J-E01001-16


                                  2016 PA Super 168

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellant

                       v.

ROBERT N. SITLER

                            Appellee                   No. 3051 EDA 2013


                   Appeal from the Order November 1, 2013
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0000389-2013


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., BOWES, J., SHOGAN, J.,
        LAZARUS, J., MUNDY, J., OLSON, J., OTT, J., and STABILE, J.

OPINION BY OTT, J.:                                      FILED JULY 26, 2016

       The Commonwealth brings this interlocutory appeal pursuant to

Pa.R.A.P. 311(d) from the order entered on the record on November 1,

2013, in the Court of Common Pleas of Montgomery County, granting Robert

N. Sitler’s pre-trial motions in limine.1      Sitler was charged with multiple

vehicular and criminal offenses following a traffic accident that he caused on

November 12, 2012.          The trial court’s order precluded the Commonwealth

from introducing, inter alia, evidence of Sitler’s prior vehicular criminal

____________________________________________


1
  See Pa.R.A.P. 311(d) (“In a criminal case, under the circumstances
provided by law, the Commonwealth may take an appeal as of right from an
order that does not end the entire case where the Commonwealth certifies in
the notice of appeal that the order will terminate or substantially handicap
the prosecution.”).
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conviction, evidence of Sitler’s consumption of alcohol before the accident,

and evidence pertaining to Sitler’s crimen falsi offenses should he plead

guilty to those charges.      We affirm in part, reverse in part, and vacate in

part, and remand for trial.

      Because this case has not yet been tried, and because the case has

not yet been presented to the fact-finder, we derive the following summary

of the facts underlying Sitler’s charges from the certified record and from

Sitler’s preliminary hearing.

      On November 12, 2012, Regina Qawasmy was returning to her home

from work at approximately 9:00 p.m. on High Street in Lower Pottsgrove

Township, Montgomery County, Pennsylvania. While traveling on High

Street, Ms. Qawasmy noticed a pick-up truck driving very closely to her rear

bumper. Ms. Qawasmy repeatedly applied her brakes in an effort to get the

truck to back away from her vehicle, to no avail. Soon thereafter, Ms.

Qawasmy activated her turn signal to inform the pick-up truck that she was

going to turn right onto Sunnyside Road. The driver of the truck immediately

revved the engine, and accelerated to the left around Ms. Qawasmy’s

turning vehicle.

      When the truck sped around Ms. Qawasmy, it struck and killed a

sixteen-year-old boy who was standing in the center lane of the roadway.

After the collision, both Ms. Qawasmy and the pick-up truck driver pulled

over to the side of the road and parked the vehicles.



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      Officer Matthew Meitzler of the Lower Pottsgrove Police Department

was dispatched to the scene of the accident. When Officer Meitzler arrived

at the scene, he located the victim lying against a curb, bleeding from the

nose, mouth and ear. Officer Meitzler detected a faint pulse initially. He and

an EMT who had arrived on the scene began to perform CPR on the victim

until an ambulance arrived and transported the victim to the hospital. The

victim died that night at the hospital.

      While Officer Meitzler was attending to the victim, Sitler’s girlfriend,

Denise Dinnocenti, stated she was the driver of the pick-up truck. Officer

Meitzler was directed to escort Ms. Dinnocenti to a local hospital to have her

blood drawn to ascertain whether she was operating the truck under the

influence of alcohol. Officer Meitzler did not take Sitler or anyone else to the

hospital for a blood draw.

      Officer Meitzler took two written statements from Sitler, one on the

night of the accident (November 12, 2012), and one on November 17, 2012.

In his initial statement, Sitler said that Ms. Dinnocenti was driving the

vehicle at the time of the accident, and that he was positioned in the front

passenger seat at all relevant times. Sitler informed the police that, while

he and Ms. Dinnocenti were travelling behind the van, Ms. Qawasmy

abruptly activated her turn signal and quickly began to make the turn. This

swift action forced Ms. Dinnocenti immediately to veer into the center lane to




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avoid hitting Ms. Qawasmy’s van, thereby striking the victim crossing the

road.

