J-S53019-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

FREDERIC SAMUEL BALCH III, 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3122 EDA 2017

Appeal from the Judgment of Sentence August 16, 2017

In the Court of Common Pleas of Delaware County Criminal Division at 

No(s): CP-23-CR-0001516-2017

BEFORE: GANTMAN, P.J., OTT, J., and PLATT, J.

MEMORANDUM BY OTT, J.: FILED SEPTEMBER 26, 2018

Frederic Samuel Balch, III, appeals from the judgment of sentence 

imposed on August 16, 2017, in the Court of Common Pleas of Delaware 

County. The trial judge1found Balch guilty of one count of driving under the 

influence (DUI) – highest rate of alcohol, one count of possession of 

marijuana, and two counts of use/possession of drug paraphernalia.2 Balch 

was sentenced to 72 hours to six months’ imprisonment and a one-year term 

of probation. Balch contends that based upon the corpus delicti rule, the 

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 Retired Senior Judge assigned to the Superior Court.

1 The trial judge, the late Honorable James F. Nilon, retired from the Delaware 

County Court of Common Pleas in December of 2017. The case was 

reassigned to the Honorable George A. Pagano in January of 2018. See Trial 

Court Opinion, 2/13/2017, at 1 n.1.

2 75 Pa.C.S. § 3802(c), 35 P.S. § 780-113(a)(31), and 35 P.S. 780-

113(a)(32), respectively. 
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evidence was insufficient to support the trial judge’s DUI guilty verdict. For

the following reasons, we affirm.

The trial court has aptly summarized the facts of this case, as follows:

On November 30, 2016 at approximately 12:30 in the afternoon, 

a white Lexus sedan crashed into a PECO pole at 305 Bryn Mawr 

Avenue. Mr. Balch was in the car at the moment of the accident. 

However, a good Samaritan picked up Mr. Balch and took him to 

the Bryn Mawr Hospital before police arrived. Officer Shawn 

Patterson of the Radnor Police Department responded to the 

vehicle crash. Patterson saw that the car had severe damage to 

the impact point on the driver’s side. The driver of the vehicle was 

not present at the accident scene when Patterson arrived. After 

responding to the auto accident on Bryn Mawr Avenue, Patterson 

was dispatched to the hospital to locate the driver of the vehicle. 

When Patterson arrived at the hospital, he found Officer Thomas 

Matijasich with the Defendant, Mr. Balch, in the back room. Mr. 

Balch was in poor physical condition, sustaining both head and 

bodily injuries. Mr. Balch had fresh blood coming from his head 

and there was no one else with him from the car accident. Upon 

speaking to Mr. Balch, both officers identified a strong odor of 

alcohol. The Defendant consented to a blood alcohol test, which 

revealed a BAC of .241. The Defendant also admitted to smoking 

marijuana. After patting him down, the officers found a small 

amount of marijuana and drug paraphernalia on his person. 

****

On August 16, 2017, a non-jury trial was held in front of this court. 

Officer Patterson, Officer Matijasich, and Mr. Balch testified to the 

facts as set forth above. According to Officer Matijasich, Mr. Balch 

immediately admitted to being the driver of the white Lexus when

questioned at the hospital. However, at trial, Mr. Balch had no 

recollection of admitting this, and alleged that his cousin was the 

driver of the vehicle, not him. One eye witness testified that she

saw two men coming out of the vehicle after it had crashed, but 

did not see which man was in actual physical control of the vehicle. 

Furthermore, Mr. Balch testified that his BAC was .241 because 

he had been drinking the night before, but not on the morning of 

the accident. ...
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Trial Court Opinion, 2/13/2017, at 1-2. The trial court found, based on the 

totality of facts, that the damage to the driver’s side windshield of the vehicle 

was consistent with injuries Balch had at the hospital, which was evidence of 

Balch being the operator of the vehicle. Therefore, the trial court concluded 

the Commonwealth met the elements of DUI – highest rate of alcohol beyond 

a reasonable doubt. The trial court sentenced Balch as stated above, and this 

appeal followed.3

Balch contends that under the corpus delicti rule the trial court erred in 

admitting his confession that he was the driver of the vehicle “for any 

purpose,” because “[a] mere car accident was on the record when the [c]ourt 

received [his] confession.” Balch’s Brief at 9. See also id. at 11-12.

Our standard of review for a challenge to the corpus delicti rule is wellsettled.

The corpus delicti rule is designed to guard against the "hasty and 

unguarded character which is often attached to confessions and 

admissions and the consequent danger of a conviction where no 

crime has in fact been committed." 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. The corpus delicti

rule places the burden on the prosecution to establish that a crime 

has actually occurred before a confession or admission of the 

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3 Review of the record reveals that the trial court, on September 18, 2017, 

ordered Balch to file a Pa.R.A.P. 1925(b) statement within 21 days. Since the 

21st day was Monday, October 10, 2017, a legal holiday, Balch’s concise 

statement was due on October 11, 2017. See 1 Pa.C.S. 1908. On October 

11, 2017, Balch filed a motion for extension of time, and the trial court granted

the motion and extended the time for filing the concise statement to October 

27, 2017. Balch timely filed his concise statement on that date.
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accused connecting him to the crime can be admitted. The corpus 

delicti is literally the body of the crime; it consists of proof that a 

loss or injury has occurred as a result of the criminal conduct of 

someone. The criminal responsibility of the accused for the loss 

or injury is not a component of the rule. The historical purpose of 

the rule is to prevent a conviction based solely upon a confession 

or admission, where in fact no crime has been committed. The 

corpus delicti may be established by circumstantial evidence. 

