J-A14028-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

JASON PATRICK MURRAY

                            Appellee                 No. 1664 MDA 2015


                Appeal from the Order Entered August 26, 2015
               In the Court of Common Pleas of Bradford County
              Criminal Division at No(s): CP-08-CR-0000177-2015


BEFORE: BOWES, J., OTT, J., and PLATT, J.*

MEMORANDUM BY OTT, J.:                                 FILED JULY 06, 2016

        The Commonwealth appeals from the order entered August 26, 2015,

in the Bradford County Court of Common Pleas, granting Jason Patrick

Murray’s pre-trial motion to dismiss a charge of driving under the influence

of a controlled substance (hereinafter “DUI (drug offense)”).1 Because we

conclude the Commonwealth presented sufficient evidence to support a

prima facie case that Murray was driving under the influence of a controlled

substance, we reverse the order of the trial court2 and remand for further

proceedings.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    See 75 Pa.C.S. § 3802(d)(2).
2
 We note that the order on appeal also denied Murray’s motion to suppress
an out-of-court identification, and, accordingly, a summary parking offense
(Footnote Continued Next Page)
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      The facts underlying Murray’s arrest were summarized by the trial

court as follows:

            At approximately 1300 hours on September 23, 2014,
      [Emergency Medical Technician, Gill Crossett] was dispatched to
      the intersection of Bradford and Spring Streets in the Borough of
      Sayre, Pennsylvania, in response to a report of a person passed
      out behind the steering wheel of a pickup truck. Upon his arrival
      at Bradford and Spring Streets, Crossett found a white male
      passed out behind the steering wheel of a 2000 Chevrolet
      Silverado truck bearing [a] Pennsylvania registration [number];
      the truck’s engine was running. Crossett attempted to gain
      entry to the vehicle by opening the driver’s door but found that
      the door was locked. Crossett then went to the door on the
      passenger’s side of the truck, and the door being unlocked, he
      opened it and observed the driver, whom he later identified as
      [Murray]; there were no other persons in the truck. When
      Crossett first viewed [Murray], he noticed that [Murray’s] arm on
      the inside of his elbow was bleeding and he also saw a needle
      with fresh blood on it on the floor board of the truck below
      [Murray]; Crossett then awakened [Murray] and requested that
      he exit the truck; at the time the request to exit was made,
      Crossett was … half inside and half outside of the truck.
      [Murray] then attempted to put the truck into motion, an act
      that caused Crossett to fear for his safety and so he reached
      over, shut off the truck’s engine, and removed the ignition key.
      At this point, [Murray] reached into or around the truck’s
      console, grabbed a metal spoon that appeared to have been
      “burnt” and a “small bag” containing an unidentified substance,
      exited the truck, and ran into a wooded area; neither the spoon
      nor the small bag was ever recovered. Officer [Travis] Snyder
      [of the Sayre Borough Police Department] arrived upon the
                       _______________________
(Footnote Continued)

is still pending against Murray. See Order, 8/26/2015. Because the order
on appeal did not dispose of the entire case, the Commonwealth properly
certified, in its notice of appeal, that the order on appeal will “terminate or
substantially handicap the prosecution.” Notice of Appeal, 9/25/2015. See
Pa.R.A.P. 311(d).




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       scene at some point after [Murray] had run into the wooded
       area, interviewed Crossett, and oversaw the removal of the truck
       to the Sayre Borough Police Department. During an inventory
       search of the truck at the police station, Officer Snyder found,
       and took possession of, a wallet, a cell phone, and one
       hypodermic needle which were located on the driver-side floor of
       the truck. Examination of the contents of the wallet produced a
       driver license issued to Jason P. Murray; the license was later
       shown to Crossett and he identified the person whose picture
       was on the license as the person he had observed passed out in
       the truck. [It was later determined that the truck was owned by
       Murray’s father, Francis Murray, who] appeared at the police
       station [later that evening to retrieve his truck].

Trial Court Memorandum Opinion and Order, 8/26/2015, at unnumbered 2-4

(footnote omitted).

