J-A06012-20

                                  2020 PA Super 116

    COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT
                                                         OF PENNSYLVANIA
                             Appellant

                        v.

    BRANDON W.W. BOSTIAN

                             Appellee                   No. 2212 EDA 2019


                  Appeal from the Order Entered July 23, 2019
              In the Court of Common Pleas of Philadelphia County
               Criminal Division at No.: CP-51-CR-0001039-2018


BEFORE: STABILE, KING, JJ., and STEVENS, P.J.E.*

OPINION BY STABILE, J.:                                  Filed: May 14, 2020

        On May 12, 2015, Amtrak Train 188 (“Train 188”) derailed at the

Frankford Curve in Philadelphia, resulting in the deaths of eight passengers

and serious injuries to numerous others.1 The Commonwealth’s Office of the

Attorney General (“OAG”)2 charged the Appellee, Brandon W.W. Bostian, with
____________________________________________


*   Former Justice specially assigned to the Superior Court.
1 The parties stipulated that Laura Finamore, age 47, Abid Gilani, age 55,
Derrick Eugene Griffith, age 45, Rachel Jacobs, age 39, Justin Brandon
Zemser, age 20, Giuseppe Piras, age 39, Marshall Gaines III, age 48, and
Robert Guidersleeve, Jr., age 45, lost their lives in the derailment. They died
due to either blunt force trauma or asphyxiation. N.T. Preliminary Hearing,
9/12/17, at 21-29.
2 The OAG became involved in this case after the Philadelphia District
Attorney’s Office (“DA”) recused itself. The DA decided that it was not going
to level any charges against Appellee because of insufficiency of evidence to
establish criminal culpability. Following the filing of a private criminal
complaint, the Philadelphia Municipal Court directed the DA to charge Appellee
with involuntary manslaughter and recklessly endangering another person
(“REAP”). To avoid a conflict of interest, the DA referred this case to the OAG.
J-A06012-20



causing catastrophe, eight counts of involuntary manslaughter, and 246

counts of REAP.3 Upon Appellee’s motion for reconsideration, the Court of

Common Pleas of Philadelphia County (“trial court”), by order entered July 23,

2019, dismissed all charges against Appellee based upon its conclusion that

the Commonwealth failed to meet its burden of establishing a prima facie case

on all charges. The Commonwealth now appeals. Upon review, we reverse

and remand.

        On September 12, 2017, Judge Thomas F. Gehret of the Philadelphia

Municipal Court conducted a preliminary hearing, at which the Commonwealth

offered the testimony of several witnesses. The Commonwealth first called to

the stand Officer Michael Maresca of the Philadelphia Police Department. N.T.

Preliminary Hearing, 9/12/17, at 30. Officer Maresca testified that, on the

evening of May 12, 2015, he and his partner were assigned to the crime scene

unit working a homicide case in the area of Frankford when he heard a loud

sound that he described as “metallic—like a car crash, like a car crash, but a

lot louder, a lot louder.” Id. at 30-32. He testified that they then received a

city-wide radio dispatch and responded to a major incident in the area of

Frankford and Wheatsheaf Lane. Id. at 31, 37.

        Recalling his observation of the incident, Officer Maresca testified:

        When I got [to Wheatsheaf Lane and Frankford Avenue] there was
        no lighting. Officers were running towards the railroad. That’s
        where we proceeded. When I got to the railroad, I had my camera
____________________________________________



3   18 Pa.C.S.A. §§ 3302(a), 2504(a), and 2705, respectively.

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      with me. I observed eight, maybe nine Amtrak cars as if they
      were tossed around, just like a kid’s toys. The engine, which was
      facing northbound, was to the far right. The one behind that
      would be the first car which looked like a tin can that had been
      kicked and stomped on, it was just rolled up [], and every car
      behind that was just going off to the side there.

Id. at 32-33. The area lacked lighting because the derailed train downed the

power lines. Id. at 35, 38. Since the power lines were arcing and popping,

emergency responders were forced to wait until the power was cut off. Id. at

36. Prior to arriving at the scene, Officer Maresca did not know how many

people were on the train. Id. at 37. He further testified that he discovered

several deceased and multiple injured individuals. Id. at 33-34. In addition,

he also found dismembered and severed body parts, specifically limbs. Id. at

33-34, 40.

      Next to testify for the Commonwealth was Blair Berman, a frequent

Amtrak passenger who was traveling back to New York from Philadelphia on

Train 188. Id. at 66-70. Ms. Berman testified that she was on the train for

“about ten minutes.” Id. at 69. She recalled that she was in the first car of

the train, which is business class. Id. She testified that even though she was

in the first car, she did not have a business class ticket. Id. She recalled

entering the first car through coach as it was “normally empty” at night. Id.

at 70. She recalled:

      I take the train all the time so at first it felt normal. . . . I noticed
      approaching the curve that the train started to speed up but
      nothing like clicked with me yet. Then like as we approached the
      turn, I just heard screaming from the front of my car and then
      just like a big bang and I blacked out, and I woke up in the woods,
      not on the train.




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Id. at 69 (emphasis added).      According to Ms. Berman, as the train was

approaching the curve, she noticed that her body “was shifting to the right

and [the train was] tilting and just going way too fast and not slowing down[.]”

Id. at 70-71. She testified that the train was going “very fast.” Id. at 71.

Ms. Berman recalled that when she regained consciousness, she observed:

      I was laying on the woods [sic] and I had three other people on
      top of my left leg. So I like slid myself so I could get them off my
      leg and I tried standing up and I collapsed. So I held onto a tree
      branch and I was standing like a flamingo on my good leg, my left
      leg, and my left arm was holding onto the tree branch and I was
      just screaming for help. Like I lost all my belongings, my phone,
      my suitcase, my flip flops weren’t on my feet when I woke up. I
      had blood everywhere and I was just screaming for help. It was
      pitch black and no one was around besides the other injured
      people.

