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NON
- PRECEDENTIAL DECISION
- SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENN SYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

BRIAN KEITH CARTER
Appellant No. 464 MDA 2017

Appeal from the Judgment of Sentence September 12 , 2016 In the Court of Common Pleas of York County Criminal Division at No: CP

- 67

- CR

- 0003503

- 2016

BEFORE: PANELLA, STABILE, and PLATT, JJ. *
MEMORANDUM BY STABILE, J.: FILED MARCH 20, 2018
Appellant, Brian Keith Carter, appeals from the judgment of sentence
imposed on September 12, 2016 in the Court of Common Pleas of York County
following his conviction of driving under the influence (“DUI”) and driving
under suspension (“DUS”). 1 In this case involving application of the corpus
delicti rule, Appellant argues the trial court erred by admitting his confession

because the Commonwealth failed to establish that a crime had been

committed. Followi ng review, we affirm.

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.

1 75 Pa.C.S.A. §§ 3802(a)(1) and 1501(a), respectively.J

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In its Rule 1925(a) opinion, the trial court provided a “recitation of the
relevant facts elicited [at trial]” as follows:
At or around 10:03 p.m. on March 5, 2016, Trooper Joshua Koach encountered the Appellant and another individua l wa l king northbound on I

- 83 just south of Exit 39. The trooper testified that the Appellant appeared intoxicated upon first sight as he was seen to lean on his female companion and was stumbling about. The pair indicated to the trooper that they were tr avelling from Harrisburg to York when they ran out of gas for the vehicle. Confusingly, the pair were walking back in the direction they purported to be coming from and they indicated [] the wrong direction for Harrisburg. The trooper then testified that the Appellant appeared disoriented and confused as to where he was and where he was going. The vehicle was eventually located on the other side of the highway and directly across from the point at which the officer interacted with the Appellant and the f emale. Trooper Koach noted for the court that, rather than having walked less than a tenth of a mile back to a Rutter’s gas station, the Appellant and the female had walked to Exit 38, had crossed up and over the pass, and had then tried walking north and back towards the Rutter’s.
The Appellant initially indicated to the trooper that his female companion had been the driver; however, under further questioning, the Appellant admitted that he had driven. The Appellant went on to confirm that he had been t he driver some four

- to

- five times after his initial denial. The Appellant told the trooper that he had consumed alcohol at his home in Harrisburg prior to operating the vehicle. The Appellant stated that he had driven until the vehicle ran out of gas and that he had not consumed any alcohol following this event. Under questioning from the court, the trooper stated that the keys for the vehicle were found within the vehicle.
Trial Court Opinion, 7/30/17, at 3

- 4 (emphasis in original) (references to note s of testimony and some capitalization omitted)
The trial court noted the trooper’s description of Appellant as having a
strong odor of alcohol as well as bloodshot and glassy eyes. His balance wasJ

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severely compromised and he stumbled, falling into the trooper as the trooper
was conducting field sobriety tests. To ensure Appellant’s safety, the trooper
stopped the field sobriety tests and had Appellant sit on the front of the
trooper’s vehicle. Id. at 4.
The trooper also testified that Appellant’s cer tified driving record from
PennDOT reflected that his license was suspended. The record did not include
any information about reinstatement but rather revealed several DUS
suspensions that would extend his period of suspension. Although he did not

cite a PennDOT certified record for Appellant’s female companion, records
from NCIC/CLEAN 2 revealed that her license was suspended as well. Id. at

5. 3
Appellant was arrested and charged with, inter alia , general impairment
DUI and DUS. Following a September 1 2, 2016 bench trial, the trial court
found Appellant guilty of both offenses. The trial court sentenced Appellant
to six months’ probation and a $300 fine for DUI as well as a $1,000 fine for
DUS. Appellant filed a post

- sentence motion, which was denied by operation

_________________ __________ ______ ____ _______

2 National Crime Information Computer/Commonwealth Law Enforcement Assistance Network.

3 Although the trooper did not have an opportunity to adm inister field sobriety tests to Appellant’s companion, the trooper testified that he “could tell that they were under the influence of alcohol.” Notes of Testimony, Trial, 9/12/16, at 25. Further, “[s]he had the odor of an alcoholic beverage about her pe rson” and “admitted she had some alcohol to drink earlier that night.” Id. at 25

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of law on March 1, 2017. This timely appeal followed. Both Appellant and the
trial court complied with Pa.R.A.P. 1925.
In this appeal, Appellant presents one issue for this Court’s

consideration:
The trial court erred in admitting Appellan t’s confession under the corpus delicti rule that he was the driver of the vehicle when the Commonwealth failed to demonstrate by a preponderance of the evidence that a crime was committed.
Appellant’s Brief at 4.

As this Court reiterated in Commonwealth v. Hernandez , 39 A.3d 406
(Pa. Super. 2012):

The corpus delicti rule is an evidentiary one. On a challenge to a trial court’s evidentiary ruling, our standard of review is one of deference. The admissibility of evidence is solely within the d iscretion of the trial court and will be reversed only if the trial court has abused its discretion. An abuse of discretion is not merely an error of judgment, but is rather the overriding or misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill

- will or partiality, as shown by the evidence of record.

Id. at 411 (quoting Commonwealth v. Herb , 852 A.2d 356, 363 (Pa. Super.
2004) (citations om itted)).

