Commonwealth v. Rich

J-A09028-17

2017 PA Super 225

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant

v.

STEVEN VAN SMITH S. RICH,

Appellee No. 789 MDA 2016

Appeal from the Order Entered May 20, 2016
In the Court of Common Pleas of Cumberland County
Criminal Division at No(s): CP-21-CR-0003120-2015

BEFORE: GANTMAN, P.J., SHOGAN and OTT, JJ.

OPINION BY SHOGAN, J.: FILED JULY 17, 2017

This case arose out of an automobile accident involving Appellee,

Steven Van Smith S. Rich, in Cumberland County on May 23, 2015. The

accident resulted in the death of a bystander, who came to the aid of the

accident victims and was killed when struck by a passing tractor-trailer.

Appellant, Commonwealth of Pennsylvania (“Commonwealth”), has appealed

from a pretrial order excluding evidence. For the reasons that follow, we

affirm.

The trial court summarized the facts of the case,1 as follows:

____________________________________________

1
At the hearing on Appellee’s motion in limine and the Commonwealth’s
motion to amend the information, the Commonwealth averred that defense
counsel stipulated to the facts for the purposes of this appeal only, not for
trial. Commonwealth’s Brief at 9 n.1; N.T., 5/17/16, at 61.
J-A09028-17

Around midnight on May 23, 2015, [Appellee] was driving
on State Route 114, a multi-lane divided road. Driving at some
speed, he failed to stop at a red light and struck the rear of a
vehicle driven by Ms. Mary Hudson as she made a left turn
through the intersection. Ms. Hudson’s vehicle spun around and
came to rest against the curb on the side of the road closest to
where she had begun her left-hand turn. [Appellee] continued
driving, eventually coming to rest some distance away from
where he had struck Ms. Hudson’s vehicle. Another driver pulled
up behind Ms. Hudson’s vehicle and activated her emergency
flashers to increase the visibility of Ms. Hudson’s car. Within two
to three minutes after the impact, a third party, . . . Mr. Adam
Webb, crossed the highway on foot, coming from the parking lot
of the Pizza Hut on the opposite side of the highway. Mr. Webb
came over to where Ms. Hudson stood on the side of the road
near her vehicle and spoke with her as she was on the phone
with 911. After briefly speaking to her, Mr. Webb then stepped
back into the roadway, apparently moving towards where he
believed [Appellee’s] car had come to rest. Almost immediately,
Mr. Webb was struck by an oncoming tractor trailer.16 He was
pronounced dead at the scene. Ms. Hudson was mobile at the
scene and waved off EMS care, but sought medical treatment
several days later for stiffness, soreness, bruising, pain, and
anxiety.
16
N.T. at 37. The truck driver was not charged in
relation to the incident. N.T. at 40-44.

[Appellee] was subsequently charged with one count each
of the following: 1) DUI-General Impairment, 2) DUI-General
Impairment with Refusal to Submit to Blood Alcohol Test, 3)
DUI-General Impairment with Accident Involving Death or
Personal[] Injury, 4) Accidents Involving Death or Personal
Injury, 5) Failure to Stop and Give Information and Render Aid,
6) Failure to Notify Police of an Accident Involving Damage, 7)
Careless Driving, 8) Failure to Stop at a Traffic Control Signal, 9)
Disregarding a Traffic Lane (Single), and 10) Recklessly
Endangering Another Person [“REAP”].[2] Counts 5-9 are
____________________________________________

2
75 Pa.C.S. §§ 3802(a)(1), 3802(a)(1), 3802(a)(1), 3742(a), 3744(a),
3746(a), 3714(a), 3112(a)(3)(i), 3309(1), and 18 Pa.C.S. § 2705,
respectively.

-2-
J-A09028-17

summary offense[s], carrying fines of $25 each. Counts 1-3, the
general DUI charges, carry a maximum [penalty of] six months
imprisonment and therefore were set for non-jury trial. The
remaining two charges were set for jury trial; Count [4],
Accidents Involving Death or Personal Injury, which was charged
as a misdemeanor in the first degree, and Count 10, [REAP],
which was charged as a misdemeanor in the second degree.
[Appellee] waived his pre-trial conference.

