]m[.], of a motor vehicle accident on old
Route 22 between Hamburg and Lenhartsville. Upon
arrival, he saw a male lying into the roadway, a
vehicle further down, and a second patient, a female,
lying behind the vehicle; she was also on the
roadway. Danner first interacted with the male; he
was conscious and alert, but extremely confused.
The male was unable to explain how he got to the
location that he was at or even what the location
was. Danner did a physical assessment of the
patient and noted the injuries. Upon the paramedics’
arrival, the patient attempted to crawl away from the
vehicle, but he did not move more than 5 or 10 feet.
The patient was actively bleeding. Danner
accompanied Appellant to the Lehigh Valley Hospital
where he was taken to the trauma unit. Danner also
went to attend to the female victim, who complained
of neck and back pain. Because of her altered
mental status, the victim did not verbalize many
complaints. She was quickly moved into the back of
the ambulance because of the cold weather, where
other crew members discovered the rest of her
serious bodily injuries.
Trooper Rebecca Clatch, of the Pennsylvania
State Police, responded to the accident scene at
around 3:00 a[.]m[.] on October 20, 2016. She
stated that the area in which the crash occurred on
Old Route 22 had a curve in the roadway, and a
45 mile per hour speed limit. This area was a no
passing zone with a divided roadway, about
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five miles west of the Krumsville Inn. The roadway
was dry and there were no impediments on it. When
she approached, she saw a silver vehicle on the
southeast bound side of the road, on the shoulder
against an embankment. She also saw an EMT with
a male, approximately 200 feet west of the vehicle.
The first thing she observed was a tire mark in the
eastbound lane that went toward the center double
lines. From there, continuing east, she saw two
more tire marks that went toward the north
embankment. There was fresh dirt spattered all
over. The embankment got higher and Appellant
had crawled where the brush was, on his hands and
knees. He kept trying to get up; they urged him to
stay where he was. He kept saying, “I’m okay.
Leave me alone.” Also on the embankment was a
hunting stand in disarray and Appellant’s shoe. His
wallet was later found in this area. Also located was
the front bumper of the vehicle. A telephone pole
was sheered in half and pushed eastbound. The
vehicle’s rear bumper was on the road and its hood
was in the eastbound lane, just south of this
location. The passenger side door was open a little
bit because it was pushed up against the
embankment. The front windshield was severely
cracked and the passenger side window was
shattered. Both front airbags were deployed. The
rear windshield was missing. The debris field was
continuous. There was no evidence of an animal
having been hit. The vehicle was a manual stick
shift. The trooper interacted with Appellant at the
scene and noticed he was bleeding heavily from his
head and had lacerations on his forearms.
Trooper Clatch observed that he had a strong odor of
an alcoholic beverage coming from his person. He
had bloodshot eyes and was on his hands and knees.
The trooper felt the engine and it was still warm,
even though it was a cold night. The blood loss she
observed, the puddle on the ground, was still wet.
Trooper Clatch stated that, based on the physical
evidence she observed and her observations of
Appellant, it was her opinion that he was not safely
capable of operating a motor vehicle. Appellant’s
blood was drawn at approximately 4:25 a[.]m[.] and
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his whole blood alcohol content was in the range of
.270% to .332%. It was later determined that
Appellant did not have a driver’s license and that the
damaged vehicle was registered to Appellant.
Andrea Sanchez told the jury that, on the night
in question, she was working at the Stony Run Inn in
Kempton when she left at around 9:30 or
10:00 p[.]m[.] and went to a bonfire down the street
to meet new people. She knew Melissa, but she met
Appellant for the first time at the bonfire. They were
all drinking beer. Andrea stayed at the party for
about an hour and a half. Around 11:00 p[.]m[.],
they decided to go to the bar down the street,
minutes away from where they were. Andrea told
Melissa the only way she would go would be if she
could get a ride back to her house. Melissa assured
her that she would. Andrea got into Appellant’s car
and he drove her to the Krumsville Inn. Appellant
bought her shots; he drank those beverages as well.
