Com. v. Grim, T. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TIMOTHY EUGENE GRIM :
:
Appellant : No. 59 MDA 2022
Appeal from the Judgment of Sentence Entered October 5, 2021
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0000201-2021
BEFORE: STABILE, J., McLAUGHLIN, J., and COLINS, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED NOVEMBER 09, 2022
Timothy Eugene Grim appeals from the judgment of sentence entered
after he was convicted of driving under the influence of alcohol and controlled
substances.1 Grim challenges the admission of his statements at trial as well
as the sufficiency and weight of the evidence. He also challenges the
discretionary aspects of his sentence. We affirm.
We glean the following statement of facts from the record, viewed in the
light most favorable to the Commonwealth, as it prevailed at trial. See
Commonwealth v. Talbert, 129 A.3d 536, 542 (Pa.Super. 2015). On
September 30, 2020, around 8 p.m., Denise Natalie heard a “loud, screeching
noise” while walking in her neighborhood. N.T., Trial, 10/1/21, at 4, 5. When
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* Retired Senior Judge assigned to the Superior Court.
1 75 Pa.C.S.A. § 3802(d)(3).
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she turned in the direction of the noise, she saw sparks and a wheel coming
toward her. Id. at 5. She jumped out of the way and then “saw the car parked
there with the wheel off.” Id. Natalie saw a woman get out of the passenger
side of the vehicle and a man, later identified as Grim, “come around the back
from the driver’s side.” Id. Natalie testified that it was not dark outside at the
time. Id. at 6. She heard the male yelling, “I just bought this car. It cost me
$6,000.” Id. at 7. After seeing the male’s reaction, she returned to her home.
Id. at 8, 11.
Trooper John Rayho arrived on the scene later and saw Grim’s vehicle
on a tow truck. Grim was still at the scene. Id. at 13. Trooper Rayho asked
Grim for his identification, insurance, and registration for the vehicle. Id. at
14. Grim replied that he did not have a license. Id. He told Trooper Rayho
that “he was driving around with his girlfriend after just picking up the car
from the dealership.” Id. Grim stated that “[a]fter driving it around for an
hour and a half, he stated that it began to feel like the tire was going flat, and
the next thing he knew the tire came off.” Id. at 15. Trooper Rayho observed
that the vehicle’s “front passenger side tire was completely off, only one of
the axle bolts was still remaining on.” Id. at 19. He also observed that “[i]t
was impossible to determine what had actually caused it to sheer off.” Id.
Trooper Rayho described Grim’s demeanor as “argumentative and
combative.” Id. He testified that Grim “was aggressive and repetitively saying
that he just picked up the car. And he was trying to hurry the investigation
along.” Id. Trooper Rayho asked Grim if he had anything to drink and Grim
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stated that he had a beer earlier. Id. at 17. Trooper Rayho asked Grim to
perform a field sobriety test but “[h]e refused because he said that he was on
pain killers.” Id. Grim also informed Trooper Rayho that his legs were injured
from his time in the army. Id. at 39. Trooper Rayho testified that he asked
Grim to complete a field sobriety test because “[h]is walking was unsure” and
“[h]is overall demeanor was somebody that appeared to be possibly under the
influence of either narcotics or alcohol.” Id.
Trooper Rayho then arrested Grim and transported him to a hospital for
a blood draw. Grim refused the blood draw, stating, “I’m not giving you my
blood because I’m on morphine and Percocet.” Id. at 18. Trooper Grim also
determined that Grim’s license was suspended due to a prior DUI conviction.
Id. at 24. Trooper Grim testified that he did not believe that Grim was able to
operate his vehicle safely. Id. at 32. He also said he had two and a half years
of experience as an officer and had encountered individuals under the
influence of both alcohol and controlled substances. Id. at 17-18.
The Commonwealth also introduced the motor vehicle recording (“MVR”)
into evidence.2 Once the Commonwealth rested its case, Grim argued that
because the only evidence of Grim’s intoxication was from his statement, the
prosecution had not made out the corpus delicti. Id. at 51. The court did not
rule on this matter and allowed Grim to present his case.
