Com. v. Brown, W. ( 2015 )

J-S55039-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
WILLIAM LEE BROWN, :
:
Appellant : No. 601 WDA 2015
Appeal from the Judgment of Sentence Entered March 26, 2015,
in the Court of Common Pleas of Fayette County,
Criminal Division, at No(s): CP-26-CR-0000848-2014
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and STRASSBURGER,* J.
MEMORANDUM BY STRASSBURGER, J.: FILED NOVEMBER 06, 2015
William Lee Brown (Appellant) appeals from a judgment of sentence
entered after a jury convicted him of driving under the influence of
marijuana and the trial court convicted him of failing to drive vehicle at safe
speed, careless driving, and direct criminal contempt. We affirm.
The trial court summarized the background underlying this matter as
follows.1
On December 29, 2014, Pennsylvania State Trooper
Patrick Egros and Trooper Josh Mrosko responded to a report of
a vehicle crash on New Salem Road, Fayette County. Both
Troopers were dressed in full uniform and drove a marked police
vehicle. Upon arriving at the scene, the Troopers observed a
black Kia Optima car [lying] on its roof. Appellant was observed
sitting in the back of an ambulance, and it was determined that
he was the driver of the Kia Optima involved in the crash.
1
We have broken up the trial court’s opinion into several paragraphs.
*Retired Senior Judge assigned to the Superior Court.
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Appellant was taken to Uniontown Hospital and an accident
report was created by the Troopers. Appellant was met at the
Uniontown Hospital by the Troopers, and was given the standard
form DL-26, or O’Connell warnings,[2] in an attempt to obtain a
statement and retrieve a blood sample from Appellant.
Appellant refused to submit to a blood test and upon release
from the hospital, was transferred to the Pennsylvania State
Police barracks for an interview and fingerprinting.
Appellant gave a written statement to the Troopers
following acknowledgement of his Miranda rights and by signing
the DL-26 form. [In that statement, Appellant admitted to
smoking marijuana before driving on December 29, 2014.]
On January 5, 2015, Appellant was convicted by a jury of
driving under the influence of a controlled substance, a first
2
This Court previously has explained that
[t]he O'Connell warnings were first pronounced in
Commonwealth, Department of Transportation, Bureau of
Traffic Safety v. O'Connell, 521 Pa. 242, 555 A.2d 873(1989). In a later opinion, our Supreme Court explained both
the O'Connell warnings and the reasoning behind the warnings:
in order to guarantee that a motorist makes a knowing and
conscious decision on whether to submit to testing or
refuse and accept the consequence of losing his driving
privileges, the police must advise the motorist that in
making this decision, he does not have the right to speak
with counsel, or anyone else, before submitting to
chemical testing, and further, if the motorist exercises his
right to remain silent as a basis for refusing to submit to
testing, it will be considered a refusal and he will suffer the
loss of his driving privileges[. T]he duty of the officer to
provide the O'Connell warnings as described herein is
triggered by the officer’s request that the motorist submit
to chemical sobriety testing, whether or not the motorist
has first been advised of his Miranda rights[ pursuant to
Miranda v. Arizona, 384 US 432 (1966)].
Commonwealth v. Barr, 79 A.3d 668, 670 n.4 (Pa. Super. 2013) (citation
omitted).
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degree misdemeanor. [The trial court convicted him of failing to
drive vehicle at safe speed and careless driving. At his
sentencing hearing, Appellant became uncooperative and started
yelling obscenities. After warning Appellant several times to
cease his behavior and informing him that the court could find
him in contempt, the court found Appellant in contempt.]
[For the DUI conviction,] Appellant was sentenced to
undergo imprisonment at a State Correctional Institution for a
period of not less than one [] year nor more than two [] years,
with time served from March 11, 2014 to March 14, 2014. [As
to the contempt conviction, the court sentenced Appellant to
serve three to six months in prison consecutive to the DUI
sentence. The court ordered no further punishment on the
remaining convictions.] Appellant’s operator’s license was
suspended for a period of [18] months. Appellant filed this
timely appeal thereafter. [Appellant and the trial court complied
with Pa.R.A.P. 1925.]
Trial Court Opinion, 6/11/2015, at 1-2 (footnote omitted).
In his brief to this Court, Appellant asks us to consider the questions
that follow.3
[1.] Did the Commonwealth fail to present sufficient
evidence to prove beyond a reasonable doubt that
Appellant was driving, operating, or in actual physical
control of the vehicle at the time of the accident?