Trial Court Opinion, 8/16/16, at 2–4 (multiple footnotes omitted).

The trial court summarized the procedural history as follows:

Trial was scheduled for May 16, 2016, with counts 1–3 and the
summary offenses to be decided by non-jury trial and counts 4
and 10 to be decided by criminal jury trial. On May 16, 2016,
[Appellee] filed a Motion in Limine to exclude certain evidence.
This [c]ourt held a hearing on the Motion on May 16 and 17,
2016.[3] On May 17, 2016, after a hearing upon [Appellee’s]
Motion in Limine and Commonwealth’s Motion to Amend the
Information, this [c]ourt issued an order partially granting and
partially denying the Motion in Limine and denying the Motion to
Amend the Information.

Trial Court Opinion, 8/16/16, at 1–2 (multiple footnotes omitted).

At the conclusion of the hearing, the trial court ruled that the

Commonwealth: could present evidence to the jury that Appellee was driving

while intoxicated; could not present evidence to the jury of Appellee’s refusal

to submit to a blood-alcohol test; and could not present evidence of the
____________________________________________

3
At the hearing on Appellee’s motion, the Commonwealth orally moved to
amend the information to include a new count of DUI-General Impairment
with Accident Involving Death or Personal Injury, graded as either a felony
of the third degree for serious bodily injury and/or a felony of the second
degree, for the death of Mr. Webb. N.T., 5/16/16, at 9, 11. The trial court
denied the motion in an order filed May 20, 2016. The Commonwealth is not
appealing the denial of its oral motion to amend the information.
Commonwealth’s Brief at 14 n.3.

-3-
J-A09028-17

death of Mr. Webb. The trial court also denied the Commonwealth’s Motion

to Amend the Information to include a higher grading of the offense of

Accidents Involving Death or Personal Injury. Trial Court Opinion, 8/16/16,

at 6; Order, 5/20/16. The Commonwealth filed a notice of appeal from the

court’s interlocutory order.4 Both the Commonwealth and the trial court

complied with Pa.R.A.P. 1925.

The two issues asserted in the Commonwealth’s Rule 1925(b)

statement are the same issues raised on appeal, as follows:

I. Whether the trial court abused its discretion in granting
[Appellee’s] motion to exclude evidence of his refusal to
submit to a blood-alcohol test when such a refusal may be
considered as consciousness of guilt of DUI and, in turn,
evidence of DUI may be considered as consciousness of guilt
for Recklessly Endangering Another Person?

II. Did the trial court abuse its discretion in a [sic] Accidents
Involving Death or Personal Injury and Recklessly
Endangering Another Person case when the court excluded
evidence of the death of Victim Webb, who was attempting to
assist Victim Hudson, the woman that [Appellee] crashed into
while DUI and fled the crash scene from, regardless of the
grading of the Accidents offense and fact that the Criminal
Information does not specific [sic] the name of the Victims?

____________________________________________

4
The Commonwealth may appeal an interlocutory order suppressing
evidence when it provides a certification with its notice of appeal that the
order terminates or substantially handicaps the prosecution.
Commonwealth v. Petty, 157 A.3d 953, 954 n.1 (Pa. Super. 2017);
Pa.R.A.P. 311(d). See also Commonwealth v. Gordon, 673 A.2d 866
(1996) (Commonwealth may appeal grant of a defense motion in limine that
excludes Commonwealth evidence and has the effect of substantially
handicapping the prosecution). The Commonwealth attached the required
certification to its notice of appeal.

-4-
J-A09028-17

Commonwealth’s Brief at 8.

The standards by which we review this case are settled. “A motion in

limine is a procedure for obtaining a ruling on the admissibility of evidence

prior to or during trial, but before the evidence has been offered.”

Commonwealth v. Freidl, 834 A.2d 638, 641 (Pa. Super. 2003) (citation

omitted). “In evaluating the denial or grant of a motion in limine, our

standard of review is the same as that utilized to analyze an evidentiary

challenge.” Commonwealth v. Hicks, 151 A.3d 216, 224 (Pa. Super.