They stayed at the bar until last call, when they
decided to leave. Melissa came up to Andrea and
told her she couldn’t drive because she [Melissa] was
drunk. At first it was suggested that Andrea come to
Melissa’s house for the night and that Melissa would
take her to work in the morning. Then, somehow,
Andrea testified that she decided that she should go
with Appellant so he wouldn’t have to ride alone.
Andrea herself did not know how to drive a stick shift
vehicle. She got into the front passenger seat. They
pulled out of the parking lot of the Krumsville Inn;
Andrea did not know where they were going. The
next thing she remembered was waking up in the
hospital two days later. These injuries changed her
life forever. If left untreated, these injuries could
have resulted in death or permanent disability or
disfigurement.
Trial court opinion, 8/8/16 at 3-7 (citations to record omitted).
On December 8, 2015, the jury found appellant guilty of the
aforementioned crimes as well as for driving under the influence of alcohol,
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incapable of safe driving; driving under the influence of alcohol, high rate;
drivers required to be licensed, and failure to keep right.2 The trial court
imposed appellant’s sentence on April 25, 2016. On May 2, 2016, appellant
filed a post-sentence motion which the trial court denied on May 26, 2016.
Appellant then appealed to this court.
On appeal, appellant raises the following issues for this court’s review:
[1.] Whether the evidence presented at trial was
sufficient to support the guilty verdicts where
the Commonwealth failed to establish, beyond
a reasonable doubt, that Appellant was the
driver of the vehicle at the time of the
accident[?]
[2.] Whether the Court erred and abused its
discretion by not granting judgment of
acquittal or dismissing the charges in light of
the Brady [v. Maryland, 373 U.S. 83 (1963)]
violation that occurred when the
Commonwealth failed to preserve potentially
exculpatory evidence, the unavailability of
which caused prejudice to Appellant in that
Appellant was deprived of his ability to conduct
independent testing that may have, among
other things, conclusively excluded Appellant
as the driver of the vehicle[?]
Appellant’s brief at 7.
Initially, appellant contends that the evidence presented by the
Commonwealth was insufficient to sustain convictions for aggravated assault
by vehicle when driving under the influence and for accidents involving
death or personal injury -- not properly licensed because the Commonwealth
2
75 Pa.C.S.A. §§ 3802(a)(1), 3802(c), 1501(c), and 3301(a), respectively.
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failed to present evidence that appellant was operating the vehicle when the
accident took place.
A claim challenging the sufficiency of the
evidence is a question of law. Commonwealth v.
Widmer, 560 Pa. 308, 319, 744 A.2d 745, 751
(2000). In that case, our Supreme Court set forth
the sufficiency of the evidence standard:
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.
Commonwealth v. Karkaria, 533 Pa.
412, 625 A.2d 1167 (1993). Where the
evidence offered to support the verdict is
in contradiction to the physical facts, in
contravention to human experience and
the laws of nature, then the evidence is
insufficient as a matter of law.
Commonwealth v. Santana, 460 Pa.
482, 333 A.2d 876 (1975). When
reviewing a sufficiency claim the court is
required to view the evidence in the light
most favorable to the verdict winner
giving the prosecution the benefit of all
reasonable inferences to be drawn from
the evidence. Commonwealth v.
Chambers, 528 Pa. 558, 599 A.2d 630
(1991).
Id. at 319, 744 A.2d at 751.
Commonwealth v. Morgan, 913 A.2d 906, 910 (Pa.Super. 2006).
Aggravated assault by vehicle when driving under the influence is
defined as:
Any person who negligently causes serious bodily
injury to another person as the result of a violation
of section 3802 (relating to driving under influence of
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alcohol or controlled substance) and who is convicted
of violating section 3802 commits a felony of the
second degree when the violation is the cause of the
injury.