Id. at 71-72. Her right arm was broken and she sustained other injuries. Id.

at 72. At some point, she encountered Appellee in the field, whom she did

not know at the time. Id. at 73, 76. She testified that Appellee had blood on

his face, but otherwise did not appear to be injured. Id. at 88. According to

Ms. Berman, Appellee was wearing a black T-shirt and jeans. Id. at 74. She

testified that Appellee did not wear anything that would have revealed his

employment with Amtrak. Id. He also did not identify himself to her as an

Amtrak employee or the engineer of Train 188. Id. at 74, 89. She recalled

asking Appellee to use his cell phone.      Id. at 73-74.     Appellee refused

permission. Id. at 74. She testified that she “asked him again and again until

he told me I could use his phone.” Id. Ms. Berman called her father. Id. at

75. During the call, Ms. Berman asked Appellee whether he knew where they

were or the train number. Id. at 76. According to Ms. Berman’s testimony,

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J-A06012-20



Appellee responded in the affirmative, stating that they “were at Frankford

Junction and Amtrak [Train] 188.” Id.

      Officer Eric McClendon of the Philadelphia Police Department was then

called to testify for the Commonwealth. Id. at 91. Officer McClendon testified

that he was assigned to the Bomb Disposal Unit on the night of May 12, 2015.

He recalled that

      [he] and Officer Edward McConnnell [] responded to an incident
      of a train derailment, and upon entering that location we were met
      by my sergeant who’s another bomb technician, Michael Bloom[.]
      It was reported to him and relayed to myself and Officer McConnell
      that there was a suspicious bag located on the locomotive section
      of the train that was derailed.

Id. at 92. According to Officer McClendon, their check of the incident site did

not reveal any explosive devices. Id. at 94. Officer McClendon testified that

they did, however, locate a green bookbag in the engineer’s section of the

locomotive. Id. 94, 97. He discovered “numerous files, numerous papers,

charts, maps, a small tablet in the front, and the engineer’s identification card”

in the bag. Id. at 97. Appellee’s name was on the identification card. Id.

      Special Agent Brian Julian of the Federal Bureau of Investigation

testified next. He was assigned to investigate the May 12, 2015 derailment.

Id. at 105-06.     He testified that the National Transportation Safety Board

(“NTSB”) took possession of the green bookbag. Id. at 109. The small tablet

computer was not included on the NTSB list of contents, and could not be

located at any point thereafter. Id. at 109-10. Thus, according to Special

Agent Julian, the only electronic device submitted for analysis was the cell



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J-A06012-20



phone that was in Appellee’s possession at the time of the incident. Id. at

109.

       The Commonwealth called to the stand Detective Joseph Knoll,

Northwest Detectives, Special Investigation Unit. Id. at 114. He testified that

he was involved in investigating the derailment of Train 188. Id. Detective

Knoll testified that he was dispatched to Einstein Hospital to interview and

identify survivors. Id. at 114-15. While at the hospital, he observed Appellee

enter the triage area and overheard him asking “a group of people by the

nurses and doctors, are we in New York?” Id. at 116. Appellee eventually

identified himself to Detective Knoll as the engineer of Train 188. Id. at 115.

Detective Knoll testified that when he asked Appellee whether he recalled what

had happened, Appellee replied, “I don’t remember, the last thing I remember

[i]s the North Philadelphia train station.” Id. at 115-16.

       Detective Joseph Degrazia, Amtrak Police Department, next testified

that he was involved in the investigation of the derailment of Train 188 on

May 12, 2015. Id. at 120. Detective Degrazia stated that he was assigned

to assist “the FBI and the City of Philadelphia with obtaining various forms of

information relating to Amtrak information.” Id. at 120. He testified that his

review of Amtrak records, specifically the passenger manifest, indicated that

251 people, including Appellee, were on Train 188 at the time of the incident.

Id. at 121-22. Of these people, five were Amtrak crew members and three

were deadheads, Amtrak employees who were “in the middle of service going

from one location to another without having to pay a fa[re].”      Id. at 122.

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J-A06012-20



Detective Degrazia acknowledged that, as part of Appellee’s responsibilities to

operate a passenger train on the Philadelphia to New York route, Appellee

“was required to know the speed limit of every section on that route.” Id. at

123. Detective Degrazia testified that, during the six weeks prior to the May

12, 2015 incident, Appellee went through the Frankford Curve 25 times at an

average speed of 49 mph. Id. at 233-34.

      Lastly, the Commonwealth presented the testimony of Jonathan Hines,

Amtrak’s Senior Director of Compliance and Certification. Id. at 125. Mr.

Hines testified that he has been working for Amtrak for twenty-one years and

oversees, in part, the certification of engineers and conductors. Id. According

to Mr. Hines, at the time of the derailment, he worked as a System General

Road Foreman (“Foreman”), overseeing engineer training and certification.

Id. at 125-26. He testified that, as a Foreman, he had access to the training

qualifications of all Amtrak engineers, including Appellee, who worked the

Philadelphia to New York route. Id. at 126-128. Mr. Hines remarked that, as

a Foreman, he oversaw roughly 1600 people. Id. at 126.

      Mr. Hines testified that, before joining Amtrak, Appellee was a railroad

engineer for Caltrans in the San Francisco Bay Area. Id. at 129. According

to Mr. Hines, upon joining Amtrak, Appellee successfully completed an eight-

week program of classroom and on-the-job training (“OJT”) for the Northeast

rail corridor under the supervision of an instructor engineer. Id. at 128-131.

The program included time in a simulator. Id. at 128. Mr. Hines explained

that OJT involved “[q]ualifications of physicial characteristics and proficiency

                                     -7-
J-A06012-20



of operation over those routes that you’re required to be qualified on.” Id. at

130.    Mr. Hines defined physical characteristics as “[t]he railroad itself,

learning and understanding and memorizing the actual railroad and the

operation of that railroad. So signals, speeds, stations, rules [in] effect for

that particular route.” Id.

