J. S91007/16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

MARCUS DAVID KNIGHT, : No. 1019 MDA 2016

:

 Appellant :

Appeal from the Judgment of Sentence, April 26, 2016,

in the Court of Common Pleas of Berks County

Criminal Division at No. CP-06-CR-0001233-2014

BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J. AND STEVENS, P.J.E.*

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 21, 2017

Marcus Knight appeals the April 26, 2016 judgment of sentence in 

which the Court of Common Pleas of Berks County sentenced him to a term 

of 2 to 10 years’ imprisonment in a state correctional facility for aggravated 

assault by vehicle when driving under the influence and to a concurrent term 

of 1 to 7 years’ imprisonment for accidents involving death or personal 

injury -- not properly licensed.1

The relevant facts, as recounted by the trial court, are as follows:

The evidence presented at trial established the 

following: On the evening of October 20, 2013, at 

about 7:00 p[.]m[.], Melissa O’Neil (Melissa) was 

meeting a fried [sic], Justin (Justin), at the 

Krumsville Bar in Krumsville, Berks County, 

 

* Former Justice specially assigned to the Superior Court.

1 75 Pa.C.S.A. § 3735(1)(a) and 75 Pa.C.S.A. § 3742.1(a), respectively.
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Pennsylvania, when she ran into Appellant. 

Appellant had been drinking. At approximately 

9:00 p[.]m[.], Melissa and Justin went to a pig roast; 

Appellant followed behind them. At the pig roast, 

the three of them talked and “drank some more,” for 

approximately two more hours. Andrea Sanchez 

(Andrea) was at the pig roast; Melissa introduced her 

to Justin and Appellant and she joined them. Melissa 

said everyone was “a little bit drunk.” About 11:00 

or 11:30 p[.]m[.], the four of them decided to go 

back to the Krumsville Bar. Melissa and Justin went 

in her car and Appellant and Andrea followed behind 

them. They all arrived at the bar and continued 

drinking beer and shots. At “last call” the four of 

them decided to go back to Melissa’s house in 

Klinesville to continue the party. Melissa had a 

designated driver for her car, Justin, but Appellant 

and Andrea chose to go in Appellant’s car. Justin 

offered to drive everyone but Appellant got angry; 

he did not want to leave his car. Melissa saw 

Appellant get into the driver’s seat; Andrea was in 

the passenger’s seat. She then saw Appellant’s 

vehicle leave the parking lot and drive west.

At around 11:30 p[.]m[.] on October 19, 

Elise Nash (Nash) had gotten off work and drove to 

Krumsville to have a drink. She was there about 

twenty minutes when she saw Appellant, with some 

other people, come into the bar. She saw Appellant 

have about two or three drinks. She also saw the 

group leave, just before last call, at around 1:30. 

Nash saw Appellant purchase a 12 pack of beer to 

go. She overheard their plan to go back to Melissa’s 

house.

At about 3:00 a[.]m[.], Daryl Smith was 

driving his dump truck westbound on old route 22 on 

the west side of Lenhartsville when he saw a car 

parked across the opposite side, with no lights on. 

Then he came upon debris from an accident, so he 

called 911 and got out of his truck. That is when he 

“saw a guy laying [sic] across the road” a good 

fifty (50) feet uphill from the car, on the westbound 

side on the shoulder and the slow lane. The guy was 
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not moving, so the truck driver pushed on him; he 

did respond slightly. He became conscious, but 

struggled to answer questions. There was blood 

coming out of his head and on the road at his head. 

The blood ran down the slope of the road about an 

inch and a half wide and two feet long, toward the 

vehicle. When the first ambulance showed up, the 

paramedic told the truck driver that there was 

another person in the vehicle.

Shawn Danner (Danner) was a full time 

paramedic for the Hamburg Emergency Medical 

Services when he received a call, at around 

3:00 a[.]m[.], of a motor vehicle accident on old 

Route 22 between Hamburg and Lenhartsville. Upon 

arrival, he saw a male lying into the roadway, a 

vehicle further down, and a second patient, a female, 

lying behind the vehicle; she was also on the 

roadway. Danner first interacted with the male; he 

was conscious and alert, but extremely confused. 

