J-S57026-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

MICHELLE LEIGH STARRY,

                            Appellee                 No. 2028 WDA 2015


              Appeal from the Order Entered December 16, 2015
            In the Court of Common Pleas of Westmoreland County
              Criminal Division at No(s): CP-65-CR-0001154-2014


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.:                      FILED SEPTEMBER 29, 2016

       The Commonwealth appeals from the order that granted Michelle Leigh

Starry’s (“Appellee”) petition for habeas corpus. After careful consideration,

we reverse and remand.

       The record reflects the following facts.     On January 26, 2014, an

individual identified as Mr. Teeter contacted State Police, indicating that

Appellee had left his residence at approximately 11:00 a.m., driving the

Hyundai registered in her name.1 N.T., Omnibus Pretrial Hearing, 7/30/15,

at 16-18, 23. At 11:49 a.m., Joseph Gabor called 911 to report that he had
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*
    Retired Senior Judge assigned to the Superior Court.
1
  It is unclear from the record why Mr. Teeter called State Police that
morning. We reference this fact due to its relevance in establishing that
Appellee was operating her vehicle at that time on that date.
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arrived upon the scene of a crashed vehicle along County Road in

Loyalhanna Township, Pennsylvania. Id. at 10.

     At the scene, first responders found the vehicle registered to Appellee

along the berm of the road where it had impacted a tree. N.T., Preliminary

Hearing, 3/10/14, at 10; N.T., Omnibus Pretrial Hearing, 7/30/15, at 12.

Appellee was discovered sleeping in the back seat of the vehicle.         N.T.,

Preliminary Hearing, 3/10/14, at 7-8, 10. There were no other individuals in

the vehicle, and the first responders noted that, apart from the footprints

belonging to Mr. Gabor, there were no other footprints in the snow that

would indicate that anyone had left the scene of the crash. Id. at 6. The

driver-side airbag had deployed. N.T., Omnibus Pretrial Hearing, 7/30/15,

at 18. Inside the passenger side door area of the vehicle was a Coors beer

glass that appeared to be half-full of beer.      N.T., Preliminary Hearing,

3/10/14, at 6.; N.T., Omnibus Pretrial Hearing, 7/30/15, at 29.

     Upon urging by the first responders, Appellee attempted to exit the

vehicle, only to fall down.   N.T., Preliminary Hearing, 3/10/14, at 8.    The

first responders helped Appellee out of the vehicle and aided her to the

ambulance.    Id.   Examination of Appellee by medical personnel indicated

that Appellee had bruising to her chest and abdomen area, which would be

consistent with an impact with the steering wheel. Id. at 8.

     Trooper Todd Adamski was dispatched to the accident and observed

Appellee’s vehicle where it had impacted a tree. N.T., Preliminary Hearing,


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3/10/14, at 5.   At the time of the trooper’s arrival, Appellee was being

treated in the back of the ambulance. Id. at 5. Upon interviewing Appellee,

Trooper Adamski detected an odor of alcohol coming from Appellee. Id. at

5. Trooper Adamski also noted that Appellee’s speech was slurred and “she

was unable to complete her thoughts.” Id. at 5. It was Trooper Adamski’s

opinion, based upon his interaction with Appellee, that she was under the

influence of alcohol to a degree that would render her incapable of safe

driving. Id. at 6. Trooper Adamski ended his interview of Appellee so that

she could be properly treated for her medical needs. N.T., Omnibus Pretrial

Hearing, 7/30/15, at 25. Trooper Adamski testified that from the time of his

arrival at 12:36 p.m. until Appellee was removed from the scene by

ambulance at 12:56 p.m., Appellee did not consume any alcohol. Id. at 24.

Appellee’s blood was drawn at Forbes Regional Hospital at 1:40 p.m. and

produced a .304% blood alcohol content (“BAC”) result. Id. at 13, 17.

     Appellee was charged with two counts of driving under the influence

(“DUI”): one count under 75 Pa.C.S. § 3802(a)(1), general impairment, and

one count under 75 Pa.C.S. § 3802(c), highest rate of alcohol. Following a

preliminary hearing, the magisterial district justice determined that a prima

facie case of the offenses had been made and held the charges over for trial.

N.T., Preliminary Hearing, 3/10/14, at 19. Appellee then filed an omnibus

pretrial motion, which included a petition for writ of habeas corpus.

Omnibus Pretrial Motion, 7/2/14. A hearing on the motion was held on July


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30, 2015.     By order entered December 16, 2015, the trial court granted

Appellee’s   petition   for   writ   of   habeas   corpus,   concluding   that   the

Commonwealth failed to establish a prima facie case of the offenses

charged.     The Commonwealth filed a notice of appeal on December 22,

2015. The trial court directed the Commonwealth to file a Pa.R.A.P. 1925(b)

statement, and the Commonwealth complied. The trial court issued a decree

pursuant to Pa.R.A.P. 1925(a), indicating that the reasons for the court’s

ruling could be found in the order entered December 16, 2015.