        Ms. Dinnocenti had provided the police a written statement on the

night in question that conformed to the version of events provided by Sitler

in his first statement. However, upon reviewing the Sitler and Dinnocenti

statements a few days after the accident, Officer Meitzler began to notice

some material inconsistencies. He decided to re-interview both individuals.

In her second interview, Ms. Dinnocenti revealed that she was not the driver

of the pick-up truck. Ms. Dinnocenti told Officer Meitzler that Sitler was the

driver, and that she had admitted to being the driver due to Sitler’s criminal

history and her fear that he would face severe consequences if he was

arrested. She also told Officer Meitzler that Sitler had consumed a few

alcoholic beverages prior to driving the truck.

        When Officer Meitzler re-interviewed Sitler, Sitler conceded that he

was driving the pick-up truck on the date in question. Sitler acknowledged

that he had been convicted of vehicular manslaughter in Alabama in 2006.

Sitler had served a significant sentence for that crime, and he feared that, if

he was charged and convicted of a crime for the instant accident, he would

be severely punished.     Therefore, he instructed Ms. Dinnocenti and her

children (who also were in the car at the time of the accident) to lie to the

authorities about who was driving the vehicle. Sitler also admitted to

drinking three beers before driving the pick-up truck.


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      Detective David Schanes, an agent of the Montgomery County District

Attorney’s   Office,   testified   as   an   expert   in   the   field   of   accident

reconstruction. Detective Schanes was called to the scene of the accident on

November 12, 2012, and spoke with Sitler. During the conversation,

Detective Schanes noticed that Sitler’s body emitted an odor of alcoholic

beverages.    Sitler admitted to Detective Schanes that he had consumed a

few alcoholic drinks, but adamantly denied that Ms. Dinnocenti had been

drinking.

      Detective Schanes then investigated the accident. After doing so, he

opined that the victim’s body came to rest 182 feet from the impact location.

Based upon that information, Detective Schanes determined that the pick-up

truck was travelling at least 50 miles per hour at the time of impact, which is

15 miles per hour more than the posted speed limit of 35 miles per hour on

High Street. With the assistance of a mechanic, Detective Schanes also

determined that there were no mechanical problems with the pick-up truck

that could have contributed to the accident. Detective Schanes concluded

that the tailgating and the speed of the pick-up truck coincided to cause the

accident. Finally, Detective Schanes determined that Sitler owned and

insured the pick-up truck that struck and killed the victim.

      Detective Schanes also spoke with an agent of the company that

insured Sitler’s truck. The insurance agent indicated to Detective Schanes

that Sitler had reported the accident, and that he informed the agent that


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Ms. Dinnocenti was driving the pick-up truck at the time of the accident. As

noted, this assertion was untrue.

        Sitler was arrested, and, on December 10, 2012, was charged by

criminal complaint with homicide by vehicle,2 and a host of other violations

of the Motor Vehicle Code.3 In addition, Sitler was charged under the Crimes

Code with numerous offenses, stemming from the lies he told about who

was driving the pick-up truck.                 Specifically, Sitler was charged with

insurance     fraud,     false    reports,       unsworn   falsifications,   tampering

with/fabricating physical evidence, obstructing the administration of law,

corruption of minors, and criminal conspiracy.4 Sitler filed a pre-trial motion

seeking to sever the crimes arising from the Crimes Code, which were acts

of crimen falsi, from the trial on the homicide by vehicle and Motor Vehicle

Violations. The trial court denied the motion.

        On October 11, 2013, Sitler filed pre-trial motions in limine to

preclude, inter alia, evidence related to his previous vehicular manslaughter

conviction in Alabama in 2006, and evidence related to his consumption of
____________________________________________


2
    75 Pa.C.S. § 3732(a).
3
  Sitler was also charged with following too closely, driving at an unsafe
speed, driving over the speed limit, disregard for traffic lanes, passing
improperly, careless driving, and reckless driving. See 75 Pa.C.S. §§
3310(a), 3361, 3362(a)(1), 3309(1), 3303(a)(1), 3714(a) & (b), and
3736(a), respectively.
4
  See 18 Pa.C.S. §§ 4117(a)(2), 4906(b)(1), 4904(a)(1), 4910(1), 5101,
6301(a)(1)(i), and 903(c), respectively.



