Com. v. Kuhn, C.

J-A13020-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

CHRISTOPHER D. KUHN :

:

Appellant : No. 2775 EDA 2018

Appeal from the Judgment of Sentence Entered August 27, 2018

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

No(s): CP-09-CR-0007755-2017

BEFORE: SHOGAN, J., NICHOLS, J., and STRASSBURGER, J.*

MEMORANDUM BY NICHOLS, J.: FILED SEPTEMBER 12, 2019

Appellant Christopher D. Kuhn appeals from the judgment of sentence

imposed following a bench trial and his convictions for third-degree murder,

driving under the influence of a controlled substance (DUI), and failing to use

child safety restraints,1 among other offenses. Appellant claims the evidence

was insufficient to establish that he acted with malice. Appellant also contends

the trial court erred in denying his motion to suppress evidence obtained from

his medical records and blood samples. We affirm.

The convictions arise from an incident during which Appellant drove

away from a theft at a Walmart and was struck by another vehicle as he

proceeded through a red light. Appellant’s two-year old son, Qadan Trievel

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

118 Pa.C.S. § 2502(c); 75 Pa.C.S. § 3802(d)(1)(ii)-(iii); and 75 Pa.C.S. §

4581(a)(1)(i), respectively.

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(child), was ejected from Appellant’s car during the crash and suffered fatal

injuries. The trial court summarized the trial evidence as follows:

On Tuesday, October 3, 2018, at approximately 12:00 p.m.,

Appellant was at the Wal-Mart located in 180 Levittown Parkway,

Bucks County, PA, with his child . . . . At the time, the child was

seated in the front part of Appellant’s shopping cart. Appellant

wore a grey hooded sweatshirt and jeans. According to the

Walmart Asset Protection Officer Ronald Cromwell (herein “APO”),

Appellant selected a Vizio sound bar from the shelf, valued at

$228, placed the item into his shopping cart, and walked towards

the store exit without attempting to pay for the item. The APO

testified that he observed Appellant pacing, that he looked at the

doors numerous times, before finally grabbing the shopping cart

with his son and walking past all points of sale. Appellant did not

attempt to pay for the Vizio sound bar.

Once Appellant passed all points of sale, the APO attempted to

stop him but Appellant refused, telling the APO “you can’t hold me

here[.”] Appellant then removed the child from the cart, left the

store, and walked to his vehicle, a gold Jeep Liberty. When

Appellant left the store, the APO called police dispatch and

reported the retail theft.

Witnesses observed Appellant put the child in the back seat of his

vehicle but did not observe Appellant buckle the child in or place

him in a safety seat. An eyewitness, Sandor Marshall, witnessed

the events from the time Appellant left the store to the time he

drove off; he corroborated the APO’s testimony. Mr. Marshall

testified that he saw Appellant “hustle” his child into the vehicle

and closed the car door not a second later. Th[e trial c]ourt also

heard from Dr. Erika Williams, qualified by th[e c]ourt as an expert

in the field of forensic pathology. Dr. Williams performed the

autopsy on the child and prepared an autopsy report. Dr. Williams

testified that the injuries sustained by the child in the subsequent

car crash were not consistent with those she would expect to see

if the child was strapped in a car seat.

Appellant took the time to take off his gray hoodie and place it

over the rear license plate of his vehicle.

After Appellant concealed his license plate, he drove away at a

“high rate of speed[.”] Mr. Marshall testified that Appellant pulled

away so fast that he thought the vehicle was going to “turn over.”

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Phone video taken by Mr. Marshall, entered into evidence as C14,

shows Appellant’s vehicle screeching as he pulled out of the

parking lot. Officer John Finby, who was dispatched to Wal-Mart

for the retail theft, observed Appellant speeding and remarked

that he would have ticketed Appellant for speeding had he not

been responding to the retail theft.

As he was driving out of the shopping center, Appellant failed to

stop at two stop signs and only came to a rolling stop when a car

cut off his lane of traffic. Appellant then drove down Route 13

towards the next intersection at a high-rate of speed, ran through

a steady red light, and collided with a vehicle who had the right of

way. Appellant tried to swerve his vehicle through traffic but

failed. The collision caused Appellant’s vehicle to rotate clockwise,

tip over onto the driver’s side, and slide down the intersection.

Appellant’s vehicle then hit a stationary vehicle at the other end

of the intersection, causing Appellant’s vehicle to roll back onto its

wheels and finally come to a stop. The collision caused the child

to be ejected from Appellant’s vehicle.

Officer Justin Grotz was also dispatched to the Wal-Mart for the

retail theft, arriving a minute o[r] two after the APO’s call. Officer

Grotz’s patrol dash cam, entered into evidence as Exhibit C30,

shows Appellant’s vehicle coming out of the Wal-Mart complex as

the officers were driving to the complex. The video shows Officer

Grotz turning back towards the intersection when flagged down

by Wal-Mart’s APO and, arriving at the scene of the crash not a

minute later. The patrol dash cam video shows that the

intersection where the crash occurred was a busy intersection with

at least a dozen vehicles.

Th[e trial c]ourt heard from Detective Timothy Fuhrmann,

qualified by th[e c]ourt as an expert in motor vehicle inspections.

Detective Fuhrmann inspected the vehicles involved in the crash

after-the-fact and opined that the vehicles had no malfunctions or

pre-existing conditions, safety or mechanical, that could have

contributed to the crash.

Th[e trial c]ourt heard from Sergeant Paul Shallcross, qualified by

th[e c]ourt as an expert in the field of crash reconstruction.

Sergeant Shallcross testified that the striations in the tire marks

on the roadway showed that Appellant’s tires were still rotating as

they were sliding sideways, confirming that Appellant did not

brake when crossing the intersection. The road on that day was

sunny, bright, warm, and clear; there were no visibility issues that

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could have contributed to the crash. Instead, Sergeant Shallcross

opined that the cause of the crash was Appellant running through

the steady red traffic signal.