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2 The MVR is not part of the certified record.
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Grim testified that his leg injury was due to being hit with an IED while
serving in the army. Id. at 60. He testified that due to the injury, he had to
have multiple surgeries, and “at one time, I was on morphine and Percocet’s,
but I have been on suboxone for the last two years.” Id. He testified that he
shared his various uses of medication with Trooper Rayho but informed him
that he was not taking these medications at that time. Id. He said that as of
the date of the trial, he had not taken morphine and Percocet for the preceding
17 or 18 months. Id. at 63. He stated that he was upset on the day of the
incident because of what happened with the car, in conjunction with his post-
traumatic stress disorder and anxiety. Id. at 61. The court did not find Grim’s
testimony credible. See Memorandum Opinion, filed 3/18/22, at 6.
The trial court found Grim guilty of driving under the influence of alcohol
and a controlled substance. At sentencing, it considered the Sentencing
Guidelines, the presentence investigation report, Grim’s injury from his
service in the army, and his need for additional treatment on his ankle due to
those injuries. See N.T., Sentencing, at 11. It sentenced Grim to a term of 21
months to seven years’ incarceration. Grim filed a post-sentence motion
challenging his sentence. He also challenged the weight of the evidence. The
court denied the motion and this timely appeal followed.
Grim raises the following issues:
I. Should [Grim’s] alleged self-inculpatory statements
have been considered relevant or contributed to a
finding of guilt, as the observations of the arresting
officer preceding these statements were grossly
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insufficient by themselves to establish a corpus delicti
beyond a reasonable doubt?
II. Even if those statements could contribute to
establishing the elements of the offense, would the
facts on record as a whole still be legally insufficient
to support [Grim’s] conviction for driving under the
influence simultaneously of drugs and alcohol to such
a degree as to impair his driving, where, inter alia,
there was no evidence of impaired driving, as no
witness saw him driving at all, and there was no
evidence that he was at that time under the influence
of any alcohol?
III. Should [Grim’s] conviction be reversed for lack of
evidentiary weight in support thereof, where, inter
alia, the arresting officer’s testimony was too vague
and his conclusions as to [Grim’s] neurochemical state
too speculative to sustain a verdict of guilt?
IV. Was the sentence imposed on [Grim] for a run-of-the-
mill DUI contrary to utilitarian principles of
sentencing, an abuse of discretion given the
mitigating circumstances, and excessively harsh given
his grave medical problems?
Grim’s Br. at 6-7 (answers of trial court, suggested answers, and footnote
omitted).
In his first claim, Grim alleges that the court erred in considering his
statements to Trooper Rayho. He maintains that the Commonwealth did not
establish corpus delicti before introducing these statements and therefore the
court should not have considered them. He argues that before introducing
these statements, there must have been evidence that “(1) impaired driving
occurred and (2) it was owing to the influence of drugs and alcohol.” Grim’s
Br. at 24. He maintains the only way to prove such would be “by the present-
sense observations of the officer[.]” Id. He argues that the Commonwealth
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did not present evidence of impaired driving. He also argues that Trooper
Rayho’s observations showed no signs of intoxication.
The corpus delicti rule deals with the admission of evidence, which we
review for abuse of discretion. See Commonwealth v. Murray, 174 A.3d
1147, 1154 (Pa.Super. 2017). The corpus delicti rule requires that before the
Commonwealth may admit the statements of an accused, it must first prove
that: “(1) a loss has occurred; and (2) the loss occurred as a result of a
criminal agency.” Commonwealth v. Taylor, 831 A.2d 587, 590 (Pa. 2003).
Once it has presented such proof, the Commonwealth may then “rely upon
statements and declarations of the accused to prove that the accused was, in
fact, the criminal agent responsible for the loss.” Id. (citation omitted).