[2.] Did the Commonwealth fail to present sufficient
evidence to prove beyond a reasonable doubt that
Appellant was driving, operating, or in actual physical
control of the vehicle with any amount of a Schedule I
substance in Appellant’s blood?
[3.] Did the lower court err in admitting Appellant’s
written confession into evidence when no independent
evidence was presented by the Commonwealth to establish
the commission of the alleged offense?
3
We have reordered Appellant’s issues for ease of discussion.
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[4.] Did the Commonwealth improperly utilize two of its
peremptory challenges to strike the only two [] African
Americans on the prospective jury panel in violation of the
Equal Protection Clause and Batson v. Kentucky, 476
U.S. 79 [] (1986)?
[5.] Did the sentencing court impose a manifestly
unreasonable and excessive sentence by sentencing
Appellant to a consecutive term of three [] to six []
months for the offense of direct contempt?
Appellant’s Brief at 8 (unnecessary capitalization omitted).
The jury convicted Appellant of violating 75 Pa.C.S. § 3802(d)(1)(i),
which provides as follows.
(d) Controlled substances.--An individual may not drive,
operate or be in actual physical control of the movement of a
vehicle under any of the following circumstances:
(1) There is in the individual’s blood any amount of a:
(i) Schedule I controlled substance, as defined in the
act of April 14, 1972 (P.L. 233, No. 64), known as The
Controlled Substance, Drug, Device and Cosmetic
Act[.]
75 Pa.C.S. § 3802 (footnote omitted). Marijuana is a Schedule I controlled
substance. 35 P.S. § 780-104(1)(iv).
In support of the first two issues listed above, Appellant argues that
the Commonwealth failed to offer sufficient evidence to prove that he
violated subsection 3802(d)(1)(i). Appellant’s Brief at 20-22. More
specifically, he claims that the only evidence presented by the
Commonwealth to establish that he operated a vehicle on the night in
question with a Schedule I controlled substance in his blood was his written
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confession. Appellant “contends that the trial court erred in admitting [the
confession] into evidence.” Id. at 21. Thus, it would seem that Appellant is
asking this Court to review the sufficiency of the evidence admitted at trial
on a diminished record. Our standard of review does not allow us to do so.
The standard we apply when reviewing the sufficiency of
the evidence is whether viewing all the evidence admitted
at trial in the light most favorable to the verdict winner,
there is sufficient evidence to enable the fact-finder to find
every element of the crime beyond a reasonable doubt. In
applying the above test, we may not weigh the evidence
and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless
the evidence is so weak and inconclusive that as a matter
of law no probability of fact may be drawn from the
combined circumstances. The Commonwealth may sustain
its burden of proving every element of the crime beyond a
reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the
entire record must be evaluated and all evidence
actually received must be considered. Finally, the trier
of fact while passing upon the credibility of witnesses and
the weight of the evidence produced is free to believe all,
part or none of the evidence.
Furthermore, [i]n evaluating the sufficiency of the
evidence, we do not review a diminished record. Rather,
the law is clear that we are required to consider all
evidence that was actually received, without
consideration as to the admissibility of that evidence or
whether the trial court’s evidentiary rulings are correct.
Commonwealth v. Gray, 867 A.2d 560, 567 (Pa. Super. 2005) (emphasis
added) (citations and quotation marks omitted).
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The Commonwealth presented to the jury Appellant’s statement
wherein he admitted to smoking marijuana before driving and wrecking the
Kia Optima on the night in question. N.T., 1/5/2015, at 41-42. The jury
clearly believed this statement, and the statement was sufficient to establish
that Appellant violated 75 Pa.C.S. § 3802(d)(1)(i). Consequently, the first
two issues warrant no relief.
Appellant does raise an evidentiary issue regarding the admissibility of
his confession. At trial, before the Commonwealth introduced Appellant’s
statement into evidence, Appellant objected on the basis of the corpus
delecti rule, claiming that the Commonwealth had yet to establish that a
crime had been committed. The trial court overruled that objection. On
appeal, Appellant argues that the court erred in this regard. Appellant’s
Brief at 16-19.
“The corpus delicti rule is a rule of evidence. Our standard of review
on appeals challenging an evidentiary ruling of the trial court is limited to a
determination of whether the trial court abused its discretion.”