       Mr. Hines testified that Appellee had to “memorize his route” before he

could operate a train satisfactorily. Id. Specifically, Mr. Hines explained that

Appellee was required to know the permissible speed and the physical

characteristics for each portion of the route. Id. Mr. Hines indicated that

Appellee’s memorization or knowledge of the physical characteristics of each

portion of the route would have informed him of his location on the route at

all times. Id. at 131. As part of the physical characteristics of the route,

Appellee was also required to memorize the location of interlockings and

stations. Id. at 139-40. “Interlockings is a location where you have signals

and switches that are controlled by dispatch that allow a train to travel from

one track to another.” Id. at 139.

       Mr. Hines testified that, for purposes of qualifying as an engineer on the

Northeast route, Appellee eventually passed a written test demonstrating that

he knew “the physical characteristics, the signals, the speeds, [and] the

curves” the train would encounter. Id. at 136. He stated that Appellee was

promoted and assigned to the Northeast corridor given his previous

experience in the Bay Area. Id. As a result, once Appellee demonstrated

proficiency and expertise of the physical characteristics and speed limits of

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J-A06012-20



the route, he was permitted to operate a train as a sole engineer. Id. at 138.

Mr. Hines testified that Appellee was the sole engineer on May 12, 2015, the

night of the derailment of Train 188. Id.

      Mr. Hines explained that Train 188 featured an onboard event recorder

that “shows speed, it shows your cab signal aspect, throttle positions, your

brake position, it shows the alerter, it shows the horn, bell, it shows distance,

time of day, [and] date.” Id. at 143. Mr. Hines further explained that an

alerter is a device that periodically, or as often as every twenty seconds at

higher speeds, prompts an engineer to reset it. Id. at 143-44, 151. “That’s

the alertness system that[] during operation goes off if the engineer is not

active doing something with the controls, such as moving a throttle, brake,

blowing the horn or bell.” Id. at 143. Mr. Hines stated that when the alerter

goes off, “the engineer has to either acknowledge or move the throttle, brake,

or blow the horn or push the blow button and that will reset the alerter.” Id.

at 144. If the engineer does not respond, the brakes of the train will come on

and the train will stop. Id.

      According to the data retrieved from the event recorder, upon leaving

the 30th Street Station in Philadelphia, Appellee complied with posted speeds

through the Mantua Section, past the overhead Ridge Avenue bridge, and

through the Diamond Street bridge, Lehigh Interlocking, North Philadelphia

Station, and Clearfield interlocking areas, traveling west to east. Id. at 146-

162. Appellee then negotiated the Clearfield curve—mile marker 84—at 65

mph, which is the speed limit for the curve. Id. at 164. Thereafter, Appellee

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J-A06012-20



increased the speed of Train 188, but remained under the subsequent speed

limit of 80 mph. Id.

      Mr. Hines testified that upon clearing the Clearfield curve, Appellee

approached the Shore Interlocking area—at mile marker 82.1—where the

speed of Train 188 rose above 80 mph. Id. at 165-67. Mr. Hines indicated

that Appellee had moved the throttle “all the way into full power.” Id. at 168-

69. He explained that Appellee continued to accelerate Train 188’s speed as

it reached Frankford Junction at mile marker 81.8, where the track sharply

curves to the left and the speed limit is 50 mph. Id. at 171-75. Mr. Hines

described the Frankford Curve as a difficult S-shaped curve. Id. at 177. He

testified that Appellee’s speed was 106 mph. Id. at 175-76. As Train 188

entered the Frankford Curve, Appellee applied the brakes, managing only to

reduce the speed to 104 mph. Id. at 176. That was the last recorded speed

prior to the derailment. Id. Mr. Hines summarized that Appellee accelerated

Train 188 from mile marker 84, Clearfield Curve, where the speed limit is 65

mph, to mile marker 81, Frankfurt Curve, where the speed limit is 50 mph,

from 65 mph to 106 mph before reducing the speed to 104 mph. Id. at 182-

83. Mr. Hines testified that Appellee physically moved the throttle forward to

accelerate Train 188 until he applied the brakes prior to entering the Frankford

Curve. Id. at 184. He also testified that Train 188 and the rails were in proper

working order, i.e., without defect, prior to the derailment. Id. at 184-85.

      On cross-examination, over the Commonwealth’s objection, Appellee’s

counsel asked Mr. Hines to opine about “situational awareness.” Id. at 185-

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87. Mr. Hines explained, over the Commonwealth’s objection, that the term

is widely used in the railroad industry as meaning “to lose sight of your

situation.” Id. at 187. Again, over the Commonwealth’s objection, Mr. Hines

acknowledged that sometimes train operators may lose situational awareness.

Id. at 188.   Appellee’s counsel then, over the Commonwealth’s objection,

asked Mr. Hines whether he was aware of an emergency situation involving a

Southeastern Pennsylvania Transportation Authority (“SEPTA”) train that

occurred after Train 188 departed 30th Station in Philadelphia but prior to the

derailment.   Id. at 192.   Over the Commonwealth’s objections, Mr. Hines

answered that “[t]here was a SEPTA train stopped on one track just east or—

east of Mantua or west of Lehigh [near the Diamond Street bridge]” because

it was reportedly “struck by either stones or rocks.” Id. at 192-95. Over the

Commonwealth’s objection, Mr. Hines conceded that the SEPTA train

operator’s radio broadcast regarding the reported throwing of stones or rocks

could have been heard by Appellee in Train 188.         Id. at 197.   Mr. Hines

acknowledged that Appellee was not under the influence of any intoxicants or

drugs at the time of the derailment of Train 188. Id. at 209.

