J-A10018-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                        IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                           Appellant

                     v.

JAMES J. KINDER,

                           Appellee                      No. 261 WDA 2015


                Appeal from the Order Entered January 16, 2015
              In the Court of Common Pleas of Washington County
              Criminal Division at No(s): CP-63-CR-0001315-2014


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and SHOGAN, J.

MEMORANDUM BY BENDER, P.J.E.:                             FILED JULY 18, 2016

      Appellant, the Commonwealth, appeals from the trial court’s order

denying reconsideration of a prior order granting James J. Kinder’s,

Appellee’s,    motion     for   writ   of   habeas   corpus.   Essentially,   the

Commonwealth complains that the case against Appellee for driving under

influence of alcohol (DUI), 75 Pa.C.S. § 3802(a)(1), was erroneously

dismissed for want of a prima facie case. After careful review, we affirm.

      The trial court summarized the operative facts as follows:

             The record reveals that David Stiffler, a volunteer
      firefighter in Jefferson Township, responded to the scene, as a
      medic, to a one-vehicle crash at Creek Lane involving an
      overturned pick-up truck owned by [Appellee].           Weather
      conditions were bad and the ground was covered in
      approximately six or seven inches of snow. Upon arriving at the
      crash scene, Mr. Stiffler testified that "[w]e were told at that
      time by some bystanders that were in that area or live on that
      road that [the occupants] had exited the vehicle and was [sic] in
      the home.       So there was nobody in the vehicle when we
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     arrived."    Mr. Stiffler then proceeded to the house where
     [Appellee] resided, based on the information gathered from the
     bystanders, to check on the occupants who were apparently
     involved in the accident.

             At [Appellee]'s house, Mr. Stiffler was informed by an
     elderly woman that a female was just at the house but left. Mr.
     Stiffler believed that the elderly woman was [Appellee]'s mother.
     The elderly woman stated that the female went out the door and
     up over the hill after arguing with [Appellee].           However,
     [Appellee] was in the house at this time. Mr. Stiffler completed
     a general assessment of [Appellee] to make sure that he was not
     injured. Mr. Stiffler stated that he did not smell anything, such
     as alcohol. However, he noticed "slurred speech, and just typical
     interaction, I was able to tell that he had been drinking at some
     point."    After completing a general assessment, Mr. Stiffler
     searched for the female occupant. When he exited the house,
     he noticed one set of footprints in the snow that went over the
     hill, into the woods, and ended at Eldersville Road. After the
     search, he was unable to locate her. Mr. Stiffler testified that he
     did not observe which occupant was driving the vehicle, nor was
     he informed by any of the eyewitnesses which occupant was
     driving.

           At some point while Mr. Stiffler was in the house assessing
     [Appellee], Trooper Chad Weaver of the Pennsylvania State
     Police arrived at the crash scene. Trooper Weaver testified at
     the preliminary hearing on May 28, 2014, and the transcript
     from the preliminary hearing was admitted into evidence at the
     subsequent January 14, 2015 hearing before this Court. Trooper
     Weaver stated that he observed heavy damage to the right
     passenger side of the vehicle, and he did not see an operator at
     the scene. Further, according to Trooper Weaver, the driver's
     side door was pinned and could not have been an exit.
     Thereafter, Trooper Weaver walked up to [Appellee]'s house and
     questioned [Appellee], but [Appellee] never admitted to driving
     and never said who was driving. At the preliminary hearing,
     Trooper Weaver admitted that [Appellee] did not want to
     implicate himself or anyone else. The female occupant of the
     vehicle was never located or questioned. [Appellee] was placed
     under arrest for suspicion of DUI. After [Appellee] was arrested,
     Trooper Weaver found keys to the crashed pick-up truck and a
     bottle of pills on [Appellee].



