Commonwealth v. Bologna

Full title: COMMONWEALTH OF PENNSYLVANIA Appellee v. MARIO C. BOLOGNA Appellant

Court: SUPERIOR COURT OF PENNSYLVANIA

Date published: Oct 22, 2018

No. 63 MDA 2018 (Pa. Super. Ct. Oct. 22, 2018)

Opinion

J-A19001-18 No. 63 MDA 2018

10-22-2018

COMMONWEALTH OF PENNSYLVANIA Appellee v. MARIO C. BOLOGNA Appellant

MEMORANDUM BY GANTMAN, P.J.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence October 17, 2017
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0006082-2016 BEFORE: GANTMAN, P.J., NICHOLS, J., and FORD ELLIOTT, P.J.E. MEMORANDUM BY GANTMAN, P.J.:

Appellant, Mario C. Bologna, appeals from the judgment of sentence entered in the Dauphin County Court of Common Pleas, following his bench trial convictions for driving under the influence of alcohol ("DUI") and careless driving.¹ We affirm.

1 75 Pa.C.S.A. §§ 3802(a)(1) and 3714(a), respectively.

In its opinion, the trial court fully and correctly sets forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them.

Appellant raises the following issues for our review:

DUI REQUIRES THE DEFENDANT TO BE IN ACTUAL PHYSICAL CONTROL OF THE VEHICLE. UNDER THE CORPUS DELICTI RULE, A CONVICTION CANNOT BE BASED ON AN ADMISSION BY THE DEFENDANT UNLESS IT IS CORROBORATED BY INDEPENDENT EVIDENCE

ESTABLISHING THE CORPUS DELICTI. DID THE TRIAL COURT ERR IN DENYING [APPELLANT'S OMNIBUS PRE-TRIAL MOTION] WHEN THERE IS NO INDEPENDENT EVIDENCE ESTABLISHING THE CORPUS DELICTI?

WHETHER THERE WAS INSUFFICIENT EVIDENCE FOR THE CONVICTION OF DUI: GENERAL IMPAIRMENT, WHEN THERE WAS NO EVIDENCE THAT [APPELLANT] WAS IN ACTUAL PHYSICAL CONTROL AS HE WAS FOUND ASLEEP IN THE PASSENGER SEAT OF THE PICKUP TRUCK?

WHETHER THE JUDGE'S FINDING OF GUILT FOR DUI: GENERAL IMPAIRMENT IS AGAINST THE WEIGHT OF THE EVIDENCE WHEN THE COMMONWEALTH DID NOT PROVE BEYOND A REASONABLE DOUBT THAT [APPELLANT] WAS IN ACTUAL PHYSICAL CONTROL OF THE PICKUP TRUCK AS NO ONE SAW HIM DRIVE THE PICKUP TRUCK?

(Appellant's Brief at 5).

Appellant argues that, under the corpus delicti rule, the court should have granted his omnibus pretrial motion to suppress his admission to drinking and driving because the Commonwealth failed to establish that it was more likely than not that a DUI occurred. Appellant contends no accident happened and no signs of drunk driving were present. Appellant claims the evidence only demonstrates that he was asleep in the passenger seat of his truck when it rolled into the roadway. Alternatively, Appellant reasons the court should have excluded his confession at trial because there was no evidence independent of the admission to establish that a DUI had occurred. Appellant maintains no evidence demonstrated he had ever operated or was in physical control of the truck. Rather, Appellant insists he was simply asleep in the passenger seat when the truck rolled into the road, so there was no criminal act of DUI when he was arrested.

Appellant also alleges the evidence at trial was insufficient to find Appellant guilty of DUI because (1) there was no evidence that Appellant drove or was in physical control of the truck; (2) Appellant was asleep in the passenger seat of the truck; (3) the truck was legally parked before it rolled into the road; and (4) it was not possible to know if anyone had exited the truck while it was parked in the convenience store parking lot. For similar reasons, Appellant contends his conviction for DUI is also against the weight of the evidence. Appellant concludes this Court should vacate his conviction and/or vacate and remand for a new trial. We disagree.

We review the denial of a suppression motion as follows:

Our standard of review in addressing a challenge to a trial court's denial of a suppression motion is limited to determining whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct.

[W]e may consider only the evidence of the prosecution and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the record supports the findings of the suppression court, we are bound by those facts and may reverse only if the court erred in reaching its legal conclusions based upon the facts.

Commonwealth v. Williams , 941 A.2d 14, 26-27 (Pa.Super. 2008) (en banc) (internal citations and quotation marks omitted). "It is within the suppression court's sole province as factfinder to pass on the credibility of witnesses and the weight to be given their testimony." Commonwealth v. Clemens , 66 A.3d 373, 378 (Pa.Super. 2013) (quoting Commonwealth v. Gallagher , 896 A.2d 583, 585 (Pa.Super. 2006)).

"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." Commonwealth v. Herb , 852 A.2d 356, 362-63 (Pa.Super. 2004) (internal citations omitted).

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.

Commonwealth v. Dent , 837 A.2d 571, 577 (Pa.Super. 2003), appeal denied, 581 Pa. 671, 863 A.2d 1143 (2004) (internal citations omitted).

Under Pennsylvania law, the application of the corpus delicti rule occurs in two distinct phases. The first phase involves the court's application of a rule of evidence governing the threshold question of the admissibility of the confession. In this first phase of the rule's application, the court must determine whether the Commonwealth has proven the corpus delicti of the crimes charged by a mere preponderance of the evidence. If the court is satisfied that, on the evidence presented, it is more likely than not that a wrong has occurred through criminal agency, then the confession and/or admissions of the defendant are admissible.