      On re-direct, Mr. Hines testified that engineers are trained to confront

situations where projectiles are thrown at a train. Id. at 223. In this regard,

he testified engineers are “provided safety glasses, it’s talked about to protect

your eyes should something strike the windshield, one of the reasons why we

wear the safety glasses.” Id. at 224. He further testified that one of Amtrak’s

rules for engineers is that they “control the speed of [their] train” when they

                                     - 11 -
J-A06012-20



encounter a situation involving a projectile. Id. at 226. Mr. Hines recalled

that, after Appellee passed the disabled SEPTA train, he complied with all

speed restrictions on the tracks until he accelerated after the Clearfield Curve.

Id. at 228. The derailment of Train 188 occurred five miles from the disabled

SEPTA train. Id. at 227.

      After the close of testimony, and following argument, Judge Gehret

concluded that the Commonwealth failed to establish a prima facie case and

dismissed the charges against Appellee. Id. at 246. The court reasoned:

      From your evidence [Appellee] had traveled this route 25 times,
      never had a problem. He had followed the proper speeds on all
      the mile markers on the route as per your witness. He is
      experienced as per your evidence. He is an expert at driving this
      train. Now, my standard here is more likely than not. Based on
      that evidence, [the court] feel[s] it’s more likely than not this is
      an accident and not negligence that would amount to criminal
      negligence, so for that reason this case is discharged for lack of
      evidence on all charges.

Id.

      The Commonwealth timely appealed the dismissal of charges against

Appellee to the trial court. In its memorandum of law in support of appeal,

the Commonwealth argued that the municipal court erred because, when

viewing the evidence in a light most favorable to the Commonwealth, the

evidence of record supported a prima facie case against Appellee.            See

Memorandum in Support of Appeal, 11/20/17, at 12 (unpaginated).               On

December 5, 2017, Appellee filed a writ of habeas corpus, seeking to dismiss

all charges based on the Commonwealth’s alleged failure to establish a prima

facie case for the mens rea requirement of recklessness or gross negligence.


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On the same day, Appellee also filed a motion to quash, alleging that the

Commonwealth’s appeal to the trial court was interlocutory and therefore,

improper. The Commonwealth filed a response. The trial court denied the

motion to quash on December 27, 2017. On February 6, 2018, without a

written decision, the Honorable Kathryn S. Lewis reversed the municipal

court’s dismissal and held all charges against Appellee for court.

       More than a year later, at some point in January 2019, the Honorable

Barbara A. McDermott was assigned to this case, replacing Judge Lewis. On

July 9, 2019, Appellee filed a motion for reconsideration of Judge Lewis’

decision to hold the charges for court.            Appellee asserted that the

Commonwealth failed “to establish a prima facie case with respect to any of

the charges.” Reconsideration Motion, 7/9/19, at ¶ 6. Following a hearing,

Judge McDermott granted the reconsideration motion and dismissed all

charges against Appellee, concluding that the Commonwealth failed to

establish prima facie evidence for the mens rea requirement of recklessness.

The Commonwealth timely appealed.4 Both the Commonwealth and the trial

court complied with Pa.R.A.P. 1925.

       On appeal, the Commonwealth presents two issues for our review:

       [I.] Did the lower court violate the coordinate jurisdiction rule by
       reviewing the sufficiency of the evidence for a prima facie case
       where a judge of the same court had previously ruled that the
       evidence was sufficient?

____________________________________________


4 An order dismissing criminal charges prior to trial is appealable by the
Commonwealth. Commonwealth v. McBride, 595 A.2d 589, 590 n.3 (Pa.
1991) (citation omitted).

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J-A06012-20


      [II.] To the extent the question may be reached, did the lower
      court err in holding that the evidence was insufficient for a prima
      facie case?

Commonwealth Brief at 3.

      We first address the Commonwealth’s argument that Judge McDermott

erred when she overruled a prior decision by Judge Lewis regarding the

sufficiency of evidence for a prima facie case to support the charges against

Appellee.

      In Zane v. Friends Hospital, 836 A.2d 25 (Pa. 2003), our Supreme

Court reiterated the law of the case doctrine. It is composed of three canons:

      (1) upon remand for further proceedings, a trial court may not
      alter the resolution of a legal question previously decided by the
      appellate court in the matter; (2) upon a second appeal, an
      appellate court may not alter the resolution of a legal question
      previously decided by the same appellate court; and (3) upon
      transfer of a matter between trial judges of coordinate
      jurisdiction, the transferee trial court may not alter the
      resolution of a legal question previously decided by the transferor
      trial court.

Zane, 836 A.2d at 29 (quoting Commonwealth v. Starr, 664 A.2d 1326,

1331 (Pa. 1995)) (emphasis added). The third rule, commonly referred to as

the “coordinate jurisdiction rule,” provides that judges of coordinate

jurisdiction should not overrule each other’s decisions. Zane, 836 A.2d at 39.

The rule is “based on a policy of fostering the finality of pre-trial applications

in an effort to maintain judicial economy and efficiency.” Starr, 664 A.2d at

1331. Consistent with the law of the case doctrine generally, it “serves to

protect the expectations of the parties, to ensure uniformity of decisions, to

maintain consistency in proceedings, to effectuate the administration of

justice, and to bring finality to the litigation.” Id. The “prohibition against

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revisiting the prior holding of a judge of coordinate jurisdiction, however, is

not absolute.” Id. We recognize that a departure from the rule is warranted

in “exceptional circumstances” where there has been a change in controlling

law, a substantial change in the facts or evidence, or where “the prior holding

was clearly erroneous and would create a manifest injustice if followed.”

Id. (emphasis added). Our Supreme Court explained the clearly erroneous

exception as follows.

      To accede to a coordinate judge’s order that is clearly erroneous
      would be not only to permit an inequity to work on the party
      subject to the order, but would allow an action to proceed in the
      face of almost certain reversal on appellate review. Moreover, the
      requirement that the prior holding also create a manifest injustice
      serves as a significant curb on the exception so that it would apply
      to only those situations in which adhering to the prior holding
      would be, in essence, plainly intolerable.

