Com. v. Balch, F. ( 2018 )

J-S53019-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
FREDERIC SAMUEL BALCH III, :
:
Appellant : No. 3122 EDA 2017
Appeal from the Judgment of Sentence August 16, 2017
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0001516-2017
BEFORE: GANTMAN, P.J., OTT, J., and PLATT, J.
MEMORANDUM BY OTT, J.: FILED SEPTEMBER 26, 2018
Frederic Samuel Balch, III, appeals from the judgment of sentence
imposed on August 16, 2017, in the Court of Common Pleas of Delaware
County. The trial judge1 found Balch guilty of one count of driving under the
influence (DUI) – highest rate of alcohol, one count of possession of
marijuana, and two counts of use/possession of drug paraphernalia. 2 Balch
was sentenced to 72 hours to six months’ imprisonment and a one-year term
of probation. Balch contends that based upon the corpus delicti rule, the
____________________________________________
 Retired Senior Judge assigned to the Superior Court.
1 The trial judge, the late Honorable James F. Nilon, retired from the Delaware
County Court of Common Pleas in December of 2017. The case was
reassigned to the Honorable George A. Pagano in January of 2018. See Trial
Court Opinion, 2/13/2017, at 1 n.1.
2 75 Pa.C.S. § 3802(c), 35 P.S. § 780-113(a)(31), and 35 P.S. 780-
113(a)(32), respectively.
J-S53019-18
evidence was insufficient to support the trial judge’s DUI guilty verdict. For
the following reasons, we affirm.
The trial court has aptly summarized the facts of this case, as follows:
On November 30, 2016 at approximately 12:30 in the afternoon,
a white Lexus sedan crashed into a PECO pole at 305 Bryn Mawr
Avenue. Mr. Balch was in the car at the moment of the accident.
However, a good Samaritan picked up Mr. Balch and took him to
the Bryn Mawr Hospital before police arrived. Officer Shawn
Patterson of the Radnor Police Department responded to the
vehicle crash. Patterson saw that the car had severe damage to
the impact point on the driver’s side. The driver of the vehicle was
not present at the accident scene when Patterson arrived. After
responding to the auto accident on Bryn Mawr Avenue, Patterson
was dispatched to the hospital to locate the driver of the vehicle.
When Patterson arrived at the hospital, he found Officer Thomas
Matijasich with the Defendant, Mr. Balch, in the back room. Mr.
Balch was in poor physical condition, sustaining both head and
bodily injuries. Mr. Balch had fresh blood coming from his head
and there was no one else with him from the car accident. Upon
speaking to Mr. Balch, both officers identified a strong odor of
alcohol. The Defendant consented to a blood alcohol test, which
revealed a BAC of .241. The Defendant also admitted to smoking
marijuana. After patting him down, the officers found a small
amount of marijuana and drug paraphernalia on his person.
****
On August 16, 2017, a non-jury trial was held in front of this court.
Officer Patterson, Officer Matijasich, and Mr. Balch testified to the
facts as set forth above. According to Officer Matijasich, Mr. Balch
immediately admitted to being the driver of the white Lexus when
questioned at the hospital. However, at trial, Mr. Balch had no
recollection of admitting this, and alleged that his cousin was the
driver of the vehicle, not him. One eye witness testified that she
saw two men coming out of the vehicle after it had crashed, but
did not see which man was in actual physical control of the vehicle.
Furthermore, Mr. Balch testified that his BAC was .241 because
he had been drinking the night before, but not on the morning of
the accident. …
-2-
J-S53019-18
Trial Court Opinion, 2/13/2017, at 1-2. The trial court found, based on the
totality of facts, that the damage to the driver’s side windshield of the vehicle
was consistent with injuries Balch had at the hospital, which was evidence of
Balch being the operator of the vehicle. Therefore, the trial court concluded
the Commonwealth met the elements of DUI – highest rate of alcohol beyond
a reasonable doubt. The trial court sentenced Balch as stated above, and this
appeal followed.3
Balch contends that under the corpus delicti rule the trial court erred in
admitting his confession that he was the driver of the vehicle “for any
purpose,” because “[a] mere car accident was on the record when the [c]ourt
received [his] confession.” Balch’s Brief at 9. See also id. at 11-12.
Our standard of review for a challenge to the corpus delicti rule is well-
settled.
The corpus delicti rule is designed to guard 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." 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. The corpus delicti
rule places the burden on the prosecution to establish that a crime
has actually occurred before a confession or admission of the
____________________________________________
3 Review of the record reveals that the trial court, on September 18, 2017,
ordered Balch to file a Pa.R.A.P. 1925(b) statement within 21 days. Since the
21st day was Monday, October 10, 2017, a legal holiday, Balch’s concise
statement was due on October 11, 2017. See 1 Pa.C.S. 1908. On October
11, 2017, Balch filed a motion for extension of time, and the trial court granted
the motion and extended the time for filing the concise statement to October
27, 2017. Balch timely filed his concise statement on that date.
-3-
J-S53019-18
accused connecting him to the crime can be admitted. The corpus
delicti is literally the body of the crime; it consists of proof that a
loss or injury has occurred as a result of the criminal conduct of
someone. The criminal responsibility of the accused for the loss
or injury is not a component of the rule. The historical purpose of
the rule is to prevent a conviction based solely upon a confession
or admission, where in fact no crime has been committed. The
corpus delicti may be established by circumstantial evidence.
Establishing the corpus delicti in Pennsylvania is a two-step
process. The first step concerns the trial judge's admission of the
accused's statements and the second step concerns the fact
finder's consideration of those statements. In order for the
statement to be admitted, the Commonwealth must prove the
corpus delicti by a preponderance of the evidence. In order for the
statement to be considered by the fact finder, the Commonwealth
must establish the corpus delicti beyond a reasonable doubt.