Commonwealth v. Dupre, 866 A.2d 1089, 1097 (Pa. Super. 2005)
(citation omitted).
It is beyond cavil that, in this Commonwealth, a confession
is not evidence in the absence of proof of the corpus delicti....
[W]hen the Commonwealth has given sufficient evidence of the
corpus delicti to entitle the case to go to the jury, it is competent
to show a confession made by the prisoner connecting him with
the crime. “Corpus delicti” means, literally, “the body of a
crime.” The corpus delicti consists of the occurrence of a loss or
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injury resulting from some person’s criminal conduct. The
corpus delicti rule requires the Commonwealth to present
evidence that: (1) a loss has occurred; and (2) the loss
occurred as a result of a criminal agency. Only then can the
Commonwealth ... rely upon statements and declarations of the
accused to prove that the accused was, in fact, the criminal
agent responsible for the loss. The grounds on which the rule
rests are the hasty and unguarded character [that] is often
attached to confessions and admissions and the consequent
danger of a conviction where no crime has in fact been
committed.
Commonwealth v. Taylor, 831 A.2d 587, 590 (Pa. 2003) (citations and
some quotation marks omitted). Thus, before the Commonwealth could
introduce into evidence Appellant’s confession, it was required to establish
that driving under the influence occurred.
Trooper Egros was the only witness to testify at Appellant’s trial.
Before the Commonwealth sought to introduce Appellant’s statement, the
trooper had testified that: the Kia Optima was flipped onto its roof;
Appellant was the only non-emergency responder on the scene; Appellant
was being treated in the back of an ambulance by emergency medical
services personnel; while it had been raining out, the roads were free of
snow and ice; Appellant was transported to the hospital for treatment;
Appellant had received his O’Connell warnings; and Appellant had refused
to submit to a blood test. This evidence was more consistent with a
conclusion that the crash was caused by Appellant driving under the
influence than with a conclusion that the crash was simply the result of an
accident. Commonwealth v. Friend, 717 A.2d 568, 569-70 (Pa. Super.
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1998) (“[T]he evidence must be more consistent with a crime than an
accident, although the possibility of an accident need not be eliminated. The
corpus delicti may be established by circumstantial evidence.”) (footnote and
citations omitted). Thus, we conclude that the evidence was sufficient to
establish the corpus delecti for driving under the influence. Consequently,
we are unconvinced that the trial court abused its discretion by overruling
Appellant’s objection.
Next, we address Appellant’s claim that the trial court erred by
overruling his Batson challenges to the Commonwealth’s use of two of its
peremptory strikes during jury selection. Appellant’s Brief at 11-15. In
short, Appellant contends that the trial court erred by concluding that the
Commonwealth presented sufficient race-neutral reasons for striking from
the jury pool two African Americans.
In Batson, the U.S. Supreme Court held that the Equal
Protection Clause forbids [a] prosecutor to challenge potential
jurors solely on account of their race. [Our Supreme Court has]
explained the framework for analyzing a Batson claim in [its]
direct appeal opinion in Commonwealth v. Harris, 572 Pa.
489, 817 A.2d 1033 (2002):
[F]irst, the defendant must make a prima facie showing
that the circumstances give rise to an inference that the
prosecutor struck one or more prospective jurors on
account of race; second, if the prima facie showing is
made, the burden shifts to the prosecutor to articulate a
race-neutral explanation for striking the juror(s) at issue;
and third, the trial court must then make the ultimate
determination of whether the defense has carried its
burden of proving purposeful discrimination.
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***
The second prong of the Batson test, involving the
prosecution’s obligation to come forward with a race-
neutral explanation of the challenges once a prima facie
case is proven, does not demand an explanation that is
persuasive, or even plausible. Rather, the issue at that
stage is the facial validity of the prosecutor’s explanation.
Unless a discriminatory intent is inherent in the
prosecutor’s explanation, the reason offered will be
deemed race neutral.
If a race-neutral explanation is tendered, the trial court
must then proceed to the third prong of the test, i.e., the
ultimate determination of whether the opponent of the
strike has carried his burden of proving purposeful
discrimination. It is at this stage that the persuasiveness
of the facially-neutral explanation proffered by the
Commonwealth is relevant.