2016) (citing Commonwealth v. Pugh, 101 A.3d 820, 822 (Pa. Super.

2014)).

“The admission of evidence is solely within the discretion of the
trial court, and a trial court's evidentiary rulings will be reversed
on appeal only upon an abuse of that discretion.”
Commonwealth v. Reid, 627 Pa. 151, 99 A.3d 470, 493
(2014). An abuse of discretion will not be found based on a
mere error of judgment, but rather occurs where the court has
reached a conclusion that overrides or misapplies the law, or
where the judgment exercised is manifestly unreasonable, or the
result of partiality, prejudice, bias or ill-will. Commonwealth v.
Davido, ___ Pa. ___, 106 A.3d 611, 645 (2014).

Commonwealth v. Woodard, 129 A.3d 480, 494 (Pa. 2015), cert. denied

sub nom. Woodard v. Pennsylvania, 137 S.Ct. 92 (2016). “The court may

exclude relevant evidence if its probative value is outweighed by a danger of

one or more of the following: unfair prejudice, confusing the issues,

misleading the jury, undue delay, wasting time, or needlessly presenting

cumulative evidence. Pa.R.E. 403.” Hicks, 151 A.3d at 224.

-5-
J-A09028-17

Initially, we are compelled to address the trial court’s assertion that

this interlocutory appeal is improper. The trial court averred in its Pa.R.A.P.

1925(a) opinion that “the Commonwealth’s case will not be terminated or

substantially handicapped by this [c]ourt’s [o]rder dated May 20, 2016[,]

and therefore the Commonwealth’s interlocutory appeal is improper.” Trial

Court Opinion, 8/16/16, at 7.

As noted supra, the Commonwealth may appeal an interlocutory order

suppressing evidence when it provides a certification that the order

terminates or substantially handicaps the prosecution. Pa.R.A.P. 311(d).

Furthermore:

“[t]he Commonwealth’s certification that its prosecution is
substantially handicapped is ‘not contestable.’ The certification,
‘in and of itself, precipitates and authorizes the appeal.’”
Commonwealth v. Apollo, 412 Pa. Super. 453, 456, 603 A.2d
1023, 1025 (1992), appeal denied, 531 Pa. 650, 613 A.2d 556
(1992), quoting Commonwealth v. Dugger, 506 Pa. 537, 545,
486 A.2d 382, 386 (1985).

Commonwealth v. Surina, 652 A.2d 400, 402 (Pa. Super. 1995). Thus,

we are not permitted to inquire into the Commonwealth’s good-faith

certification, and we reject the trial court’s contention that this appeal is

improper. See Commonwealth v. Belani, 101 A.3d 1156, 1157 n.1 (Pa.

Super. 2014) (appellate court is not permitted to inquire into the

Commonwealth’s good-faith certification); see also Commonwealth v.

Moser, 999 A.2d 602, 605 n.2 (Pa. Super. 2010) (“Both the trial court and

[the a]ppellee have requested that this Court inquire into the

-6-
J-A09028-17

Commonwealth’s good-faith certification; however, we are not permitted to

conduct such an inquiry”) (citing Commonwealth v. White, 910 A.2d 648,

654–655 (Pa. 2006); Commonwealth v. Boczkowski, 846 A.2d 75, 87

(Pa. 2004); Commonwealth v. Cosnek, 836 A.2d 871, 877 (Pa. 2003)).

The Commonwealth first challenges the trial court’s exclusion of

evidence of Appellee’s refusal to submit to a blood-alcohol test in the

ensuing jury trial of the charges of Accidents Involving Death or Personal

Injury and Recklessly Endangering Another Person (“REAP”). 5 The

Commonwealth maintains that it should be permitted to introduce evidence

of Appellee’s refusal to submit to blood-alcohol testing in order to support its

contention that Appellee knew he was driving while intoxicated and

therefore, was conscious of his guilt related to the charge of REAP.

