J-A17024-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JOHN M. KENT,

Appellant No. 2367 EDA 2014

Appeal from the Judgment of Sentence Entered March 6, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0002771-2013

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OTT, J.

MEMORANDUM BY BENDER, P.J.E.: FILED JULY 27, 2015

Appellant, John M. Kent, appeals from the aggregate judgment of 

sentence of 111⁄2 to 23 months’ incarceration following his conviction for 

aggravated assault by vehicle while driving under the influence (AA-DUI), 

and related offenses arising from a motorcycle accident in which Appellant’s 

passenger was seriously injured. Appellant contends the trial court erred by 

failing to suppress the results of his blood-alcohol-content (BAC) test taken 

in the aftermath of the accident, as well as for failing to suppress his 

purportedly un-Mirandized1statement(s) made to police at that time. 

Appellant also contends that the evidence was insufficient to convict him of 

AA-DUI. After careful review, we affirm. 

____________________________________________

1 See Miranda v. Arizona, 384 U.S. 436 (1966). 
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The trial court summarized the facts adduced at trial as follows:

This case involved a motorcycle accident that occurred in 

Philadelphia on [10/4/12]. [Appellant] and a woman he had met 

that night were the only people involved in the accident. Maria 

Galante, the passenger on the motorcycle, testified that she first 

met [] Appellant at Casbar, a bar and restaurant, in 

Conshohocken, Pennsylvania. Ms. Galante explained that she 

went to the bar that evening for a drink and a bite to eat. After 

talking for approximately an hour, [] Appellant offered to take 

Ms. Galante somewhere else to get food, since the kitchen at 

Casbar was closed. [She] stated that she did not remember 

what [] Appellant was drinking at the bar, but that she was sure 

that he did have more than one drink while they were together 

talking.

Once outside the bar, [] Appellant offered to take Ms. 

Galante to Pat's Steaks on his motorcycle. The witness testified 

that she had been on a motorcycle a few times before, but the 

last time was over 20 years ago. [] Appellant told Ms. Galante 

that he did not have helmets for them to wear, but he assured 

her that she didn't need to worry because he was a good driver. 

Ms. Galante testified that approximately halfway along the ride, 

she asked [] Appellant if she was leaning properly through the 

turns. [] Appellant responded that what she was doing was 

perfect and not to change anything she was doing. The last 

thing the witness remembered from the incident was that the 

motorcycle no longer felt stable and she saw the grass below the 

motorcycle getting closer and closer.

Ms. Galante testified that she next remembered waking up 

and being questioned in the hospital. She explained that, due to 

the motorcycle accident, she stayed at Hahnemann Hospital for 

10 days to receive treatment. Injuries sustained by Ms. Galante 

from the motorcycle crash included a fracture at the back of her 

head, a tear from her right labia [to her] left buttocks, bleeding 

out of her right ear, and damage to her pelvic wall. These 

injuries required multiple surgeries and numerous stitches. Ms. 

Galante testified that she missed work due to the incident, and 

both the Commonwealth and [] Appellant stipulated that she 

suffered serious bodily injury.

Officer Karen Lee, a Philadelphia Police Officer for over 24 

years, stated that on the date of the incident, she received a 
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radio call regarding an automobile accident involving a 

motorcycle. When she arrived on the scene, she saw [] 

Appellant walking around freely and she was told that the 

passenger on the back of the motorcycle had been taken away 

by rescue personnel. Officer Lee testified that she spoke to [] 

Appellant, who seemed very nervous, and that he stated he had 

been the driver and that there was a female on the back of the 

motorcycle. [] Appellant told Officer Lee that, as he was coming 

around the bend of the road, he turned his head to talk to the 

female passenger and at that point the motorcycle veered off 

and slid on its side.

Officer Lee explained that she did not smell alcohol on the 

Appellant when she initially spoke to him at the scene of the 

crime but that [] Appellant's eyes were glazed over. The Officer 

believed that [] Appellant's eyes were glazed from something 

other than alcohol. [] Appellant was also speaking very fast 

when he spoke with Officer Lee. After interviewing [] Appellant, 

Officer Lee notified the dispatcher and held the scene until the 

investigating officers arrived. Officer Lee testified that she did 

not conduct field sobriety tests on [] Appellant because at no 

time did she smell alcohol on him. [] Appellant also never lost 

his balance and never slurred his speech while in Officer Lee's 

presence.