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alcohol prior to the collision. A hearing on the motions in limine was held on

October 31, 2013, and November 1, 2013. On November 1, 2013, the trial

court granted the motions, thereby precluding the Commonwealth from

introducing testimony or evidence related to Sitler’s prior conviction and his

consumption of alcohol.

       In addition, on November 1, 2013, before the trial court, Sitler

indicated that he wanted to plead guilty to the crimen falsi charges

stemming from his false statements, and then proceed to trial on the

homicide by vehicle and related Motor Vehicle violations. In connection with

this representation, he sought a ruling to preclude the Commonwealth from

introducing evidence of his crimen falsi convictions at trial.          The court

determined that Sitler could plead guilty separately to the Crimes Code

violations without any of the evidence related to those crimes being

admitted at his        trial for   homicide      by vehicle. This   appeal by the

Commonwealth followed.5

       A divided panel of this Court affirmed the trial court’s preclusion of

evidence of Sitler’s prior conviction and consumption of alcohol, and vacated

the portion of the trial court’s order precluding evidence of Sitler’s false
____________________________________________


5
  Following the notice of appeal, the trial court directed the Commonwealth
to file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). On November 27, 2013, the Commonwealth timely filed a
concise statement. On April 30, 2014, the trial court issued an opinion
pursuant to Pa.R.A.P. 1925(a).




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statements, finding the trial court addressed the issue prematurely.

Thereafter, the Commonwealth sought en banc review, which this Court

granted. The matter is now ready for our review.

      The Commonwealth frames three issues for this Court’s consideration,

as follows:

      I.      Whether the trial court abused its discretion when it
              precluded the Commonwealth from introducing evidence of
              [Sitler’s] prior vehicular manslaughter conviction, where
              the conviction contained commonalities amply sufficient to
              demonstrate the required close factual nexus to
              demonstrate the connective relevance of the prior
              conviction to the current crime, and was admissible to
              prove [Sitler’s] knowledge that his conduct could result in
              the death of another person for purposes of establishing
              the recklessness element of homicide by vehicle, and to
              establish his motive to lie in connection with his crimen
              falsi and conspiracy offenses?

      II.     Whether the trial court abused its discretion when it
              excluded all evidence of [Sitler’s] alcohol consumption
              prior to the fatal collision without taking into consideration
              all the circumstances surrounding [Sitler’s] drinking, such
              as, inter alia, his erratic driving, where the evidence was
              admissible to establish the recklessness element of
              homicide by vehicle, and to establish [Sitler’s] motive to lie
              in connection with his crimen falsi and conspiracy
              offenses?

      III.    Whether the trial court abused its discretion in excluding
              all evidence of [Sitler’s] crimen falsi charges stemming
              from the lies he told immediately following the fatal
              collision, where the unequivocal precedent in the
              Commonwealth establishes that this evidence is admissible
              as substantive evidence of consciousness of guilt?

Substituted Brief for the Commonwealth at 4–5.




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       The Commonwealth first challenges the trial court’s ruling that Sitler’s

2006 Alabama vehicular manslaughter conviction was inadmissible at Sitler’s

upcoming trial.6 The Commonwealth argues Sitler’s conviction is admissible

as a prior bad act pursuant to Pennsylvania Rule of Evidence 404(b) to

prove, inter alia, Sitler’s knowledge that his conduct could result in the death

of another person for purposes of proving the recklessness element of

homicide by vehicle.7 We agree with the Commonwealth.