Th[e trial c]ourt also heard from Dr. Gary Lage, qualified by th[e

c]ourt as an expert in the field of toxicology. Dr. Lage reviewed

the lab reports and medical records associated with Appellant after

the collision. Dr. Lage found that the lab reports showed Appellant

had Delta 9 Carboxy THC and Oxycodone in his system. However,

Dr. Lage opined that Appellant was not impaired at the time of the

collision. The paramedic that assisted Appellant on that day also

testified that Appellant did not exhibit any signs of intoxication.

Appellant jumped out of his vehicle after the collision. Witnesses

saw Appellant pace back and forth, look at the child on the

roadway, start pacing once more, and finally flee the scene.

Appellant did not render aid to the child nor call for anybody to

help the child.

While the police arrived at the intersection, Appellant was fleeing

from the scene and ran until he was no longer visible from the

scene. The police were flagged down by bystanders and told the

direction where Appellant had fled. The police found Appellant in

a nearby tree line, placed him in custody, and escorted him back

to the scene.

The police and paramedics attempted life-saving measures on the

child, but he was unresponsive. The child was pronounced dead

at the hospital. Dr. Erika Williams, who performed the autopsy on

the child, opined that the cause of death of the child was head

injuries consistent with being ejected from a vehicle and landing

on a roadway.

Appellant was transported to Aria Hospital in Langhorne, Bucks

County for diagnosis and treatment of injuries. That same day,

Sergeant Phil Kulan, of the Tullytown Borough Police Department,

submitted an affidavit of probable cause requesting a search

warrant for Appellant’s medical records from Aria Hospital, and

subsequently, to draw Appellant’s blood. While at the hospital, a

warrant was served on Appellant for blood and chemical testing.

Th[e trial c]ourt received by way of stipulation the Toxicology

Report as Exhibit C31, the search warrant to secure the blood as

Exhibit C32, and the Analysis Requisition and Chain of Custody

form as Exhibit C33. . . .

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It was further established by way of stipulation that on the day of

the crimes, Appellant had a New Jersey driver’s license that was

suspended, and that Appellant was aware of the license

suspension.

Trial Ct. Op., 11/9/18, at 2-8 (record citations and footnotes omitted).

Appellant was charged on the same day as the accident. The

Commonwealth filed a thirteen-count information against Appellant, but

subsequently amended the information to include a fourteenth count for

failure to use a child restraint system. Appellant filed an omnibus pre-trial

motion to (1) preclude evidence of his failure to use a child restraint system2

____________________________________________

2 Section 4581 of the Vehicle Code states, in relevant part:

(a) Occupant protection.—

(1)(i) Except as provided under subparagraph (ii), any person

who is operating a passenger car, Class I truck, Class II truck,

classic motor vehicle, antique motor vehicle or motor home and

who transports a child under four years of age anywhere in the

motor vehicle, including the cargo area, shall fasten such child

securely in a child passenger restraint system, as provided in

subsection (d) [defining standards for child passenger restraint

systems].

* * *

(f) Criminal proceedings.—The requirements of this subchapter

or evidence of a violation of this subchapter are not admissible as

evidence in a criminal proceeding except in a proceeding for a

violation of this subchapter. No criminal proceeding for the crime

of homicide by vehicle shall be brought on the basis of

noncompliance with this subchapter.

75 Pa.C.S. § 4581(a)(1)(i), (f).

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and (2) suppress Appellant’s medical records from Aria Hospital and the

toxicology results obtained from the blood samples taken at Aria Hospital.

Omnibus Pre-Trial Mot., 2/6/18, at 6-8.

On March 19, 2018, the trial court granted, in part, Appellant’s motion

to preclude3 and denied Appellant’s motion to suppress. Trial Ct. Order & Op.,

3/19/18, at 9, 16. As to Appellant’s suppression motion, the trial court found

the relevant affidavits of probable cause, which we discuss in further detail

below, “describe[d] repeated situations where [Appellant] appeared to be

acting with impaired judgment.” Id. at 9. The trial court concluded the

affidavits provided “probable cause to conclude that there was a ‘fair

probability’ that evidence relevant to the crime of homicide by vehicle could

be found in the medical records of [Appellant]’s treatment immediately

following the accident.” Id. Lastly, the trial court noted the searches “were

limited in scope.” Id.

Appellant proceeded to a non-jury trial at which the trial court convicted

him of all charges. On August 27, 2018, the trial court sentenced Appellant

to serve an aggregate term of eight-and-a-half to thirty years’ imprisonment

and a sixteen-year probationary term.

____________________________________________

3 Specifically, the trial court permitted the Commonwealth to introduce

evidence related to Appellant’s failure to secure the child in a child seat for

the limited purpose of proving an offense under Section 4581(a)(1)(i). Trial

Ct. Order & Op., 3/19/18, at 15. The trial court also ruled the evidence would

not be admissible to determine whether Appellant acted with malice. Id.

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Appellant timely filed a notice of appeal and a court-ordered Pa.R.A.P.

1925(b) statement challenging (1) the sufficiency of the evidence for third-

degree murder and (2) the trial court’s determination that there was probable

cause to obtain Appellant’s medical records and blood samples. See

Appellant’s Rule 1925(b) Statement, 10/12/18, at 1.

The trial court filed a Rule 1925(a) opinion. The trial court explained its

finding that Appellant acted with malice as follows:

This is not a case of ordinary recklessness that arises when a

driver purposely violates traffic rules. Appellant was fleeing the

scene of a crime, more worried about evading capture than the

lives of others, and sped through a red light in a busy intersection

without honking his horn, putting his hazards on, or taking any

defensive safety measures. Appellant did not even try to brake;

instead he tried to swerve his way out of the busy intersection and

hoped he would make it. Appellant’s unwillingness to brake or use

any safety measures, in light of all the circumstances, was a level

of recklessness greater than ordinary recklessness; his actions

showed a conscious disregard of an unjustifiable and substantial

risk of harm.

