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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA
Appellant

ALEXAN DER BENJAMIN ORLOWSKI,

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Appe||ee No. 393 WDA 2016

Appeal from the Order Entered March 1, 2016
In the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0002204-2015
BEFORE: LAZARUS, OLSON AND PLA`|'|',* JJ.

DISSENTING MEMORANDUM BY OLSON, J.: FILED OCTOBER 24, 2016

As I believe that the Commonwealth met its burden at the preliminary
hearing of establishing a prima facie case against Appe||ee for violations of
75 Pa.C.S.A. §§ 3802(a)(1) and (C), I conclude that the trial court erred in
quashing the criminal information Charging Appe||ee with two counts of
driving under the influence of alcohol (DUI). Therefore, I must respectfully
dissent.

As this Court has stated:

It is well-settled that the preliminary hearing serves a limited

function. The purpose of a preliminary hearing is to avoid the

incarceration or trial of a defendant unless there is sufficient

evidence to establish a crime was committed and the probability

the defendant could be connected with the crime. Our scope of

review is limited to deciding whether a prima facie case was

established.... [T]he Commonwealth must show sufficient

probable cause that the defendant committed the offense, and
the evidence should be such that if presented at trial, and

*Retired Senior Judge assigned to the Superior Court.

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accepted as true, the judge would be warranted in allowing the

case to go to the jury. When deciding whether a prima facie case

was established, we must view the evidence in the light most

favorable to the Commonwealth, and we are to consider all

reasonable inferences based on that evidence which could

support a guilty verdict. The standard clearly does not require

that the Commonwealth prove the accused's guilt beyond a

reasonable doubt at this stage. Rather, the prima facie case

merely requires evidence of the existence of each element of the

crime charged. The weight and credibility of the evidence is not a

factor at this stage.
Commonwealth v. Landis, 48 A.3cl 432, 445 (Pa. Super. 2015) (en banc)
(quotations and citations omitted). In applying this standard of review, I
believe that the record, when viewed in a light most favorable to the
Commonwealth and considering all reasonable inferences from the evidence
adduced, supports the conclusion that the Commonwealth presented
evidence of the existence of each element of the two DUI crimes charged.
At the very least, Appe||ee's admissions to the state trooper, together with
the circumstances surrounding the slide of Appe||ee's vehicle down the hill,
support the conclusion that the Commonwealth established a prima facie
case of DUI-general impairment.

As the learned Majority notes, the general impairment provision of the
DUI statute provides that an individual may not drive, operate or be in
actual physical control of the movement of a vehicle after imbibing a
sufficient amount of alcohol that renders that person incapable of safely

operating the vehicle. Majority at 6. The DUI-highest rate provision of the

DUI statute provides that the individual may not drive, operate or be in

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actual control of the movement of a vehicle after imbibing a sufficient
amount of alcohol such that the individual’s blood alcohol content (BAC) is
0.16% or higher within two hours after operating the vehicle. 75 Pa.C.S.A.
§ 3802(c). In affirming the trial court’s quashal of the criminal information,
the Majority concluded that, "the accident [involving Appe||ee] occurred
under adverse weather conditions on a slippery hill, Appe||ee imbibed a
tremendous amount of alcohol immediately after the crash, and the blood
draw was administered after he consumed the shots, following his operation
of his trucl<.” Majority at 7. Although the record supports these findings, I
believe that the learned Majority failed to consider all of the evidence
presented at the preliminary hearing in a light most favorable to the
Commonwealth.

The testimony at the preliminary hearing showed that it was raining
and icy on February 1, 2015 when Quade Karas slid off the side of the road
and rolled the truck that he was driving. N.T., Preliminary Hearing, 5/11/15
at 4. The accident occurred at approximately 4:25 p.m. Id. at 15-16. Mr.
Karas broke the window of this trucl<, crawled out and climbed up an
embankment before crawling onto the road. Id. at 5. Approximately 15-20
seconds after Mr. Karas crawled onto the road, Appellee, who was driving in
the opposite direction, pulled up and stopped. Id. at 16. Appe||ee exited his
vehicle as if he were going to go over to Mr. Karas, at which time Appellee's

vehicle immediately began to roll down the hill. Id. at 6-7. Appe||ee ran

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after his vehicle but was unable to stop it before it crashed into a tree.
Appe||ee then said “hey, I got to go" to which Mr. Karas responded "you got
to do what you got to do.” Id. at 9. At that time, a man in a green car
pulled up and stopped. Appe||ee asked the man in the green car, “Can you
take me home? And the man driving said, yes.” Id. at 10-11. Appe||ee got
in the green car and it drove away up the hill. At approximately 4:45 p.m.
(approximately 20 minutes after Mr. Karas’ accident), Trooper David J.
Demchak of the Pennsylvania State Police arrived at the scene. Id. at 21.
At that point, Appellee was walking back down the hill and Trooper Demchak
went to talk with Appe|lee. Id. at 13. Trooper Demchak asked Appe||ee to
do a field sobriety test at which time Appe||ee said "just arrest me, you know
that I am drunk.” Id. at 22. Appellee was asked whether he drank anything
prior to the crash and he admitted he consumed three beers. Id. Appe||ee
also told Trooper Demchak that he drank “18 shots in approximately 15 to
20 minutes after the crash." Id. at 23. Appe||ee said he drank the shots at
a bar that he owned approximately one-half mile up the road from the
accident site. Id. at 24. Trooper Demchak placed Appellee under arrest and
took him for a blood draw, which occurred at approximately 5:55 p.m. Id.
at 22. His BAC level was 0.255%. Id.