____________________________________________


6
  The trial court set forth the following facts related to Sitler’s prior
conviction:

       In 2006, an Alabama grand jury indicted [Sitler], inter alia, of
       “Recklessly Causing the Death of Another Person While
       Operating a Motor Vehicle.”           This charge is akin to
       Pennsylvania’s Homicide by Motor Vehicle. In the Alabama
       matter, [Sitler] was driving at 6 o’clock in the morning when he
       encountered a thick, dense fog bank. The driver in front of
       [Sitler] slammed on the brakes, and when [Sitler] swerved to
       avoid the same, he entered the opposing lane of traffic thereby
       killing the woman in the opposing vehicle. The Alabama case
       proceeded to trial, but resulted in a deadlocked jury.
       Accordingly, a mistrial was declared. Four (4) months later,
       [Sitler] plead[ed] guilty to homicide by vehicle in exchange for
       house arrest.

Trial Court Opinion, 4/30/2014, at 8–9 (record citation omitted).
7
    Pennsylvania Rule of Evidence 404(b) states, in pertinent part:

       (b) Crimes, Wrongs or Other Acts.

       (1) Prohibited Uses. Evidence of a crime, wrong, or other act is
       not admissible to prove a person's character in order to show
       that on a particular occasion the person acted in accordance with
       the character.
(Footnote Continued Next Page)


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      Our standard of review is well-settled. “Questions concerning the

admission of evidence are left to the sound discretion of the trial court, and

we, as an appellate court, will not disturb the trial court’s rulings regarding

the   admissibility     of   evidence     absent    an   abuse   of   that   discretion.”

Commonwealth v. Russell, 938 A.2d 1082, 1091 (Pa. Super. 2007), citing

Commonwealth v. Whitaker, 878 A.2d 914, 923 (Pa. Super. 2005). “An

abuse of discretion is not merely an error of judgment, but is rather the

overriding or misapplication of the law, or the exercise of judgment that is

manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality,

as shown by the evidence of record.” Commonwealth v. Mendez, 74 A.3d

256, 260 (Pa. Super. 2013) (citation omitted). “[I]f in reaching a conclusion

the trial court overrides or misapplies the law, discretion is then abused and

it is the duty of the appellate court to correct the error.” Commonwealth v.

Weakley, 972 A.2d 1182, 1188 (Pa. Super. 2009) (citation omitted).




                       _______________________
(Footnote Continued)


      (2) Permitted Uses. This evidence may be admissible for another
      purpose, such as proving motive, opportunity, intent,
      preparation, plan, knowledge, identity, absence of mistake, or
      lack of accident. In a criminal case this evidence is admissible
      only if the probative value of the evidence outweighs its potential
      for unfair prejudice.

Pa.R.E. 404(b)(1)-(2) (emphasis added).



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      In Commonwealth v. Sherwood, 982 A.2d 483 (Pa. 2009), the

Pennsylvania Supreme Court set forth the general principles regarding the

admissibility of prior bad acts at trial as follows:

      Generally, evidence of prior bad acts or unrelated criminal
      activity is inadmissible to show that a defendant acted in
      conformity with those past acts or to show criminal propensity.
      Pa.R.E. 404(b)(1). However, evidence of prior bad acts may be
      admissible when offered to prove some other relevant fact, such
      as motive, opportunity, intent, preparation, plan, knowledge,
      identity, and absence of mistake or accident. Pa.R.E. 404(b)(2).
      In 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 prejudicial impact.

Id. at 497, citing Commonwealth v. Powell, 956 A.2d 406, 419 (Pa.

2008). “The Commonwealth must prove beyond a reasonable doubt that a

defendant has committed the particular crime of which he is accused, and it

may not strip him of the presumption of innocence by proving that he has

committed other criminal acts.” Commonwealth v. Ross, 57 A.3d 85, 98-

99 (Pa. Super. 2012) (en banc) (citations omitted).