The two charges to be tried before a jury are as follows:

§ 3742. Accidents involving death or personal injury

(a) General rule.--The driver of any vehicle involved in an
accident resulting in injury or death of any person shall
immediately stop the vehicle at the scene of the accident or as
close thereto as possible but shall then forthwith return to and in
every event shall remain at the scene of the accident until he
has fulfilled the requirements of section 3744 (relating to duty to
give information and render aid). Every stop shall be made
without obstructing traffic more than is necessary.

____________________________________________

5
Given the grading of the DUI offenses, charges one through three will be
determined by a judge. Charges five through nine are summary offenses.
The two remaining charges—charge four, Accidents Involving Death or
Personal Injury, and charge ten, REAP—are to be tried by a jury.

-7-
J-A09028-17

75 Pa.C.S. § 3742. REAP is defined as:

§ 2705. Recklessly endangering another person

A person commits a misdemeanor of the second degree if he
recklessly engages in conduct which places or may place another
person in danger of death or serious bodily injury.

18 Pa.C.S. § 2705. Recklessly is defined as:

§ 302. General requirements of culpability

* * *

(b) Kinds of culpability defined.—

* * *

(3) A person acts recklessly with respect to a material
element of an offense when he consciously disregards a
substantial and unjustifiable risk that the material element
exists or will result from his conduct. The risk must be of
such a nature and degree that, considering the nature and
intent of the actor’s conduct and the circumstances known
to him, its disregard involves a gross deviation from the
standard of conduct that a reasonable person would
observe in the actor’s situation.

18 Pa.C.S. §302(b)(3).

Following a hearing on Appellee’s motion in limine, the trial court

determined that the Commonwealth could present evidence to the jury that

Appellee was driving while intoxicated but could not present evidence, inter

alia, that Appellee refused to submit to a blood-alcohol test. The trial court

-8-
J-A09028-17

summarized the May 17, 2016 hearing on Appellee’s motion in limine as

follows:6

[Appellee] filed a Motion in Limine on May 16, 2016,
stating he had been informed by the Commonwealth that the
Commonwealth intended to introduce evidence concerning the
death of Mr. Webb and seeking the exclusion of that evidence as
not relevant to the charges as they had been made by the
Commonwealth.24
24
The evidence the Commonwealth sought to
introduce included photos of the scene of the
accident, a photo of the dead body of Mr. Webb
under a tarp, and the transcript of the 911 call made
by Ms. Hudson, which includes statements by Ms.
Hudson that someone (Mr. Webb) had been hit by a
truck. N.T. at 19, 30.

At a hearing on the Motion in Limine held on May 17,
2016, [Appellee] argued the death of Mr. Webb was not relevant
to the charges against [Appellee], because the Commonwealth
had not alleged any charges for Mr. Webb’s death. Furthermore
[Appellee] argued any evidence of Mr. Webb’s death would be
unfairly prejudicial to the [Appellee]. [Appellee’s] counsel stated
that he had only been informed of the Commonwealth’s intent to
introduce the evidence of Mr. Webb’s death in the week before
the criminal jury trial and non-jury trials were to commence.
Defense counsel stated that if he had notice that Mr. Webb’s
death was to be an issue or if the charges were to proceed as
felony charges instead of misdemeanor charges, he would have
prepared significantly different evidence and witnesses for trial.
For example, Defense counsel stated he was in possession of a
toxicology report showing Mr. Webb was intoxicated at the time
he entered the roadway.29 Defense counsel credibly stated that
had he known Mr. Webb’s death was to enter into the trial, he
would have prepared an expert to testify in support of the
toxicology report and prepared other additional witnesses.

____________________________________________

6
A portion of this summary is relevant to the Commonwealth’s second issue
addressed supra, but for the sake of clarity, we reproduce it here.

-9-
J-A09028-17

29
N.T. at 7. Such evidence would have supported a
defense theory of superseding intervening causes,
where Mr. Webb’s intoxication was the superseding
intervening cause that broke the causal chain
between [Appellee’s] actions and Webb’s death.

