NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee :
:
v. :
:
JEROD ALAN GREEN, :
:
Appellant : No. 219 WDA 2014
Appeal from the Judgment of Sentence entered on February 25, 2013 in the Court of Common Pleas of Greene County, Criminal Division, No. CP-30-CR-0000127-2012
BEFORE: PANELLA, JENKINS and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 11, 2014
entered following his conviction of two counts of driving under the influence -degree
murder, fleeing or attempting to elude a police officer, homicide by vehicle (DUI),1 homicide by vehicle2 (while committing the offense(s) of (a) fleeing or attempting to elude police officer; (b) driving at safe speed, 75 Pa.C.S.A. § 3761; (c) driving on roadways laned for traffic, see id. § 3309; and/or (d) duty of driver in emergency response areas, see id. § 3327), and
1 See 75 Pa.C.S.A. § 3802(a)(1), (c); 18 Pa.C.S.A. § 2502(c); 75 Pa.C.S.A. §§ 3733 and (c), 3735. 2 75 Pa.C.S.A. § 3732.
related summary offenses.3 We affirm.
In the early morning hours of February 18, 2012, on Easton Hill near
Toyota Corolla, but did not stop. An ambulance responded to the scene, but Johnson declined treatment.
While driving through Morgantown at approximately 1:00 a.m., Kyle -sized truck, with extensive damage,
a high rate of speed and appeared erratic. Crace closed the distance
Upon arriving home, Crace telephoned this information to police.
responded to the Johnson accident scene. Upon the arrival of a West Virginia State Trooper, Sergeant Burks drove off in search of the truck that
dispatch describing a truck, with a possibly intoxicated driver, near Granville, West Virginia. A Granville police officer effectuated a stop of that truck.
advised that he also would report to the location of the stopped truck.4
3 75 Pa.C.S.A. §§ 101 et seq.
4 nt has county-wide jurisdiction.
3
Sergeant Burks arrived at the scene of the traffic stop and observed that the truck, operated by Green, had damage to the front end and passenger side.
he traveled to Easton Hill, where, he claimed, his truck was struck by another vehicle. Green explained that he did not stay at the accident scene because he had four prior DUIs. As Sergeant Burks walked away to speak
of the truck window, Green drove away. The officers at the scene pursued
intention to pull in front of the Granville police units, as his department had primary jurisdiction. Subsequently, a Granville police officer was directed to
60 miles per hour. After avoiding rolling and stationary police road blocks, -
Green entered Mt. Morris in Greene County, Pennsylvania. Sergeant Burks testified regarding what next transpired:
I observed a police vehicle, it appeared to be a[n] SUV. The emergency light bar on top of the car was working. It had wig-
wag headlights. It was evident it was a police vehicle, and based on the radio traffic[,] I knew it to be Sergeant [Michael]
( rumble strips along the left-hand side of the northbound lanes basically turning into the median, and then coming across the
[and Green] made a straight line --- he c[a]me diagonally from
4
the right-hand side of the road to the left-hand side of the road
which cau N.T., 12/10-13/12, at 151-54. Sergeant May died as a result of brain injuries sustained in the crash.
at 1:40 a.m. Because Green appeared intoxicated, he was taken to the hospital to obtain a blood sample. The hospital drew the blood sample at 3:03 a.m.5 Green was placed under arrest in Greene County, Pennsylvania.
Green filed a pre-trial suppression Motion, which the trial court denied.
After a trial, the jury found Green guilty of the above-described charges. Thereafter, the trial court sentenced Green to an aggregate prison term of 25-50 years. Green filed a post-sentence Motion, which the trial court denied. Thereafter, Green filed the instant timely appeal.
Green presents the following claims for our review:
I. Whether the Commonwealth produced sufficient evidence to prove beyond a reasonable doubt [that Green] is guilty of third[-]degree murder, homicide by vehi[cl]e, [and]
homicide by vehi[cl]e, while driving under the influence, and duty of drivers in an emergency zone?
II. Whether the trial court erred in allowing evid[en]ce to be int[r]oduced where the prejudicial value greatly outweighed the relevant value, specifically[,] the testimony of Franklin May, a picture of the victim with his father, and two autopsy photo[]s?
5
III.
use of deadly force?
IV.
to Suppress based on Sergeant May being outside his jurisdiction and not in hot pursuit, thereby illegal[ly]
seizing [Green]?