      In Ross, an en banc panel of this Court acknowledged the possibility

that Rule 404(b)(2)’s exceptions could swallow the general rule, and offered

the following caution:

      The purpose of Rule 404(b)(1) is to prohibit the admission of
      prior bad acts to prove “the character of a person in order to
      show action in conformity therewith.” Pa.R.E. 404(b)(1). While
      Rule 404(b)(1) gives way to recognized exceptions, the
      exceptions cannot be stretched in ways that effectively eradicate
      the rule. With a modicum of effort, in most cases it is possible to
      note some similarities between the accused’s prior bad act
      conduct and that alleged in a current case. To preserve the
      purpose of Rule 404(b)(1), more must be required to establish

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      an exception to the rule—namely a close factual nexus sufficient
      to demonstrate the connective relevance of the prior bad acts to
      the crime in question. . . . [T]his Court has warned the prior bad
      acts may not be admitted for the purposes of inviting the jury to
      conclude that a defendant is a person “of unsavory character”
      and thus inclined to have committed the crimes with which
      he/she is charged. See, e.g., Commonwealth v. Kjersgaard,
      276 Pa. Super. 368, 419 A.2d 502, 505 (Pa. Super. 1980).

Ross, 57 A.3d at 105-06. Mindful of this warning, we conclude that there

exists in this case “a close factual nexus sufficient to demonstrate the

connective relevance” of Sitler’s prior conviction for vehicular manslaughter

to the principal charge at issue in the present case.

      Sitler is charged with, inter alia, homicide by vehicle. A person is guilty

of that crime if he “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 . . ., when the violation is the cause of death.” 75 Pa.C.S. § 3732(a).

Recklessness, an essential element of homicide by vehicle, is defined as

follows:

      A person acts recklessly with respect to a material element of an
      offense when he consciously disregards a substantial and
      unjustifiable risk that the material element exists or will result
      from his conduct. The risk must be of such a nature and degree
      that, considering the nature and intent of the actor’s conduct
      and the circumstances known to him, its disregard involves a
      gross deviation from the standard of conduct that a reasonable
      person would observe in the actor’s situation.

18 Pa.C.S. § 302(b)(3) (emphasis added). Thus, the mens rea of

recklessness implicates knowledge in two ways: (1) the actor must


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consciously (i.e., with knowledge) disregard a substantial and unjustifiable

risk; and (2) the risk that the actor disregards is measured by the

circumstances known to the actor. By any reasonable measure, Sitler’s

knowledge that his conduct created a risk that he subsequently disregarded

is central to the Commonwealth’s case against him. Facially, therefore,

Sitler’s prior conviction for vehicular manslaughter would be admissible

pursuant to   the   knowledge   exception codified in Pa.R.E. 404(b)(2).

However, per Ross, we must ascertain whether a close factual nexus exists

between the two events before determining admissibility with finality.

      The Commonwealth alleges that Sitler, driving his pick-up truck,

followed perilously close to the rear bumper of Ms. Qawasmy’s van. When

Ms. Qawasmy activated her turn signal and initiated a right hand turn, Sitler

purportedly revved his engine, sped past Ms. Qawasmy’s van, and struck a

pedestrian, all while driving at least 15 miles per hour over the speed limit.

The facts of Sitler’s Alabama conviction bear a sufficient resemblance to

those in the case sub judice.    In 2006, Sitler pleaded guilty to vehicular

manslaughter, a crime which also requires a demonstration of recklessness.

In that case, Sitler was driving closely behind another vehicle early in the

morning through a dense fog. When the driver in front of Sitler applied his

brakes, Sitler swerved around that driver and hit an oncoming vehicle, killing

a person inside. Sitler pleaded guilty to the crime, including the factual and




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legal averment that his actions were reckless and that said recklessness

resulted in the death of another person.

      Although the facts of the cases differ in trivial ways, the commonalities

between the two are amply sufficient to create the necessary nexus

rendering the Alabama conviction admissible in the instant case. In both

cases, Sitler was operating a motor vehicle too closely to another vehicle

while travelling at an excessive speed; that combination of factors led to the

death of another person. Because of these similarities, the Alabama

conviction is admissible to demonstrate that Sitler knew that his hazardous

driving created a substantial risk that the death of another may result

therefrom. The conviction is also relevant to prove not only that Sitler knew

of the risk, but also that he consciously disregarded it.