Appellant’s child was in the backseat, not old enough to have any

protective instincts in the event of a crash. The child had no say

in where he was taken and in what manner. Appellant hoped that

he and his child would come out of the intersection without

incident in callous disregard of the lives of others. Unfortunately,

there was a collision, and the child was killed.

The fact that Appellant was not impaired on that day supports the

conclusion that Appellant knew of the unjustifiably high risk of

injury his conduct created, but chose to disregard it for the sake

of evading capture. The day was sunny, bright, and warm. There

was no impairment, neither toxic nor sensorial, that would have

prevented him from seeing the busy intersection. Appellant

weighed the risk of harm to his child and others against his own

interests and chose his own interests over the risk to others.

Appellant intentionally sped through a red light, hoping that he

could dart past the vehicle that had the right of way. Even after

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the collision, Appellant was so worried about evading capture that

he fled the scene, abandoning his child in the street.

Trial Ct. Op., 11/9/18, at 13. The trial court adopted its prior order and

opinion denying Appellant’s motion to suppress as dispositive of Appellant’s

other issue on appeal. See id. at 9.

Appellant presents the following questions for our review:

[1]. Whether the evidence at trial was insufficient to establish the

element of malice as required for proof of the offense of murder

of the third degree?

[2]. Whether the trial court erred in denying [Appellant]’s motion

to suppress the medical records and blood test results, where said

evidence was obtained as a result of two defective search warrants

not supported by probable cause?

Appellant’s Brief at 4.

Appellant first challenges the sufficiency of the evidence that he acted

with malice. Id. at 13. Appellant asserts the trial evidence fell short of

demonstrating a “sustained, purposeful recklessness necessary to prove a

knowing and conscious disregard that death or serious bodily injury was

reasonably certain to occur.” Id. at 17 (citation and quotation marks

omitted). According to Appellant:

[he] made a series of bad decisions, and his actions resulted in

the tragic and accidental death of his two-year old son. But malice

as defined by the Pennsylvania Courts is not supported by the

facts of this case. Ultimately, this was an accident, and the facts

presented at trial do not give rise to malice, as required to sustain

a conviction for third degree murder.

Id. at 13.

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In support, Appellant argues his conduct was not so egregious as to

establish an indifference or a disregard for human life. Id. at 19-20. Appellant

notes the Commonwealth did not present evidence he was driving over the

speed limit at the time of the accident. Id. at 24. Appellant also emphasizes

it was possible the traffic signal at the intersection was yellow or only just

turned red. Id. at 25-26. Appellant contends there was no indication he saw

the car that struck his vehicle entering the intersection. Id. at 25. Appellant

also suggests he nearly crossed the intersection safely, as it was merely the

right rear tire assembly of his vehicle that was struck. Id. at 26.

Further, Appellant asserts that “[i]t is inaccurate to assert that he

displayed no concern for the safety of his child.” Id. at 22. Appellant argues

it is improper to consider the evidence of his failure to secure the child into a

child seat in light of the trial court’s pre-trial ruling limiting the purpose of

such evidence. Id. at 21. Instead, Appellant alleges he placed the child in a

child seat that was properly secured to the backseat of the vehicle. Id. at 22.

Appellant also acknowledges the fact that he had controlled substances in his

system, but emphasizes there was no proof he was impaired. Id. at 28-29.

Lastly, Appellant contends his license suspension and his flight from the scene

of the accident should not factor into a finding of malice. Id. at 30, 35.

The following principles govern our review of Appellant’s argument:

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

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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 trier 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. Thompson, 106 A.3d 742, 756 (Pa. Super. 2014)

(citation omitted) (emphasis omitted). A challenge to the sufficiency of the

evidence “presents a question of law for which our standard of review is de

novo and our scope of review is plenary.” Commonwealth v. Packer, 168

A.3d 161, 166 (Pa. 2017) (citation omitted).

This Court has stated:

Murder in the third degree is an unlawful killing with malice but

without the specific intent to kill. 18 Pa.C.S.[] § 2502(c). Malice is

defined as:

[A] “wickedness of disposition, hardness of heart, cruelty,

recklessness of consequences, and a mind regardless of

social duty, although a particular person may not be

intended to be injured. . . .[”] [M]alice may be found where

the defendant consciously disregarded an unjustified and

extremely high risk that his actions might cause serious

bodily injury.

Malice may be inferred by considering the totality of the

circumstances.

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Commonwealth v. Dunphy, 20 A.3d 1215, 1219 (Pa. Super. 2011) (some

citations omitted).

In Packer, the Pennsylvania Supreme Court noted that

a person who acts negligently or with ordinary recklessness to

cause a person to suffer serious bodily injury or death has not

committed third-degree murder . . . . One legal scholar has

defined the point of demarcation for malicious conduct under

Pennsylvania law as “dangerousness”—“the . . . act creates such

a dangerous situation” that the resultant deaths or serious bodily

injuries “are products of malice.” . . . “Malice asks for a solemn,

societal judgment about whether [the defendant] was responsible

for [a death or serious bodily injury] by bringing about a situation

so unnecessarily dangerous to human life that empowering

government to exercise its most ominous authority is the only

rational societal response.”

Packer, 168 A.3d at 169 (citations omitted). The Packer Court compared

malice to “the decision to play Russian roulette.” Id. at 172. In such cases,

the Court noted, there is an intentional action in callous disregard of the likely

harmful effects on others and a virtual guarantee that some manner of

accident will occur. See id.

Pennsylvania courts recognize that car “crashes seldom give rise to

proof of the malice needed to sustain a conviction for third degree murder or

aggravated assault.” See Commonwealth v. Moyer, 171 A.3d 849, 853

(Pa. Super. 2017) (citation omitted), appeal denied, 184 A.3d 148 (Pa. 2018);

see generally Commonwealth v. Bruce, 916 A.2d 657, 664 (Pa. Super.

2007) (noting that recklessness for the purpose of aggravated assault is

equivalent to malice necessary for third-degree murder). However, this Court

has stated that “a conviction based on malice is appropriate where evidence

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demonstrates the element of sustained recklessness by a driver in the face

of an obvious risk of harm to his victims.” Commonwealth v. Kling, 731

A.2d 145, 149 (Pa. Super. 1999) (emphasis in original).