V. Whether the trial court erred in not suppressing a recording of [Green] conducted in violation of
VI.
blood alcohol results that were obtained in violation of Miranda[6] rights?
VII. Whether the trial court erred in not suppressing search warrants that sought electronically stored data as overbroad?
VIII. Whether the trial court erred in allowing the introduction of
IX. Whether the trial court erred in rendering its opinion that Sergeant May was in an emergency response area?
Brief for Appellant at 14 (footnote added).
Green first challenges the sufficiency of the evidence underlying his convictions of third-degree murder, homicide by vehicle, homicide by vehicle (DUI) and duty to emergency vehicles. Id. at 22. As to his conviction of third-degree murder, Green argues that the Commonwealth failed to prove causation and that he had the requisite mens rea. Id. According to Green, the Commonwealth failed to prove that he acted with malice, as there was
6 Miranda v. Arizona, 384 U.S. 436 (1966).
6
no traffic on the roadway, and when the police left him with an avenue of escape, he took it. Id. at 27. Green contends that he accelerated his vehicle to a speed of 98 miles per hour on a straight and unoccupied portion of I-79 for only 2.5 seconds. Id.
Green also contends that the Commonwealth failed to prove that he
of police training and procedure, as well as his violations of Pennsylvania and West Virginia law, caused his death. Id. at 25. Green claims that the evidence demonstrated that Sergeant May drove his vehicle into the path of Id. Green contends that Sergeant May should have stopped in the median, and that his failure to do so violated 75 Pa.C.S.A. § 3105(e), which states that a driver of an emergency vehicle is not relieved of his duty of safety and care to all persons. Brief for Appellant at 26. Had Sergeant May followed proper police procedures, Green argues, the accident would not have occurred. Id. Finally, Green claims that the Commonwealth
necessary to establish his violation of 75 Pa.C.S.A. § 3327(a)(1). Brief for Appellant at 22, 27-28.
In reviewing a challenge to the sufficiency of the evidence, we
the prosecution the benefit of all reasonable inferences to be drawn from the
7
Commonwealth v. Bibbs, 970 A.2d 440, 445 (Pa. Super.
2009) (citation omitted).
Evidence will be deemed sufficient to support the verdict when it established each element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt.
Nevertheless, the Commonwealth need not establish guilt to a mathematical certainty, and may sustain its burden by means of wholly circumstantial evidence. Significantly, [we] may not substitute [our] judgment for that of the factfinder; if the record contains support for the convictions they may not be disturbed.
Id.
weak and inconclusive that, as a matter of law, no probability of fact can be Commonwealth v. Scott, 967 A.2d 995, 998 (Pa. Super. 2009).
Regarding third-degree murder, the Crime Code provides as follows:
§ 2502(c). Our Pennsylvania Supreme Court has explained that,
[t]o convict a defendant of the offense of third-degree murder, the Commonwealth need only prove that the defendant killed another person with malice aforethought. This Court has long held that malice comprehends not only a particular ill-will, but [also a] wickedness of disposition, hardness of heart, recklessness of consequences, and a mind regardless of social duty, although a particular person may not be intended to be injured.
Commonwealth v. Fisher, 80 A.3d 1186, 1191 (Pa. 2013) (emphasis added, citation omitted).
Commonwealth v. Gardner, 490
8
Pa. 421, 416 A.2d 1007, 1008 (Pa. 1 to exist not only in an intentional killing, but also in an
disregarded an unjustified and extremely high risk that his
Commonwealth v. Young, 494 Pa. 224, 431 A.2d 230, 232 (Pa. 1981) (quoting Commonwealth v. Hare, 486 Pa. 123, 404 A.2d 388, 391 (Pa. 1979)).
Commonwealth v. Ludwig, 874 A.2d 623, 632 (Pa. 2005) (emphasis omitted).
In Commonwealth v. Spotti, 2014 PA LEXIS 114, this Court explained the two-part test for determining criminal causation:
death cannot be entirely attributable to other factors; rather, there must exist a causal connection between the conduct and the result of conduct; and causal connection requires something more than mere coincidence as to time and place. Second, the extraordinarily
remote or attenuated that it would be unfair to hold the defendant criminally responsible.
Id. at *48 (citations and quotation marks omitted).