Officer William Lackman was the next officer to arrive at 

the scene of the accident. When he arrived, Officer Lackman 

saw [] Appellant sitting in Officer Lee's car with the window 

down. Officer Lackman testified that he approached [] Appellant 

to get details on the accident so that he could attempt to 

reconstruct the events that had occurred. [] Appellant told 

Officer Lackman that the passenger had shifted her weight, 

which caused the rear end of the motorcycle to slide out. 

Appellant explained that both [he] and the passenger fell to the 

ground, where he found the passenger was bleeding from her 

head.

[] Appellant told Officer Lackman that his fiancé, not the 

back passenger, owns the motorcycle and that neither rider was 

wearing a helmet at the time of the accident. Officer Lackman 

asked if [] Appellant had been drinking alcohol, because he could 

smell it on [him], but [] Appellant refused to answer. [] 

Appellant denied any drug use and volunteered to give a blood 

test sample to the officers. Officer Lackman asked Officer 
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Strohn, who was now on the scene, to take [] Appellant to the 

Philadelphia Detention Unit to conduct a DUI test.

At this point, Officer Lackman began a detailed crash 

investigation and attempted reconstruction of the accident. The 

officer measured the roadway, took photographs, observed 

scrapes on the concrete, examined the motorcycle, and took 

notes on damage to the surrounding area. During his 

investigation, Officer Lackman noticed two bottles of beer 

sticking out of the motorcycle side saddle bag, one bottle which 

was opened and the other bottle which was unopened. Officer 

Lackman testified that another officer seized the bottles of beer, 

the saddle bag, and the motorcycle for future investigation.

Officer Lackman testified that after concluding his accident 

reconstruction, he was able to determine that the back 

passenger's leg was between the frame of the motorcycle and 

the asphalt, so that when the accident occurred her leg was 

stuck momentarily while her body was thrown. At the time of 

the accident, Officer Lackman reported that there was no 

adverse weather or street conditions that could have contributed 

to the accident. Due to the marks on the road and the distance 

of the motorcycle from the initial impact, Officer Lackman 

estimated that the motorcycle was traveling close to 25 miles 

per hour. Officer Lackman also stated that there was no 

indication that [] Appellant had been speeding, had run a red 

light, or had violated any other traffic law. Officer Lackman 

stated that the crash could have resulted from the passenger 

leaning to one side of the motorcycle while the driver leaned to 

the other side. He stated that both the actions of [] Appellant 

and the back passenger contributed to the accident. Officer 

Lackman testified that throughout his interview, [] Appellant was 

never read his Miranda rights because at no time during the 

interview was [] Appellant under arrest.

Officer James Strohn testified that he transported [] 

Appellant to the Philadelphia D[eten]tion Unit for voluntary blood 

testing. On the way to the test, Officer Strohn explained that [] 

Appellant was staggering and had noticeably slurred speech. [] 

Appellant also had the odor of alcohol on his breath and had red 

watery eyes. Officer Strohn explained that [] Appellant's blood 

sample was taken at 5:14 am. After [] Appellant's blood 

samples were taken, [he] was taken back to the scene of the 

accident. Officer Lee testified that [] Appellant was not read his 
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Miranda warnings at any time when the blood sample was 

taken because he was not under arrest.

Dr. Richard Cohn, an expert in the area of pharmacology 

and toxicology, testified that he prepared a toxicology report 

regarding [] Appellant. Although Dr. Cohn explained that the 

toxicology report had an error on the front page, a date that was 

19 days before the incident occurred; he was able to show that 

the samples belonged to [] Appellant and that the tested 

samples were taken on the day of the incident. Dr. Cohn 

explained that the blood had a 0.156 BAC and contained cocaine 

metabolite, benzoylec[g]onine. Head space gas chromatography 

was used to determine the alcohol level in the blood, and normal 

gas chromatography was used to determine the level of cocaine 

present.

Dr. Cohn was able to testify, to a reasonable degree of 

certainty, that [] Appellant was under the impairing effects of 

ethyl alcohol, which was aggravated by the intake of cocaine. 