The male was unable to explain how he got to the 

location that he was at or even what the location 

was. Danner did a physical assessment of the 

patient and noted the injuries. Upon the paramedics’ 

arrival, the patient attempted to crawl away from the 

vehicle, but he did not move more than 5 or 10 feet. 

The patient was actively bleeding. Danner 

accompanied Appellant to the Lehigh Valley Hospital 

where he was taken to the trauma unit. Danner also 

went to attend to the female victim, who complained 

of neck and back pain. Because of her altered 

mental status, the victim did not verbalize many 

complaints. She was quickly moved into the back of 

the ambulance because of the cold weather, where 

other crew members discovered the rest of her 

serious bodily injuries.

Trooper Rebecca Clatch, of the Pennsylvania 

State Police, responded to the accident scene at 

around 3:00 a[.]m[.] on October 20, 2016. She 

stated that the area in which the crash occurred on 

Old Route 22 had a curve in the roadway, and a 

45 mile per hour speed limit. This area was a no 

passing zone with a divided roadway, about 
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five miles west of the Krumsville Inn. The roadway 

was dry and there were no impediments on it. When 

she approached, she saw a silver vehicle on the 

southeast bound side of the road, on the shoulder 

against an embankment. She also saw an EMT with 

a male, approximately 200 feet west of the vehicle. 

The first thing she observed was a tire mark in the 

eastbound lane that went toward the center double 

lines. From there, continuing east, she saw two 

more tire marks that went toward the north 

embankment. There was fresh dirt spattered all 

over. The embankment got higher and Appellant 

had crawled where the brush was, on his hands and 

knees. He kept trying to get up; they urged him to 

stay where he was. He kept saying, “I’m okay. 

Leave me alone.” Also on the embankment was a 

hunting stand in disarray and Appellant’s shoe. His 

wallet was later found in this area. Also located was 

the front bumper of the vehicle. A telephone pole 

was sheered in half and pushed eastbound. The 

vehicle’s rear bumper was on the road and its hood 

was in the eastbound lane, just south of this 

location. The passenger side door was open a little 

bit because it was pushed up against the 

embankment. The front windshield was severely 

cracked and the passenger side window was 

shattered. Both front airbags were deployed. The 

rear windshield was missing. The debris field was 

continuous. There was no evidence of an animal 

having been hit. The vehicle was a manual stick 

shift. The trooper interacted with Appellant at the 

scene and noticed he was bleeding heavily from his 

head and had lacerations on his forearms. 

Trooper Clatch observed that he had a strong odor of 

an alcoholic beverage coming from his person. He 

had bloodshot eyes and was on his hands and knees. 

The trooper felt the engine and it was still warm, 

even though it was a cold night. The blood loss she 

observed, the puddle on the ground, was still wet. 

Trooper Clatch stated that, based on the physical 

evidence she observed and her observations of 

Appellant, it was her opinion that he was not safely 

capable of operating a motor vehicle. Appellant’s 

blood was drawn at approximately 4:25 a[.]m[.] and 
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his whole blood alcohol content was in the range of 

.270% to .332%. It was later determined that 

Appellant did not have a driver’s license and that the 

damaged vehicle was registered to Appellant. 

Andrea Sanchez told the jury that, on the night 

in question, she was working at the Stony Run Inn in 

Kempton when she left at around 9:30 or 

10:00 p[.]m[.] and went to a bonfire down the street 

to meet new people. She knew Melissa, but she met 

Appellant for the first time at the bonfire. They were 

all drinking beer. Andrea stayed at the party for 

about an hour and a half. Around 11:00 p[.]m[.], 

they decided to go to the bar down the street, 

minutes away from where they were. Andrea told 

Melissa the only way she would go would be if she 

could get a ride back to her house. Melissa assured 

her that she would. Andrea got into Appellant’s car 

and he drove her to the Krumsville Inn. Appellant 

bought her shots; he drank those beverages as well. 