At trial, the Commonwealth presented the testimony of Sergeant
-had side of
the road into oncoming into the oncoming lane, on to the berm of the left-hand side of the road, and back and forth. It was he was very erratic.
N.T., 12/10-13/12, at 145. Sergeant Burks further testified that,
[a]t one point[,] it got to the point where I determined that it was no longer safe for me or the units behind me, so I pulled to the right as close to the right side of the road as possible, and [] Green passed me again on the left side. As he passed me,
9
the rear of his vehicle got to the front of my cruiser, he slammed on his breaks and cut his wheel hard to the right, which caused me to have to slam on my brakes and go off the road to keep from being struck
Id.
Id. at 146.
As he pursued Green on Route 19, Sergeant Burks testified, Green approached a bridge that, because of construction, was reduced to one lane. Id. at 150. Sergeant Burks stated that,
[p]rior to getting to [the bridge,] []Green slammed on his brakes again, as he was moving over to go through the single lane[,]
slammed on his brakes and cut his wheel hard again[,] almost striking my vehicle to a point where I had to go off the road a
Id.
After entering Pennsylvania, Green proceeded to the entrance ramp of the southbound lanes of I-79. Id. at 151. Sergeant Burks observed that Sergeant May had parked his vehicle, with emergency lights activated, in the median. Id.
Id. short of being in any lane of traffic. Id.
testified that he observed Green enter southbound I-79. Id. at 193. As Green turned onto I-
10
Id. Lieutenant Varndell
described what next transpired as follows:
off in the distance a set of emergency lights coming northbound on I- sic] the emergency vehicle going into the median. Then start to turn to a 90-degree angle in the median. Then I observed the [truck] went from the entrance ramp to the slow lane and then with another maneuver went to the fast lane.
Id. at 194. Similarly, Sergeant Burks testified that when Green entered the southbound lanes of I-79, he drove diagonally from the right-hand side of the road to the left-hand side of the road, across both travel lanes. Id. at
vehicle. Id. at 152-53. Green did not atte vehicle. Id. at 154.
circumstances where a defendant did not have an intent to kill, but nevertheless displayed a conscious disregard for an unjustified and extremely high risk that his actions might cause death or serious bodily Commonwealth v. Santos, 876 A.2d 360, 364 (Pa. 2005) (internal quotation marks and citation omitted). Upon our review, the above-stated evidence is sufficient to demonstrate that Green consciously disregarded an unjustified and extremely high risk that his actions might cause death or serious bodily injury. See id. As such, we conclude that the evidence is -degree murder.
11
We fu
demonstrated a causal connection between Gre police officers, while intoxicated, at high speeds and in violation of multiple
e
Although Green argues that Sergeant May drove his vehicle into the path of
police procedures, the jury, by its verdict, did not credit the defense theory and evidence. We cannot substitute our judgment for that of the jury, as the trier of fact. Commonwealth v. Manley, 985 A.2d 256, 262 (Pa. Super. 2009); see also Commonwealth v. Toland, 995 A.2d 1242, 1245 (Pa. Super. 2010) (stating that 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).
homicide by vehicle. The Motor Vehicle Code defines homicide by vehicle as follows:
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Any person who recklessly or with gross negligence causes the death of another person while engaged in the violation of any law of this Commonwealth or municipal ordinance applying to the operation or use of a vehicle or to the regulation of traffic except section 3802 (relating to driving under influence of alcohol or controlled substance) is guilty of homicide by vehicle, a felony of the third degree, when the violation is the cause of death.
above, while committing multiple violations of the Motor Vehicle Code, 7 is sufficient to sustain his conviction.
homicide by vehicle while violating section 3327(a) of the Motor Vehicle Code. Section 3327(a) provides that,
[w]hen approaching or passing an emergency response area, a person, unless otherwise directed by an emergency service responder, shall:
(1) pass in a lane not adjacent to that of the emergency response area, if possible; or
(2) if passing in a nonadjacent lane is impossible, illegal or unsafe, pass the emergency response area at a careful and prudent reduced speed reasonable for safely passing the emergency response area.
statute as
the area in which emergency service responders render emergency assistance to individuals on or near a roadway or a
7 See, e.g., 75 Pa.C.S.A. §§ 3733 (fleeing or attempting to elude police officer), 3761 (driving at safe speed), 3309 (driving on roadways laned for traffic).