According to Dr. Cohn, an individual with these things in their 

system would be unfit to perform safety sensitive tasks, 

including operating a motor vehicle in safe operation on a 

highway. Dr. Cohn explained the adverse negative effects of 

alcohol and cocaine on a person's behavior as well as the 

combination of the two. He explained that the combination 

would negatively impact an individual's ability to make a decision 

regarding safety sensitive decisions as well as for the welfare of 

others. The doctor stated that he believed that [] Appellant's 

use of cocaine had been on the same day of the accident, but 

before the intake of alcohol. Finally, Dr. Cohn was unable to 

state how many times the test samples had changed hands 

between the different [o]fficers, but he was sure that the test 

tubes were still sealed when he received them and that the 

samples were not contaminated.

Trial Court Opinion (TCO), 12/18/14, at 2-7 (unnumbered pages) (citations 

omitted). 

On March 11, 2013, the Commonwealth filed a criminal information 

charging Appellant with AA-DUI, 75 Pa.C.S. § 3735.1; DUI-(general 

impairment, first offense), 75 Pa.C.S. § 3802(a)(1); simple assault, 18 
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Pa.C.S. § 2701; recklessly endanger another person (REAP), 18 Pa.C.S. § 

2705; DUI-(high rate of alcohol, first offense), 75 Pa.C.S. § 3802(b); and 

DUI-(cocaine, first offense), 75 Pa.C.S. § 3802(d)(ii). Following a 

preliminary hearing, the simple assault and REAP charges were dismissed. 

Prior to trial, Appellant filed an omnibus pre-trial motion, in which he 

requested that the trial court 1) suppress any statements he made to law 

enforcement following the accident; 2) suppress the results of the BAC test; 

and 3) quash the AA-DUI charge. Initially, a hearing was scheduled to 

address Appellant’s omnibus pre-trial motion on July 15, 2013. However, 

because the Commonwealth was not prepared to litigate a suppression 

hearing on that date, the matter was postponed until September 27, 2013.2 

N.T., 7/15/13, at 3-6. For reasons not apparent from the record, the 

hearing was later rescheduled for October 25, 2013. On that date, the 

Commonwealth was again unprepared to proceed with a suppression 

hearing.3 N.T., 10/25/13, at 5. However, the trial court proceeded to 

address, and then deny, Appellant’s motion to quash. Id. at 24. The 

suppression hearing was again continued until the first day of trial: January 

6, 2014. 

____________________________________________

2 The reason given by the Commonwealth was that a necessary witness, 

Officer Lackman, was unavailable to testify. 

 

3 Once again, Officer Lackman was unavailable to testify. 
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On January 6, 2014, Appellant waived his right to a jury trial. The 

court then commenced the trial without addressing the unlitigated 

suppression issues. On January 8, 2014, Appellant was found guilty of AADUI, DUI-(high rate of alcohol, first offense), and DUI-(cocaine, first 

offense). On March 6, 2014, the trial court sentenced Appellant to 111⁄2 to 

23 months’ incarceration for AA-DUI, and a concurrent term of 72 hours to 6 

months’ incarceration for DUI-(cocaine, first offense).4 Appellant filed a 

timely, omnibus post-sentence motion on March 14, 2014, which was denied 

by operation of law on July 15, 2014. Appellant subsequently filed a timely 

notice of appeal on August 8, 2014, and a timely, court-ordered Pa.R.A.P. 

1925(b) statement on September 8, 2014. The trial court issued its Rule 

1925(a) opinion on December 18, 2014. 

Appellant now presents the following questions for our review:

[1] Did the Lower Court err by failing to quash the charge of 

aggravated assault by DUI despite a lack of evidence to prove 

any driving related criminal negligence, or any causal link 

between the Appellant's driving and the serious bodily injury? 

[2] Did the Lower Court err by failing to conduct a prompt 

suppression hearing as required by Pa.R.Crim.P. 577(B), 580, 

and 581[,] in violation of [] Appellant's due process rights and 

[his] right[] to a fair trial?

[3] Did the Lower Court err by failing to suppress the statements 

that were obtained without a warrant, without probable cause, 

and without properly informed consent and/or a knowing, 

____________________________________________

4 No penalty was imposed for Appellant’s conviction for DUI-(high rate of 

alcohol, first offense). 
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voluntary and intelligent waiver of [] Appellant's constitutional 

rights?