DiGregorio v. Keystone Health Plan E., 840 A.2d 361, 368–69 (Pa. Super.

2003) (en banc) (quoting Zane, supra at 29-30)) (emphasis added).

      Instantly, it is beyond dispute that Judge McDermott relied on the

“clearly erroneous” exception to the coordinate jurisdiction rule in overruling

Judge Lewis. Thus, to determine whether Judge McDermott erred, we must

analyze the substance of Appellee’s motion for reconsideration, i.e., whether

the Commonwealth presented prima facie evidence for the mens rea

requirement of recklessness or gross negligence inherent in all charges leveled

against Appellee.

      The purpose of a preliminary hearing is to determine whether the

Commonwealth has made out a prima facie case for the offenses charged.

Commonwealth v. Jackson, 894 A.2d 1254, 1257 (Pa. Super. 2004)

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(citation omitted). “A prima facie case consists of evidence, read in the light

most favorable to the Commonwealth, that sufficiently establishes both the

commission of a crime and that the accused is probably the perpetrator of that

crime.”   Commonwealth v. Black, 108 A.3d 70, 77 (Pa. Super. 2015)

(citation omitted). As we have explained previously:

      The Commonwealth establishes a prima facie case when it
      produces evidences that, if accepted as true, would warrant the
      trial judge to allow the case to go to a jury. The Commonwealth
      need not prove the elements of the crime beyond a reasonable
      doubt; rather, the prima facie standard requires evidence of the
      existence of each and every element of the crime charged.
      Moreover, the weight and credibility of the evidence are not
      factors at this stage, and the Commonwealth need only
      demonstrate sufficient probable cause to believe the person
      charged has committed the offense. Inferences reasonably drawn
      from the evidence of record which would support a verdict of guilty
      are to be given effect, and the evidence must be read in the light
      most favorable to the Commonwealth’s case.

Commonwealth v. Marti, 779 A.2d 1177, 1180 (Pa. Super. 2011) (internal

citations and quotations omitted) (emphasis added).       Moreover, “suspicion

and   conjecture   are   not   evidence   and   are   unacceptable   as   such.”

Commonwealth v. Packard, 767 A.2d 1068, 1071 (Pa. Super. 2001)

(citations omitted). Proof beyond a reasonable doubt is not required. Black,

108 A.3d at 70; see McBride, 595 A.2d at 591 (noting that the prima facie

hurdle is less demanding than the Commonwealth’s burden at trial of proving

guilt beyond a reasonable doubt).

      “It is settled that the evidentiary sufficiency, or lack thereof, of the

Commonwealth’s prima facie case for a charged crime is a question of law as

to which an appellate court’s review is plenary.”         Commonwealth v.



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Karetny, 880 A.2d 505, 513-14 (Pa. 2005) (citations omitted). “[T]he trial

court is afforded no discretion in ascertaining whether, as a matter of law and

in light of the facts presented to it, the Commonwealth has carried its pre-trial

prima facie burden to make out the elements of a charged crime.” Id. at 513.

Therefore, we are not bound by the legal determinations of the trial court.

Commonwealth v. Dantzler, 135 A.3d 1109, 1112 (Pa. Super. 2016).

      Here, Appellee was charged with causing catastrophe, eight counts of

involuntary manslaughter and 246 counts of REAP. Under Section 3302(a) of

the Crimes Code, a person commits a second-degree felony if the person

recklessly causes “a catastrophe by explosion, fire, flood, avalanche, collapse

of building, release of poison gas, radioactive material or other harmful or

destructive force or substance, or by any other means of causing potentially

widespread injury or damage[.]” 18 Pa.C.S.A. § 3302(a). The “any other

means of causing potentially widespread injury or damage” is open-ended and

not exhaustive. Commonwealth v. Mikitiuk, 213 A.3d 290, 301 (Pa. Super.

2019) (citing Karetny, 880 A.2d at 517).

      Under   the   Crimes   Code,   “[a]     person   is   guilty   of   involuntary

manslaughter when as a direct result of the doing of an unlawful act in a

reckless or grossly negligent manner, or the doing of a lawful act in a

reckless or grossly negligent manner, he causes the death of another person.”

18 Pa.C.S.A. § 2504(a) (emphasis added). Stated differently, “involuntary

manslaughter requires 1) a mental state of either recklessness or gross

negligence, and 2) a causal nexus between the conduct of the accused and

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the death of the victim.” Commonwealth v. Fabian, 60 A.3d 146, 151 (Pa.

Super. 2013), appeal denied, 69 A.3d 600 (Pa. 2013).

     A person commits REAP under Section 2705 of the Crimes Code “if he

recklessly engages in conduct which places or may place another person in

danger of death or serious bodily injury.” 18 Pa.C.S.A. § 2705 (emphasis

added).   Thus, to sustain a conviction for REAP, the Commonwealth must

prove that the defendant “(1) possessed ‘a mens rea [of] recklessness,’ (2)

committed a wrongful deed or guilty act (‘actus reus’), and (3) created by

such wrongful deed the danger of death or serious bodily injury to another

person.” Commonwealth v. Emler, 903 A.2d 1273, 1278 (Pa. Super. 2006)

(citation omitted). The reckless mental state required for a REAP conviction

has been defined as “a conscious disregard of a known risk of death or great

bodily harm to another person.” Id. (citation omitted). REAP “requires the

creation of danger, so the Commonwealth must prove the existence of an

actual present ability to inflict harm to another.” Commonwealth v. Shaw,

203 A.3d 281, 284 (Pa. Super. 2019).

     With the foregoing in mind, it is clear that the crimes at issue, causing

catastrophe, involuntary manslaughter, and REAP, require the Commonwealth

to establish Appellee possessed a mens rea of recklessness or gross

negligence. In other words, Appellee’s conduct must be either reckless or

grossly negligent.   A person acts “recklessly” with respect to a material

element of an offense




                                   - 18 -
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       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.A. § 302(b)(3). Gross negligence is not the equivalent of criminal

negligence set forth in 18 Pa.C.S.A. § 302(b)(4). Instead, “the concept of

gross negligence is encompassed within the concept of recklessness set forth

in Section 302(b)(3).”5 Commonwealth v. Matroni, 923 A.2d 444, 448 (Pa.

