J-S35036-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

FRANK J. RUBINO,

Appellant No. 53 EDA 2015

Appeal from the Judgment of Sentence November 17, 2014

in the Court of Common Pleas of Carbon County

Criminal Division at No.: CP-13-CR-0000017-2004

BEFORE: MUNDY, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED JULY 20, 2015

Appellant, Frank J. Rubino, appeals from the judgment of sentence 

entered after his jury conviction of two counts of driving under the influence 

of alcohol (DUI), 75 Pa.C.S.A § 3731(a)(1) and 75 Pa.C.S.A. § 3731(a)(4). 1 

Appellant challenges the sufficiency of the evidence and the admissibility of 

certain evidence. We affirm. 

We derive the following recitation of facts from the trial court’s 

February 17, 2015 opinion:

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 The Legislature repealed section 3731 and replaced it with 75 Pa.C.S.A. § 

3802 on September 30, 2003. Section 3802 became effective February 1, 

2004, after the offense in this case occurred.
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On August 16, 2003, at approximately 1:19 A.M., Officer 

Michael Fedor of the Kidder Township Police Department was 

dispatched to the scene of a one-car motor vehicle accident 

along Moseywood Road — a two lane road — in Kidder Township, 

Carbon County. Officer Fedor arrived at the scene at 

approximately 1:31 A.M., whereupon he noted the following: 

there were no adverse weather conditions, the posted speed 

limit was 25 miles per hour, the road curved towards the left, 

[and] a single vehicle had gone off the right side of the road 

striking a tree. At the time Officer Fedor arrived, a second 

vehicle was parked parallel to the road behind where the first 

vehicle had missed the turn. This second vehicle belonged to a 

passing motorist who stopped to render assistance after the 

accident had occurred. 

Maryann Gile, who had been a passenger in the vehicle, 

which struck the tree, was sitting in this other vehicle when 

Officer Fedor arrived and [was] requesting medical assistance. 

Officer Fedor called for an ambulance and Ms. Gile was 

subsequently transported from the scene while Officer Fedor 

continued his investigation. Officer Fedor did not interview Ms. 

Gile about the accident before she was transported for 

treatment, nor was she interviewed afterwards. Ms. Gile died in 

April of 2013 and therefore, was unavailable to testify at trial.2 

After calling for the ambulance, Officer Fedor approached 

[Appellant], whom Officer Fedor witnessed standing between the 

open driver’s door and driver’s side compartment of the crashed 

vehicle when he first arrived at the accident scene. Upon Officer 

Fedor’s request, [Appellant] produced his driver’s license, proof 

of insurance, and a registration evidencing the vehicle was 

[registered] in his name. Officer Fedor detected an odor of 

alcohol on [Appellant’s] breath and asked if [Appellant] had 

consumed any alcohol. In response to the Officer’s questions, 

[Appellant] admitted to drinking that evening and also that he 

was the driver of the car. At trial Officer Fedor opined that 

based upon his training and experience as a police officer, as 

well as his observations of [Appellant], [Appellant] was under 

the influence of alcohol to a degree that rendered him incapable 

of safe driving. 

____________________________________________

2 The death of Ms. Gile was unrelated to the accident.
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[Appellant] was transported to the Geisinger Wyoming 

Valley Hospital where his blood was drawn at 3:11 A.M. to test 

for alcohol content. Cathy Sweeney, a medical technologist at 

Hazelton General Hospital, tested [Appellant’s] blood using an 

Abbott TDX machine. The results of this test revealed a BAC 

[Blood Alcohol Content] by weight of 102 milligrams per deciliter 

or 0.102%. At trial[,] Ms. Sweeney testified that she believed 

the testing equipment has a margin of error of ten percent based 

upon what her supervisor advised her, but that she had never 

seen any documentation independently corroborating that figure. 

She also testified that given this margin of error, [Appellant’s] 

actual BAC ranged from between 0.092% and 0.112%. 

[Appellant] testified that he was owner of the vehicle but 

was not the driver that night. [Appellant] testified that he 

normally does not drive on the advice of his doctor and that Ms. 

Gile would often drive him around. According to [Appellant], 

that evening a man named John ([Appellant] did not know 

John’s surname) was driving [Appellant’s] vehicle. [Appellant] 

claimed that he and Ms. Gile had met John at a nightclub earlier 

in the evening and invited him to go fishing. [Appellant] further 

testified that he was asleep in the back seat of his vehicle and 

was awakened by the crash. 

[Appellant] testified that approximately five minutes after 

the accident a passing motorist stopped to render assistance. 

According to [Appellant], he was sitting in this vehicle when the 

ambulance arrived, not Ms. Gile, because Ms. Gile was trapped in 

the crashed vehicle. [Appellant] also testified that the 

ambulance personnel extracted Ms. Gile from the crashed vehicle 

before Officer Fedor’s arrival. Appellant denied standing near 

the crashed car at the time . . . Officer [Fedor] arrived and 

further denied ever stating that he was the driver. Lastly, 

[Appellant] testified that John left the scene of the crash before . 