[4] Did the Lower Court err by failing to suppress the results of a 

[BAC] test that was taken more than 2 hours after [] Appellant 

was in actual physical control of his vehicle and the police did not 

provide any reasonable excuse for the delay?

[5] Did the Lower Court err by failing to suppress the [BAC] test 

that was obtained without a warrant and [as] a result of police 

coercion?

[6] Did the Lower Court commit error when it, sua sponte, 

suggested that the Appellant was in possession of two bottles of 

beer in an attached saddle bag despite no evidence to support 

such a conclusion, and then relied on this legal conclusion as a 

basis to find [] Appellant guilty of aggravated assault via DUI?

Appellant’s Brief, at 9.

Appellant’s first claim concerns the trial court’s denying his pre-trial 

motion to quash the charge of AA-DUI. Specifically, Appellant contends that 

there was insufficient evidence to establish that he acted with the minimum 

mens rea necessary to sustain the offense—criminal negligence.

“A defendant may challenge the sufficiency of the evidence presented 

by the Commonwealth at the preliminary hearing by filing a motion for a 

Writ of Habeas Corpus in Common Pleas Court. In Philadelphia County, this 

motion is generally referred to as a Motion to Quash the Return of 

Transcript.” Commonwealth v. McBride, 595 A.2d 589, 590 (Pa. 1991). 

“If in fact it is determined at trial that the evidence of the Commonwealth is 

sufficient to be submitted to the jury, then any deficiency in the presentation 

before the district justice would have been harmless.” Commonwealth v. 

Hess, 414 A.2d 1043, 1048 (Pa. 1980). Thus, if the trial evidence is 
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sufficient to convict, a court’s failure to grant a motion to quash on grounds 

of insufficient evidence is rendered harmless. Accordingly, for ease of 

disposition, we evaluate Appellant’s claim as a challenge to the sufficiency of 

the evidence, for which our standard of review is well-established:

A claim challenging the sufficiency of the evidence is a 

question of law. 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. 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. 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. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal 

citations omitted).

“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 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. § 3735.1(a) (emphasis 

added). 

A person acts negligently with respect to a material element of 

an offense when he should be aware of a substantial and 

unjustifiable risk that the material element exists or will result 

from his conduct. The risk must be of such a nature and degree 

that the actor's failure to perceive it, considering the nature and 

intent of his conduct and the circumstances known to him, 
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involves a gross deviation from the standard of care that a 

reasonable person would observe in the actor's situation. 

18 Pa.C.S. § 302(b)(4). 

Appellant asserts that in order to sustain a conviction for AA-DUI, 

there must be some “indicia of unsafe driving beyond the DUI itself[.]” 

Appellant’s Brief, at 17. Appellant argues that the record in this case reveals 

he “was not speeding, did not disobey any traffic signs or signals, was not 

driving in a dangerous manner, nor did he commit any motor vehicle 

citations [sic].” Id. at 18. Rather, he contends: 

The only evidence that the Commonwealth point[ed] to in 

the record at the time of the motion to quash [was] a statement 

from Ms. Galante that, at some point in time during the ride she 

asked [] Appellant[,] "Is there anything I should know?" and 

that [] Appellant said "No, you're doing everything just fine." 

The record is void of any evidence that prior to this question, or 

in fact prior to Ms. Galante's sudden lean to the left during a 

right turn that caused the accident, that she was doing anything 

to create a substantial risk of harm that a reasonable person 

would have warned her about. 

Id. at 19. 

The trial court’s Rule 1925(a) opinion simply concludes that Appellant’s 

conviction for AA-DUI renders this claim moot. TCO, at 10 (unnumbered 

pages). Indeed, the fact that the trial court found Appellant guilty of AA-DUI 

implies that it believed the evidence to be sufficient to demonstrate that 

Appellant’s negligence was a cause of the victim’s serious bodily injury. 