The Pennsylvania Supreme Court, in Commonwealth v. Comer, 716

A.2d 593 (Pa. 1998), discussed the distinction between recklessness and

malice as follows:

In [Commonwealth v. O’Hanlon, 653 A.2d 616 (Pa. 1995)], the

defendant, while severely intoxicated, drove his vehicle through a

red light and struck another vehicle. Both the defendant and the

driver of the other vehicle were seriously injured.

In reversing the conviction for aggravated assault, we found that

there was an increased degree of recklessness required by the

aggravated assault statute, i.e., reckless “under circumstances

manifesting extreme indifference to the value of human life.”

* * *

[W]e noted that examples of recklessness in which life threatening

injury is essentially certain to occur include firing a gun into a

crowd, or driving a vehicle into a crowd after having aimed the

vehicle at a particular individual.

* * *

The Commonwealth argues that this case is controlled by

Commonwealth v. Scofield, [521 A.2d 40 (Pa. Super. 1987)],

where the defendant’s aggravated assault conviction was

sustained when it was established that he drove his vehicle in an

erratic manner after consuming a small amount of alcohol and

ingesting drugs. Although superficially similar, the case is factually

distinguishable.

In Scofield, the defendant was driving his vehicle and scraping

his car against the bumper of a vehicle parked on the street.

Sparks were flying and the defendant travelled another ten feet in

this manner before swerving onto the sidewalk and striking a

building. A nearby cabdriver realized that the defendant had

struck a pedestrian, who was under the right fender of the

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defendant’s vehicle. The cabdriver directed the defendant to turn

the car off and even attempted to reach into the car to remove

the keys from the ignition. The defendant became belligerent, hit

the cabdriver and attempted to bite him. The defendant then

unsuccessfully tried to put his car into reverse, but a flat tire

prevented his flight. As a result of the incident, the pedestrian’s

leg was amputated.

Although the defendant’s BAC was only .004, a drug test revealed

two different types of barbiturates in his urine. Furthermore, the

officer at the scene testified that the defendant had an odor of

alcohol on his breath, spoke with a thick tongue, had a hard time

standing and had to be helped away from the vehicle.

The Superior Court concluded that the record was replete with

evidence that the defendant operated his car in an intentionally

reckless manner. It noted that the defendant repeatedly scraped

his car against parked vehicles, and that he had no regard for the

victim’s plight when confronted with the situation. The court found

that the defendant’s behavior prior to and after the accident

established that he was aware of his reckless conduct. Thus the

defendant considered, then disregarded, the threat to the life of

the victim. These circumstances demonstrate a higher degree of

recklessness than those presented in the instant case.

Comer, 716 A.2d at 595-97 (citations and footnote omitted) (emphasis in

original).

The Comer Court ultimately concluded the Commonwealth, in that case,

failed to establish the defendant acted with malice:

Applying the aforementioned law to the facts of this case, we find

that the Commonwealth did not establish that [the defendant]

possessed the state of mind equivalent to that which seeks to

cause injury. The evidence established that [the defendant] was

driving at an excessive rate of speed after consuming four or five

beers and ingesting at least one “downer” at some time prior to

the accident. While [the defendant]’s actions are clearly criminal,

they do not constitute aggravated assault.

* * *

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In contrast [to Scofield], [the defendant in Comer] sped past

another vehicle, his car rubbed the curb of the sidewalk and the

accident ensued immediately thereafter. The fact that both [the

defendant in Comer] and the defendant in Scofield drank alcohol

and ingested some amount of a controlled substance is not

controlling. As we find [the defendant]’s conduct more akin to that

which occurred in O’Hanlon, we reverse his conviction for

aggravated assault.

Id. at 596-97.

More recently, in Thompson, this Court affirmed a defendant’s

conviction for third-degree murder. Thompson, 106 A.3d at 757. This Court

concluded sufficient evidence established malice under the following

circumstances:

At the time of this incident, [the defendant] was driving at a high

rate of speed (55–61 miles per hour in a 30–40 miles per hour

zone), while under the influence of marijuana, in an attempt to

flee from [a police officer’s] pursuit. [The defendant] fled [the

officer]’s initial traffic stop at a high rate of speed and proceeded

through a steady red light, fatally striking two young pedestrians.

Upon being struck, [the pedestrians] were propelled from 50 to

100 feet. Instead of stopping at the scene of the accident, [the

defendant] fled, abandoned the vehicle involved in the accident,

and hid from police. There were no adverse weather conditions

during this time that impeded [the defendant]’s sight or precluded

him from stopping after the accident. These actions demonstrate

a complete disregard of the unjustified and extremely high risk

that his actions would cause death or serious bodily injury.

Id. (record citations omitted).

In sum, Pennsylvania case law recognizes the occurrence of a fatal car

crash itself will not sustain a conviction for third-degree murder. See Moyer,

171 A.3d at 853. Moreover, the fact that a defendant was intoxicated or

violated traffic laws immediately before causing a crash will not establish

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malice. See Comer, 716 A.2d at 597; see also Commonwealth v. McHale,

858 A.2d 1209, 1211-12 (Pa. Super. 2004) (holding that the evidence was

insufficient to establish the defendant acted with malice when after he

consumed a large amount of alcohol at a bar, he drove without a valid license,

sped through the parking lot of the bar onto the roadway, struck a parked car

and two people standing near the car, and then drove off to his home). But

see Packer, 168 A.3d at 172 (noting that “[t]here is a significant difference

between deciding to drive while intoxicated and deciding to drive with

knowledge that there is a strong likelihood of becoming unconscious”).

The essence of malice in the context of a car crash is the extreme nature

of the risk and whether the defendant intentionally acted despite an

awareness of the risk. See Packer, 168 A.3d at 172. The totality of the

circumstances, including a defendant’s conduct before, during, and after an

accident, may establish malice. See Comer, 716 A.2d at 596-97; accord

Packer, 168 A.3d at 171; Dunphy, 20 A.3d at 1219. Furthermore, “fleeing

the scene may be considered in determining if an individual acted with malice.”

