J-S81027-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA 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. Following review, we affirm.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

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

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 travelling 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 female. 

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 the 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 notes 

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 was 
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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 certified 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/CLEAN2revealed 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 12, 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 administer 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 person” 

and “admitted she had some alcohol to drink earlier that night.” Id. at 25-

26.
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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 Appellant’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 discretion 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 omitted)).

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 ensure that the Commonwealth has 

established the occurrence of a crime before introducing the 
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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 evidence, 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. denied, 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.” 

Commonwealth 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 Appellant or his 
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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 companion 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 vehicle. 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 the 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 

step, “[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.” 
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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 cannot 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 tier 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 Commonwealth 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. 

____________________________________________

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 convictions 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.” Appellant’s Brief at 4 n.1.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 03/20/2018