They stayed at the bar until last call, when they 

decided to leave. Melissa came up to Andrea and 

told her she couldn’t drive because she [Melissa] was 

drunk. At first it was suggested that Andrea come to 

Melissa’s house for the night and that Melissa would 

take her to work in the morning. Then, somehow, 

Andrea testified that she decided that she should go 

with Appellant so he wouldn’t have to ride alone. 

Andrea herself did not know how to drive a stick shift 

vehicle. She got into the front passenger seat. They 

pulled out of the parking lot of the Krumsville Inn; 

Andrea did not know where they were going. The 

next thing she remembered was waking up in the 

hospital two days later. These injuries changed her 

life forever. If left untreated, these injuries could 

have resulted in death or permanent disability or 

disfigurement.

Trial court opinion, 8/8/16 at 3-7 (citations to record omitted).

On December 8, 2015, the jury found appellant guilty of the 

aforementioned crimes as well as for driving under the influence of alcohol, 
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incapable of safe driving; driving under the influence of alcohol, high rate; 

drivers required to be licensed, and failure to keep right.2 The trial court 

imposed appellant’s sentence on April 25, 2016. On May 2, 2016, appellant 

filed a post-sentence motion which the trial court denied on May 26, 2016. 

Appellant then appealed to this court.

On appeal, appellant raises the following issues for this court’s review:

[1.] Whether the evidence presented at trial was 

sufficient to support the guilty verdicts where 

the Commonwealth failed to establish, beyond 

a reasonable doubt, that Appellant was the 

driver of the vehicle at the time of the 

accident[?] 

[2.] Whether the Court erred and abused its 

discretion by not granting judgment of 

acquittal or dismissing the charges in light of 

the Brady [v. Maryland, 373 U.S. 83 (1963)]

violation that occurred when the 

Commonwealth failed to preserve potentially 

exculpatory evidence, the unavailability of 

which caused prejudice to Appellant in that 

Appellant was deprived of his ability to conduct 

independent testing that may have, among 

other things, conclusively excluded Appellant 

as the driver of the vehicle[?] 

Appellant’s brief at 7.

Initially, appellant contends that the evidence presented by the 

Commonwealth was insufficient to sustain convictions for aggravated assault 

by vehicle when driving under the influence and for accidents involving 

death or personal injury -- not properly licensed because the Commonwealth 

 

2 75 Pa.C.S.A. §§ 3802(a)(1), 3802(c), 1501(c), and 3301(a), respectively.
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failed to present evidence that appellant was operating the vehicle when the 

accident took place.

A claim challenging the sufficiency of the 

evidence is a question of law. Commonwealth v. 

Widmer, 560 Pa. 308, 319, 744 A.2d 745, 751 

(2000). In that case, our Supreme Court set forth 

the sufficiency of the evidence standard:

Evidence will be deemed sufficient to 

support the verdict when it establishes 

each material element of the crime 

charged and the commission thereof by 

the accused, beyond a reasonable doubt. 

Commonwealth v. Karkaria, 533 Pa. 

412, 625 A.2d 1167 (1993). Where the 

evidence offered to support the verdict is 

in contradiction to the physical facts, in 

contravention to human experience and 

the laws of nature, then the evidence is 

insufficient as a matter of law. 

Commonwealth v. Santana, 460 Pa. 

482, 333 A.2d 876 (1975). When 

reviewing a sufficiency claim the court is 

required to view the evidence in the light 

most favorable to the verdict winner 

giving the prosecution the benefit of all 

reasonable inferences to be drawn from 

the evidence. Commonwealth v. 

Chambers, 528 Pa. 558, 599 A.2d 630 

(1991).

Id. at 319, 744 A.2d at 751.

Commonwealth v. Morgan, 913 A.2d 906, 910 (Pa.Super. 2006).

Aggravated assault by vehicle when driving under the influence is 

defined as:

Any person who negligently causes serious bodily 

injury to another person as the result of a violation 

of section 3802 (relating to driving under influence of 
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alcohol or controlled substance) and who is convicted 

of violating section 3802 commits a felony of the 

second degree when the violation is the cause of the 

injury.