Commonwealth v. Hernandez, 39 A.3d 406, 410-411 (Pa. Super. 2012)
(citations omitted).
Preliminarily, it is important to point out Balch concedes there was no
corpus delicti objection to the admissibility of Balch’s confession, the first step
of the two-step process of establishing the corpus deliciti. However, Balch
contends he did not waive a challenge to the trial court’s consideration of
Balch’s statement, the second step, because he raised the issue in his closing,
albeit without using the term corpus delicti. In support, Balch cites
Commonwealth v. Chamberliss, 847 A.2d 115 (Pa. Super. 2004), for its
holding that even when there is no timely corpus deliciti challenge to the
admissibility of the defendant’s confession, a defendant may still invoke the
corpus delicti rule prior to the factfinder’s deliberation and argue that the
Commonwealth did not present the “quantum of evidence” necessary for the
factfinder to consider the defendant’s confession.” Id. at 121. Balch,
-4-
J-S53019-18
however, does not provide any citation to identify where he preserved a
corpus delicti issue at trial. Balch only states, “At closing, defense counsel
challenged [Balch’s] statement without us[i]ng the term ‘corpus deliciti’” ….
Balch’s Brief at 12. This Court’s review, however, has not detected a corpus
deliciti argument in Balch’s counsel’s closing argument.4 Accordingly, this
issue has been waived. In any event, it is meritless because, as more fully
discussed below, the Commonwealth established the corpus delicti beyond a
reasonable doubt without Balch’s admission before the trial court began its
deliberation.
Here, Balch was convicted of DUI - highest rate of alcohol pursuant to
Section 3802(c).5 Therefore, the Commonwealth had to prove Balch “(1) …
drove, operated or was in actual physical control of a motor vehicle; and (2)
that such action was conducted after imbibing enough alcohol that the
[defendant’s] BAC reached 0.16% within two hours after driving.”
Commonwealth v. Thur, 906 A.2d 552, 564 (Pa. Super. 2006), citing 75
Pa.C.S. § 3802(c)). The term “operates” necessitates evidence of actual,
physical control of either the machinery of the motor vehicle or the
management of the vehicle’s movement, but does not require evidence that
____________________________________________
4
While Balch’s Pa.R.A.P. 1925(b) statement cites to pages 96 and 97 of the
trial transcript, Balch’s counsel is not presenting closing argument at that
record citation.
5 Balch mistakenly cites 75 Pa.C.S. § 3802(a)(1). See Balch’s Brief at 10.
-5-
J-S53019-18
the vehicle was in motion. Commonwealth v. Young, 904 A.2d 947, 954
(Pa. Super. 2006). In order to find that a person had actual physical control
of an automobile, a combination of the following factors is required: the motor
running, the location of the vehicle, and additional evidence showing that the
defendant was driving. Commonwealth v. Brotherson, 888 A.2d 901, 904
(Pa. Super. 2005).
At trial, prior to the admission of Balch’s statement that he was driving
the vehicle, the Commonwealth presented the following evidence. On
November 30, 2016, at approximately 12:30 in the afternoon, Officer
Patterson responded to a one-car accident in which a white Lexus sedan had
crashed into a PECO pole. The operator of the vehicle was not present at the
scene. Officer Patterson observed damage to the left front side where the
vehicle made impact with the pole, and damage to the driver’s front
windshield, specifically, an impact point with spider effect. Officer Matijacich,
who had been dispatched to Bryn Mawr Hospital, notified Officer Patterson he
had found the operator of the vehicle. Within 15 minutes, Officer Patterson
proceeded to the hospital, found Balch and began a conversation with Balch.
At that time, he noticed a strong odor of alcohol coming from Balch. Officer
Patterson also noticed a laceration to Balch’s forehead that was consistent
with the damage to the driver’s side windshield of the vehicle. Officer
Patterson read Balch Form DL-26, and obtained Balch’s consent to a blood
test. The blood test revealed a blood alcohol level (BAC) of .241.
-6-
J-S53019-18
Furthermore, while one eyewitness reported to police there were two men in
the vehicle, no one else was found at the hospital with injuries consistent with
the damage to the vehicle.
On this record, the circumstantial evidence and the reasonable inference
drawn therefrom, even without Balch’s admission, were sufficient evidence to
establish that Balch was driving while intoxicated. As Judge Nilon aptly
explained, in stating his decision on the record:
[T]here was obviously an auto accident with damage to the front
windshield on the driver’s side. And the investigating officer
described the damage. That damage would be consistent with a
person’s head striking the windshield of the vehicle. Also I think
that the testimony with regard to the other injuries suffered by
[Balch], being fractured ribs, would be consistent with a person
behind the wheel of a vehicle having their torso strike the driver's
wheel on the vehicle. So that evidence would be consistent with
[Balch] being the operator of the vehicle, since [Balch] was
treated at the hospital for injuries that would be consistent with
the damage to the vehicle. …
N.T., 8/16/2017, at 96-97. We agree with this analysis. Had the issue been
preserved, we would find the Commonwealth’s circumstantial evidence
established that Balch was the driver who crashed the vehicle and the
Commonwealth’s direct evidence established Balch was intoxicated with a BAC
of .241. As such, the Commonwealth established beyond a reasonable doubt
the corpus delicti, that drunk driving occurred. Hence, the trial court’s
consideration of Balch’s statement that he had been driving the vehicle was
proper under the corpus delicti rule.
Judgment of sentence affirmed.
-7-
J-S53019-18
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/26/18
-8-