Dunphy, 20 A.3d at 1220 n.3 (citations omitted). No one factor, including

intoxication or flight, is necessary or sufficient to a finding of malice. See

McHale, 858 A.2d at 1211-12; Commonwealth v. Scales, 648 A.2d 1205,

1207 (Pa. Super. 1994).

Instantly, Appellant was in the Walmart with his child seated in the front

of the shopping cart. N.T., 3/26/18, at 18-20. Appellant placed the Vizio

sound bar in the shopping cart and left the store without paying for it. Id.

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When Walmart’s APO, Mr. Cromwell, stopped Appellant in the vestibule of the

store, Appellant defied Mr. Cromwell’s request to speak with him, picked up

his child, and went out to the parking lot. Id. at 22-23. Mr. Cromwell followed

Appellant outside. Id. at 23. In the parking lot, Mr. Cromwell saw Appellant

place his child in the backseat of his car, take off his sweatshirt, use the

sweatshirt to cover his license plate, and then get into the driver’s seat and

drive away at a high rate of speed. Id. at 26.

When driving out of the Walmart parking lot, Appellant failed to come

to a complete stop at two stop signs. Id. at 26, 41-42; Ex. C14. As Appellant

turned out of the parking lot and onto an access road, the wheels of his car

screeched, and the car leaned over to the point where one witness thought

the car would tip over. See N.T., 3/26/18, at 41-42; Ex. C14.

Meanwhile, Officers Finby and Grotz, who were in separate marked

police vehicles, responded to the reported theft at the Walmart. As the officers

were driving on the access road from Route 13 to the Walmart, they passed

Appellant’s car, which was on the opposite side of the road, moving toward

Route 13. See Ex. C30. Officer Finby stated Appellant was driving at a high

rate of speed and he would have ticketed Appellant if he was not responding

to the theft. N.T., 3/26/18, at 160-61. Approximately ten seconds after

passing Appellant’s vehicle, the officers received a broadcast describing

Appellant’s car, and Officer Grotz turned around to pursue Appellant. See Ex.

30. By the time Officer Grotz turned around, Appellant had exited the

shopping center onto southbound Route 13. See id.

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Officer Grotz drove back down the access road and exited the shopping

center onto southbound Route 13. Id. The crash occurred seconds after

Officer Grotz turned onto Route 13, and Officer Grotz was not able to see the

crash itself. N.T., 3/26/18, at 141; see also Ex. C30. Moreover, there was

no indication that Officer Grotz saw Appellant when he was driving on Route

13.

As to the crash, Lisa Gabrielson was on northbound Route 13, opposite

Appellant’s direction of travel. N.T., 3/26/18, at 88. Ms. Gabrielson testified

that the light was initially green, and she intended to turn left into the

shopping center. However, the light turned red, and she stopped. Id. at 87-

88. At that time, she was in the second car in the left turn lane. Id.

According to Ms. Gabrielson, the light for the cross-traffic coming out of

the shopping center turned green, and she saw a car that was exiting the

shopping center start moving. Id. at 88. Ms. Gabrielson indicated she saw

Appellant come to the intersection, slow down, and then speed through. Id.

at 110. She emphasized that Appellant would have had a red light. Id. at

88, 90-91.

Fernando Campos was the driver of the vehicle that struck Appellant’s

car. Mr. Campos was stopped on the roadway exiting from a Home Depot

onto Route 13. See Ex. C30. Mr. Campos was on the right of Appellant’s

direction of travel on southbound Route 13. See id. Mr. Campos testified

that he had a green light and started to enter the intersection to turn when

Appellant “came fast” through the intersection. N.T., 3/26/18, at 75. Mr.

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Campos indicated he did not see Appellant until the last second and was

unable to brake before the crash. Id. at 83. According to Mr. Campos,

Appellant “tried to avoid” an accident. Id. at 83; see also Ex. D1.

Mr. Campos’s vehicle struck Appellant’s car near Appellant’s right rear

wheel. N.T., 3/26/18, at 190. Appellant’s car spun around then flipped onto

its side. Id. at 190-191. Appellant’s car continued forward and struck the

first car in the left turn lane opposite Appellant’s direction of travel. Id. at

191; see Ex. C30. The second impact caused Appellant’s car to flip back over

onto its wheels. N.T., 3/26/18, at 191. Appellant’s car came to rest on its

wheels near the centerline of Route 13, but was facing northbound. See Ex.

C30.

Although Mr. Campos testified that Appellant tried to avoid the crash,

the record established that Appellant did not brake. N.T., 3/26/18, at 198-

99. Moreover, the weather was clear and there were no obstructions of the

traffic signal or the traffic at the intersection. Id. at 189; see Ex. C30. There

were numerous cars at the intersection. See Ex. C30.

After the crash, Appellant exited his car and saw his child’s body.

Appellant did not assist his child or call for help. Instead, he paced back and

forth and then ran away from the scene. N.T., 3/26/18, at 107, 114-15, 120,

142. Officer Finby ran after Appellant through a line of trees around a parking

lot near the accident scene. See Ex. C30. Officer Finby ultimately found

Appellant sitting in “kind of high weeds” with his back to the officer and his

arms over his knees. N.T., 3/26/18, at 157. Officer Finby ordered Appellant

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to lie down, and Appellant complied. Id. After taking Appellant into custody,

Officer Finby described Appellant as cooperative “[t]o a point[,]” but stated

Appellant did not want to go back to the scene of the crash. Id.

Therefore, the record, when viewed in a light most favorable to the

Commonwealth, supported each of the findings of the trial court. See

Thompson, 106 A.3d at 756. Appellant set in motion a series of events when

he decided to steal the Vizio sound bar with his child present. See Trial Ct.

Op., 11/9/18, at 12. Appellant demonstrated an intent to avoid any contact

with the police. See id.; Thompson, 106 A.3d at 757. Appellant refused Mr.