The second phase of the rule's application occurs after a confession has already been admitted into evidence. After the court has made its initial determination that the Commonwealth has proved the corpus delicti by a preponderance of the evidence and has ruled the confession to be admissible, the corpus delicti rule additionally

requires that the Commonwealth prove to the jury's satisfaction beyond a reasonable doubt, the corpus delicti of the crimes charged.

Commonwealth v. Ahlborn , 657 A.2d 518, 521 (Pa.Super. 1995), appeal denied, 547 Pa. 713, 688 A.2d 170 (1997) (emphasis in the original). In other words, "[t]he Commonwealth need not prove the existence of a crime beyond a reasonable doubt as an element in establishing the corpus delicti of a crime, but the evidence must be more consistent with a crime than with [an] accident. The corpus delicti, or 'body of the crime,' may be proven by circumstantial evidence." Commonwealth v. Murray , 174 A.3d 1147, 1154 (Pa.Super. 2017), appeal denied, ___ Pa. ___, 187 A.3d 204 (2018).

Only inculpatory statements fall within the scope of the corpus delicti rule. 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. Only then may the Commonwealth introduce a statement to show that the defendant is responsible for the loss. For the purpose of admission, the corpus delicti may be established by a preponderance of the evidence. Moreover, the Commonwealth may establish the corpus delicti with circumstantial evidence.

Herb , supra at 363 (internal citations and quotation marks omitted).

Under the corpus delicti rule, the Commonwealth may not obtain a conviction based solely on extra-judicial inculpatory statements of the accused, without independent corroboration that a crime actually occurred. Commonwealth v. McMullen , 545 Pa. 361, 681 A.2d 717 (1996). "The 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." Id. at 368, 681 A.2d at 721 (quotation marks omitted). The concern for error in this context is minimized in a bench trial. See Commonwealth v. Konias , 136 A.3d 1014, 1022 (Pa.Super. 2016), appeal denied, 636 Pa. 673, 145 A.3d 724 (2016) (citing Commonwealth v. Smith , 97 A.3d 782, 788 (Pa.Super. 2014) (reiterating general rule that trial court, sitting as trier of fact, "is presumed to know the law, ignore prejudicial statements, and disregard inadmissible evidence")).

Appellate review of a claim challenging the sufficiency of the evidence is as follows:

The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying [the above] test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the [finder] of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.

Commonwealth v. Jones , 874 A.2d 108, 120-21 (Pa.Super. 2005) (quoting Commonwealth v. Bullick , 830 A.2d 998, 1000 (Pa.Super. 2003)).

The following principles apply to a weight of the evidence claim:

The weight of the evidence is exclusively for the finder of fact who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. An appellate court cannot substitute its judgment for that of the finder of fact. Thus, we may only reverse the...verdict if it is so contrary to the evidence as to shock one's sense of justice.

Commonwealth v. Small , 559 Pa. 423, [435,] 741 A.2d 666, 672-73 (1999). Moreover, where the trial court has ruled on the weight claim below, an appellate court's role is not to consider the underlying question of whether the verdict is against the weight of the evidence. Rather, appellate review is limited to whether the trial court palpably abused its discretion in ruling on the weight claim.

Commonwealth v. Champney , 574 Pa. 435, 444, 832 A.2d 403, 408 (2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004) (most internal citations omitted).

Section 3802 of the Motor Vehicle Code provides:

§ 3802. Driving under influence of alcohol or controlled substance

(a) General impairment.—

(1) An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle.


* * *

75 Pa.C.S.A. § 3802(a)(1). Additionally, Section 3714 states:

§ 3714. Careless driving

(a) General rule.—Any person who drives a vehicle in careless disregard for the safety of persons or property is guilty of careless driving, a summary offense.


* * *

75 Pa.C.S.A. § 3714(a).

After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Richard A. Lewis, P.J., we conclude Appellant's issues merit no relief. The trial court opinion comprehensively discusses and properly disposes of the questions presented. ( See Trial Court Opinion, filed January 30, 2018, at 3-9) (finding: (1) Commonwealth presented evidence at suppression hearing that Appellant's truck was blocking roadway lane of travel; Appellant was unconscious in passenger seat; no one else was near vehicle; vehicle was registered to Appellant; keys were in ignition, headlights were on, and vehicle was in neutral; when Appellant finally awoke after detective's repeated knocking, detective noticed strong odor of alcohol on Appellant, and Appellant's rolling eyes and slurred speech; evidence showed someone had operated motor vehicle while intoxicated; at this point, Appellant stated he had consumed alcohol and was driver of vehicle; Commonwealth established by preponderance of evidence at suppression hearing that drunk driving had occurred, and suppression of Appellant's confession was unwarranted; (2-3) evidence showed Appellant's vehicle was sitting outside of establishment that does not serve alcohol and there was no evidence that Appellant had consumed alcohol nearby; vehicle was blocking roadway lane of travel and was illegally "parked" (in neutral gear); Appellant was sleeping in passenger seat slumped over center console, engine was running and headlights were on; vehicle was registered to Appellant; detective had difficultly waking Appellant; Appellant showed signs of visible intoxication, had strong odor of alcohol, his eyes were rolling, and he had extremely slurred speech; there was no one else around and store video surveillance did not show anyone else driving vehicle; Appellant admitted drinking and driving; court found detective's testimony credible; totality of circumstances supported inference that Appellant had driven his vehicle to store while intoxicated and was in actual physical control of vehicle at time of his arrest; sufficient evidence established Appellant was guilty of DUI and verdict did not shock court's sense of justice; Appellant's sufficiency and weight claims fail). Accordingly, we affirm on the basis of that opinion.

Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/22/2018

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