       Murray was subsequently charged with DUI (drug offense), a summary

parking    violation,    possession     of     drug    paraphernalia    and     recklessly

endangering another person (“REAP”).3 On April 15, 2015, Murray filed an

omnibus pre-trial motion, requesting that the trial court (1) grant a writ of

habeas corpus, and dismiss the charge of DUI (drug offense), and (2)

suppress Crossett’s out-of-court identification.                  See Omnibus Motion,

4/15/2015. The trial court conducted a hearing on July 1, 2015. Thereafter,

the   Commonwealth         dismissed      the      charges   of    possession   of   drug

paraphernalia and REAP.         On August 26, 2015, the trial court entered an

order, granting Murray’s petition for writ of habeas corpus and dismissing


____________________________________________


3
  75 Pa.C.S. §§ 3802(d)(2) and 3353 (a)(2)(iii) (parking too close to a
crosswalk), 35 P.S. § 780-113(a)(32), and 18 Pa.C.S. § 2705, respectively.




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the charge of DUI (drug offense), but denying Murray’s motion to suppress

his identification. This timely Commonwealth appeal followed.4

       On appeal, the Commonwealth contends the trial court erred when it

determined the Commonwealth failed to present sufficient evidence to

support a prima facie case of DUI (drug offense).

       Our review of a trial court order granting a pretrial writ of habeas

corpus is plenary.      Commonwealth v. Karetny, 880 A.2d 505, 513 (Pa.

2005).    “Indeed, the 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.

       We review the court’s ruling “by examining the evidence and

reasonable inferences derived therefrom in a light most favorable to the

Commonwealth.” Commonwealth v. Dantzler, ___ A.3d ___, ___ (2016

PA   Super     59,   *2)    (Pa.   Super.      2016)   (en   banc).   “Notably,   the

Commonwealth does not have to prove the defendant's guilt beyond a

reasonable doubt.”       Commonwealth v. Santos, 876 A.2d 360, 363 (Pa.

2005). Rather, it must



____________________________________________


4
  On September 29, 2015, the trial court ordered Murray to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Murray complied with the court’s directive, and filed a concise statement
that same day.



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       merely put forth sufficient evidence to establish a prima facie
       case of guilt. A prima facie case exists when the Commonwealth
       produces evidence of each of the material elements of the crime
       charged and establishes probable cause to warrant the belief
       that the accused committed the offense.         Furthermore, the
       evidence need only be such that, if presented at trial and
       accepted as true, the judge would be warranted in permitting the
       case to be decided by the jury.

Karetny, supra, 880 A.2d at 513-514 (internal citations omitted).

       The crime of DUI (drug offense) is defined as follows:

       (d) Controlled substances.--An individual may not drive, operate
       or be in actual physical control of the movement of a vehicle
       under any of the following circumstances:

       ...

          (2) The individual is under the influence of a drug or
          combination of drugs to a degree which impairs the
          individual’s ability to safely drive, operate or be in actual
          physical control of the movement of the vehicle.

75 Pa.C.S. § 3802(d)(2).         Therefore, to establish a prima facie case, the

Commonwealth must present evidence that Murray was in physical control of

the movement of the truck, while he was under the influence of a drug,

which impaired his ability to operate the truck safely.

       Here, the trial court found the Commonwealth presented sufficient

evidence to demonstrate Murray was in “actual physical control of the

movement of the vehicle under Pennsylvania law.” Trial Court Memorandum

Opinion and Order, 8/26/2015, at unnumbered 5-6.5           However, the court

____________________________________________


5
  We agree with this finding by the trial court. When Crossett arrived at the
scene, he observed Murray, “passed out behind the wheel” of a truck. N.T.,
7/1/2015, at 4. Crossett testified the truck was “sittin’ at a stop sign,” with
(Footnote Continued Next Page)


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ultimately concluded the Commonwealth lacked “evidence of physical

impairment as a result of [Murray] being under the influence of a drug.” Id.

at 6. The court opined:

      Although a needle was seized, which, according to Officer
      Snyder’s credible hearing testimony was a hypodermic needle of
      the type usually attached to a syringe, there was no evidence to
      indicate the presence of a drug. Similarly, the contents of the
      bag removed from the truck by [Murray] at the time of his
      precipitous exit from the vehicle was never identified. There was
      no evidence showing the nature of the spoon taken from the
      truck by [Murray]. There was no evidence to show the source or
      cause of the flow of blood observed on [Murray’s] arm by
      Crossett. Even circumstantially in light most favorable to the
      Commonwealth, there is insufficient evidence that sufficiently
      establishes both the commission of a crime and that the accused
      is probably the perpetrator of that crime.