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police officer is conducting a traffic stop or systematic check of vehicles or controlling or directing traffic as long as the emergency vehicle is making use of visual signals meeting the requirements of Subchapter D of Chapter 45.
Id. § 3327(f) (footnote omitted).8 The statute provides that
[a]n emergency response area shall be clearly marked with road flares, caution signs or any other traffic-control device which law enforcement officials may have at their immediate disposal or visual signals on vehicles meeting the requirements of subchapter D of Chapter 45 (relating to equipment of authorized emergency vehicles).
Id. § 3327(c) (emphasis added).
Sergeant Burks testified at trial that as Green approached the entrance ramps to I-79,
[Green] turned right and [] onto the I-79 southbound entrance ramp, and as soon as he turned right[,] he sped up. That was evident, you could hear the roar of his engine, visually see him speeding up, at which time I did the same. As we went up the entrance ramp, I would estimate I was two to three car lengths behind him.
As you progress up the entrance ramp closer to the top, then northbound lanes coming from West Virginia in to Pennsylvania.
I observed a police vehicle, it appeared to be a[n] SUV. The emergency light bar on the top of the car was working. It had
8 Chapter 45 outlines the appropriate visual signals for police as one or more flashing or revolving red lights or a combination of red and blue lights. 75 Pa.C.S.A. § 4571(a)-(b). Green did not contest that the lights on Sergeant
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wig-wag headlights. It was evident it was a police vehicle, and based on the radio traffic I knew it to be Sergeant May.
N.T., 12/10-13/12, at 151-52. Sergeant Burks testified that that Sergeant -
headlights, all of which were activated. Id. at 152-53. Even though there were no vehicles in the right lane, upon entering I- crossed from the slow lane to the fast lane, and then drove straight into Id. at 153.
Lieutenant Varndell testified regarding the events immediately preceding the collision:
As I was cresting the entrance ramp, it has a slight incline, and as I was cresting the peak of the incline[,] I could see off in the distance a set of emergency lights coming northbound on I-79.
At the time that the department vehicle from Mon[ongalia] County. At that time[,] I seen [sic] the emergency vehicle going into the median. Then start to turn to a 90-degree angle in the median. Then I observed the [truck] went from the entrance ramp to the slow lane and then with another maneuver went to the fast lane.
Id. at 194. On cross-examination, Lieutenant Varndell stated that, when he
Id.
vehicle while violating
section 3327(a) of the Motor Vehicle Code.
In his second claim of error, Green asserts that the trial court
of Sergeant May. Brief for Appellant at 28. Green also argues that the trial
15
court erred in allowing the Commonwealth to introduce a photo of the victim and his father, as well as autopsy photos. Id.
Admission of evidence is a matter within the sound discretion of the trial court, and will not be reversed absent a showing that the trial court clearly abused its Commonwealth v. Cooper, 941 A.2d 655, 667 (Pa. 2007). Not merely an error in judgment, an abuse of discretion
is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-
Id. (quoting Commonwealth v.
McAleer, 748 A.2d 670, 673 (Pa. 2000) (citation omitted)).
In its February 26, 2014 Opinion, the trial court explained its ruling regarding the testimony of Mr. May as follows:
[The trial court] believe[s] this evidence was admissible, first of
and in fact the cause of his own death; and second, to establish some background.
Trial Court Opinion, 2/26/14, at 2 (citation omitted). The record supports
testimony to counter the suggestion that Sergeant May intentionally rammed -13/12, at 30-31. Further, the testimony was not inflammatory or prejudicial, nor was the family
16
photograph of Sergeant May and his father. Thus, we discern no basis upon which to grant Green relief on these arguments.
Green also contends that the trial court improperly admitted autopsy photographs at trial. Brief for Appellant at 31. Green asserts that any impact, in
light of testimony presented by the medical examiner. Id.
Green does not identify where, in the record, he preserved this claim for appellate review. Our review of the record discloses that Green did not object to the introduction of the photographs. N.T., 12/10-13/12, at 320-21 (wherein the photographs were admitted without objection by defense counsel). Because Green failed to preserve this claim, we cannot grant him relief.9 See Pa.R.A.P. 302(a) (stating that a claim cannot be raised for the first time on appeal).