While the trial court’s finding of mootness is not incorrect, we will address 

Appellant’s claim as a challenge to the sufficiency of the evidence, out of an 

abundance of caution, because if the evidence was sufficient to convict him 
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at trial, any error with regard to the denial of his motion to quash is also 

harmless.5

When issuing the verdict in this case, the trial court stated that 

Appellant’s intoxication due to alcohol and cocaine contributed to the 

following negligent conduct:

Driving a motorcycle with an inexperienced passenger 

without a helmet, assuring her he was a good driver, never 

disclosing the recent use of cocaine or the number of drinks or 

never explicitly telling her what to do. Putting an open bottle of 

beer in a side saddle, in addition to a closed bottle of beer in the 

motorcycle.

I believe [Appellant]’s statement made to Officer Lee at 

the time the initial -- very first contact he had with police he did 

not indicate the complainant was the one that shifted her weight. 

He said he was the one that had shifted his weight and turn[ed]

his head to speak to her.

____________________________________________

5

In this regard, the trial itself presented Appellant with a second opportunity 

to litigate the sufficiency of the evidence. Thus, Appellant’s motion to quash 

was rendered moot by the trial court’s guilty verdict pursuant to 

Commonwealth v. Lee, 662 A.2d 645, 650 (Pa. 1995) (holding that the 

appellant’s “adjudication of guilt renders moot any allegation that the 

Commonwealth failed to establish a prima facie case” at the preliminary 

hearing) (emphasis added). Compare Commonwealth v. McCullough, 

461 A.2d 1229 (Pa. 1983) (holding that the Commonwealth’s failure to 

present a prima facie case of robbery at the appellant's preliminary hearing 

was immaterial where the Commonwealth met its burden of proving the 

underlying offense at trial beyond a reasonable doubt); and compare

Hess, supra (“If in fact it is determined at trial that the evidence of the 

Commonwealth is sufficient to be submitted to the jury, then any deficiency 

in the presentation before the district justice would have been harmless.”) 

(emphasis added). Whether Appellant’s claim is ‘moot’ under Lee, 

‘immaterial’ under McCullough, or ‘harmless’ under Hess, we conclude that 

he is not entitled to relief under any of these standards. 
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And it’s those things, all of that while turning at 25 miles 

an hour, making a right hand turn, all of those are the 

contributing factors that [Appellant] is responsible for. There 

can be obviously more than one cause and [Appellant]’s actions, 

as I noted, are just one o[f] many in the series of events that led 

to this accident and I think he’s guilty of [AA-DUI]. 

N.T., 1/8/14, at 5. 

We agree that the confluence of these acts and omissions adequately 

demonstrate that Appellant’s negligent conduct caused the injuries to the 

victim. Contrary to Appellant’s assertions, these facts provide sufficient 

evidence of his unsafe driving beyond mere intoxication. Appellant created a 

foreseeable risk of injury by having an in- or under-experienced motorcycle 

passenger ride helmetless with him, while simultaneously failing to disclose 

his own degree of intoxication. Additionally, the trial court credited 

Appellant’s first claim to police—that he had turned his head, causing the 

shift in weight that led to the accident—rather than his subsequent, selfserving claim that the victim had unbalanced the motorcycle by shifting her 

weight. Even if Appellant did not perceive these risks, his failure to do so 

“involves a gross deviation from the standard of care that a reasonable 

person would observe in the actor's situation.” 18 Pa.C.S. § 302(b)(4). This 

conclusion is buttressed by Officer Lackman’s testimony, which established 

that no adverse weather or street conditions could have contributed to the 

accident. 

Appellant argues that several authorities run counter to this 

conclusion, case law which purportedly demonstrates the proposition that 

negligence cannot be proven for purposes of an AA-DUI offense absent 
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evidence of another motor vehicle infraction. First, we note that, apart from 

proof of a violation of 75 Pa.C.S. § 3802, a fact which is not contested in this 

case, the definition of AA-DUI does not require that a motor vehicle violation 

or other illegal conduct be proven in order to demonstrate the requisite 

mens rea of negligence necessary to sustain a conviction for that offense, 

nor does Appellant offer any argument to this effect. Thus, Appellant 

ostensibly believes that case law establishes such a rule.

Appellant cites two cases which are simply inapposite to such an 

argument, including Commonwealth v. Tanner, 61 A.3d 1043 (Pa. Super. 