Marshall’s request to remain at the Walmart and instead rushed his child into

the backseat of the car. See Trial Ct. Op., 11/9/18, at 12. Appellant,

however, took the time to conceal his license plate, after which he exited the

Walmart parking lot while driving in an erratic manner and failing to stop at

two stop signs. See id.

Moments later, Appellant then ran a red light into a busy intersection

without any warning. See id. at 12-13; Thompson, 106 A.3d at 757.

Appellant had a clear view of the intersection. See Thompson, 106 A.3d at

757. Rather than braking when confronted with cross-traffic entering the

intersection, Appellant tried to swerve in hopes of making it through the

intersection unscathed. See Trial Ct. Op., 11/9/18, at 13. Then, when seeing

his child on the pavement after the crash, Appellant fled rather than staying

with his child and seeking any aid. Although Appellant challenges the findings

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of fact and inferences drawn by the trial court, this Court will not reweigh the

evidence.4 See Thompson, 106 A.3d at 756.

We further conclude that the trial court appropriately considered the

totality of the circumstances surrounding the crash. See Thompson, 106

A.3d at 757; accord Packer, 168 A.3d at 171; Dunphy, 20 A.3d at 1219.

Moreover, having considered the totality of the circumstances, we conclude

that this case falls closer to Thompson than Comer or McHale. As noted by

the trial court, Appellant “treated the intersection like a Russian roulette—

driving in a manner and in such circumstances that he was ‘virtually

guaranteeing some manner of accident’ through the ‘intentional doing of an

uncalled-for act in callous disregard’ of its harmful effects on others.” See

Trial Ct. Op., 11/9/18, at 12; Packer, 168 A.3d at 169. Therefore, we discern

no error in the trial court’s conclusion that Appellant acted with malice. See

Thompson, 106 A.3d at 756-57; accord Packer, 168 A.3d at 169.

Appellant next contends the trial court erred in denying his motion to

suppress the evidence obtained from his medical records and blood samples.

____________________________________________

4 Because the trial court did not determine Appellant was impaired at the time

of the accident or failed to properly restrain his child inside the child seat, we

need not address Appellant’s arguments regarding those factors. However,

we add that the Pennsylvania Supreme Court has instructed that a review of

the sufficiency of the evidence must consider an undiminished record. See

Commonwealth v. Lovette, 450 A.2d 975, 977 (Pa. 1982) (noting that “a

claim of insufficiency of the evidence will not be assessed on a diminished

record, but rather on the evidence actually presented to the finder of fact

rendering the questioned verdict”). To the extent we were to consider the

evidence that Appellant did not restrain his child properly, such evidence

would only bolster the conclusion that Appellant acted with malice under the

circumstances of this case.

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By way of background to this claim, we note that following the accident,

Appellant was taken to Aria Hospital. Thereafter, officers prepared two

applications for search warrants. In the first application, officers sought

Appellant’s medical records, “[i]ncluding but not limited to, [a] blood

toxicology report.” Application for Search Warrant and Authorization, 10/3/17

(6:30 p.m.). The affidavit of probable cause in support of this application

read:

1. Your affiant Sgt. Phil Kulan #22 is Pennsylvania Act 120 State

Certified, Sworn Municipal Police Officer, employed by the

Tullytown Borough Police Department in Bucks County,

Pennsylvania, Sgt. Kulan has be [sic] duly sworn since 2007.

2. Sgt. Kulan has also investigated numerous crashes, including

DUI related crashes, and a fatal struck pedestrian.

3. On Tuesday, October 3, 2017, at approximately 12:13 hours,

Tullytown Police were dispatched to Walmart, 180 Levittown

Parkway, Levittown, PA 19055, for a retail theft in-progress

involving [Appellant]. [Appellant] was holding a baby and was last

reported walking away from loss prevention due to passing all

points of sale without paying for the merchandise.

4. This statement received from Walmart Asset Protection

Associate Ronald Cromwell, Cromwell advised of the following

during the investigation.

. . . I then approached the subject [(Appellant)] and I

identified myself as Asset Protection and asked the subject

to come with me to the security office. The subject then

picked up the baby from the shopping cart and said to me

you can’t hold me here. The subject then proceeded to

walked [sic] outside down the front of the building towards

5 Below. I then notified bucks county dispatch of the

situation. The subject then walked over to a gold jeep and

removed his grey hoodie and placed it over his NJ license

plate that he had on the back of the jeep. The subject then

placed his son in the jeep and pulled off. . . .

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* * *

6. Upon police arrived [sic] at this location, officers were advised

by Loss Prevention that the male had entered a vehicle, a gold in

color SUV, and fled the parking lot of Firestone onto Southbound

Route 13.

* * *

8. Police turned around and also entered Route 13 Southbound

and observed a crash had just taken place at the intersection of

Rt.13 and Exit 4.

9. Upon arriving at the intersection, Police were directed to a black

male[, i.e., Appellant], fleeing the scene of the crash, towards the

Jug Handle. Police pursued on foot and subsequently placed one

male into custody.

10. Police asked [Appellant] where the baby was and [Appellant]

stated “back there”, meaning the accident scene.

11. Ofc. Grotz advised that there was an infant unresponsive lying

in the roadway, near the gold SUV at the scene of the crash.

12. [Appellant] was placed into the rear of police vehicle 71-07

and Ofc. Finby assisted in the care of the infant.

13. The infant was an obvious class 5, however, CPR was initiated,

and stopped when relieved by Medic 154. Ofc. Finby drove the

ambulance to Lower Bucks Hospital for treatment for the infant.

14. The investigation revealed that [Appellant] had fled in the gold

SUV onto Route13 Southbound and headed towards Exit 4 and

proceeded into the intersection, against a steady red traffic signal.

15. At that intersection, the gold SUV was contacted [by] another

vehicle, causing the gold SUV to rotate and roll over, causing the

infant to be ejected from the vehicle and land on the roadway.