Super. 2007). Thus, recklessness “implicates knowledge in two ways: (1) the

actor must 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.” Commonwealth v. Sittler, 144 A.3d

156, 164 (Pa. Super. 2016). “Conscious disregard” of a risk, in turn, “involves

first becoming aware of the risk and then choosing to proceed in spite of the

risk.” Commonwealth v. Huggins, 836 A.2d 862, 865 (Pa. 2003); see also

Commonwealth v. Vogelsong, 90 A.3d 717, 719 (Pa. Super. 2014)

(recklessness requires conscious action or inaction that creates substantial

risk   of   harm    to   others,    whereas    negligence   suggests   unconscious

inadvertence).

       Here, the Commonwealth argues that Judge McDermott erred in relying

upon Commonwealth v. Karner, 193 A.3d 986 (Pa. Super. 2018), and

____________________________________________


5 Because recklessness and gross negligence are equivalent states of mind for
the crimes at bar, we refer to the mens rea requirement simply as
recklessness.

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Commonwealth v. Wyatt, 203 A.3d 1115 (Pa. Super. 2019), to support the

application of the clearly erroneous exception to the coordinate jurisdiction

rule. See Commonwealth Brief at 13-14. The Commonwealth maintains that

Huggins is controlling and that Karner and Wyatt are inapposite because

they are “ordinary traffic accident cases in which evidence of more than

ordinary negligence was absent.” Id. We agree.

      In Karner, the defendant’s Ford pickup truck rear-ended a Honda

sedan,   killing   its   passenger   and   severely   injuring   its   driver.   The

Commonwealth charged the defendant with homicide by vehicle while driving

under the influence (“DUI”), homicide by vehicle, aggravated assault by

vehicle while DUI, aggravated assault by vehicle, simple assault, REAP, and

various DUI and summary offenses. The charges against the defendant were

held for trial after a preliminary hearing. The defendant then filed a petition

for writ of habeas corpus, seeking dismissal of homicide by vehicle and

aggravated assault by vehicle.       In support, the defendant argued that the

Commonwealth failed to establish a prima facie case relating to those two

charges given the absence of evidence to satisfy the element of recklessness.

The trial court agreed. On appeal, we affirmed. In so doing, we pointed out

that the defendant “was traveling approximately 53 to 57 miles per hour in a

posted 45 mile per hour zone on a relatively straight and clear roadway.”

Karner, 193 A.3d at 992 (citing the trial court opinion).              The defendant

exceeded the speed limit by only eight to twelve miles per hour in the area of

the accident. Id. At the time of the accident, the Honda was turning left. Id.

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J-A06012-20



Based on that, we concluded that the Commonwealth failed to produce any

evidence that the defendant “acted with the criminal recklessness or gross

negligence needed” to support the charges of homicide by vehicle and

aggravated assault by vehicle.6 Id. at 993.

       In Wyatt, the defendant was driving a tractor-trailer southbound on

Interstate 380 when he crossed the grassy median separating the north- and

southbound lanes and struck a northbound tractor-trailer and a passenger

bus. As a result of the accident, three people died and five were seriously

injured.   The Commonwealth charged the defendant with, inter alia, eight

counts of aggravated assault by vehicle, three counts of homicide by vehicle,

three counts of involuntary manslaughter, and 17 counts of REAP.             The

defendant filed a habeas corpus petition, arguing that the Commonwealth’s

prima facie evidence for the mens rea requirement of recklessness was

insufficient. The trial court conducted a hearing, at which the Commonwealth

introduced the Collision and Accident Reconstruction Specialist (“CARS”)

report.    The CARS report concluded that speed, weather conditions and

mechanical defects were not contributing factors to the vehicle collision. The

Commonwealth also presented a GPS report from a device that recorded

certain periodic driving statistics from the defendant’s tractor-trailer. The GPS

report ruled out speed as a contributing factor.              In addition, the
____________________________________________


6  We excluded as irrelevant any evidence relating to the defendant’s
intoxication because the charges at issue, homicide by vehicle and aggravated
assault by vehicle, expressly exempt an inquiry into DUI. Karner, 193 A.3d
at 889 n.2.

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Commonwealth introduced the defendant’s phone records. He had received

four texts, but did not send any texts until after the crash.           Finally, a

Commonwealth witness conceded that (1) there was no evidence of erratic

driving prior to the collision, (2) there was a lack of evidence to develop a

theory of distracted driving, and (3) the defendant’s version of the events—

that he had blacked out and does not remember the collision—if true, was a

possible, non-criminal explanation. The trial court granted the petition. We

affirmed the grant concluding, “[A]ny reason proffered by the Commonwealth

for this collision, based on the evidence presented, is mere speculation.”

Wyatt, 203 A.3d at 1120.

      In Huggins, the defendant was operating a van carrying twenty-one

children, some crowded into the fifteen passenger seats and some seated on

the floor. Huggins, 836 A.2d at 863–64. The defendant admitted “he fell

asleep” and claimed “he awoke just before the van collided with the rear end

of” a sedan in front of him. Id. at 863. The driver of the sedan testified he

was “traveling at approximately sixty to sixty-five miles per hour” in the left

lane and “did not see the van until the collision.”      Id.      The defendant’s

approximate speed was at least 78 mph, well in excess of the posted speed

limit of 55 mph. Id. at 863-64. Upon striking the sedan, the van veered right

across the right travel lane, hit an embankment, flipped, and came to rest on

its passenger side, killing two of the children in the van. Id.