75 Pa.C.S.A. § 3735.1(a).

Appellant does not contest that he was convicted of driving under the 

influence. However, he argues that there is no evidence to establish that he 

was driving the vehicle at the time of the accident. Melissa O’Neill (“O’Neill”) 

and Andrea Sanchez (“Sanchez”), the other person in the vehicle at the time 

of the accident, both testified that appellant was behind the wheel of his 

vehicle when he and Sanchez left the Krumsville Inn. (Notes of testimony, 

12/7/15 at 20-21, 122.) Further, appellant’s vehicle had a manual 

transmission, and Sanchez testified that she did not know how to drive a 

“stick shift.” (Id. at 124.) The jury found credible the testimony of Sanchez 

and O’Neill that appellant was driving when he left the Krumsville Inn. Given 

that Sanchez did not know how to operate a manual transmission and there 

is no evidence of anyone else riding in the vehicle, this court agrees with the 

trial court that the evidence presented by the Commonwealth was sufficient 

to sustain the conviction.

Appellant also asserts that there was insufficient evidence to support 

his conviction for Accidents Involving Death or Personal Injury while not 

properly licensed.

This offense is defined as:
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A person whose operating privilege was disqualified, 

canceled, recalled, revoked or suspended and not 

restored or who does not hold a valid driver’s license 

and applicable endorsements for the type and class 

of vehicle being operated commits an offense under

this section if the person was the driver of any 

vehicle and caused an accident resulting in injury or 

death of any person. 

75 Pa.C.S.A. § 3742.1.

Appellant does not challenge the determination that he lacked a 

driver’s license. Once again, he challenges the determination that he was 

driving the car when the accident took place. This court has already 

determined that the evidence was sufficient to support that conclusion.

Appellant next contends that the Commonwealth failed to provide any 

potentially exculpatory evidence to him in violation of Brady, 373 U.S. 83, 

in which the Supreme Court held that “suppression by the prosecution of 

favorable evidence to an accused upon request violates due process where 

the evidence is material either to guilt or to punishment . . . .” Id. at 87. 

This court has explained that, “to establish a Brady violation, a 

defendant must demonstrate that: (1) the evidence was suppressed by the 

Commonwealth, either willfully or inadvertently; (2) the evidence was 

favorable to the defendant; and (3) the evidence was material, in that its 

omission resulted in prejudice to the defendant.” Commonwealth v. 

Haskins, 60 A.3d 538, 547 (Pa.Super. 2012) (citations omitted). The 

burden rests with the defendant to “prove by reference to the record, that 

evidence was withheld or suppressed by the prosecution.” Id.
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Specifically, appellant argues that the potentially exculpatory evidence 

was the vehicle and all of the exculpatory evidence contained therein. 

Appellant asserts that an investigation would help resolve ambiguities such 

as why both the driver and passenger seats of the vehicle were reclined, 

why a sneaker that did not belong to appellant was found near the driver’s 

side area of the car, and whether the position of the clutch would have 

allowed Sanchez to reach the clutch had she been driving. Appellant admits 

that the Commonwealth neither hid nor destroyed the evidence. However, 

he argues that the Commonwealth failed to properly preserve the vehicle 

and did not provide it to appellant.

Trooper Clatch testified that the State Police did not impound the 

vehicle and it was towed to Wensel’s Towing Company (“Wensel’s”) where it 

remained. At some point, it was ready to be released to the owner, 

appellant. Trooper Clatch testified that he told appellant that he could 

recover the vehicle at Wensel’s. (Notes of testimony, 12/7/15 at 88.) 

A Brady violation does not occur when a defendant knew or could 

have discovered evidence with reasonable diligence. Commonwealth v. 

Morris, 822 A.2d 684, 696 (Pa. 2003). Based on Trooper Clatch’s 

testimony, appellant could have recovered the vehicle but did not exercise 

reasonable diligence. This court determines that the trial court properly 

denied appellant’s motion for judgment of acquittal because appellant failed 
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to demonstrate that evidence (the vehicle) was suppressed by the 

Commonwealth, a necessary element to prove a Brady violation.3

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/21/2017

 

3 Because appellant failed to satisfy the first prong of Haskins, this court 

need not address whether appellant established that he met the other two 

prongs.