COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : TAMMY LOU TANNER, : : Appellant : No.

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1 NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : TAMMY LOU TANNER, : : Appellant : No. 856 MDA 2013 Appeal from the Judgment of Sentence April 24, 2013, Court of Common Pleas, Columbia County, Criminal Division at No. CP-19-CR BEFORE: DONOHUE, SHOGAN and MUSMANNO, JJ. MEMORANDUM BY DONOHUE, J.: FILED JANUARY 07, 2014 Tammy Lou Tanner ( Tanner ) appeals from the April 24, 2013 judgment of sentence following her convictions of driving under the influence of a controlled substance ( DUI ), driving without a license, a violation of driving on roadways laned for traffic, and careless driving. 1 Upon review, we affirm. follows: The trial court summarized the facts adduced at the bench trial as At trial, the Commonwealth s first witness was Sandra Horsefield. Ms. Horsefield testified that, on October 1, 2011 at about 9:00 a.m., she was traveling north on Rt. 487 in Columbia County between Orangeville and Benton. Ms. Horsefield observed an automobile traveling directly toward her, southbound on Rt She observed the vehicle traveling in the middle of the road, straddling 1 75 Pa.C.S.A. 3802(d)(2), 1501(a), 3309(1), 3714(a).

2 the center line. The vehicle then went into a spin, went off the road to Ms. Horsefield s left (to the east) and came to rest in an adjacent yard. Ms. Horsefield went to the vehicle and identified the driver and sole occupant as [Tanner]. [Tanner] exited the vehicle and was pacing around. [Tanner] did not appear to be injured, nor did she complain about any injury. The next witness was Trooper James Stroup. Tpr. Stroup testified that he was dispatched to the accident scene, and, upon arrival, found the emergency response team, and [Tanner] s vehicle, off the southbound lane, facing west. He interviewed Ms. Horsefield and observed the scene, including approximately 150 feet of scuff marks off the shoulder and into the yard, but he did not see any skid marks on the road. There was fresh damage to a telephone pole in the path of the scuff marks off the shoulder, and damage to the vehicle driven by [Tanner] at a location on the vehicle which was consistent with striking the pole. Tpr. Stroup testified that he found [Tanner] in an ambulance, and he tried to ask [Tanner] questions about the accident. [Tanner] appeared to be falling asleep, her speech was slurred and her eyes were bloodshot, but she did not have an odor of alcohol on her person. Tpr. Stroup asked [Tanner] why she appeared to be falling asleep. Before the Trooper could tell the Court what [Tanner] said in response, counsel for [Tanner] objected on the basis of the Corpus Delicti Rule, asserting that [Tanner] s statements could not be used against her until there was independent proof that a crime occurred. The [c]ourt noted that it was a bench trial, noted the objection, took the objection under advisement, and permitted the testimony to continue. Later in the trial, for reasons detailed on the record and below, the [c]ourt overruled the objection

3 Tpr. Stroup testified that, in answer to his question as to why [Tanner] was falling asleep, [Tanner] said that...she was taking medication, maybe that had something to do with it. (N.T. p. 22). Upon hearing [Tanner] say this, the ambulance personnel asked [Tanner] to specify the medication, and Tpr. Stroup heard [Tanner] state that she was on Seroquel, Clonazepam, Baclofen, Neurontin, and Wellbutrin. After [Tanner] exited the ambulance, she was not able to stand on her own and continued to appear to be falling asleep. No field sobriety tests were requested due to [Tanner] s inability to stand on her own. [Tanner] did not complain of any pain, nor did Tpr. Stroup observe any injuries. After inquiring of the state database, Tpr. Stroup found that [Tanner] s driver s license was expired. After cross-examination of Tpr. Stroup, the Commonwealth rested. Trial Court Opinion, 6/27/13, at 1-3. Tanner testified in her own defense, admitting that she took Wellbutrin and Clonazepam the morning of the accident. She stated that although the instructions on the medication bottles cautioned that she should not drive until she knew how the medication affected her, she had never had a problem before or since driving while on the medications. She further admitted that she did not have any head injuries because of the accident. The trial court found Tanner guilty of the aforementioned charges. On May 3, 2013, the trial court sentenced her for DUI to 72 hours to six months of incarceration, with Tanner to report to the jail on May 31, 2013, and subject to immediate parole at the conclusion of 72 hours. In the sentencing order, the trial court indicated that if Tanner perfected an appeal to this Court, Tanner s reporting date to the jail would be deferred pending - 3 -