      The defendant was charged with multiple counts, including homicide by

vehicle and involuntary manslaughter. Following a preliminary hearing, all

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J-A06012-20



charges were bound over for trial. The defendant filed an omnibus pretrial

motion, seeking, inter alia, habeas corpus relief. Id. at 864. The trial court

granted limited relief and dismissed, among other things, the charges for

involuntary manslaughter.    The court concluded, in relevant part, that the

Commonwealth failed to establish a prima facie case of recklessness. Id. This

Court affirmed the dismissal of the involuntary manslaughter counts. Id. at

864–65.   Specifically, we concluded the Commonwealth’s evidence did not

indicate that the defendant “‘had reason to believe he was dangerously tired

before falling asleep.’” Id. at 865.

      The Pennsylvania Supreme Court granted allowance of appeal and

reversed this Court’s order. Id. at 863. The Court reasoned:

      A motor vehicle can be a dangerous instrumentality. Driving is a
      correspondingly heavily regulated privilege, both as to licensure
      and the rules of the road, the regulation being a necessary
      concomitant of the dangers to self and others inherent in driving.
      The danger increases with the speed at which a vehicle is
      operated, since speed both reduces reaction times and heightens
      the consequences of any collision. The danger also may increase
      if other safety measures are ignored-whether those measures
      involve vehicle maintenance, internal safety features such as
      seating capacity or restraints, or the rules of the road. No driver
      can get behind the wheel without an acute awareness of the
      responsible post of duty he is assuming.

      Losing consciousness at the wheel differs in kind from the acts of
      momentary inadvertence or inattention that often occasion car
      accidents and are commonly encompassed in the term
      “negligence” in the tort arena. A momentary lapse leaves the
      driver unprepared for the unexpected or extraordinary. A loss of
      consciousness, on the other hand, leaves one totally unprepared
      even for the ordinary requirements for safe driving. Drivers have
      an unflagging duty either to remain vigilant and awake or to
      immediately desist from driving. It is therefore not surprising that
      this Court, like many other courts, has deemed the act of falling
      asleep at the wheel alone to be enough to raise a jury question of
      negligence in the tort arena.



                                       - 23 -
J-A06012-20


       [The defendant] appears to dispute this proposition, suggesting
       that without affirmative evidence from the Commonwealth that he
       had some warning that sleep was coming, little or no inference of
       negligence or recklessness may be drawn from the admitted fact
       that he fell asleep. Of course, [the defendant] is in the best and
       perhaps only position to know if the common signs of fatigue and
       impending sleep came upon him, which he ignored; the
       Commonwealth was not required to obtain a confession from [the
       defendant] in order to make out its prima facie case. Rather, the
       Commonwealth could rely upon the fact that it is common
       knowledge that sleep is preceded by some internal warning.

Id. at 869 (citations and quotation marks omitted). The Court, however, did

“not resolve the question of whether falling asleep alone is enough to raise a

jury   question    of   recklessness”   and   summarized     the   additional

circumstances evincing the defendant’s “conscious disregard of the serious

risk involved” in that case. Id. at 870. Those circumstances included having

a number of children as passengers in excess of the van’s capacity and the

driver’s excessive speed, both of which were in his “knowledge and control”

and “increased the risk of collision, injury, and death.” Id. at 870–71.

       Unlike in Karner or Wyatt, the Commonwealth relied on more than

simply Appellee’s speed in establishing the element of recklessness.        As in

Huggins, it presented additional circumstances evincing Appellee’s conscious

disregard of the serious risk involved.       The evidence adduced at the

preliminary hearing reveals that Appellee was an experienced engineer. He

passed rigorous training and testing before being permitted by Amtrak to

operate a train by himself. Appellee was trained to know and memorize the

physical characteristics of each portion of a route, including the route he

travelled on the night of the derailment, for purposes of maintaining

awareness of his location. Appellee also was trained to know the speed limits

                                     - 24 -
J-A06012-20



on each portion of a route, including the route he traveled on the night of the

derailment. Indeed, Appellee passed a test, demonstrating his knowledge and

memorization of the physical characteristics of and speed limits along the

route at issue.     N.T. Preliminary Hearing, 9/12/17, at 136 (Appellant

eventually passed a written test demonstrating that he knew “the physical

characteristics, the signals, the speeds, the curves” the train would

encounter.).   As the Commonwealth points out, unlike the defendants in

Karner or Wyatt, Appellee was not required to steer the train or monitor the

constantly changing speeds and positions of other vehicles. Rather, “[h]is

task was merely to know where [Train 188] was, the safe speed for that

location, and to remain at or under that speed.” Commonwealth’s Brief at 18-

19.

      Yet, despite his extensive training and qualifications, on the night of the

derailment, Appellee manually accelerated Train 188 after the Clearfield

Curve, reaching a top speed of 106 mph in an 80-mph zone, just prior to

entering the Frankford Curve, a difficult S-shaped curve. See N.T. Preliminary

Hearing, 9/12/17, at 168-69 (Appellee had moved the throttle “all the way

into full power.”). As he entered the Frankford Curve, where the speed limit

is 50 mph, he applied the brakes, managing only to reduce Train 188’s speed

to 104 mph. That is, he was operating Train 188 at more than twice the speed

limit at the time it derailed at the Frankford Junction, killing eight people and

seriously injuring numerous others.