In his third claim, Green argues that the trial court erred in dismissing
through the use of his police vehicle improperly used excessive force. Brief for Appellant at 32-33. In support, Green asserts that Sergeant May, who was outside of his jurisdiction, was not part of the pursuit and drove his Id. at 33. Green contends
9 Even if Green had preserved his claim, we would conclude that it lacks
See Trial Court Opinion, 2/26/14, at 2.
17
that he was not afforded the opportunity to develop a record, because the trial court improperly dismissed his Motion without a hearing. Id.
The appellate standard of review of suppression rulings is well-
findings which find support in the record, but we are not bound by the Commonwealth v. Millner, 888 A.2d 680, 685 (Pa. 2005); see also Commonwealth v. Booze, 953 A.2d 1263, 1269 (Pa. Super. 2008) (stating that here the record supports findings of the suppression court, we are bound by those facts and may reverse only if the
In his Motion to Suppress, Green argued that the collision constituted an illegal vehicle stop by Sergeant May. Motion to Suppress, 6/26/12, at ¶¶ 3-7. In the brief accompanying his Motion, Green offered no supporting argument. Although the suppression court did not conduct a hearing on ion or error of law.
implicated a question of fact, which required the weighing of the evidence as to an ultimate issue in the case. It is the exclusive province of the jury, as fact-finder, to determine the weight of relevant evidence. Commonwealth v. Mitchell, 883 A.2d 1096, 1110-11 (Pa. Super. 2005). Here, the jury, as fact-finder, was required to resolve conflicts in the evidence and determine or whether Sergeant May
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judgment for that of the jury. See Cooper, 941 A.2d at 662 (stating that [w]e may not substitute our judgment for the province to weigh the evidence, determine the credibility of witnesses, and believe all, part, or none claim fails.
In his Statement of Questions Involved, Green lists a fourth claim, which asserts that Sergeant May was outside of his jurisdiction and not in hot pursuit at the time, when he illegally seized Green. Brief for Appellant at 14. However, this issue is not addressed in the Argument section of his brief. Accordingly, Green has abandoned this claim. See Commonwealth v. Love, 896 A.2d 1276, 1287 (Pa. Super. 2006) (stating that an appellate court is required to deem abandoned those issues which have been identified on appeal but are unsupported by argument in the brief).
In his fifth claim, Green argues that the trial court improperly applied West Virginia law in determining whether to suppress an audio recording made by Deputy Wilfong. Brief for Appellant at 30-31. Green asserts that
of both parties to a recording, see 18 Pa.C.S.A. § 5704(2)(ii), while West see W. Va. Code § 62-
1d-3(e). Brief for Appellant at 34. Green claims that Pennsylvania law
19
should apply because Pennsylvania has the most interest in the outcome of the proceeding. Id. purpose in introducing the recording was to prove motive and intent as to the Pennsylvania charges. Id. at 35.
The Pennsylvania approach to conflict of law issues varies depending upon whether the laws are procedural or substantive in nature. Commonwealth v. Houseman, 986 A.2d 822, 841 (Pa. 2009).
[W]here a conflict of law arises regarding procedural matters, Pennsylvania will apply its procedural laws when it is the forum state. However, where a conflict exists regarding substantive laws, such as here, Pennsylvania courts take a flexible approach which permits analysis of the policies and interests underlying the particular issue before the court. This approach gives the state having the most interest in the question paramount control over the legal issues arising from a particular factual context, thereby allowing the forum to apply the policy of the jurisdiction most intimately concerned with the outcome.
Id. at 841-42 (citations and internal quotation marks omitted).
Motion to Suppress the recorded evidence and concluded that it lacks merit. Memorandum, 6/5/12, at 1-
See id. We
additionally note the following.
Monongalia County, West Virginia, obtained the recording after West Virginia -and-run
accident in West Virginia. N.T., 12/10-13/12, at 176-78. The evidence of
20
Virginia has the most interest in the recording of a vehicle stop on its highways, by its public officials, in the course of investigating an accident that occurred in West Virginia. Accordingly, we discern no abuse of
the audio recording.
secured by handcuffs and placed in a police car, and not having been apprised of his Miranda warnings, Trooper Popielarcheck asked whether Green had been drinking and/or felt drunk. Id. at 36. Green states that , and
sample for analysis. Id. at 37. According to Green, because the blood alcohol test results were the fruit of the poisonous tree, the trial court erred in not suppressing the results. Id.