4 disposition of the appeal. The trial court ordered Tanner to pay costs and fines on the remaining convictions. This timely appeal followed. Tanner raises two issues for our review: 1. Whether the trial court erred when it allowed the alcohol and/or drug evidence/testimony into the record without an individual from the lab to verify the conclusions? 2. Whether the trial court erred when it allowed the Commonwealth to introduce into the record any and all testimony regarding the results from a lab test? Tanner s Brief at 6. 2 Tanner s argument is based entirely upon the trial court s alleged error in overruling her objection to Trooper Stroup s testimony regarding Tanner s admission that she had taken several prescription drugs the morning of the accident. According to Tanner, this testimony violated the corpus delicti rule, as the Commonwealth presented no other evidence in support of the DUI charge to prove that she was under the influence of a drug or combination of drugs which impaired her ability to safely drive pursuant to 2 In the argument section of her appellate brief, Tanner does not include an argument in support of the second issue raised. This is likely because, as the trial court noted in its opinion, the Commonwealth did not introduce into the record any testimony regarding the results of a lab test. See Trial Court Opinion, 6/27/13, at 4. To the contrary, the Commonwealth indicated that it was unwilling to pay to have the toxicologist come to testify regarding the results of the lab tests, and thus would not present that evidence. N.T., 3/4/13, at 21. We therefore do not entertain this issue on appeal

5 Section 3802(d)(2) of the Motor Vehicle Code. 3 Id. at The trial court found that because the Commonwealth presented sufficient evidence of the violations of roadways laned for traffic and careless driving statutes, which were closely related to the DUI charge, the introduction of Tanner s confession regarding the DUI did not violate the corpus delicti rule. Trial Court Opinion, 6/27/13, at 6-7. It is well established that a confession is not evidence in the absence of proof of the corpus delicti. When the Commonwealth has given sufficient evidence of the corpus delicti to entitle the case to go to the jury, it is competent to show a confession made by the [defendant] connecting him with the crime. Commonwealth v. Taylor, 574 Pa. 390, 395, 831 A.2d 587, 590 (2003) (internal citations and formatting omitted). The corpus delicti may be established by circumstantial evidence. Commonwealth v. Hernandez, 39 A.3d 406, 411 (Pa. Super. 2012), appeal denied, Pa., 63 A.3d 1244 (2013) (citation omitted). 3 Section 3802(d)(2) of the Motor Vehicle Code states: (d) Controlled substances.--an individual may not drive, operate or be in actual physical control of the movement of a vehicle under any of the following circumstances: * * * (2) The individual is under the influence of a drug or combination of drugs to a degree which impairs the individual s ability to safely drive, operate or be in actual physical control of the movement of the vehicle. 75 Pa.C.S.A. 3802(d)(2)

6 Corpus delicti means, literally, the body of a crime. The corpus delicti consists of the occurrence of a loss or injury resulting from some person s criminal conduct. The corpus delicti rule requires the Commonwealth to present evidence that: (1) a loss has occurred; and (2) the loss occurred as a result of a criminal agency. Only then can the Commonwealth rely upon statements and declarations of the accused to prove that the accused was, in fact, the criminal agent responsible for the loss. The grounds on which the rule rests are the hasty and unguarded character that is often attached to confessions and admissions and the consequent danger of a conviction where no crime has in fact been committed. Taylor, 574 Pa. at , 831 A.2d at 590 (internal citations and quotations omitted). In Taylor, the defendant and two cohorts decided to rob a jitney driver. They got into the jitney and one of the other men brandished a shotgun while Taylor and the third man forced the driver into the trunk of the car. After committing a robbery at a gas station, Taylor s coconspirators dropped Taylor off at one location, and then proceeded to a nearby baseball field where they shot and killed the jitney driver. Taylor admitted his participation in the crimes to the police. He further stated that he knew the other two men were going to kill the driver, as they had previously perpetrated a robbery of another jitney driver, forced him into the trunk, and then killed him. Id. at 393, 831 A.2d at 589. Taylor filed an appeal to this Court, which resulted in us remanding to the trial court for resentencing. Taylor subsequently filed a timely petition - 6 -

7 pursuant to the Post Conviction Relief Act ( PCRA ), 4 asserting appellate counsel s ineffectiveness for failing to challenge the trial court s admission of his confession, as the Commonwealth failed to establish the corpus delicti for robbery, robbery of a motor vehicle, conspiracy, and kidnapping. Id. at 395, 831 A.2d at 590. The PCRA court dismissed his petition without a hearing, and this Court affirmed the denial of collateral relief on appeal. Our Supreme Court granted allowance of appeal to clarify the law regarding the prerequisites of the closely related crimes exception to the corpus delicti rule. 5 Id. The Court examined the history of the closely related crimes exception to the corpus delicti rule its initiation in the Superior Court in 1973 and its adoption by the Pennsylvania Supreme Court in Id. at , 831 A.2d at It then examined two cases, Commonwealth v. Verticelli, 550 Pa. 435, 706 A.2d 820 (1998), and Commonwealth v. Bardo, 551 Pa. 140, 709 A.2d 871 (1998), cert. denied, 525 U.S. 936 (1998), whose holdings gave conflicting accounts of what constitutes a closely related crime. In Verticelli, the Court held that the crimes must have a common element and be temporally related in order to satisfy the 4 42 Pa.C.S.A The closely related crimes exception permits the admission into evidence a defendant s confession regarding a crime for which the Commonwealth has not established the corpus delicti as long as evidence of the corpus delicti of other closely related crimes has been presented. See generally Taylor, 574 Pa. at , 831 A.2d at