     The Commonwealth presents the following issue for our review:

           Whether the Commonwealth established a prima facie case
     of DUI when [Appellee] was seen alone, driving a vehicle
     registered to her, and then 50 minutes later, her vehicle was
     discovered, crashed into a tree, with [Appellee] inside, alone,
     exhibiting signs of intoxication; with no footprints in the snow to
     suggest other occupants, bearing injury consistent with hitting a
     steering wheel, and [Appellee’s] BAC being measured at .304%
     when her blood was drawn, approximately two hours after she
     was found.

Commonwealth’s Brief at 4.

     As this Court has explained:

           A pre-trial habeas corpus motion is the proper means for
     testing whether the Commonwealth has sufficient evidence to
     establish a prima facie case. To demonstrate that a prima facie
     case exists, the Commonwealth must produce evidence of every
     material element of the charged offense(s) as well as the
     defendant’s complicity therein.    To meet its burden, the
     Commonwealth may utilize the evidence presented at the
     preliminary hearing and also may submit additional proof.

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

banc) (internal citations and quotations marks omitted).

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     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. The Commonwealth need not
     prove the defendant’s guilt beyond a reasonable doubt. Rather
     the Commonwealth must show sufficient probable cause that the
     defendant committed the offense, and the evidence should be
     such that if presented at trial, and accepted as true, the judge
     would be warranted in allowing the case to go to the jury. In
     determining the presence or absence of a prima facie case,
     inferences reasonably drawn from the evidence of record that
     would support a verdict of guilty are to be given effect, but
     suspicion and conjecture are not evidence and are unacceptable
     as such.

Commonwealth v. Hendricks, 927 A.2d 289, 291 (Pa. Super. 2007).

     The proper standard of review has been stated as follows:

           We review a decision to grant a pre-trial petition for a writ
     of habeas corpus by examining the evidence and reasonable
     inferences derived therefrom in a light most favorable to the
     Commonwealth. Commonwealth v. James, 863 A.2d 1179,
     1182 (Pa.Super.2004) (en banc).           In Commonwealth v.
     Karetny, 583 Pa. 514, 880 A.2d 505 (2005), our Supreme Court
     found that this Court erred in applying an abuse of discretion
     standard in considering a pre-trial habeas matter to determine
     whether the Commonwealth had provided prima facie evidence.
     The Karetny Court opined, “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.” Id. at 513, 880 A.2d 505;
     see also Commonwealth v. Huggins, 575 Pa. 395, 836 A.2d
     862, 865 (2003) (“The question of the evidentiary sufficiency of
     the Commonwealth’s prima facie case is one of law [.]”). The
     High Court in Karetny continued, “[i]ndeed, 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.” Karetny, supra at 513, 880
     A.2d 505. Hence, we are not bound by the legal determinations
     of the trial court. To the extent prior cases from this Court have
     set forth that we evaluate the decision to grant a pre-trial
     habeas corpus motion under an abuse of discretion standard, our
     Supreme Court has rejected that view. See id.

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Dantzler, 135 A.3d at 1111-1112.      See also Commonwealth v. Marti,

779 A.2d 1177, 1180 (Pa. Super. 2001) (stating prima facie standard

requires evidence of each and every element of crime charged; weight and

credibility of evidence are not factors at this stage of proceedings).    The

Commonwealth may sustain its burden of proving every element of the

crime by means of wholly circumstantial evidence.       Commonwealth v.

Hansley, 24 A.3d 410, 416 (Pa. Super. 2011).

      A violation for DUI pursuant to 75 Pa.C.S. § 3802(a)(1) is defined 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(a)(1). 75 Pa.C.S. § 3802(c) further provides:

      (c) Highest rate of alcohol.--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 alcohol concentration in the individual’s blood or breath is
      0.16% or higher within two hours after the individual has driven,
      operated or been in actual physical control of the movement of
      the vehicle.

75 Pa.C.S. § 3802(c).

      “The term ‘operate’ requires evidence of actual physical control of

either the machinery of the motor vehicle or the management of the


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vehicle’s movement, but not evidence that the vehicle was in motion.”

Commonwealth v. Johnson, 833 A.2d 260, 263 (Pa. Super. 2003).

      A determination of actual physical control of a vehicle is based
      upon the totality of the circumstances. The Commonwealth can
      establish through wholly circumstantial evidence that a
      defendant was driving, operating or in actual physical control of
      a motor vehicle.

Commonwealth v. Williams, 871 A.2d 254, 259 (Pa. Super. 2005)

(internal citations omitted).

      The Commonwealth argues that it made out a prima facie case as to

both charges.    Commonwealth’s Brief at 9.     The Commonwealth contends

that it presented ample circumstantial evidence that Appellee drove,

operated, or was in actual physical control of her vehicle before and after the

crash.   Id. at 11.   The Commonwealth relies on the following evidence:

Appellee was observed driving her vehicle forty-nine minutes prior to the

crash; the vehicle registered to Appellee was crashed into a tree and

Appellee was found sleeping in the backseat of the vehicle; at the scene of

the accident, Appellee was difficult to rouse, smelled of alcohol, and was

incoherent when speaking to police; the snow on the ground revealed no

indication that anyone else had left the scene; trauma to Appellee’s chest

was consistent with impact with the steering wheel; the driver-side airbag

deployed; there was an open container of alcohol in the vehicle; and

Appellee’s BAC was .304%. Commonwealth’s Brief at 11-13.