[T]he trial court’s decision on the ultimate question of
discriminatory intent represents a finding of fact of the sort
accorded great deference on appeal and will not be overturned
unless clearly erroneous. Such great deference is necessary
because a reviewing court, which analyzes only the transcripts
from voir dire, is not as well positioned as the trial court is to
make credibility determinations. There will seldom be much
evidence bearing on the decisive question of whether counsel’s
race-neutral explanation for a peremptory challenge should be
believed. [T]he best evidence often will be the demeanor of the
attorney who exercises the challenge. As with the state of mind
of a juror, evaluation of the prosecutor’s state of mind based on
demeanor and credibility lies peculiarly within a trial judge’s
province.
Commonwealth v. Cook, 952 A.2d 594, 602-03 (Pa. 2008) (citations,
quotation marks, and footnote omitted).
The trial court addressed Appellant’s claim of error, in relevant part, as
follows.
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During voir dire, Appellant, an African-American, raised
Batson challenges to both of the Commonwealth’s motions to
strike the only two [] African-American jurors on the prospective
jury panel.
***
This [c]ourt believes that the denial of Appellant’s Batson
motions was proper. Appellant is in fact African-American, only
two [] of thirty-five [] potential jurors were African-American,
and the Commonwealth moved to strike both of those jurors,
which this [c]ourt granted. However, the Commonwealth stated
on the record that Juror #383, an African-American man, was
struck based on a neutral non-racial reason, stating:
Anticipating, of course, a Batson challenge to that, I will
note for the record that my race-neutral reason which I
present is his profession. He is listed as a technician and
also he is a pastor in addition to a technician. Regardless
of his race, I would strike the individual because pastors
are sometimes much more forgiving and dealing in
redemption rather than just applying facts to law as jurors.
The Commonwealth also stated on record the non-
discriminatory reason behind striking Juror #296, an African-
American man:
...I anticipate striking him, unless counsel strikes him,
which I doubt is likely, because my second race-neutral
reason for [Juror 296] is he actually checked the box that
he was less likely to believe a police officer. Though he did
not raise his hand and state it, as a prosecutor, I make it
my point to strike all the jurors who say - who check that
box while they’re alone in their home, they’re not kind of
placed under the eye of the [c]ourt to stand up and say
that they chose to check a box that he’s less likely to
believe police officers. [The Commonwealth’s] case rests
solely on the testimony of a police officer.
This [c]ourt denied Appellant’s Batson challenge based on
the Commonwealth’s ability to articulate unbiased, non-
discriminatory reasons for striking both Juror Numbers 383 and
296. Based on the stated facts and case law, this [c]ourt
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concludes that the Commonwealth’s neutral, non-discriminatory
reasons for striking the only two [] African-American jurors are
sufficient to overcome Appellant’s Batson challenge….
Trial Court Opinion, 6/11/2015, at 5 (quotation marks omitted).
The record supports the trial court’s findings of fact. Moreover, there
is nothing in the record that convinces us that the court’s decision to deny
Appellant’s Batson challenges was clearly erroneous. Thus, Appellant’s
issue warrants no relief.
Lastly, Appellant contends that his sentence for criminal contempt is
manifestly unreasonable and excessive. Thus, Appellant challenges the
discretionary aspects of his sentence.
It is well settled that, with regard to the discretionary aspects of
sentencing, there is no automatic right to appeal.
Before [this Court may] reach the merits of [a challenge to
the discretionary aspects of a sentence], we must engage
in a four part analysis to determine: (1) whether the
appeal is timely; (2) whether Appellant preserved his
issue; (3) whether Appellant’s brief includes a concise
statement of the reasons relied upon for allowance of
appeal with respect to the discretionary aspects of
sentence; and (4) whether the concise statement raises a
substantial question that the sentence is appropriate under
the sentencing code.... [I]f the appeal satisfies each of
these four requirements, we will then proceed to decide
the substantive merits of the case.
Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013) (citations
omitted).
While Appellant timely filed his appeal, his brief does not contain a
concise statement of reasons relied upon for allowance of appeal. Moreover,
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Appellant failed to preserve his challenge, as he did not lodge an objection to
his sentence during the sentencing hearing, nor did he raise such a
challenge in a post-sentence motion; thus, Appellant waived this issue. See
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013)
(“Objections to the discretionary aspects of a sentence are generally waived
if they are not raised at the sentencing hearing or in a motion to modify the
sentence imposed.”).
For these reasons, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/6/2015
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