8 closely related crimes exception; in Bardo, the Court stated that a relationship between the crimes that is sufficiently close so that the introduction of the confession does not violate the purpose underlying the corpus delicti rule is sufficient. Taylor, 574 Pa. at 401, 831 A.2d at In adopting the statement of the exception from Bardo and rejecting the common element requirement of Verticelli, the Taylor Court explained: The purpose behind the corpus delicti rule is the ultimate consideration in determining whether two crimes are closely related so as to implicate the exception. Where the relationship between the crimes to which the defendant has confessed is close and the policy underlying the corpus delicti rule to avoid convictions for crimes that did not occur is not violated, the exception renders the confession admissible for all closely related crimes. Id. at 404, 831 A.2d at The Taylor Court then applied the closely related crimes exception to the case before it, finding that the admission of Taylor s confession to robbery, robbery of a motor vehicle, conspiracy, and kidnapping did not violate the corpus delicti rule: Before seeking to admit the confession of Taylor, the Commonwealth introduced into evidence that police found [the jitney driver] dead in the trunk of his own car as the result of multiple gunshot wounds to the head and neck. The police had been looking for [the jitney driver], who had been reported missing, for more than a day. The coroner determined that the manner of [the jitney driver s] death was homicide. These facts provide, at the least, independent corroboration of a homicide and, possibly, kidnapping, the principal crimes in this heinous criminal episode. Additionally, the confession of - 8 -

9 James, Taylor s co-conspirator, offered during the course of the trial of Taylor, was consistent with the confession of Taylor. The other crimes to which Taylor confessed (robbery and conspiracy) share a sufficiently close relationship with the other charges because, as the Superior Court and PCRA court determined, there was one continuing incident occurring at roughly the same time, and the victim of each crime [the jitney driver] was the same. The confession and independent evidence presented by the Commonwealth are sufficient to overcome the danger of a conviction where no crime was in fact committed. Id. at , 831 A.2d at 596 (internal citation omitted). We now turn to the case at bar. The record reflects that Ms. Horsefield testified that she was driving northbound on Route 487 at 9:00 a.m. when she observed Tanner driving south on the same road. N.T., 3/4/13, at 4, 6. Tanner s vehicle was in the middle of the road, straddling the center line between the northbound and southbound lanes. Id. at 4-5. Tanner s car then spun off the road. Id. at 5. Trooper Stroup, a 20-year veteran with the Pennsylvania State Police, testified that he investigated the accident scene. Id. at 11, 13. He stated that Tanner spun off the road, striking a utility pole. Id. at 14. He stated that the area where Tanner drove off the road was a straightaway, and there were no skid marks to indicate that she attempted to slow her vehicle down prior to striking the pole. Id. After hitting the pole her car then reentered the road and spun around, as evidenced by yaw marks and scuff marks from the tires of the vehicle sliding out of control and in a looping manner, - 9 -

10 ultimately leaving the road for a second time and coming to rest in a residential front yard. Id. Trooper Stroup further testified that he did not observe any problem with the vehicle that would have caused the accident. Id. at When Trooper Stroup spoke with Tanner, he stated that she had slurred speech, bloodshot and glassy eyes, and appeared to be falling asleep during the interview. Id. at 16. Tanner had no visible injuries and did not complain of any pain. Id. at 6-7. It is uncontested that the evidence presented in the absence of Tanner s confession was sufficient to prove the corpus delicti for both a violation of roadways laned for traffic 6 and careless driving. 7 These crimes share a sufficiently close relationship with the DUI charge because they were 6 The statute pertaining to roadways laned for traffic provides, in relevant part: Whenever any roadway has been divided into two or more clearly marked lanes for traffic the following rules in addition to all others not inconsistent therewith shall apply: (1) Driving within single lane.--a vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from the lane until the driver has first ascertained that the movement can be made with safety. 75 Pa.C.S.A. 3309(1). 7 The Motor Vehicle Code defines careless driving as follows: 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)

11 all part of one continuing incident. See Taylor, 574 Pa. at , 831 A.2d at 596. Indeed, the evidence of record suggests that Tanner s violation of roadways laned for traffic and careless driving convictions arose from her driving under the influence of controlled substances that rendered her incapable of safely driving. Therefore, we find that the trial court s admission of Tanner s confession to driving under the influence of controlled substances did not violate the corpus delicti rule. Tanner further argues that the trial court erred by failing to grant her motion for acquittal. Tanner s Brief at 13. Tanner waived this argument by failing to include it in the statement of questions involved section of her brief. Pa.R.A.P. 2116(a). Regardless of waiver, however, the issue is also meritless, as Tanner s argument is premised on her assertion that the trial court erred by admitting her confession to ingesting controlled substances on the morning of the accident. Based upon our resolution of Tanner s first issue raised, she is entitled to no relief. Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 1/7/