Establishing the corpus delicti in Pennsylvania is a two-step 

process. The first step concerns the trial judge's admission of the 

accused's statements and the second step concerns the fact 

finder's consideration of those statements. In order for the 

statement to be admitted, the Commonwealth must prove the 

corpus delicti by a preponderance of the evidence. In order for the 

statement to be considered by the fact finder, the Commonwealth 

must establish the corpus delicti beyond a reasonable doubt.

Commonwealth v. Hernandez, 39 A.3d 406, 410-411 (Pa. Super. 2012)

(citations omitted).

Preliminarily, it is important to point out Balch concedes there was no 

corpus delicti objection to the admissibility of Balch’s confession, the first step 

of the two-step process of establishing the corpus deliciti. However, Balch 

contends he did not waive a challenge to the trial court’s consideration of 

Balch’s statement, the second step, because he raised the issue in his closing, 

albeit without using the term corpus delicti. In support, Balch cites 

Commonwealth v. Chamberliss, 847 A.2d 115 (Pa. Super. 2004), for its 

holding that even when there is no timely corpus deliciti challenge to the 

admissibility of the defendant’s confession, a defendant may still invoke the 

corpus delicti rule prior to the factfinder’s deliberation and argue that the 

Commonwealth did not present the “quantum of evidence” necessary for the 

factfinder to consider the defendant’s confession.” Id. at 121. Balch, 
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however, does not provide any citation to identify where he preserved a 

corpus delicti issue at trial. Balch only states, “At closing, defense counsel 

challenged [Balch’s] statement without us[i]ng the term ‘corpus deliciti’” .... 

Balch’s Brief at 12. This Court’s review, however, has not detected a corpus 

deliciti argument in Balch’s counsel’s closing argument.

4

 Accordingly, this 

issue has been waived. In any event, it is meritless because, as more fully 

discussed below, the Commonwealth established the corpus delicti beyond a 

reasonable doubt without Balch’s admission before the trial court began its 

deliberation.

Here, Balch was convicted of DUI - highest rate of alcohol pursuant to

Section 3802(c).

5

 Therefore, the Commonwealth had to prove Balch “(1) ... 

drove, operated or was in actual physical control of a motor vehicle; and (2) 

that such action was conducted after imbibing enough alcohol that the 

[defendant’s] BAC reached 0.16% within two hours after driving.”

Commonwealth v. Thur, 906 A.2d 552, 564 (Pa. Super. 2006), citing 75 

Pa.C.S. § 3802(c)). The term “operates” necessitates evidence of actual, 

physical control of either the machinery of the motor vehicle or the 

management of the vehicle’s movement, but does not require evidence that 

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4 While Balch’s Pa.R.A.P. 1925(b) statement cites to pages 96 and 97 of the 

trial transcript, Balch’s counsel is not presenting closing argument at that 

record citation. 

5 Balch mistakenly cites 75 Pa.C.S. § 3802(a)(1). See Balch’s Brief at 10.
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the vehicle was in motion. Commonwealth v. Young, 904 A.2d 947, 954 

(Pa. Super. 2006). In order to find that a person had actual physical control 

of an automobile, a combination of the following factors is required: the motor 

running, the location of the vehicle, and additional evidence showing that the 

defendant was driving. Commonwealth v. Brotherson, 888 A.2d 901, 904 

(Pa. Super. 2005).

At trial, prior to the admission of Balch’s statement that he was driving

the vehicle, the Commonwealth presented the following evidence. On

November 30, 2016, at approximately 12:30 in the afternoon, Officer 

Patterson responded to a one-car accident in which a white Lexus sedan had 

crashed into a PECO pole. The operator of the vehicle was not present at the 

scene. Officer Patterson observed damage to the left front side where the 

vehicle made impact with the pole, and damage to the driver’s front 

windshield, specifically, an impact point with spider effect. Officer Matijacich, 

who had been dispatched to Bryn Mawr Hospital, notified Officer Patterson he 

had found the operator of the vehicle. Within 15 minutes, Officer Patterson 

proceeded to the hospital, found Balch and began a conversation with Balch. 

At that time, he noticed a strong odor of alcohol coming from Balch. Officer 

Patterson also noticed a laceration to Balch’s forehead that was consistent 

with the damage to the driver’s side windshield of the vehicle. Officer 

Patterson read Balch Form DL-26, and obtained Balch’s consent to a blood 

test. The blood test revealed a blood alcohol level (BAC) of .241. 
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Furthermore, while one eyewitness reported to police there were two men in 

the vehicle, no one else was found at the hospital with injuries consistent with 

the damage to the vehicle.

On this record, the circumstantial evidence and the reasonable inference 

drawn therefrom, even without Balch’s admission, were sufficient evidence to 

establish that Balch was driving while intoxicated. As Judge Nilon aptly 

explained, in stating his decision on the record:

[T]here was obviously an auto accident with damage to the front 

windshield on the driver’s side. And the investigating officer 

described the damage. That damage would be consistent with a 

person’s head striking the windshield of the vehicle. Also I think 

that the testimony with regard to the other injuries suffered by 

[Balch], being fractured ribs, would be consistent with a person 

behind the wheel of a vehicle having their torso strike the driver's 

wheel on the vehicle. So that evidence would be consistent with 

[Balch] being the operator of the vehicle, since [Balch] was

treated at the hospital for injuries that would be consistent with 

the damage to the vehicle. ...

N.T., 8/16/2017, at 96-97. We agree with this analysis. Had the issue been 

preserved, we would find the Commonwealth’s circumstantial evidence 

established that Balch was the driver who crashed the vehicle and the 

Commonwealth’s direct evidence established Balch was intoxicated with a BAC 

of .241. As such, the Commonwealth established beyond a reasonable doubt 

the corpus delicti, that drunk driving occurred. Hence, the trial court’s 

consideration of Balch’s statement that he had been driving the vehicle was 

proper under the corpus delicti rule.

Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/26/18