Defense counsel and Commonwealth counsel both
described discussions they had about possible additional charges
regarding Mr. Webb that occurred prior to the previous criminal
trial term; counsel had different understandings of the intent of
those conversations and defense counsel stated he was never
definitively notified that the Commonwealth intended to pursue
charges for the death of Mr. Webb but that he deduced the
Commonwealth’s intent from discovery he received on the
Wednesday and Friday afternoon before the trial was scheduled
to start on Monday morning. The Commonwealth argued that
[Appellee] had been on notice that evidence of the death of Mr.
Webb might be introduced since the date the complaint was
made on July 6, 2016, because Mr. Webb’s death was noted in
the affidavit of probable cause to the complaint.32 The
Commonwealth also made a Motion to Amend the Information to
include a higher grading of the offense of Reckless
Endangerment of Another Person, but at the same time argued
the charges in the original complaint did encompass the death of
Mr. Webb and therefore the evidence of his death was relevant.
32
N.T. at 23. The Commonwealth also admitted one
reason they did not change the grading of the charge
was because the one year-clock imposed by Rule
600 would have run out before the next criminal trial
term. N.T. at 9. At another point, the
Commonwealth also conceded that after the period
for pre-trial conferences for the instant term had
passed, it would be fair of defense counsel to
assume that they were not going to file, for example,
homicide charges, but that there should have been
no corresponding assumption that the
Commonwealth was “not going to try to hold
[Appellee] accountable for Mr. Webb’s death in a
lesser way.” N.T. at 29.

At the hearing, [Appellee] also requested to exclude from
the jury trial evidence that he was driving under the influence,
as the jury was not deciding the DUI charge and the evidence

- 10 -
J-A09028-17

would be unfairly prejudicial. The Commonwealth argued
evidence of [Appellee’s] intoxication was relevant, and not
unfairly prejudicial with regards to the charge of Reckless
Endangerment of Another Person.

Trial Court Opinion, 8/16/16, at 4–6 (multiple footnotes omitted).

The Commonwealth relies upon Commonwealth v. Surina, 652 A.2d

400 (Pa. Super. 1995), suggesting that “[a]llowing BAC results in a REAP

trial enables the Commonwealth to demonstrate [Appellee] consciously

disregarded a known risk in driving with alcohol in his system.”

Commonwealth’s Brief at 23. Citing to Commonwealth v. Robinson, 324

A.2d 441 (Pa. Super. 1974), as well, the Commonwealth points out that in

DUI prosecutions, evidence of refusal to submit to chemical testing for the

presence of alcohol is admissible as “conduct that may be regarded as

indicating consciousness of guilt.” Commonwealth’s Brief at 24; Robinson,

324 A.2d at 451.7 The Commonwealth also cites 75 Pa.C.S. § 1547(e) of the

Vehicle Code, which provides:

____________________________________________

7
We agree with the Commonwealth that Birchfield v. North Dakota, 136
S.Ct. 2160 (2016), is not controlling here. In Birchfield, the United States
Supreme Court determined that the Fourth Amendment permitted
warrantless breath tests incident to arrest for driving under the influence of
alcohol, but not blood tests, by drawing a distinction between the level of
intrusion and inconvenience in breath tests as compared to blood tests. See
also Commonwealth v. Evans, 153 A.3d 323, 331 (Pa. Super. 2016)
(reversing and remanding trial court’s refusal to suppress blood test results
based upon Birchfield considerations so that trial court could “reevaluate
[the appellant’s] consent based upon the totality of all the circumstances . . .
given the partial inaccuracy of the officer’s advisory” regarding the potential
penalties). Appellee herein never raised the issue concerning whether his
(Footnote Continued Next Page)

- 11 -
J-A09028-17

(e) Refusal admissible in evidence.--In any summary
proceeding or criminal proceeding in which the defendant is
charged with a violation of section 3802 or any other violation of
this title arising out of the same action, the fact that the
defendant refused to submit to chemical testing as required by
subsection (a) may be introduced in evidence along with other
testimony concerning the circumstances of the refusal. No
presumptions shall arise from this evidence but it may be
considered along with other factors concerning the charge.

75 Pa.C.S. § 1547(e). The Commonwealth contends that Appellee’s

consciousness of guilt is relevant to the determination of his guilt related to

REAP. Commonwealth’s Brief at 27. It avers that Appellee’s refusal to

submit to blood testing demonstrates his fear that the results of any such

testing could demonstrate “his conscious disregard of obvious and known

risks on the roadway, i.e. his reckless endangerment.” Commonwealth’s

Brief at 28.