      Finally, even though facially admissible, the probative value of prior

bad acts evidence must still outweigh its “potential for unfair prejudice.”

Pa.R.E. 404(b)(2). There is inherent prejudice any time a prior bad act such

as a criminal conviction is introduced against a criminal defendant. That is

why we have been, and should be, very cautious in our evaluation of these

claims, and also why we issued the warning in Ross, discussed above.

However, recklessness is a component central to a homicide by vehicle

prosecution, and knowledge is essential to that proof. As such, the prior

conviction in this case has significant probative value. The probative value

would outweigh any potential prejudice that might inhere from the


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introduction of the prior crime, particularly if the crime is introduced to the

jury along with a cautionary instruction by the trial court. See Russell, 938

A.2d at 1092 (holding that admission of prior juvenile adjudication to prove

arsonist’s knowledge of accelerants was not unfairly prejudicial because,

inter alia, the evidence was accompanied by a curative instruction).

      For all practical purposes, the trial court’s conclusion that the evidence

was inadmissible rested exclusively upon its premise that everyone who

drives knows that driving recklessly creates risk to other drivers and

pedestrians.     See Trial Court Opinion, 4/30/2014, at 11.           However, the

inquiry is not so simple. As set forth above, proof of knowledge plays a vital

role in the Commonwealth’s burden of proof for a homicide by vehicle

prosecution.    The trial court ignored this role in toto, apparently believing

that, because every driver knows that driving recklessly creates risk, no

other evidence of knowledge has any probative value.            We simply cannot

ignore the probative value that Sitler’s prior conviction has in a case such as

this one.

      Therefore, we conclude the trial court abused its discretion in granting

Sitler’s    motion   in   limine   regarding   his   2006   Alabama   manslaughter

conviction. For the preceding reasons, Sitler’s prior conviction is admissible

pursuant to Pa.R.E. 404(b)(2).

      The Commonwealth next argues that the trial court erred by

precluding any evidence of Sitler’s consumption of three alcoholic beverages


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before driving the pick-up truck. The trial court reasoned that the evidence

was inadmissible because the Commonwealth was not going to produce an

expert to testify that three beers would have caused Sitler to be intoxicated,

that consumption of alcohol without more is not evidence of recklessness,

and that the evidence would simply be too prejudicial to Sitler’s right to a

fair trial. See Trial Court Opinion, 4/30/2014, at 3-8. Based on our review,

we disagree with the Commonwealth’s position that this evidence is

admissible, and that the trial court abused its discretion in precluding it from

trial. See Russell, supra (stating that our standard of review of evidentiary

rulings is an abuse of discretion).

      For purposes of proving that a driver was reckless, Pennsylvania

Courts distinguish between evidence that a driver was intoxicated and

evidence that the driver only had been drinking, but was not intoxicated.

Although evidence of intoxication does not establish recklessness per se,

such evidence nonetheless is relevant and admissible. See Commonwealth

v. Jeter, 937 A.2d 466, 468 (Pa. Super. 2007). Combined with other

evidence, evidence of intoxication can be used as a factor to prove

recklessness. Id. However, where the Commonwealth cannot demonstrate

that the driver actually was intoxicated, evidence that the driver had been

drinking (such as the odor of alcohol emanating from the driver) is

inadmissible   to   prove   that   a   person   was   driving   recklessly.   See

Commonwealth v. Buffington, 444 A.2d 1194, 1198 n.8 (Pa. Super.


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1982) (“Without question, the mere fact of consuming intoxicating liquor is

inadmissible to prove unfitness to drive.”). Nevertheless, the inadmissibility

of such evidence can be overcome “if in addition to drinking, facts are shown

from which a conclusion reasonably follows that the driver was under the

influence.”     Commonwealth v. Cave, 281 A.2d 733, 734 (Pa. Super.