2013), which is not a sufficiency case at all. In Tanner, the appellant raised 

sentencing issues pertaining to an AA-DUI conviction, but those issues were 

not resolved by this Court. Instead, acting sua sponte, the Tanner Court 

only addressed an illegal sentence. Appellant also cites Commonwealth v. 

Johnson, 545 A.2d 349 (Pa. Super. 1988), a case which did not even 

involve an AA-DUI offense.

Appellant fared better with his other citations. In Commonwealth v. 

Schmohl, 975 A.2d 1144 (Pa. Super. 2009), the appellant challenged the 

sufficiency of the evidence supporting his AA-DUI conviction, arguing that he 

“displayed no outward manifestations of reckless driving or a violation of the 

motor vehicle code[.]” Id. at 1147. This Court disagreed, noting that the 

appellant, after imbibing 5-6 sixteen-ounce cans of beer, drove as fast as 50 

m.p.h. in a 35 m.p.h. zone when he struck the victim. Furthermore, 

evidence supported an inference that the appellant had crossed the fog line 
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just before striking the victim. This Court found that evidence sufficient to 

demonstrate the appellant’s negligence. 

In Commonwealth v. Miller, 810 A.2d 178 (Pa. Super. 2002), the 

Commonwealth appealed from the trial court’s dismissing of Miller’s AA-DUI 

charge for lack of sufficient evidence pursuant to a pre-trial habeas corpus

petition. Miller had collided with a motorcyclist while making a left turn 

across the oncoming traffic lane in which the biker was travelling. The trial 

court had dismissed the charge, concluding that the Commonwealth could 

not prove negligence in the absence of witnesses to the accident. However, 

this Court reversed, as physical evidence showed that the biker had been 

travelling within the posted speed limit, as demonstrated by the skid marks 

left by the motorcycle. From this evidence, along with the undisputed facts 

that Miller made a left turn against opposing traffic and that the right side of 

his vehicle had struck the biker, this Court concluded that sufficient evidence 

showed that Miller had been grossly negligent in “traversing the victim’s 

right of way.” Id. at 181. 

In Commonwealth v. Ketterer, 725 A.2d 801 (Pa. Super. 1999), this 

Court sustained a conviction for AA-DUI where the appellant was involved in 

an accident while speeding. The appellant’s speeding was particularly 

negligent because “minimal visibility caused by severe weather conditions” 

led other drivers to travel at approximately 25 m.p.h. in a 45 m.p.h. zone, 

whereas the appellant had been driving at an estimated speed of 65 m.p.h. 

in the same zone. Id. at 804. However, Ketterer is not directly on point. 
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At issue in that case was the sufficiency of the evidence as it pertained to 

the causation element for AA-DUI, not the sufficiency of the evidence 

regarding the requisite mens rea for the offense. 

Finally, Appellant cites Commonwealth v. Nicotra, 625 A.2d 1259 

(Pa. Super. 1993), which, like Ketterer, addressed causation sufficiency 

rather than mens rea sufficiency. Nevertheless, in Nicotra, this Court found 

sufficient evidence of AA-DUI where the appellant had been “driving his 

vehicle at a high rate of speed and had ignored several stop signs.” We also 

concluded that “[t]he factfinder could ... infer from the evidence that [the] 

appellant’s reflexes and judgment had been adversely affected by his 

intoxication.” Nicotra, 625 A.2d at 1264. 

Instantly, we agree with Appellant that most of the above-cited cases 

found evidence sufficient to sustain an AA-DUI conviction where the 

defendant’s conduct involved motor vehicle code infractions above and 

beyond the underlying DUI offense. However, in none of those cases did 

this Court state or imply that negligence for purposes of AA-DUI could not be 

proven in the absence of an independent motor vehicle code violation. 

Given the absence of such a requirement in the text of 75 Pa.C.S. § 3735.1, 

considering our conclusion that Appellant’s conduct satisfied Section 

302(b)(4)’s definition of criminal negligence, and considering the lack of any 

case law supporting his position, we conclude that Appellant’s sufficiency 

claim lacks merit. 
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Appellant’s second, third, fourth, and fifth claims of error all pertain to 

his motion to suppress his un-Mirandized statements to police and the 

results of his post-accident BAC test. The trial court found that Appellant 

waived all suppression-related claims by failing to adequately preserve 

them. 