The rule entails a two-step inquiry. “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.” Murray, 174 A.3d at
1154 (emphasis added). Before the statements may be admitted, the
Commonwealth must prove the corpus delicti by a preponderance of the
evidence. See Commonwealth v. Hernandez, 39 A.3d 406, 411 (Pa.Super.
2012). However, before the factfinder may consider the statements, the
Commonwealth must show corpus delicti beyond a reasonable doubt. See id.Grim’s argument goes to the second step. See Grim’s Br. at 22. We find
his argument lacking in merit.
Here, the Commonwealth presented sufficient circumstantial evidence
to prove the corpus delicti of DUI beyond a reasonable doubt. Before
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considering Grim’s statement, the court heard testimony from Natalie and
Trooper Rayho. Natalie testified that she heard a loud screeching sound and
when she turned toward the sound, a tire flew by her. She then observed a
parked vehicle missing a tire. She saw Grim come around the back of that
vehicle from the driver’s side. Trooper Rayho testified that Grim’s “walking
was unsure” and his demeanor was aggressive, argumentative, and
combative. N.T. at 39. Trooper Rayho also testified that Grim’s “overall
demeanor was somebody that appeared to be possibly under the influence of
either narcotics or alcohol.” Id. Trooper Rayho based this conclusion on his
two years of experience as an officer and encountering individuals under the
influence of both alcohol and narcotics. This evidence adequately proved
beyond a reasonable doubt that “(1) a loss has occurred; and (2) the loss
occurred as a result of a criminal agency.” Taylor, 831 A.2d at 590. The trial
court properly considered Grim’s statements that he had drunk a beer, was
the driver of the vehicle, and had taken painkillers, morphine, and Percocet.
Next, Grim challenges the sufficiency of the evidence. He alleges that
the evidence is insufficient because the Commonwealth did not prove that he
was under the influence of drugs and alcohol. He states that while he admitted
to having a beer earlier that day, by the time he was arrested, “it was well out
of his system[.]” Grim’s Br. at 29. He also argues that the painkillers he
admitted to taking could have included non-narcotic medications such as
Tylenol or Advil. He also claims that the Commonwealth failed to prove that
his driving was impaired. He notes that no one observed him driving carelessly
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or unsafely, “and there was no circumstantial evidence from which unsafe
driving could be rationally inferred.” Id. Grim further maintains that the
Commonwealth failed to prove that he was still under the influence of alcohol
at the time of his interactions with Trooper Rayho.
We review a challenge to the sufficiency of the evidence by determining
“whether viewing all the evidence admitted at trial in the light most favorable
to the verdict winner, there [was] sufficient evidence to enable the fact-finder
to find every element of the crime beyond a reasonable doubt.” Talbert, 129
A.3d at 542 (citation omitted). The Commonwealth may sustain its burden “by
means of wholly circumstantial evidence.” Id. at 543 (citation omitted).
Here, the court found Grim guilty of driving under the influence of
alcohol and controlled substances. See 75 Pa.C.S.A. § 3802(d)(3). To sustain
this conviction the Commonwealth was required to prove beyond a reasonable
doubt that: (1) Grim’s ability to safely drive was impaired; and (2) Grim’s
impairment was due to his influence of alcohol and a drug or combination of
drugs. See id.
All the evidence, together, was sufficient to prove Grim’s guilt beyond a
reasonable doubt. Grim admitted to consuming beer, Percocet, and morphine.
He also admitted that he drove his vehicle to the location where his tire
eventually fell off. Trooper Rayho testified that Grim’s walking was unsure, he
was aggressive, combative, and repetitive, and his overall demeanor was that
of a person under the influence of alcohol and/or narcotics. Particularly
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incriminating was his refusal of the blood draw because he was on morphine
and Percocet. That was strong evidence of consciousness of guilt.