Appellee responds that evidence of his refusal to submit to blood

testing is not relevant to either of the charges that will be tried to the jury.

Appellee’s Brief at 5. Appellee asserts that Surina and Robinson do not

compel an opposite result. Appellee maintains that because the

Commonwealth has witnesses who will testify that Appellee was driving “at

any extremely high rate of speed” and also ran a red light, it has other
_______________________
(Footnote Continued)

refusal should be suppressed because it violated his constitutional rights
before the trial court; thus, the Fourth Amendment issue is waived, and
Birchfield is not implicated. Furthermore, the Birchfield Court stated that
nothing in its opinion “should be read to cast doubt on” implied-consent laws
that “impose civil penalties and evidentiary consequences on motorists who
refuse to comply.” Birchfield, 136 S.Ct. at 2185.

- 12 -
J-A09028-17

evidence sufficient to establish Appellee’s recklessness. Appellee’s Brief at

10.

The trial court concluded that while evidence of Appellee’s intoxication

could be presented to the jury, evidence of Appellee’s refusal to permit blood

testing could not be admitted because the probative value of such refusal is

outweighed, in this case, “by the danger of unfair prejudice or confusing the

issues.” Trial Court Opinion, 8/16/16, at 13. The trial court opined that

there exists other evidence of recklessness the Commonwealth can present,

and it underscores Appellee’s own statement that he had been drinking

alcohol. Id. Finally, the trial court noted that all of the DUI charges are to

be decided by the court, not the jury, due to their relevant grading.

We conclude that the trial court did not abuse its discretion in granting

Appellee’s motion to exclude from the jury evidence of Appellee’s refusal to

submit to blood-alcohol testing. Surina, its reliance on Commonwealth v.

Scofield, 521 A.2d 40 (Pa. Super. 1987), and Robinson do not compel a

different result. The Surina Court considered breath, not blood-test results,

where the trial court held that such evidence was admissible only to prove a

charge of DUI, which in Surina had been dismissed. The Surina holding,

permitting introduction of the breathalyzer results, actually is consistent with

the trial court’s conclusion in the instant case, where it has permitted

introduction of concrete evidence of Appellee’s intoxication but denied the

- 13 -
J-A09028-17

confusing, prejudicial evidence of Appellee’s refusal to undergo blood-

testing.

Similarly, Scofield does not require a different result. As in Surina,

the Scofield Court considered evidence of a breathalyzer test result, which

this Court found was probative of recklessness. Scofield, 521 A.2d at 43.

Once again, Scofield is merely consistent with the trial court’s admission of

other evidence of Appellee’s intoxication in the case sub judice; it has no

relevance to the situation in the instant matter. Finally, Robinson held that

admission into evidence of the defendant’s refusal to submit to a

breathalyzer test under the implied consent law did not violate his Fifth

Amendment privilege against self-incrimination. None of these cases is

controlling of the case sub judice.

As stated by the trial court:

This [c]ourt recognizes that evidence that a defendant was
driving while intoxicated does not establish legal recklessness
per se for the purposes of the Reckless Endangerment of
Another Person statute, but may be considered among a body of
indicia of such recklessness. See Commonwealth v.
Mastromatteo, 719 A.2d 1081 (Pa. Super. 1998);
Commonwealth v. Sullivan, 864 A.2d 1264 (Pa. Super. 2004).
Accordingly, this [c]ourt ruled that evidence of [Appellee’s]
intoxication could be submitted to the jury, while excluding from
the jury, however, evidence of [Appellee’s] refusal to submit to
blood alcohol testing. This [c]ourt found in this instance the
probative value of the evidence of [Appellee’s] refusal to submit
to blood alcohol testing would be outweighed by the danger of
unfair prejudice or confusing the issues. Because the
Commonwealth can present other evidence of
[Appellee’s] consciousness of guilt, such as his own
statement that he had been drinking, the probative value
of the evidence is mitigated. At the same time, evidence of