75 Pa.C.S.A. § 3735.1(a).
Appellant does not contest that he was convicted of driving under the
influence. However, he argues that there is no evidence to establish that he
was driving the vehicle at the time of the accident. Melissa O’Neill (“O’Neill”)
and Andrea Sanchez (“Sanchez”), the other person in the vehicle at the time
of the accident, both testified that appellant was behind the wheel of his
vehicle when he and Sanchez left the Krumsville Inn. (Notes of testimony,
12/7/15 at 20-21, 122.) Further, appellant’s vehicle had a manual
transmission, and Sanchez testified that she did not know how to drive a
“stick shift.” (Id. at 124.) The jury found credible the testimony of Sanchez
and O’Neill that appellant was driving when he left the Krumsville Inn. Given
that Sanchez did not know how to operate a manual transmission and there
is no evidence of anyone else riding in the vehicle, this court agrees with the
trial court that the evidence presented by the Commonwealth was sufficient
to sustain the conviction.
Appellant also asserts that there was insufficient evidence to support
his conviction for Accidents Involving Death or Personal Injury while not
properly licensed.
This offense is defined as:
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A person whose operating privilege was disqualified,
canceled, recalled, revoked or suspended and not
restored or who does not hold a valid driver’s license
and applicable endorsements for the type and class
of vehicle being operated commits an offense under
this section if the person was the driver of any
vehicle and caused an accident resulting in injury or
death of any person.
75 Pa.C.S.A. § 3742.1.
Appellant does not challenge the determination that he lacked a
driver’s license. Once again, he challenges the determination that he was
driving the car when the accident took place. This court has already
determined that the evidence was sufficient to support that conclusion.
Appellant next contends that the Commonwealth failed to provide any
potentially exculpatory evidence to him in violation of Brady, 373 U.S. 83,
in which the Supreme Court held that “suppression by the prosecution of
favorable evidence to an accused upon request violates due process where
the evidence is material either to guilt or to punishment . . . .” Id. at 87.
This court has explained that, “to establish a Brady violation, a
defendant must demonstrate that: (1) the evidence was suppressed by the
Commonwealth, either willfully or inadvertently; (2) the evidence was
favorable to the defendant; and (3) the evidence was material, in that its
omission resulted in prejudice to the defendant.” Commonwealth v.
Haskins, 60 A.3d 538, 547 (Pa.Super. 2012) (citations omitted). The
burden rests with the defendant to “prove by reference to the record, that
evidence was withheld or suppressed by the prosecution.” Id.
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Specifically, appellant argues that the potentially exculpatory evidence
was the vehicle and all of the exculpatory evidence contained therein.
Appellant asserts that an investigation would help resolve ambiguities such
as why both the driver and passenger seats of the vehicle were reclined,
why a sneaker that did not belong to appellant was found near the driver’s
side area of the car, and whether the position of the clutch would have
allowed Sanchez to reach the clutch had she been driving. Appellant admits
that the Commonwealth neither hid nor destroyed the evidence. However,
he argues that the Commonwealth failed to properly preserve the vehicle
and did not provide it to appellant.
Trooper Clatch testified that the State Police did not impound the
vehicle and it was towed to Wensel’s Towing Company (“Wensel’s”) where it
remained. At some point, it was ready to be released to the owner,
appellant. Trooper Clatch testified that he told appellant that he could
recover the vehicle at Wensel’s. (Notes of testimony, 12/7/15 at 88.)
A Brady violation does not occur when a defendant knew or could
have discovered evidence with reasonable diligence. Commonwealth v.
Morris, 822 A.2d 684, 696 (Pa. 2003). Based on Trooper Clatch’s
testimony, appellant could have recovered the vehicle but did not exercise
reasonable diligence. This court determines that the trial court properly
denied appellant’s motion for judgment of acquittal because appellant failed
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to demonstrate that evidence (the vehicle) was suppressed by the
Commonwealth, a necessary element to prove a Brady violation.3
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/21/2017
3
Because appellant failed to satisfy the first prong of Haskins, this court
need not address whether appellant established that he met the other two
prongs.
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