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            [Appellee] was charged with [DUI] and other related
      charges. On May 28, 2014, a Preliminary Hearing was held
      before Magisterial District Judge Gary Havelka and the charges
      were held for court. On September 22, 2014, [Appellee] filed a
      Pretrial Motion seeking to have the charges dismissed. On
      January 14, 2015, a hearing was held on [Appellee]'s Pretrial
      Motion. In an Order dated January 16, 2015, this Court granted
      [Appellee]'s Pretrial Motion, dismissed Counts 1 and 2 of the
      criminal complaint, and ordered [Appellee] to appear for plea
      court to address his remaining summary charges. On February
      9, 2015, the Commonwealth filed a Notice of Appeal. Thereafter,
      on February 10, 2015, this Court issued an order directing the
      Commonwealth to file and serve a [Pa.R.A.P. 1925(b)] Concise
      Statement of Matters Complained of on Appeal.... The
      Commonwealth filed and served its [Rule 1925(b)] on February
      27, 2015.

Trial Court Opinion (TCO), 4/6/15, at 1-3 (citations omitted). The trial court

issued its Rule 1925(a) opinion on April 6, 2015.

      The Commonwealth now presents the following question for our

review: “Did the Trial Court err in granting the [Appellee]'s omnibus pretrial

motion for writ of habeas corpus where the evidence, viewed in a light most

favorable to the Commonwealth, established sufficient evidence for a prima

facie case of [DUI]?” Commonwealth's Brief, at 6 (italics added).

            Initially, we note that where the facts are not in dispute
      the determination of whether a prima facie case has been
      established is a question of law. Commonwealth v. Finn, 344
      Pa.Super. 571, 496 A.2d 1254, 1255 (1985). Accordingly, our
      scope of review is limited to determining whether the trial court
      committed an error of law. Id. “The Commonwealth establishes
      a prima facie case when it produces evidence that, if accepted as
      true, would warrant the trial judge to allow the case to go to a
      jury.” Commonwealth v. Martin, 727 A.2d 1136, 1142 (Pa.
      Super. 1999), appeal denied, 560 Pa. 722, 745 A.2d 1220
      (1999) (quoting Commonwealth v. Allbeck, 715 A.2d 1213,
      1214 (Pa. Super. 1998)). “[T]he Commonwealth need not prove
      the elements of the crime beyond a reasonable doubt; rather,
      the prima facie standard requires evidence of the existence of

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      each and every element of the crime charged.” Id. 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. Commonwealth v. Wojdak, 502 Pa. 359, 369, 466
      A.2d 991, 1000 (1983); …. “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. Owen, 397 Pa.Super. 507, 580 A.2d 412, 414 (1990)
      (citations omitted).

Commonwealth v. Marti, 779 A.2d 1177, 1180 (Pa. Super. 2001) (citation

omitted).

      The   critical issue   in   this case   is   whether   the   Commonwealth

established a prima facie case that Appellee was driving the vehicle when it

crashed. The trial court determined that “[e]ven when … view[ed] … in the

light most favorable to the Commonwealth, and considering all reasonable

inferences in favor of the Commonwealth, the evidence produced [was]

incapable of supporting a guilty verdict.” TCO, at 9. In this regard, the trial

court found that the evidence produced by the Commonwealth in this case

could not “show that it is more likely than not that [Appellee] was the one

driving.” Id.

      The statutory language at issue is as follows:
      (a)   General impairment.--

         (1) 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 such that the
         individual is rendered incapable of safely driving, operating
         or being in actual physical control of the movement of the
         vehicle.

75 Pa.C.S. § 3802.

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     While the Commonwealth is obligated to prove the ‘operation’ element

of this offense, it is not mandatory to prove that element with direct

testimony   or   direct   evidence.   Rather,   as   this   Court   discussed   in

Commonwealth v. Johnson, 833 A.2d 260 (Pa. Super. 2003), “it is clear

that the Commonwealth may establish, by the totality of the circumstances,

that a defendant was driving, operating or in actual physical control of a

motor vehicle.” Id. at 266. The Johnson Court summarized some of the

many instances in which a DUI conviction was upheld against challenges that

the defendants were not directly observed operating a vehicle:

            In [Commonwealth v. Woodruff, 668 A.2d 1158 (Pa.
     Super. 1995)], in the early hours of April 15, 1993, the police
     found [the] appellant in a slumped position and sleeping in his
     automobile along the side of Route 6 in Wyalusing Township,
     Pennsylvania. That location was fifty yards from a convenience
     store from where the appellant previously purchased alcoholic
     beverages. The appellant's vehicle was protruding over the fog
     lines into the lane of traffic. The engine of the automobile was
     running and its high beam lights were activated. The appellant,
     who was seated behind the steering wheel of the vehicle,
     smelled of alcohol and had many cans of beer in the vehicle.
     Woodruff, 668 A.2d at 1160. The police roused the appellant,
     and administered field sobriety tests which the appellant failed.
     Following his conviction of driving under the influence, on
     appeal, the appellant did not contest that he was under the
     influence of alcohol when he was arrested. Rather, he argued
     that the evidence was insufficient to establish that he was
     driving, operating or in actual physical control of the automobile.
     We rejected this argument and noted that “the suspect location
     of an automobile ‘supports an inference that it was driven, ... a
     key factor in the finding of actual control.’” Id. at 1161. We
     also emphasized that for a DUI conviction, no observation was
     necessary that the defendant's car was in motion. Id.

          In Commonwealth v. Bowser, 425 Pa. Super. 24, 624
     A.2d 125 (1993)[,] appeal denied, 537 Pa. 638, 644 A.2d 161

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     (1994), cert. denied 513 U.S. 867, 115 S.Ct. 186, 130 L.Ed.2d
     120 (1994), the evidence established that the intoxicated
     Bowser was found clutching the steering wheel of a car that had
     been involved in a two-car accident and was stopped in the road.
     Shortly after the accident, an individual named David Waters
     arrived on the scene. He subsequently removed the driver of
     the other vehicle, Ms. Furlong from her burning automobile and
     placed her in the back of his truck. Mr. Waters then proceeded
     to Bowser's vehicle and eventually utilized force to remove
     Bowser from the vehicle. See Bowser, 624 A.2d at 129. When
     the police arrived, Mr. Waters informed them that Bowser was
     one of the drivers involved in the accident.       Bowser was
     subsequently convicted of DUI. On appeal, our Court found this
     evidence sufficient to sustain Bowser's DUI conviction even
     though no one actually saw Bowser driving the vehicle. See
     [i]d. at 130.

           In Commonwealth v. Devereaux, 304 Pa. Super. 327,
     450 A.2d 704 (1982), two witnesses heard a crash and went to
     the scene to investigate. At the scene, one of the witnesses saw
     Devereaux in the passenger seat of a car that had been involved
     in a one-car accident. No one else was in the vicinity other than
     Devereaux and another man who was standing outside
     Devereaux's car attempting to render aid to Devereaux.
     Although no one actually saw Devereaux driving the car and no
     one saw him in the driver's seat or behind the steering wheel,
     this Court upheld Devereaux's DUI conviction based on the
     reasonable inference that Devereaux was driving or operating
     the vehicle at the time of the accident.

            Commonwealth v. Leib, 403 Pa. Super. 223, 588 A.2d
     922 (1991)[,] presents yet another example of a situation where
     this Court upheld a DUI conviction even though nobody actually
     saw the appellant drive the vehicle. In that case, the police
     found the appellant, unconscious and slumped over the steering
     wheel of his vehicle which was parked in the middle of the road.
     Id. at 924. Although the car was not running, the keys were in
     the ignition. After the police awakened the appellant, who
     smelled of alcohol and had glassy and bloodshot eyes, they
     subsequently administered field sobriety tests which the
     appellant failed. The appellant's blood alcohol content was later
     determined to be .263. Id. Following his DUI conviction, on
     appeal the appellant maintained that the evidence was
     insufficient to establish that he was driving, operating or in

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       actual physical control of the vehicle. He argued that his car
       broke down at the location where he was arrested and that he
       consumed alcohol after his car broke down. We rejected the
       appellant's argument, noting that the jury did not believe his
       version of the events.

Johnson, 833 A.2d at 265-66.

       Then, in Johnson,

       one of the cars involved in the accident (the Chevy Impala) was
       owned by [Johnson] and was registered in his name. The other
       car involved in the accident (the Pontiac) sustained rear-end
       damage while [Johnson]'s vehicle sustained front-end damage.
       When the police arrived, [Johnson]'s vehicle was located on a
       travel lane on a public street behind the other vehicle involved in
       the accident. This indicates that [Johnson]'s vehicle was driven
       to that location: the vehicle did not suddenly emerge from
       nowhere onto the travel lane of a public street. [Johnson] was
       leaning against the driver's side door of his vehicle when the
       police arrived. Thus, it can reasonably be inferred that [Johnson]
       drove his car to the accident scene: [Johnson] and his car did
       not suddenly emerge from nowhere onto the travel lane of a
       public street behind another car that had just been rear-ended.
       It can reasonably be inferred that [Johnson] must have driven
       his car to that location.