1971). If the Commonwealth can adduce additional facts to prove

intoxication, “all the evidence . . . [is] admissible . . . to determine whether

or not the drinking was wholly or partly the cause of an accident.” Id.

         In Cave, which the Commonwealth relies upon exclusively, Cave

consumed three beers and then immediately drove with excessive speed and

in a reckless manner. Within one mile of leaving the pub where he was

drinking, Cave failed to negotiate a curve, crossed the center line, and hit an

oncoming car head-on, killing a passenger. Id. at 734.        Cave argued that

admission of evidence of his consumption of only three beers was erroneous,

and in violation of the long-standing principle that “the mere fact of drinking

intoxicating liquor is not admissible, being unfairly prejudicial, unless it

reasonably established a degree of intoxication which proves unfitness to

drive:     Critzer v. Donovan, 289 Pa. 381, 384, 385, 137 A. 665, 666

[(1927).]” Id. (quotations and citation omitted).     In Cave, we clarified and

expanded this rule, as follows:

         It is true that the “mere” drinking of intoxicating liquor is
         inadmissible to prove that a driver was under the influence of
         intoxicating liquor and unfit to drive an automobile. However, it
         is also true that if in addition to the drinking, facts are shown

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      from which a conclusion reasonably follows that the driver was
      under the influence of intoxicating liquor, all the evidence, the
      drinking and the surrounding circumstances are admissible for
      the consideration of the trier of facts to determine whether or
      not the drinking was [w]holly or partly the cause of an accident
      for which he is being held responsible.

Id.

      We then examined Critzer, in which our Supreme Court established

the still-precedential rules governing the admission of evidence relating to

the consumption of alcohol at a trial for a vehicular offense involving

recklessness. In Critzer,

      the court reasoned as follows: “It may be conceded that in an
      action wherein reckless or careless driving is the matter at issue,
      proof of intoxication would be relevant. When evidence of
      intoxication appears in a case such as this it is offered . . . to
      show a circumstance from which recklessness or carelessness of
      the driver may be inferred. Care should then be taken as to the
      use of such evidence. There was no allegation or proof of
      intoxication, nor was there any evidence of conduct or
      appearance from which a reasonable inference could be drawn
      that the man was intoxicated. . . . Standing alone, the odor of
      liquor does not prove, nor is it evidence of, intoxication; joined
      with other facts it may become so. . . .”

      “. . . Proof of the odor of liquor is admissible for certain
      purposes, but its natural consequence is not reckless driving.”

Cave, at 736, citing Critzer, supra (citations omitted) (emphasis removed).

      Ultimately, in Cave, we held that the Critzer rule was inapplicable,

because there was “an abundance of evidence” to prove that Cave was

operating the vehicle “under the influence of intoxicating liquor.” Cave, 281

A.2d at 736-37. In other words, we held that there were other facts that

could be “joined” with the odor of alcohol to demonstrate that Cave was

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intoxicated, and that the intoxication contributed to the accident. Notably,

Cave’s extremely dangerous driving occurred immediately after he left the

bar after drinking the alcohol.

      The same cannot be said in the instant case. Based upon the still-

binding rules set forth in Cave and Critzer, evidence of intoxication would

be relevant and admissible to demonstrate that a driver was driving

recklessly. However, evidence short of intoxication, such as an odor of

alcohol emanating from a person, without more, is not admissible to prove

recklessness when driving unless that evidence can be joined with other

relevant facts to establish intoxication. In the case sub judice, the evidence

that we can glean from the certified record demonstrates that Sitler had

consumed three beers approximately three hours before driving the vehicle.

Although each of the police officers at the scene described an odor of alcohol

emanating from Sitler, none of those officers alleged that Sitler appeared to

be intoxicated, unsteady, or otherwise influenced by the three beers. Unlike

Cave, Sitler did not drink three beers, jump into his truck, and immediately

drive in a hazardous manner that caused an accident killing a person within

one mile. In other words, no evidence exists other than the odor of alcohol

to suggest that Sitler was intoxicated.