. . Officer [Fedor] arrived and he never saw John again. 

Prior to opening statements at his trial, [Appellant] moved 

to preclude his statements to [Officer Fedor] that he was the 

owner and driver of the car in question on the basis of the 

corpus delicti rule. The court discussed the matter with counsel 

in chambers[,] and the court reserved ruling on the motion until 

the Officer testified. During [Officer Fedor’s] testimony, 

[Appellant] objected to [Officer Fedor] being questioned about 
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[Appellant’s] admission that he was the driver of the vehicle, 

which struck the tree. A discussion at sidebar ensued and the 

court overruled the objection and allowed the question to be 

asked. 

(Trial Court Opinion, 2/17/15, at 2-6) (record citations and footnotes 

omitted). 

On September 9, 20143, a jury convicted Appellant of two counts of 

DUI. On November 17, 2014, the court sentenced Appellant to a term of not 

less than forty-eight hours’, nor more than six months’ imprisonment, plus 

fines and costs. Appellant filed post-sentence motions that the court denied. 

Appellant timely appealed.4

Appellant raises two questions for our review:

I. Whether the evidence was sufficient to establish that 

[Appellant] operated his vehicle while the amount of alcohol in 

his blood was 0.10% or greater (75 Pa.C.S.A. § 3731(a)(4)) 

when [Appellant’s] blood test was 0.102%, only 0.02% above 

0.10%, the margin of error in the test was ten percent, and the 

test was administered two hours after it was alleged [Appellant] 

was driving?

____________________________________________

3

Following several continuances, the court originally set trial for March 7, 

2005. (See Scheduling Order, 2/09/05). However, Appellant failed to 

appear and the court issued a bench warrant for his arrest. He only 

appeared over seven years later and the rescheduled trial occurred on 

September 9, 2014.

4

Pursuant to the trial court’s order, Appellant filed a timely concise 

statement of errors complained of on appeal on January 7, 2015. See

Pa.R.A.P. 1925(b). The court filed a Rule 1925(a) opinion on February 17, 

2015. See Pa.R.A.P. 1925(a). 
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II. Whether the [t]rial [c]ourt erred by admitting the 

statements of [Appellant] that he owned and operated the 

vehicle because the Commonwealth did not establish the corpus 

delicti of driving under the influence by a preponderance of the 

evidence?

(Appellant’s Brief, at 4).

In his first question, Appellant challenges the sufficiency of the 

evidence to support his conviction under section 3731(a)(4). (See

Appellant’s brief at 10).5 He alleges that the two-hour delay in administering 

the BAC test and its ten percent margin of error required the jury to turn “to 

speculation and conjecture.’ (Id.). We disagree.

Our standard of review for a claim of insufficient evidence is wellsettled:

A challenge to the sufficiency of the evidence is a question 

of law, subject to plenary review. When reviewing [a] 

sufficiency of the evidence claim, the appellate court must 

review all of the evidence and all reasonable inferences drawn 

therefrom in the light most favorable to the Commonwealth, as 

the verdict winner. Evidence will be deemed to support [the] 

verdict when it establishes each element of the crime charged 

and the commission thereof by the accused, beyond a 

reasonable doubt. The Commonwealth need not preclude every 

possibility of innocence or establish the [Appellant’s] guilt to a 

mathematical certainty. Finally, the trier of fact[,] while passing 

upon the credibility of witness and the weight of the evidence 

produced, is free to believe all, part[,] or none of the evidence.

____________________________________________

5 The trial court only sentenced Appellant for 75 Pa.C.S.A. § 3731(a)(1) —

general impairment. (See Trial Ct. Op. 2/17/15, at 1 n.2). Section 

3731(a)(4) merged for sentencing purposes. (See id.)
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Commonwealth v. Teems, 74 A.3d 142, 144-45 (Pa. Super. 2013) appeal 

denied, 79 A.3d 1098 (Pa. 2013) (citations omitted).

Here, the jury convicted Appellant of violating 75 Pa.C.S.A. § 

3731(a)(4), driving with a BAC of .10% or higher, and 75 Pa.C.S.A. § 

3731(a)(1), general impairment. In relevant part, the Vehicle Code 

provided: 

(a) Offense defined.—A person shall not drive, operate[,] or 

be in actual physical control of the movement of a vehicle 

in any of the following circumstances 

(1) While under the influence of alcohol to a degree 

which renders the person incapable of safe driving.

* * *

(4) While the amount of alcohol by weight in the 

blood of: 

(i)the adult is 0.10% or greater.

* * *

(A.1) Prima facie evidence.—

(1) It is prima facie evidence that:

(i) an adult had 0.10% or more by weight of 

alcohol in his or her blood at the time of driving, 

operating, or being in actual physical control of the 

movement of any vehicle if the amount of alcohol by 

weight in the blood of the person is equal to or 

greater than 0.10% at the time a chemical test is 

performed on a sample of the person’s breath, blood, 

or urine

* * *

(2) For the purposes of this section, the chemical 

test of the sample of the person’s breath, blood or 
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urine shall be from a sample obtained within three 

hours after the person drove, operated or was in 

actual physical control of the vehicle 

75 Pa.C.S.A. § 3731(a)(1), (a)(4), (A.1).

“[O]nce the Commonwealth has established that the driver’s blood 

alcohol content reflects an amount above 0.10%, the Commonwealth has 

made a prima facie case under 75 Pa.C.S.A. § 3731(a)(4).” 