To credit most of Grim’s claims – such as that the beer ought to have
been out of his system, and the painkillers he mentioned could have been
non-narcotic medications – would require us to violate the standard of review,
which requires us to consider the evidence in the Commonwealth’s favor, not
in Grim’s favor. Moreover, these issues go to the weight of the evidence, not
its sufficiency. Grim’s final claim – that there was no evidence that he had
driven carelessly or unsafely – tilts at a windmill. Unsafe driving is not an
element of the crime. Rather, the prosecution must prove that Grim’s ability
to safely drive was impaired. When viewed in the proper light, the evidence
was sufficient to prove all of the elements of the conviction under Section
3802(d)(3).
Grim also challenges the weight of the evidence. He argues that Trooper
Rayho’s testimony was vague and speculative. He further states that his
walking was impaired due to his chronic leg injuries. Grim reiterates his claim
that any alcohol he consumed would have been out of his system by the time
he encountered Trooper Rayho.
We review the trial court’s rejection of a challenge to the weight of the
evidence for an abuse of discretion. See Commonwealth v. Landis, 89 A.3d
694, 699 (Pa.Super. 2014). The trial court should grant relief on a weight
claim if the verdict “is so contrary to the evidence that it shocks one’s sense
of justice.” Id. (citation omitted).
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Here, the court stated that its review of the MVR showed that Grim
“repeatedly told Trooper Rayho he wasn’t going to take a blood test,
specifically stating ‘I got so many drugs in my system it ain’t funny.’”
Memorandum Op. at 4-5. Though Grim testified that he did not mean that he
was on narcotics at the time, the court did not find Grim credible. Id. at 6.
The court concluded that “[b]ased upon [Grim’s] appearance, actions, and
overall demeanor, the trooper had ample reason to believe that [Grim] was
under the influence of alcohol or narcotics to a degree of which he was not
able to safely operate a motor vehicle.” Id. at 4.
We discern no abuse of discretion. The verdict was not so contrary to
the evidence that the trial court’s rejection of Grim’s weight claim constituted
an abuse of discretion.
Grim’s final claim challenges the discretionary aspects of his sentence.
He argues that the court failed to consider mitigating factors and imposed an
excessively harsh sentence.
Challenges to the discretionary aspects of sentence are not automatic.
Instead, we must first determine whether the appellant: (1) filed a timely
notice of appeal; (2) preserved the issue at sentencing or in post-sentence
motion; (3) included a Rule 2119(f) statement in the brief; and (4) raised a
substantial question that the sentence appealed from is not appropriate under
the Sentencing Code. See Commonwealth v. Proctor, 156 A.3d 261, 273
(Pa.Super. 2017). A substantial question exists where the appellant presents
an argument that the trial court’s sentence was “(1) inconsistent with a
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specific provision of the Sentencing Code; or (2) contrary to the fundamental
norms which underlie the sentencing process.” Id. (citation omitted).
Here, Grim has satisfied all the above factors for his sentencing claims.
He filed a timely notice of appeal, argued in his post-sentence motion that his
sentence was excessive in view of his medical conditions, included a Rule
2119(f) statement in his brief, and set forth a substantial question. See
Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa.Super. 2015) (“[A]n
excessive sentence claim—in conjunction with an assertion that the court
failed to consider mitigating factors—raises a substantial question.”) (citation
omitted).
Sentencing is a matter within the discretion of the court. See
Commonwealth v. Barnes, 167 A.3d 110, 122 n.9 (Pa.Super. 2017) (en
banc). Therefore, we will not disturb a court’s sentencing order absent an
abuse of discretion. See id. If the court had a presentence investigation
report, we presume that it was aware of the information the report contained
and appropriately weighed it. See Commonwealth v. Griffin, 804 A.2d 1, 8
(Pa.Super. 2002).
Here, the record shows that the court at sentencing was aware of the
presentence investigation report. We therefore presume it considered its
contents and gave it appropriate weight. Defense counsel also presented
argument regarding Grim’s military service and injuries. The court considered
the Sentencing Guidelines and imposed a sentence at the low end of the
standard range. We do not find an abuse of discretion.
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Judgment of sentence affirmed.
Judge Colins joins the memorandum.
Judge Stabile concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/9/2022
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