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      As noted, in granting Appellee’s motion for habeas corpus, the trial

court concluded that the Commonwealth failed to provide sufficient evidence

to support a prima facie case of the offenses.    Order, 12/16/15, at 1.       In

making this determination, the trial court presented the following analysis:

      No evidence was offered that proved that [Appellee] drove,
      operated or was in actual physical control of a motor vehicle at
      the time that she was observed asleep in the back seat of the
      vehicle, while the engine was not running. There is insufficient
      evidence from which any actual physical control of the
      movement of a motor vehicle could be concluded or inferred.

            In that no prima facie case has been made out, the
      evidence of blood alcohol content will be excluded.

Order, 12/16/15, at 1.

      Following review of the certified record, however, we are constrained

to disagree.   The testimony at the preliminary hearing and the omnibus

pretrial motion hearing established that the car registered to Appellee had

been crashed into a tree on the side of a road. Appellee’s crashed vehicle

was discovered and reported by a passerby approximately forty-nine

minutes after Mr. Teeter had contacted police to report that Appellee had left

his house driving the vehicle registered to her. Appellee was found alone in

the vehicle, and the snow-covered ground did not reflect footprints

indicating that any individuals had left the scene. As a result of the impact,

the driver–side airbag deployed. Moreover, an open container of alcohol was

discovered inside the vehicle. Appellee was so intoxicated that she could not

independently exit the vehicle and needed assistance to get to the


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ambulance. Additionally, Appellee had bruising consistent with impact to the

steering wheel.   During Trooper Adamski’s interview with Appellee, it was

obvious to him that Appellee was impaired, and the BAC results of .304%

later drawn reflected the level of impairment.

      Accordingly, we are constrained to conclude that the Commonwealth

has established a prima facie case of DUI. Viewing the evidence in the light

most favorable to the Commonwealth, we agree that there exists a prima

facie case that Appellee had driven or operated the vehicle while intoxicated.

This Court has observed, “[T]he suspect location of an automobile supports

an inference that it was driven . . . a key factor in the finding of actual

control.” Commonwealth v. Woodruff, 668 A.2d 1158, 1161 (Pa. Super.

1995). The location of the vehicle in this case, along the side of the road

and crashed into a tree, supports an inference that the car was driven there

and supports a finding of actual control. The fact that Appellee was found

alone in that vehicle also supports the inference that she was the individual

who drove it to that location, thereby reflecting her control of the vehicle.

As noted, the Commonwealth can establish a prima facie case by wholly

circumstantial evidence.     Thus, the evidence of record supports the

conclusion that Appellee was operating her vehicle on the roadway while

under the influence of alcohol.

      Moreover, we note that the trial court applied an incorrect standard

when it concluded that “[n]o evidence was offered that proved that


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[Appellee] drove, operated or was in actual physical control of a motor

vehicle.” Order, 12/16/15, at 1 (emphasis added). As outlined above, when

confronted with a petition for habeas corpus, the Commonwealth is not

required to prove the elements of the crime. Instead, the Commonwealth

need only present evidence, viewed in the light most favorable to the

Commonwealth, establishing a prima facie case of the offense, sufficient for

the matter to proceed to trial.2 See Hendricks, 927 A.2d at 291 (“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.            The

Commonwealth need not prove the defendant’s guilt beyond a reasonable

doubt.”).

       Upon review of the evidence presented, we conclude that the

evidence, when viewed in the light most favorable to the Commonwealth, is

sufficient to establish a prima facie case that Appellee was in actual physical

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2
  We also note that there is no requirement that the engine must be running
in order for there to be a finding that Appellee had operated the vehicle.
See Commonwealth v. Leib, 588 A.2d 922, 926 (Pa. Super. 1991) (court
determined that there was sufficient evidence to convict the defendant of
DUI where he was found in parked car with keys in ignition, but motor was
not running). Indeed, individuals have been found to be guilty of DUI when
they are not even in the vehicle when the police arrive. See Johnson, 833
A.2d 260, 263-264 (Pa. super. 2003) (defendant was outside of his vehicle
at the time the police arrived at the crash scene, but there was sufficient
evidence to establish that he had driven, operated, or was in physical control
of the vehicle while DUI, based on the circumstantial evidence of the case).



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control of the movement of the vehicle in violation of 75 Pa.C.S. §

3802(a)(1) and (c). Thus, the Commonwealth has established a prima facie

case of the DUI charges filed against Appellee. Under these circumstances

and at this juncture of the proceedings, the trial court improperly dismissed

the charges against Appellee. Accordingly, we reverse the trial court’s order

dismissing the charges and remand for further proceedings.

      Order reversed; case remanded for further proceedings.     Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/29/2016




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