When considering this evidence in a light most favorable to the

Commonwealth and after drawing all reasonable inferences therefrom, I

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believe that the Commonwealth met its burden of establishing the elements
of the two DUI charges.

Looking at the charge of DUI-general impairment, it is important to
note that Section 3802(a)(1) "is a general provision and provides no specific
restraint upon the Commonwealth in the manner in which it may prove that
an accused operated a vehicle under the influence of alcohol to a degree

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which rendered him incapable of safe driving. Commonwealth v. Zugay,
745 A.2d 639, 646 (Pa. Super. 2000) (citation omitted). “Along with other
types of evidence, BAC evidence may also be used to prove charges under
subsection (a)(l)." Id. Moreover, an individual may be convicted of
DUI-general impairment "despite the fact that the defendant's blood-alcohol
level could not be related back to the time of the defendant's driving." Id.
(citation omitted).

In this case, the testimony obtained at the preliminary hearing
established that when Appe||ee stopped his vehicle at the site of Mr. Karas’
accident and got out of his vehicle to go over to Mr. Karas, his vehicle began
to roll down the hill, indicating that he failed to put his vehicle in park or
activate the parking brake. Appe||ee also admitted to the consumption of
three beers prior to the accident involving his vehicle. A reasonable
inference is that Appe||ee's failure to secure his vehicle resulted from

alcohol-related impairment. In a few seconds, his vehicle crashed into a

tree, at which time Appe||ee said, “hey, I got to go.” He spoke with the

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driver of the first car that happened upon the scene and asked the driver to
take him to his home. Again, considering this evidence in a light most
favorable to the Commonwealth, one can reasonably infer that Appe||ee fled
the scene to avoid an encounter with the police. Approximately 15 to 20
minutes later, Appe||ee returned to the accident scene. He then announced
to a state trooper that he was drunk and that he drank three beers before
the accident and 18 shots in the 15-20 minutes following the accident.
Approximately one hour later, Appellee's blood was drawn and his BAC level
was 0.255%. These facts clearly support a prima facie case of DUI-general
impairment. See Commonwealth v. Segida, 985 A.2d 871, 880 (Pa.
2009) (defendant’s DUI-general impairment conviction upheld where
evidence showed defendant admitted to drinking before he lost control of his
vehicle and his BAC level was “strikingly high” at 0.326%).

Turning to the charge of DUI-highest rate, again I believe that the
evidence adduced at the preliminary hearing was sufficient to support a
prima facie casel An offense under Section 3802(c) occurs when an
individual drives after drinking a sufficient amount of alcohol such that his or
her BAC level reaches the prohibited range within two hours. See
Commonwealth v. Duda, 923 A.2d 1138, 1148 (Pa. 2007). Thus,

the actus reus is the act of driving after drinking a sufficient

amount of alcohol, where a sufficient amount of alcohol, for

present purposes, is that quantity which will cause the person's

BAC level to reach the statutorily prohibited range within two

hours after driving, regardless of the actor’s BAC level at the
actual time of driving.

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Id. Although drinking after driving may be considered by the finder of fact,
there is no “drinking-after-driving defense" which would bar a DUI-highest
rate charge. Id. at 1151, n.14.

At the preliminary hearing, the evidence established that Appe||ee
admitted to drinking before driving, he had a one-vehicle accident, he
admitted to a state trooper that he was drunk within 15-20 minutes of his
accident, and his BAC level was 0.255% within two hours of his driving. This
evidence alone establishes a prima facie case for DUI-highest rate. Again,
assuming Appellee's version of events is found to be credible,1 it should be
up to the finder of fact to decide whether Appe||ee's BAC level was elevated

solely because he drank 18 shots after his accident,2 Whether (and to what

 

1 I believe that a finder of fact may find Appe||ee's version of the events not
credible. According to Appe||ee's version, he got into the green car that
apparently took him to a bar he owned, which was approximately one-half
mile away from the accident site. He then drank 18 shots of alcohol and
walked back to the accident site. A finder of fact may choose not to credit
Appe||ee's story. First, within only a 15-20 minute period, Appe||ee stopped
and exited his vehicle at the accident scene, his vehicle drifted down hill and
crashed into a tree, he got a ride from a passing motorist, he went to his bar
and drank 18 shots, and then he walked approximately one-half mile back to
the accident scene. Secondly, Appe||ee specifically stated to Trooper
Demchak that he drank 18 shots (as opposed to some round number), he
claimed to have drunk these shots at his own bar (as opposed to another
tavern where witnesses could testify as to whether or not he purchased and
consumed 18 shots), and he walked back to the scene with no apparent
problem after consuming an exorbitant amount of alcohol in just minutes.

2 At trial, expert testimony could be used to refute Appe||ee's version of

events. Specifically, an expert may be able to establish that, based upon his
(Footnote Continuec/ Next Page)

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extent) Appe||ee was impaired at approximately 4:25 p.m. when he got out
of his vehicle and it rolled down the hill into a tree, or whether he only later
became impaired by 4:45 p.m. when he returned on foot to the accident
scene is a matter for the finder of fact.

Since all of the evidence viewed in a light most favorable to the
Commonwealth, and all reasonable inferences drawn from said evidence,
establishes the elements supporting the two DUI charges, I believe that it

was error for the trial court to quash the criminal information.

(Footnote Continuec/)

BAC level, 1) Appe||ee drank more than three beers before the accident; and
2) the BAC level detected approximately 90 minutes after the accident did
not reflect the full absorption expected from three beers and 18 shots.