      In Pennsylvania, the focus on the admissibility of alcohol evidence is

intoxication. The odor of alcohol alone is insufficient to establish intoxication.

The record provides no evidence of intoxication, and the Commonwealth has


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admitted that it will not be calling an expert at trial to establish that Sitler’s

consumption of three beers rendered him intoxicated, or that those beers

contributed to the accident. Therefore, the Commonwealth cannot establish

any additional facts that would render the evidence admissible.

      Under such circumstances, we also note that the prejudice that would

result from the admission of this evidence would be insurmountable for

Sitler. We agree with the trial court that the evidence would “improperly

suggest that [Sitler] was intoxicated, and that such intoxication caused the

accident[.]” Trial Court Opinion, 4/30/2014, at 7. Moreover, we agree with

the trial court that “the entry of the evidence would also improperly shift the

burden of proof to [Sitler]. That is, . . . [Sitler] would be forced to rebut the

innuendo that three (3) beers, three (3) hours earlier caused him to drive

recklessly at the time of the accident.” Id. Without more, the evidence is

too prejudicial to be admitted at trial. Therefore, the trial court did not abuse

its discretion in granting Sitler’s motion in limine in this regard.

      In its final claim, the Commonwealth takes issue with the trial court’s

ruling that Sitler could plead guilty to the crimen falsi offenses charged

against him without any of the evidence related to those crimes being

admitted at his trial for homicide by vehicle. The Commonwealth contended

before the trial court (and now before this Court) that evidence that Sitler

lied to the police about who was driving the vehicle and that he instructed

Ms. Dinnocenti and her minor children to lie to the police was admissible to


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demonstrate Sitler’s consciousness of guilt with respect to the homicide by

vehicle offense.     In its Rule 1925(a) opinion, the trial court reasoned that

the Commonwealth’s complaint is premature because Sitler has not yet

pleaded guilty, and that he might never do so. We agree that this issue is

not yet ripe for review.

       The Commonwealth’s claim is predicated upon what evidence it may

present at trial if Sitler first pleads guilty to the crimen falsi offenses.   In

other words, Sitler must plead guilty before the Commonwealth’s argument

ripens.   Sitler has not yet pleaded guilty, and it is possible that he might

never do so. “[T]he courts should not give answers to academic questions

or render advisory opinions or make decisions based on assertions as to

hypothetical events that might occur in the future.”     Philadelphia Entm’t

& Dev. Partners, L.P. v. City of Philadelphia, 937 A.2d 385, 392 (Pa.

2007). Therefore, because both the trial court and this Court are precluded

from issuing purely advisory opinions,8 see Commonwealth v. Neitzel,




____________________________________________


8
  The advisory nature of trial court’s ruling is particularly highlighted by the
fact the trial court denied the motion to sever and, therefore, Sitler’s
potential partial guilty plea related to charges that were contained in the
same criminal information on which he would be proceeding to trial.




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678 A.2d 369, 375 (Pa. Super. 1996), we vacate that portion of the trial

court’s order.9

       In sum, we reverse the portion of the trial court’s order precluding

evidence of Sitler’s prior vehicular manslaughter conviction. We affirm the

portion of the order precluding evidence of Sitler’s consumption of alcohol.

We vacate the portion of the order precluding evidence of Sitler’s crimen

falsi offenses if he pleads guilty to those charges, as the trial court

addressed the issue prematurely.

       Order affirmed in part, reversed in part, vacated in part.      Case

remanded for trial. Jurisdiction relinquished.

       P.J.E. Ford Elliott, P.J.E. Bender, Judge Shogan and Judge Olson join

this Opinion.

       Judge Lazarus files a Concurring and Dissenting Opinion, to which

Judge Bowes, Judge Mundy and Judge Stabile join.

       This decision was reached prior to July 25, 2016, with Judge Mundy’s

participation.




____________________________________________


9
  The Commonwealth is in no way precluded from raising this issue or
pursuing review if and when Sitler pleads guilty, and will suffer no
meaningful hardship by our decision.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/26/2016




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