- 14 -
J-A09028-17

refusal to submit [to blood-testing] is highly prejudicial.
Furthermore, this [c]ourt notes a high probability that admitting
the evidence would confuse the issue for the jury; the jury is not
charged with deciding whether [Appellee] was in fact guilty of
DUI, the charge for which refusal to submit to blood alcohol
testing is specifically admissible under 75 Pa.C.S. § 1547. That
charge is left to this [c]ourt to decide. The jury is to decide
whether or not [Appellee] was conscious of his guilt in the
charge of Recklessly Endangering Another Person. Essentially,
the Commonwealth is seeking to admit to the jury highly
prejudicial, minimally probative evidence which is not directly
relevant to a charge actually before the jury, because that
evidence indirectly supports the Commonwealth’s argument on a
different charge that actually is before the jury. This [c]ourt
finds that, in this particular instance, such evidence is properly
excluded.

Trial Court Opinion, 8/16/16, at 13–14 (footnotes and internal citations to

the record omitted) (first emphasis added; second emphasis in original).

The trial court’s determination does not reveal an abuse of discretion.

The court did not override or misapply applicable law, and its ruling is not

the result of the exercise of manifestly unreasonable judgment, partiality,

bias, or ill-will. Commonwealth v. Minich, 4 A.3d 1063, 1068 (Pa. Super.

2010). Therefore, we find that the Commonwealth’s first issue lacks merit.

In its second issue, the Commonwealth asserts the trial court abused

its discretion in excluding evidence related to the death of Mr. Webb. In the

criminal information, the Commonwealth charged the count of Accident

Involving Death or Personal Injury, 75 Pa.C.S. § 3742, as the default

grading, which is a misdemeanor of the first degree. That crime contains an

element of proof requiring “an accident resulting in injury or death of

another person.” Id. at § 3742(a). The Commonwealth avers that the

- 15 -
J-A09028-17

charges as written should encompass both the injuries to Ms. Hudson and

the death of Mr. Webb. It argues that it should be permitted to introduce

evidence of Mr. Webb’s death along with evidence of Ms. Hudson’s injuries,

when attempting to prove the two charges before the jury.

Commonwealth’s Brief at 31. The Commonwealth posits that the question

for review is not whether it can prove the case as charged, “but whether the

Commonwealth can attempt to prove the case as charged.” Id. at 31–32.

The Commonwealth also responds to the trial court’s reliance on

Commonwealth v. Frisbie, 485 A.2d 1098 (Pa. 1984). Frisbie held that a

single act that injures multiple victims may form the basis for multiple

sentences without violating double jeopardy principles. The Commonwealth

suggests that here, Appellee was charged with only one REAP count for

multiple victims, rather than multiple counts, “one for each victim, e.g., Ms.

Hudson, Mr. Webb, Ms. Coder, and other motorists.” Commonwealth’s Brief

at 33.

The Commonwealth cites Commonwealth v. Martuscelli, 54 A.3d

940 (Pa. Super. 2012), as an example of a case where the defendant was

charged and convicted of one count of REAP even though the facts

supporting his conviction included multiple victims. Mr. Martuscelli fired

shots at multiple officers in a tree line, and these facts were sufficient to

convict him of one count of REAP. “The Commonwealth was not required to

- 16 -
J-A09028-17

mention only one officer who was endangered but could present its full case

and facts relating to multiple victims.” Commonwealth’s Brief at 34.

The Commonwealth explains that here, Appellee was charged with one

count of REAP without naming a specific victim. However, the Affidavit of

Probable Cause discussed multiple people present, describing Mr. Webb as a

“male victim that was struck after coming to the aid of Ms. Hudson from the

vehicle accident.” Commonwealth’s Brief at 35 (citing Affidavit of Probable

Cause, Attachment B). The Commonwealth seizes on this as significant,

suggesting that Mr. Webb was clearly described as a “victim” in the Affidavit,

even though a specific victim was not listed in the charging documents. Id.

at 36.