In Herb , this Court explained the corpus delicti rule as follows:
Pennsylvania law precludes the admissibility of a confession absent proof of the corpus delicti , literally, “the body of a crime.” Commonwealth v. Taylor , 574 Pa. 390, 395, 831 A.2d 587, 590 (2003) (citation omitted). However, the rule is not “a condition precedent to the admissibility of the statements” of an accused. Id. “Rather, the rule seeks to en sure that the Commonwealth has established the occurrence of a crime before introducing theJ

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statements or confessions of the accused to demonstrate that the accused committed the crime. The rule was adopted to avoid the injustice of a conviction where no crime exists.” Id.
Only inculpatory statements fall within the scope of the corpus delicti rule. Commonwealth v. McMullen , 545 Pa. 361, 368, 681 A.2d 717, 721 (1996) . Before such a statement may be admitted into evidenc e, the Commonwealth must establish: 1) a loss has occurred and 2) the loss occurred as a result of criminal activity. Taylor, supra at 395, 831 A.2d at 590. Only then may the Commonwealth introduce a statement to show that the defendant is responsible for the loss. Id. For the purpose of admission, the corpus delicti may be established by a preponderance of the evidence. Commonwealth v. Reyes , 545 Pa. 374, 681 A.2d 724, 727 (1996) , cert. d enied, 520 U.S. 1174, 117 S.Ct. 1445, 137 L.Ed.2d 551 (1997) . Moreover, the Commonwealth may establish the corpus delicti with circumstantial evidence. Id. at 380

– 82, 681 A.2d at 727; Commonwealth v. Rivera , 828 A.2d 1094, 1103

– 04 (Pa. Super. 2003) , appeal denied, 577 Pa. 672, 842 A.2d 406 (2004) (quotation omitted).

Herb , 852 A.2d at 363 (footnotes omitted). Importantly, “[t]he identity of
the person responsible for the criminal act is not part of the corpus delicti .”

Co mmonwealth v. Zugay , 745 A.2d 639, 652 (Pa. Super. 2000), appeal

denied , 795 A.2d 976 (Pa. 2000).
In the case before us, the trial court reasoned there were potentially
two crimes that would make Appellant’s statements about driving the vehicle
admissible. First, based on the trooper’s testimony and backed by records he
obtained, neither Appellant nor his female companion had a valid license.
There is no suggestion that someone other than Appellant or his companion
drove the vehicle until it ran out of gas. Second, circumstantial evidence
supported a finding that an intoxicated person

— whether Appella nt or hisJ

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companion

— drove past a gas station and ran out of gas less than one

- tenth
of a mile later. “It is not typical for sober individuals to run out of gas in such
a fashion.” Trial Court Opinion, 7/30/17, at 7

- 8.
The trial court explained:
Lending an indicia of veracity to this conclusion, both Appellant and the female then walked away from the Rutter’s in order to reach an overpass, cross said overpass, and begin a circuitous return toward[] the Rutter’s. Tellingly, the Appellant and his female co mpanion were confused as to where they were and the direction in which they travelled, which was shown by their responses to the trooper’s queries as to the direction of Harrisburg. The Appellant himself performed poorly on the [field sobriety tests] and, possessing a strong odor of alcohol and glassy bloodshot eyes, was unsteady throughout the encounter. Additionally, we remember that the trooper felt the Appellant and the female were incapable of operating a motor vehicle

— so incapable that the Appellant was arrested and the female was deemed too intoxicated for anything beyond being dropped off at the Rutter’s. So, whether by dint of suspended licenses or intoxication, either of the potential operators of the vehicle should not have operated said vehicl e. By a preponderance of the evidence standard, we have no trouble believing that the Commonwealth established that it was more likely than not that both the Appellant and his companion, lacking active licenses, were disallowed from driving and/or under t he influence to the extent that they would not be allowed to drive. Ergo, the Appellant’s statements were admissible under the test laid out in Hernandez, supra.

Id. at 8.
As noted above, corpus delicti involves a two

- tiered process. In the first

s tep, “[b] efore introducing an extra

- judicial admission, the Commonwealth is
not required to prove the existence of a crime beyond a reasonable doubt.

. . . Rather, it is enough for the Commonwealth to prove that the injury or

loss is more consistent with a crime having been committed than not.”J

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Zugay , 745 A.2d at 652 (quotations and citations omitted). Recognizing that

the corpus delicti rule is an evidentiary rule and that our standard of review is
one of deference, see Hernandez , 39 A.3d at 411, we ca nnot find that the
trial court abused its discretion in determining that the Commonwealth
demonstrated by a preponderance of the evidence that a crime had been

committed.
In the issue as presented in this appeal, Appellant has challenged only

the first ti er of the corpus delicti rule, i.e. , whether the Commonwealth
demonstrated by a preponderance of the evidence that a crime occurred.
Therefore, it is not necessary for us to consider the second part of the corpus
delicti rule, i.e. , whether the Commonweal th proved, beyond a reasonable
doubt, that Appellant

— or someone — drove the vehicle while under the
influence and under suspension. 4
Finding no abuse of discretion in the trial court’s determination that a
crime occurred, we shall affirm the trial court ’s ruling.
Judgment of sentence affirmed.

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4 In his Rule 1925(b) statement of errors complained of on appeal, Appellant also asserted error based on the sufficiency and weight of evidence supporting Appellant’s co nvictions of DUI and DUS. Appellant’s Rule 1925(b) Statement, 4/19/17, at ¶¶ 2

- 3. In his brief filed with this Court, Appellant explains that “[a]fter further review, counsel has proceeded only with Issue #1 of the 1925(b) Statement of Errors.” Appellan t’s Brief at 4 n.1.J

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 03/20/2018