Id. at 263-64.

       Instantly, the Commonwealth essentially asks that this court extend

the Johnson ruling yet another step further,1 based on the following

circumstances:

       (1) [Appellee] was the registered owner of the crashed truck;
       (2) [Appellee] was located in the immediate vicinity of the
       crashed truck inside of his home; (3) eyewitnesses directed
       Captain Sti[f]fler to [Appellee]'s home, indicating that the
____________________________________________


1
  The Commonwealth does not state their argument in these express terms.
However, the facts of this case do present another degree of separation from
a DUI-related vehicle than were present in Johnson.



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       occupants, a male and female, left the truck following the crash
       and went inside [Appellee]'s home; (4) upon Captain Sti[f]fler's
       assessment of [Appellee], never once did [Appellee] deny being
       involved in a crash, and therefore did not need to be looked at
       medically for possible injury; and (5) [Appellee] had the keys to
       his crashed truck in his pocket.

Commonwealth’s Brief, at 17.

       Initially,   we    address     the      fourth   circumstance   cited   by   the

Commonwealth.            Here, the Commonwealth appears to suggest that

Appellee’s silence was evidence of his guilt, a foreign concept to our

jurisprudence, and one which we decline to countenance without some

citation to supporting authorities, which the Commonwealth fails to provide.2

The Commonwealth does cleverly try construe this fact as saying something

more than it does, i.e., that by not admitting to being involved in the crash,

Appellee was expressly denying that he was in one, or that the same was

implied by Appellee’s refusal of treatment.

       However, no such admission or denial is to be found in the record.

Instead, the record demonstrates that Appellee did not deny being involved

in a crash. N.T., 1/14/15, at 11.           He made no statements about driving the

vehicle. Id. He did not refuse treatment; yet, although he did not request

it, Appellee permitted Captain Stiffler to check him for injuries. Id. at 11-

12. Despite the fact that Appellee’s vehicle was found overturned and lying



____________________________________________


2
  When directly asked about his role in the accident, Appellee twice told
Trooper Weaver that “he was pleading the 5th.” N.T., 5/28/14, at 5.



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across both lanes of traffic, Captain Stiffler did not observe any injuries on

Appellee. Id. at 8; 11-12.

      In any event, even had Appellee denied that he was in the vehicle

when it crashed, under no circumstances could such a fact be construed as

favorable to the Commonwealth.        It would be, if anything, evidence that

Appellee had not been operating the vehicle.         For the aforementioned

reasons, we reject the Commonwealth’s claim that Appellee’s purported

failure to deny being involved in an accident supports a prima facie case that

Appellee was operating the vehicle.

      We do agree with the Commonwealth that the remaining four

circumstances tend to support a conclusion that Appellee was driving the

vehicle when it crashed.     And, congruent with our standard of review, we

cannot evaluate the relative weight of these circumstances. Indeed, if these

facts existed in a vacuum, we would be persuaded that Johnson compels

reversal in this case. But Johnson does not compel reversal here, because

these were not the only facts demonstrated by the Commonwealth’s own

evidence.

      The Commonwealth overlooks and/or understates another critical

circumstance present in this case, and the primary basis for the trial court’s

conclusion that the Commonwealth had failed to demonstrate a prima facie

case that Appellee had been operating the vehicle.      The Commonwealth’s

own evidence demonstrated that there was another potential operator of




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Appellee’s vehicle, a female, who fled before Captain Stiffler and Trooper

Weaver arrived.