Commonwealth v. Yarger, 648 A.2d 529, 531 (Pa. 1994). Additionally,

[T]he [L]egislature amended section 3731 by inserting 

subsection (a.1). Section 3731(a.1) modifies section 3731(a)(4) 

by providing that the BAC at the time of testing is prima facie

evidence of BAC when driving as long as testing is obtained 

within three hours after the person drove. 

Commonwealth v. Lippert, 887 A.2d 1277, 1280 (Pa. Super. 2005).

Section 3731(a.1) was the pertinent statute in effect the night of the 

accident. 

Here, Officer Fedor found Appellant standing next to the driver’s side 

of the crashed vehicle. (See N.T. Trial, 9/09/14, at 65). When questioning 

Appellant, he detected the odor of alcohol. (See id. at 66). Further, the 

vehicle’s registration indicated Appellant owned the vehicle and he admitted 

to Officer Fedor that he was driving that night. (See id. at 66, 68-69). Less 

than two hours after the arrest, Officer Fedor had Appellant’s blood drawn. 

(See id. at 69-70). Cathy Sweeney, a medical technologist at Hazelton 

General Hospital tested the blood. (See id. at 85-87). The blood test 

returned a result of .102% BAC. (See id. at 89-91). 
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Appellant argues that a purported ten percent margin of error on the 

BAC test renders the results insufficient. (See Appellant’s Brief at 10). We 

note the trial court’s reasoning that any testimony on the margin of error 

implicates the weight of the evidence, not the sufficiency. (See Trial Ct. Op. 

at 8). See Commonwealth v. Sibley, 972 A.2d 1218, 1219-20 (Pa. Super. 

2009). Appellant did not raise a weight of the evidence challenge in the trial 

court and therefore waived the issue. See Commonwealth v. Thomas, 93 

A.3d 478, 490 (Pa. Super. 2014) (citing Commonwealth v. Sherwood, 

982 A.2d 483, 494 (Pa. 2009)). (“Failure to properly preserve [a weight of 

the evidence] claim will result in waiver”).

Under our standard of review for sufficiency, the Commonwealth 

receives the benefit of all reasonable inferences. See Teems, supra. at 

144-45. Here, the prima facie evidence was sufficient to support both of 

Appellant’s convictions for DUI because his BAC was over .10% less than 

three hours after he drove. See Lippert, supra. Appellant’s first claim is 

without merit. 

In his second question, Appellant claims the trial court erred by 

admitting inculpatory statements he made before the Commonwealth 

established the corpus delicti of driving under the influence by a 

preponderance of the evidence. (See Appellant’s Brief, at 4). We disagree.

Our standard of review for a challenge to corpus delicti is also well 

settled:
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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. Young, 904 A.2d 947, 956 (Pa. Super. 2006) (internal 

citations omitted). Further:

An abuse of discretion will not be found based on a mere 

error of judgment, but rather exists where the court has reached 

a conclusion [that] overrides or misapplies the law, or where the 

judgment exercised is manifestly unreasonable, or the result of 

partiality, prejudice, bias, or ill-will. 

Commonwealth v. Davido, 106 A.3d 611, 645 (Pa. 2014) (citations and 

quotation marks omitted).

The corpus delicti test is two-pronged; the Commonwealth must prove 

an occurrence of a loss, and criminality as the source of the loss. See 

Commonwealth v. Taylor, 831 A.2d 590, 590 (Pa. 2003). Further, “the 

injury or loss need not be tangible.” Commonwealth v. Kasunic, 620 A.2d 

525, 529. (Pa. Super. 1993). The Commonwealth must prove by a 

preponderance of the evidence that the event resulted from criminal 

conduct. See Commonwealth v. McMullen, 681 A.2d 717,720 (Pa. 1996). 

Here, Officer Fedor found Appellant next to his crashed vehicle at 1:31 

A.M. (See N.T. Trial, 9/09/14 at 59). The weather conditions were clear and

the posted speed limit was low. (See id. 60-61). 

The Commonwealth produced evidence that convinced the trial court 

by a preponderance of the evidence that corpus delicti existed for DUI. (See

Trial Ct. Op. 2/17/15, at 15). The trial court reasoned that the lateness of 
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the hour, the lack of adverse weather conditions, the low speed limit at the 

place of the accident, and the condition of Appellant were consistent with a 

DUI related crash. (See id. at 15). On our review, we find no basis to 

conclude that the court’s decision was unreasonable, nor the result of 

partiality, prejudice, bias, or ill-will. See Davido, supra at 645.

Therefore, we conclude that the trial court properly admitted the 

evidence of inculpatory statements made by Appellant. Appellant’s second 

issue is without merit.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/20/2015