In its Memorandum filed on September 4, 2012, the trial court
Memorandum, 9/4/12, at 5-7. We agree with the sound reasoning of the
21
trial court, as set forth in its Memorandum, and affirm on this basis with regard to this claim. See id.
In his seventh claim, Green asserts that three search warrants obtained by police were overbroad and failed to offer any link between the crime charged and the evidence sought to be obtained. Brief for Appellant at 37-38. Green argues that although an affidavit prepared by Pennsylvania State Police Corporal John Weaver stated that a traffic crash had occurred and that a vehicle operated by Green was actively fleeing from police, the affidavit failed to establish probable cause that a criminal homicide had occurred. Id. seeking electronic data devices and other evidence relevant to the collision investigation. Id. at 39. According to Green, the second warrant is nearly identical, and the third warrant did not indicate the relationship between the crimes and the items to be searched. Id. at 40.
Article I, Section 8 of the Pennsylvania Constitution provides, in pertinent or things shall issue without describing them as nearly as may be, nor
It is a fundamental rule of law that a warrant must name or describe with particularity the property to be seized and the
prohibits a warrant that is not particular enough and a warrant that is overbroad. These are two separate, though related, issues. A warrant unconstitutional for its lack of particularity authorizes a search in terms so ambiguous as to allow the
22
possessions to find which items to seize. This will result in the
warrant unconstitutional for its overbreadth authorizes in clear or specific terms the seizure of an entire set of items, or documents, many of which will prove unrelated to the crime
because it authorizes a general search and seizure.
The language of the Pennsylvania Constitution requires that a warrant describe the items to be seized
describe the items as specifically as is reasonably possible. This requirement is more stringent than that of the Fourth Amendment, which merely requires particularity in the description. The Pennsylvania Constitution further requires the
Consequently, in any assessment of the validity of the description contained in a warrant, a court must initially determine for what items probable cause existed. The sufficiency of the description must then be measured against those items for which there was probable
Commonwealth v. Orie, 88 A.3d 983, 1003 (Pa. Super. 2014) (quoting Commonwealth v. Rivera, 816 A.2d 282, 290-91 (Pa. Super. 2003)).
In its September 4, 2012 Memorandum, the trial court addressed this claim and concluded that it lacks merit. Trial Court Memorandum, 9/4/12, at 7-8. We agree with the reasoning of the trial court, and affirm on the basis of its Memorandum with regard to this claim. See id.
In his eighth claim, Green argues that the trial court erred in allowing the Commonwealth to introduce his prior DUI convictions. Brief for Appellant at 40. Green contends that the prejudicial impact of such evidence outweighed any relevant value. Id. According to Green, the Commonwealth sought to introduce his DUI convictions as his motive for
23
fleeing the scene of the first accident. Id. at 41. Green asserts that such
introducing the prior convictions is to present Green as a habitual drunk. Id.
Admission of evidence is a matter within the sound discretion of the trial court, and will not be reversed absent a showing that the trial court clearly abused its Cooper, 941 A.2d at 667.
Generally, evidence of prior bad acts or unrelated criminal activity is inadmissible to show that a defendant acted in conformity with those past
of prior bad acts may be admissible when offered to prove some other relevant fact, such as motive, opportunity, intent, preparation, plan, Commonwealth
v. Sherwood determining whether evidence of other prior bad acts is admissible, the trial court is obliged to balance the probative value of such evidence against its Sherwood
other crimes may be admitted where such evidence is part of the history of the case and forms part of t Commonwealth v. Watkins, 843 A.2d 1203, 1215 (Pa. 2003).
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police officers in West Virginia. See N.T., 12/10-13/12, at 180 (admission of Exhibit 45); Exhibit 45 at page 6 (where, in a recording of the vehicle stop, Green explains that he failed to stop after an accident because he had four prior DUI convictions), 9 (wherein Deputy Wilfong asks Green to step out of his vehicle for a field sobriety test, and Green flees from the scene). The
Finally, the relevance of this evidence is not outweighed by its prejudicial impact. Under these circumstances, we discern no error by the trial court in admitting this evidence at trial.
Finally, Green argues that the trial court erred in rendering an opinion, in its jury instructions, that Sergeant May was in an emergency response area. Brief for Appellant at 42. However, our review of the record discloses that Green offered no objection to the jury charge. Accordingly, this claim is waived. See Pa.R.A.P. 302(a) (stating that a claim cannot be raised for the first time on appeal).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 8/11/2014