16. The victim, an unidentified approximate 2-year-old male, was

transported to Lower Bucks Hospital . . . however, the infant was

pronounced deceased a short time later.

17. Eyewitness accounts indicate [Appellant], the driver of the

gold SUV was driving reckless manner [sic], and in their opinion

caused this crash.

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18. Your affiant, Sgt. Kulan spoke to another witness at police HQ

who described the suspect letting the child climb into the vehicle

and then he covered the license plate to the vehicle with a

sweatshirt. The witness provided that the child got into the Gold

Jeep in the rear driver’s side door. The witness did not see

[Appellant] secure the child into the child safety seat, which was

later located in the back seat.

19. A certified driver’s abstract was obtained from New Jersey and

it indicated that [Appellant]’s New Jersey License is suspended.

20. While [Appellant] was detained in the backseat of the police

vehicle on scene, he was non-responsive and uncooperative with

police questions regarding the incident. Investigation revealed

that after impact, the suspect got out of the passenger side of the

vehicle, walked around to the driver’s side of the vehicle, and

looked at the child before running off.

21. [Appellant] was transported to Aria Bucks Hospital for

treatment following the crash. Based on the above factual

information, and the fatality of a child victim, caused by

[Appellant], your affiant believes that probable cause exists to

obtain a search warrant for medical records from Aria Bucks

Hospital, 380 N. Oxford Valley Rd., Langhorne, PA 19047, to

further the investigation into the crash that caused the death of a

child. These records are relevant to an on-going investigation into,

75 Pa.C.S. §3732, Homicide by vehicle.

Affidavit of Probable Cause, 10/3/17 (6:30 p.m.). Officer Kulan obtained

Appellant’s medical records at 6:50 p.m.

At 7:15 p.m., officers applied for a second search warrant seeking

“[a]ny and all blood evidence, including, but not limited to vials of drawn blood

related to the treatment of” Appellant. Application for Search Warrant,

10/3/17 (7:15 p.m.). The affidavit of probable cause in support of the

application was substantially identical to the first affidavit. However, the

second application revised Paragraph 21 and added Paragraph 22 such that

the end of the second affidavit read:

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21. [Appellant] was transported to Aria Bucks Hospital for

treatment following the crash. A search was executed on October

3, 2017 and medical records were obtained from Aria Bucks

Hospital. The medical records indicated that [Appellant] had

Tetrahydrocannabinol in his system, which is a Schedule I

controlled substance.

22. Based on the above factual information, and the fatality of a

child victim, caused by [Appellant], your affiant believes that

probable cause exists to obtain blood evidence, including but not

limited to, vials of drawn blood, from Aria Bucks Hospital, 380 N.

Oxford Valley Rd., Langhorne, PA 19047, to further the

investigation into the crash that caused the death of a child. These

records are relevant to an on-going investigation into, 75 Pa.C.S.

§3732, Homicide by vehicle.

Affidavit of Probable Cause, 10/3/17 (7:15 p.m.). At 7:37 p.m., officers

obtained a vial of Appellant’s blood, which was subsequently tested, and

revealed the presence of two controlled substances.

As noted above, Appellant filed a motion to suppress challenging the

applications as being overbroad and for failing to establish probable cause to

seize Appellant’s blood samples. In short, Appellant claimed the

Commonwealth unlawfully obtained the evidence that he had controlled

substances in his system at the time of the accident.

The trial court denied Appellant’s motion to suppress concluding:

[T]he [magisterial district judge] was confronted with a situation

where it was reported that [Appellant] had engaged in a course of

conduct which suggested that he was neither thinking nor acting

with a sober clear state of mind. When he was approached by

Ronald Cromwell, Walmart’s [APO], he should have realized that

he had been identified and that fleeing the scene with a child was

both a poor and reckless decision. Having made that one bad

choice, rather than driving carefully so as not to get caught, he

drove through an intersection “against a steady red traffic signal”

at a speed which caused an accident with sufficient force to cause

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his vehicle to roll over and eject the child from the car. An

independent witness stated that [Appellant] had been driving in a

reckless manner and caused the accident. The probable cause

affidavit further states that following that horrific event, and after

seeing the child, [Appellant] fled the scene rather than

immediately administer aid to the child. The allegations of fact in

the probable cause affidavit describe repeated situations where

[Appellant] appeared to be acting with impaired judgment. The

specific factual history of events attributed specifically to

[Appellant] provided [the magisterial district judge] with probable

cause to conclude that there was a “fair probability” that evidence

relevant to the crime of Homicide by Vehicle could be found in the

medical records of [Appellant]’s treatment immediately following

the accident. After those records were obtained, which disclosed

that [Appellant] had Tetrahydrocannabinol in his system, which is

a schedule I controlled substance, it was appropriate to issue the

second warrant to obtain vials of drawn blood which had already

been secured from [Appellant] previously by the hospital.

The searches were limited in scope and based on specific

articulated facts which would cause a reasonable person to believe

the searches were warranted based on the totality of the

circumstances.

Trial Ct. Order & Op., 3/19/18, at 8-9.

On appeal, Appellant argues the affidavit of probable cause in support

of the first application for a search warrant “failed to describe the items to be

seized with the requisite specificity.” Appellant’s Brief at 39. Specifically,

Appellant contends the request for “medical records from Aria Hospital” was

overbroad. Id. Appellant further argues, “It is unclear, however, the specific

information [Officer Kulan] expected to glean from the medical records, or

why. Additionally, the affidavit failed to establish that [the officer] knew of,

or even suspected, the contents of the Appellant’s medical records [would

contain additional evidence].” Id. at 39-41.

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Moreover, Appellant asserts the first and second applications for search

warrants “failed to articulate specific facts to establish probable cause to

search for evidence of [driving under the influence].” Id. at 41. According to

Appellant:

There is no evidence cited in the affidavit that the affiant believed

the Appellant to be under the influence of drugs or alcohol at the

time of the accident, nor are there facts to support a finding that

the Appellant suffered a medical emergency, causing the crash.