Id.

      The Commonwealth contends, however, that the evidence presented

at the pre-trial hearing was sufficient to establish a prima facie case that

Murray was under the influence of a controlled substance.       It emphasizes

Murray was found unresponsive in the driver’s seat of a running vehicle. He

had a spot of blood on his arm, and a hypodermic needle, with an empty

                       _______________________
(Footnote Continued)

the engine running, and the gearshift in park. Id. at 3-4. These facts
presented sufficient evidence for a jury to infer Murray was in actual physical
control of the movement of a vehicle, and that he had, in fact, driven to the
scene. See Commonwealth v. Toland, 995 A.2d 1242, 1246 (Pa. Super.
2010) (evidence sufficient to find defendant was in control of the movement
of a vehicle when he was found “asleep in the driver's seat of the vehicle
with the motor running and the headlights illuminated[;]” there was also an
unopened six-pack of beer in the car and no store nearby that sold alcoholic
beverages), appeal denied, 29 A.3d 797 (Pa. 2011).



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syringe, was recovered on the driver-side floor board.    Moreover, Crossett

testified that after Murray awoke, he grabbed a small bag and a spoon with

burnt residue before fleeing the scene.     Accordingly, the Commonwealth

asserts Murray’s “physical appearance combined with evidence of the

presence of various items of purported drug paraphernalia in the vicinity of

where [Murray] was seated” was sufficient to establish a prima facie case.

Commonwealth’s Brief at 5.

     Upon our review of the certified record, we are constrained to reverse

the order of the trial court.   The facts and reasonable inferences drawn

therefrom, viewed in the light most favorable to the Commonwealth,

establish that Crossett found Murray unresponsive in a running motor

vehicle at 1:00 in the afternoon.         See Affidavit of Probable Cause,

10/17/2014. Crossett observed a hypodermic needle with a syringe, and a

kitchen spoon with burnt residue, both on top of the middle console, and a

spot of blood on the inside of Murray’s arm. N.T., 7/1/2015, at 5-6. When

Crossett awakened Murray, Murray “tried to put the truck into drive,” but

Crossett was able to confiscate the keys.    Id. at 7.   Crossett then asked

Murray to unlock the driver’s side door, and Murray “started shoving stuff

into his pocket, got out [the driver’s side] door, ran around my partner and

ran across the street, down towards the railroad tracks.” Id. at 8. Crossett




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saw Murray grab the spoon and small, square plastic “packets of stuff.” 6 Id.

Furthermore, Officer Snyder stated that when he arrived at the scene a short

time later, he found, on the driver-side floorboard, a hypodermic needle with

blood on the tip, attached to an expended syringe. Id. at 18, 23.

       We conclude the above-stated testimony was sufficient to establish

probable cause that Murray was under the influence of a controlled

substance, which impaired his ability to drive safely.7 Although there may

be a rational explanation for Murray’s actions, at this stage in the

proceedings, the Commonwealth is not required to “prove the defendant’s

guilt beyond a reasonable doubt.” Santos, supra, 876 A.2d at 363.

       Accordingly, because we find the trial court erred in granting Murray’s

petition for writ of habeas corpus, and dismissing the charge of DUI (drug

offense), we reverse the order of the trial court and remand for further

proceedings.

       Order reversed.8 Case remanded. Jurisdiction relinquished.

____________________________________________


6
  Crossett stated he “believe[d] the needle fell [on the floorboard] when
[Murray] was shoving stuff in his pocket[.]” N.T., 7/1/2015, at 14.
7
  We might have found the trial court’s ruling more persuasive if the police
had not secured possession of the hypodermic needle found on the floor of
the truck. Indeed, the Commonwealth indicated at argument that it intends
to test the contents of the syringe prior to Murray’s trial.
8
  Our decision does not affect that portion of the court’s August 26, 2015,
order denying Murray’s motion to suppress an out-of-court identification.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/6/2016




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