The Commonwealth further maintains that if it cannot proceed with

evidence of Mr. Webb’s death solely because the Commonwealth did not

charge the heightened grading of the Accident-Involving-Death-or-Personal-

Injury charge, the evidence should be admitted under the res gestae

exception for admission of other crimes. Commonwealth’s Brief at 42. See

Commonwealth v. Brown, 52 A.3d 320, 326 (Pa. Super. 2012) (Res

gestae exception to prohibition of evidence of other crimes is admissible to

“complete the story of the crime on trial by proving its immediate context of

happenings near in time and place.”).

The trial court ruled that the Commonwealth could not add additional

charges or amend the charges to explicitly refer to the death of Mr. Webb,

- 17 -
J-A09028-17

and significantly, the Commonwealth does not appeal that ruling herein.

The trial court held that evidence of Mr. Webb’s death should be admitted

only if it is 1) relevant to the injuries to Ms. Hudson, and 2) the probative

value of such evidence is not unfairly outweighed by its prejudicial effect.

Trial Court Opinion, 8/16/16, at 16. The trial court determined that the

grading of the offenses and Appellee’s alleged conduct, as it was described

in the criminal complaint, “reflect charges relating only to the injuries to Ms.

Hudson and not for the death of Mr. Webb.” Id. The court found it

significant that the Commonwealth proceeded on only one count of each

charge, stating that:

where a statute defines a crime as a harm against an individual
person, such as simple assault, reckless endangerment, or
criminal homicide, the number of offenses depends on the
number of victims rather than on the number of acts committed
by the defendant. [Commonwealth v.] DeSumma, [559 A.2d
521, 522 (Pa. 1989),] citing Commonwealth v. Williams, 522
A.2d 1095 (1987) (an attempt to murder three people by a
single act of arson would constitute three separate offenses of
attempted murder because criminal homicide is defined as
causing the death of “another human being”); Commonwealth
v. Frisbie, 485 A.2d 1098, 1100) [(Pa. 1984)] (18 Pa.C.S. §
2705, recklessly endangering another person, is defined “with
respect to an individual person being placed in danger of death
or serious bodily injury, and . . . a separate offense is committed
for each individual person placed in such danger.”) (emphasis
added).

Trial Court Opinion, 8/16/16, at 16–17. Thus, the trial court held that this

principle supported its conclusion that the REAP charge applied only to one

victim. Id. at 17.

- 18 -
J-A09028-17

We conclude that the trial court correctly precluded reference to the

death of Mr. Webb under the factors present in this case. The

Commonwealth charged one count of REAP. In the criminal complaint “Acts

of the accused associated with this Offense” section of the REAP charge, the

affiant listed the victim of this offense as the person whose vehicle was

struck, referring sub silentio to Ms. Hudson as follows: “Def[endant] did

place victim in danger of death or serious injury via driving intoxicated and

driving into the side of victim[’]s vehicle.” Complaint, 6/29/15, at 6

(emphasis added). The later-filed criminal information is silent as to the

identity of the victim. The Commonwealth could have charged Appellee with

an additional count for Mr. Webb’s death, but did not do so. Moreover, the

Commonwealth did not appeal the trial court’s refusal to permit the

Commonwealth to amend the charges to explicitly refer to the death of Mr.

Webb. Finally, regarding the Commonwealth’s res gestae argument, that

claim is waived by the Commonwealth’s failure to raise it in the trial court,

either at oral argument or in its Pa.R.A.P. 1925(b) statement.

Commonwealth v. Sauers, 159 A.3d 1 (Pa. Super. 2017) (issue waived for

failure to preserve it in trial court); Commonwealth v. Riggle, 119 A.3d

1058 (Pa. Super. 2015) (issue not advanced in Pa.R.A.P. 1925(b) statement

is waived).

In conclusion, we hold that the trial court did not abuse its discretion

in granting Appellee’s motion to preclude the Commonwealth from

- 19 -
J-A09028-17

presenting to the jury evidence of Appellee’s refusal to submit to blood-

alcohol testing and the death of Mr. Webb. Thus, we affirm the rulings of

the Honorable Christylee L. Peck and remand this matter to the trial court

for proceedings consistent with this Opinion.

Order affirmed. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/17/2017

- 20 -