                                      - 25 -
J-A06012-20



      After the derailment, according to the Commonwealth’s evidence,

Appellee informed an injured passenger that they “were at Frankford Junction”

and had travelled on Train 188.        Id. at 75.     His awareness, however,

seemingly faded thereafter. At the hospital, according to Detective Knoll’s

testimony, Appellee asked “a group of people by the nurses and doctors, are

we in New York?”        Id. at 116.      As the Commonwealth aptly notes,

“[f]abrication of false and contradictory statements by the accused is evidence

from which a jury may infer that they were made with the intent to mislead

police and are indicative of guilt.” Commonwealth v. Donnelly, 653 A.2d

35, 37 (Pa. Super. 1995). Regardless, the resolution of such conflict is best

left to the discretion of the factfinder. To reiterate, the weight and credibility

of the evidence are not factors at this stage, see Marti, supra, and the sole

question for purposes of habeas relief is whether “there is sufficient evidence

to establish that a crime was committed and a probability that the defendant

was connected therewith.” Commonwealth v. Melvin, 103 A.3d 1, 35 (Pa.

Super. 2014).

      Here, given his extensive training and experience and despite having

250 passengers aboard, Appellee consciously disregarded a substantial and

unjustifiable risk of derailment. See Commonwealth v. Fabian, 60 A.3d

146, 154-56 (Pa. Super. 2013) (considering the circumstances of defendant’s

training and professional responsibility, we held that sufficient evidence

supported the conclusion that defendant acted recklessly in inspecting and

repairing brakes on a school van that crashed with students on board, killing

                                     - 26 -
J-A06012-20



one and injuring four), appeal denied, 69 A.3d 600 (Pa. 2013). As stated,

prior to reaching the Frankford Junction, Appellee manually accelerated Train

188 to 106 mph in an 80-mph zone.               Upon entering the Frankford Curve,

described as a difficult S-shaped curve where the posted speed limit is 50

mph, Appellee managed only to reduce Train 188’s speed to 104 mph. He

was going twice over the speed limit. Moreover, the evidence indicates that,

based on his training and experience, Appellee was aware of the risk inherent

in navigating the Frankford Curve. Differently put, he was on notice of the

physical characteristics of and speed along the Frankford Curve because he

had travelled through the Frankford Curve 25 times at an average speed of

49 mph.      N.T. Preliminary Hearing, 9/12/17, at 233-34.               Accordingly, we

conclude    that the        Commonwealth       offered sufficient   evidence      at the

preliminary hearing from which a finder of fact could conclude that Appellee

acted    recklessly    in    causing   the     derailment   of   Train    188.7     See

Commonwealth v. Mayberry, 138 A. 686, 687 (Pa. 1927) (noting that the

proper charge was involuntary manslaughter where the cause of the victim’s

death was “the failure of [the] defendant to make the turn with the curve of
____________________________________________


7 To the extent Appellee cites, inter alia, Commonwealth v. Agnew, 398
A.2d 209 (Pa. Super. 1979), Commonwealth v. Bullick, 830 A.2d 998 (Pa.
Super. 2003), Commonwealth v. Cienowski, 434 A.2d 821 (Pa. Super.
1981), Commonwealth v. Gilliand, 422 A.2d 206 (Pa. Super. 1980), or
Commonwealth v. Greenberg, 885 A.2d 1025 (Pa. Super. 2005), to refute
the Commonwealth’s argument, such cases are readily distinguishable as they
do not address the central issue raised herein implicating the sufficiency of
evidence at the pretrial juncture. Those cases were decided on appeal
following the entry of a judgment of sentence.

                                          - 27 -
J-A06012-20



street . . . due to his excessive, negligent, and unlawful speed.”). The trial

court, therefore, erred in ruling that the Commonwealth failed to establish a

prima facie case, especially as it relates to the mens rea requirement of

recklessness.

      We additionally note that in arriving at its conclusion, the trial court

impermissibly engaged in weighing of evidence and credibility determinations.

In concluding that Appellee was entitled to habeas relief, it appears the trial

court made the following findings: Appellee (1) was affected by “reports of a

nearby SEPTA train being hit with a projectile,” (2) was unaware “that he was

approaching the Frankford Curve,” (3) did not “actually kn[o]w his location on

the track,” and (4) “was not consciously aware of his speed with respect to

his location until well after he reached the point of no return.” Trial Court

Opinion, 9/23/19, at 12-15.      The prima facie evidence produced by the

Commonwealth can contradict each of these findings. At this stage of the

proceedings, the Commonwealth’s evidence must be accepted as true. The

weight and credibility of the evidence are not factors at this pretrial stage.

See Marti, supra. The sole question for purposes of habeas relief is whether

“there is sufficient evidence to establish that a crime was committed and a

probability that the defendant was connected therewith.” Melvin, 103 A.3d

at 35. The Commonwealth answered that question to Appellee’s detriment,

as we explained above.

      Similarly, Appellee’s argument that he was distracted by the SEPTA

incident involving a projectile and, as a result, lost situational awareness, is

                                     - 28 -
J-A06012-20



improper at this juncture, as it is a defense theory that must be explored and

litigated at trial. As explained, the sole question raised by Appellee’s request

for habeas relief is whether “there is sufficient evidence to establish that a

crime was committed and a probability that the defendant was connected

therewith.”    See Melvin, supra at 35.            Whether Appellee lost situational

awareness touches upon the weight and credibility of the evidence, which are

non-factors at this stage of the proceeding. See Marti, supra.

       Based on the foregoing, we conclude that Judge McDermott violated the

coordinate jurisdiction rule.         Judge Lewis’ prior determination that the

Commonwealth presented prima facie evidence for all charges was not clearly

erroneous, manifestly unjust, or plainly intolerable. In overruling Judge Lewis,

Judge McDermott further erred by weighing the evidence and engaging in

credibility determinations.       The Commonwealth is entitled to try this case

before an impartial jury. We, therefore, reverse the trial court’s July 23, 2019

order and remand this case to the trial court for further proceedings consistent

with this opinion.8

       Order reversed. Case remanded. Jurisdiction relinquished.




____________________________________________


8 Given our analysis with respect to the Commonwealth’s first issue, we need
not address its second issue separately, as it too implicates the sufficiency of
the evidence at the preliminary hearing stage.

                                          - 29 -
J-A06012-20


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/14/20




                          - 30 -