Common indicators to support a finding of probable cause for a

[driving under the influence] investigation include the presence of

drugs, alcohol, or paraphernalia in the car, observations regarding

the suspect’s impaired speech or motor skills, or the odor of

alcohol or marijuana. None of these reasons are listed in the

affidavit.

Id. at 42. Appellant notes there were innocent explanations for his flight from

the scene of the accident, as well as his non-responsiveness to police

questioning after the accident, and the affidavits of probable cause failed to

link his conduct to a reasonable belief that Appellant was intoxicated. Id. at

43. Appellant concludes:

[T]he trial court incorrectly applied the standard for probable

cause. Neither curiosity nor suspicion is sufficient to justify such

an intrusion. The mere fact that one’s actions are subjectively

deemed to be unusual or confounding does not give rise to

probable cause that they are under the influence of alcohol or . .

. controlled substances.

Id. at 44.

It is well settled that

[a]n appellate court’s standard of review in addressing a

challenge to the denial of a suppression motion is limited to

determining whether the suppression court’s factual

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findings are supported by the record and whether the legal

conclusions drawn from those facts are correct. Because the

Commonwealth prevailed before the suppression court, we

may consider only the evidence of the Commonwealth 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 suppression court’s factual findings are

supported by the record, the appellate court is bound by

those findings and may reverse only if the court’s legal

conclusions are erroneous. Where the appeal of the

determination of the suppression court turns on allegations

of legal error, the suppression court’s legal conclusions are

not binding on an appellate court, whose duty it is to

determine if the suppression court properly applied the law

to the facts. Thus, the conclusions of law of the courts below

are subject to plenary review.

Additionally, the Pennsylvania Supreme Court has ruled that when

reviewing a motion to suppress evidence, we may not look beyond

the suppression record.

Commonwealth v. Smith, 164 A.3d 1255, 1257 (Pa. Super. 2017) (citations

and internal alterations omitted).

This Court has stated:

The Rules of Criminal Procedure include a particularity

requirement: “Each search warrant shall be signed by the issuing

authority and shall: . . . (c) name or describe with particularity

the person or place to be searched.” The Comment to Rule [205]

explains: “Paragraphs (b) and (c) are intended to proscribe

general or exploratory searches by requiring that searches be

directed only towards the specific items, persons, or places set

forth in the warrant[.” . . . ]

The Pennsylvania Supreme [Court] has concluded Article 1,

Section 8 of the Pennsylvania Constitution affords greater

protection than the Fourth Amendment, including a more

demanding particularity requirement; the description must be as

particular as reasonably possible. “The twin aims of Article 1,

Section 8 are the safeguarding of privacy and the fundamental

requirement that warrants shall only be issued upon probable

cause.”

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In order to protect these twin aims, a warrant must describe

the place to be searched and the items to be seized with

specificity, and the warrant must be supported by probable

cause. The place to be searched must be described “precise

enough to enable the executing officer to ascertain and

identify, with reasonable effort the place intended, and

where probable cause exists to support the search of area

so designated a warrant will not fail for lack of particularity.”

Commonwealth v. Korn, 139 A.3d 249, 253-54 (Pa. Super. 2016) (citations

omitted).

“Probable cause exists where the facts and circumstances within the

affiant’s knowledge and of which he has reasonably trustworthy information

are sufficient in themselves to warrant a man of reasonable caution in the

belief that a search should be conducted.” Commonwealth v. Leed, 186

A.3d 405, 413 (Pa. 2018) (citation omitted). “Probable cause is based on a

finding of probability and does not require a prima facie showing of criminal

activity.” Commonwealth v. Huntington, 924 A.2d 1252, 1256 (Pa. Super.

2007) (citation omitted). “[T]he police need not rule out all other possibilities

in establishing probable cause for the issuance of a search warrant.”

Commonwealth v. Rapak, 138 A.3d 666, 672-73 (Pa. Super. 2016) (citation

omitted).

As the Pennsylvania Supreme Court has stated:

The task of the issuing magistrate is simply to make a practical

common-sense decision whether, given all the circumstances set

forth in the affidavit before him, . . . there is a fair probability that

contraband or evidence of a crime will be found in a particular

place. And the duty of a reviewing court is simply to ensure that

the magistrate had a “substantial basis for . . . [concluding]”

that probable cause existed.

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Commonwealth v. Housman, 986 A.2d 822, 843 (Pa. 2009) (citation

omitted). Moreover, in engaging in our review we are mindful that

[t]he Supreme Court of the United States has instructed “that

after-the-fact scrutiny by courts of the sufficiency of an affidavit

should not take the form of de novo review.” Indeed, a

magistrate’s probable cause determination should receive

deference from the reviewing courts. In keeping with the Fourth

Amendment’s strong preference for warrants, “courts should not

invalidate . . . warrants by interpreting affidavits in a hyper[-

]technical, rather than a commonsense, manner.”

Leed, 186 A.3d at 413 (citation omitted).

Following our review of the record, the trial court’s order and opinion,

and Appellant’s arguments, we discern no basis to conclude the trial court

erred in denying Appellant’s motion to suppress. As the trial court noted, the

first affidavit of probable cause indicated Appellant drove erratically, caused a

car crash that resulted in the child being ejected from his vehicle, and then

fled the scene without any apparent concern for the child. Based on these

allegations, we agree with the trial court that the magistrate had a substantial

basis to find a fair probability that Appellant’s medical records from Aria

Hospital could contain evidence regarding Appellant’s conduct and state of

mind before, during, and after the crash. See Housman, 986 A.2d at 843.

We also find no basis to conclude that the application for the search was

overbroad. See Korn, 139 A.3d at 253-54. Moreover, once officers obtained

indications that Appellant had a controlled substance in his system, there was

ample probable cause supporting the second application seeking the blood

sample for further testing. See Housman, 986 A.2d at 843.

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Therefore, the record supports the trial court’s findings, and its rulings

were proper. See Smith, 164 A.3d at 1257. Accordingly, Appellant’s

arguments that the trial court erred in denying his motion to suppress merit

no relief.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/12/19

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