     The trial court explained the importance of this fact to its decision to

dismiss Appellee’s DUI charges as follows:

           In [Commonwealth v. Young, 904 A.2d 947 (Pa. Super.
     2006)], the Superior Court considered a combination of factors
     in determining whether there was sufficient evidence for a prima
     facie case where a witness observed a defendant standing near
     the driver's side of his vehicle after it crashed into a utility pole.
     The witness also provided a detailed description of the driver to
     a police officer who arrived within a minute of being dispatched.
     In addition to the observations and the description provided by
     the eye witness, the Commonwealth produced additional
     evidence which further supported that the defendant was the
     driver.    Specifically, the vehicle was registered in [the]
     defendant's name, car keys were found in his pocket, a witness
     observed him running away from the scene, and he attempted to
     evade police by running into a wooded area. [Id.] at 951. The
     Superior Court found this combination of factors sufficient to
     establish a prima facie case that the defendant was driving the
     vehicle. Id. But see Com[monwealth] v. Prado, 393 A.2d 8
     (Pa. 1978) (finding [the] Commonwealth failed to establish a
     prima facie case where Appellee emerged from an alley after the
     shooting, but no witnesses to the shooting were presented and
     no evidence of the murder weapon was presented).

            Here[,] the Commonwealth failed to provide sufficient
     evidence that would permit a conclusion similar to Young or
     Johnson. Namely, neither Mr. Stiffler nor Trooper Weaver
     observed an operator present at the scene. Trooper Weaver
     testified that [Appellee] never admitted to driving and never said
     who was driving. Witnesses informed Mr. Stiffler that there were
     actually two different individuals who went into a nearby house
     following the crash. But unlike the scenario in Young, the
     witnesses in this case did not identify which occupant was
     driving the vehicle nor did they provide a physical description or
     identify the two individuals in any capacity. According to Mr.
     Stiffler, witnesses informed him that the occupants "are up at
     the house," but the witnesses did not provide a description
     beyond the fact that the occupants were male and female.

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     When Mr. Stiffler arrived at the house, he found [Appellee] who
     "denied there was a female with him, and that's when the elderly
     woman came out of the other room and said that she had left
     the house." It could be reasonably inferred that [Appellee] was
     protecting the female because perhaps she was the driver having
     fled the scene in six or seven inches of snow through the woods.
     Mr. Stiffler noted that he observed only one set of tracks in the
     snow, and the tracks led out to Eldersville Road, which is
     consistent with the information that Mr. Stiffler received from the
     elderly woman regarding a female fleeing the house.

           Notably, this Court had a serious issue with the fact that
     the female occupant who was observed by witnesses fled the
     scene altogether, and the Commonwealth did not investigate this
     matter further. Such an act casts serious doubt as to whether
     [Appellee] was the driver. Additionally, [Appellee]'s attorney
     noted that car owners have multiple sets of car keys, and the
     fact that [Appellee] had the car keys in his pocket does not
     automatically mean that he was driving the vehicle, or in the
     vehicle, at the time that it crashed. In fact, Mr. Stiffler testified
     that he did not notice any scratches, bumps, or bruises on
     [Appellee], and he agreed that there was no evidence
     whatsoever that [Appellee] was in a rollover crash.              The
     Commonwealth did not uncover or present any physical evidence
     from the scene of the crash that would support their contention
     that [Appellee] was the driver.

           Accordingly, the Court finds that the Commonwealth did
     not present sufficient evidence to establish a prima facie case
     against [Appellee] under 75 Pa.C.S.A. § 3802(a)(1). Even when
     viewing the evidence in the light most favorable to the
     Commonwealth, and considering all reasonable inferences in
     favor of the Commonwealth, the evidence produced is incapable
     of supporting a guilty verdict.     The Court notes that the
     Commonwealth need not establish every element beyond
     reasonable doubt; however, the evidence is insufficient to show
     that it is more likely than not that [Appellee] was the one
     driving. The Court properly granted [Appellee]'s Pre-trial Motion
     because the Commonwealth failed to establish a prima facie
     case.

TCO, at 7-9.




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J-A10018-16



      We ascertain no abuse of discretion in the trial court’s analysis and

conclusion.   At best, after affording the Commonwealth the benefit of all

reasonable inferences, the evidence established a prima facie case that

Appellee was in the vehicle at the time of the crash.   Placing Appellee in the

driver’s seat, however, was a hurdle that no factfinder could accomplish

under a beyond-a-reasonable-doubt standard. Thus, the trial court correctly

decided that a jury, while permitted to weigh all the evidence in the

Commonwealth’s favor, was not permitted to guess the identity of a

perpetrator of a crime by the functional equivalent of a coin-flip.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/18/2016




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