As noted above in the procedural history of this case, Appellant filed 

an omnibus suppression motion seeking the exclusion of both the BAC test 

results and his un-Mirandized statements. See Appellant’s Omnibus PreTrial Motion, filed 4/22/13 (refiled 9/3/13). The Commonwealth was not 

prepared to litigate Appellant’s suppression motions on two occasions, 

leaving Appellant’s omnibus suppression motion unresolved when his trial 

began on January 6, 2014. Thus, the trial court clearly erred when it 

proceeded to trial without first resolving Appellant’s pending suppression 

issues. It is also apparent from the record, however, that the defense did 

not object to the court’s oversight in this regard. 

Appellant also failed to object when the Commonwealth sought 

admission of Appellant’s BAC test results and his un-Mirandized statements 

at trial. Officer Lackman testified extensively regarding Appellant’s 

statements to him immediately after the accident. N.T., 1/6/14, at 20-24. 

At no time during this testimony did Appellant or his counsel lodge an 

objection. Id. Similarly, Appellant failed to object when the Commonwealth 

introduced Appellant’s BAC test results through the testimony of Dr. Cohn. 

Id. at 92. Indeed, Appellant made no mention of the unaddressed 
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suppression issues until his closing argument. Id. at 111-112. 

Consequently, the trial court found that Appellant waived any suppression 

claim by failing to bring the unaddressed motion(s) to the court’s attention 

prior to the admission of the BAC test results and un-Mirandized

statements. TCO, at 8-9. We agree.

“Issues not raised in the lower court are waived and cannot be raised 

for the first time on appeal.” Pa.R.A.P. 302(a). Furthermore, “[i]t is well 

established that trial judges must be given an opportunity to correct errors 

at the time they are made.” See Commonwealth v. Clair, 326 A.2d 272, 

274 (Pa. 1974). In this regard, “a party may not remain silent and 

afterwards complain of matters which, if erroneous, the court would have 

corrected.” Id. (quoting Commonwealth v. Marlin, 305 A.2d 14, 16 (Pa. 

1973) (citations omitted)). “Even where a defendant objects to specific 

conduct, the failure to request a remedy such as a mistrial or curative 

instruction is sufficient to constitute waiver.” Commonwealth v. Strunk, 

953 A.2d 577, 579 (Pa. Super. 2008).

Instantly, defense counsel’s failure to bring the unlitigated suppression 

issues to the court’s attention prior to the admission of the purportedly 

suppressible evidence deprived the trial court of the ability to correct its own 

error in a timely fashion. Moreover, a reasonable inference could have been 

drawn from counsel’s failure to object to the admission of the disputed 

evidence that the related suppression motions had been abandoned. 

Accordingly, we conclude that Appellant’s second, third, fourth, and fifth 
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claims have not been adequately preserved for direct appellate review.6 As 

such, they are deemed waived. 

Finally, Appellant contends that the trial court erred when it concluded 

that the beer found in Appellant’s motorcycle’s saddlebags belonged to him. 

Appellant believes that his purported ownership or possession of the beer 

bottles in question was in impermissible inference drawn from the evidence. 

We disagree. 

The Commonwealth argues that the inference was proper since the 

beer in question “was found in [Appellant’s] motorcycle, he had been 

drinking earlier in the night, [and] he was intoxicated at the time of the 

accident[.]” Commonwealth’s Brief, at 8 n.3. We agree. The court’s 

inference was patently reasonable given the circumstances in which the beer 

was discovered. Appellant’s final claim is meritless. 

Judgement of sentence affirmed. 

____________________________________________

6 Due to counsel’s failure to bring this matter to the trial court’s attention in 

a timely fashion, Appellant’s only recourse, if he is entitled to relief at all, 

lies in an ineffective assistance of counsel claim which may only be raised 

during collateral review in a petition filed pursuant to the Post Conviction 

Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq. See Commonwealth v. 

Holmes, 79 A.3d 562, 576 (Pa. 2013) (holding that, absent special 

circumstances outlined in Holmes, “claims of ineffective assistance of 

counsel are to be deferred to PCRA review; trial courts should not entertain 

claims of ineffectiveness upon post-verdict motions; and such claims should 

not be reviewed upon direct appeal”). 
J-A17024-15

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/27/2015