J-S65041-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE SUPERIOR COURT OF
PENNSYLVANIA

COMMONWEALTH 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.: CP-65-CR-0002204-2015

BEFORE: LAzARus, J., ol_sol\l, J., and PLATr, J.*
MEMORANDUM BY PLATr, J.: FILED ocTOBER 24, 2016

The Commonwealth appeals from the trial court's order1 granting the
motion of Appe||ee, Alexander Benjamin Orlowsl<i, to quash the criminal
information charging him with two counts of driving under the influence of
alcohol (DUI).2 We affirm.

We take the relevant facts and procedural history of this case from our
independent review of the certified record. On February 1, 2015, at

approximately 4:20 p.m. in rainy weather conditions, witness Quade Karas

 

* Retired Senior Judge assigned to the Superior Court.

1 We have amended the caption to reflect that the trial court's order, dated
February 29, 2016, was entered on March 1, 2016.

2 The Commonwealth has certified that the court's order terminates or
substantially handicaps its prosecution of Appe||ee. See Pa.R.A.P. 311(d).

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was driving his truck up a hill and slid off the side of the road upon hitting a
patch of ice. The vehicle rolled down an embankment, resting upside-down,
with a large amount of smoke emanating from it. Mr. Karas escaped from
the truck, climbed the embankment, and crawled to the roadway. Shortly
thereafter, Appe||ee, who was approaching the scene from the opposite lane
of travel down the hill, pulled over to the side of the road. As he exited his
truck and approached Mr. Karas, his vehicle began to roll. Appe||ee ran after
his truck and it hit a tree at the bottom of the hill. A man in a Subaru then
stopped to pick Appe||ee up, and Appe||ee told Mr. Karas that he had to
leave. Mr. Karas testified that he did not notice anything indicating that

Appe||ee was intoxicated at that time.3

 

3 We note that at the hearing on the motion to quash, over defense
counsel's objection on hearsay grounds, the Commonwealth sought to admit
investigative reports prepared by the state troopers responding to the scene
indicating that Mr. Karas had relayed to them that Appe||ee appeared drunl<.
(See N.T. Motion to Quash, 11/12/15, at 6-7, 11-12, 24); see also Pa.R.E.
803.1(1) (allowing prior inconsistent statement made by declarant-witness
as exception to rule against hearsay where the statement: “(A) was given
under oath subject to the penalty of perjury at a trial, hearing, or other
proceeding, or in a deposition; (B) is a writing signed and adopted by the
declarant; or (C) is a verbatim contemporaneous electronic, audiotaped, or
videotaped recording of an oral statement."). The trial court determined
that the reports did not meet the criteria set forth in Pa.R.E. 803.1(1), and it
rejected them as unreliable where Mr. Karas unequivocally testified that
Appe||ee did not appear intoxicated. (See Trial Court Opinion, 3/01/16, at
3). The Commonwealth does not challenge this determination or otherwise
rely on the reports in its appellate brief. (See Commonwealth's Brief, at 13-
21).

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Troopers David J. Demchak and Patrick Dowling arrived at the scene of
the accident at approximately 4:45 p.m., and Appe||ee retuned shortly
thereafter.4 Trooper Demchak suspected that Appe||ee was intoxicated, and
when he asked Appe||ee to perform field sobriety tests, Appe||ee responded:
“just arrest me, you know that I'm drunk." (N.T. Preliminary Hearing,
5/11/15, at 21-22). Appe||ee stated that he drank three beers before the
accident, but did not specify the time-period over which he consumed them.
He also advised Trooper Demchak that, immediately after the accident, he
drank eighteen shots of whisky in fifteen to twenty minutes at a bar that he
owns located one-half mile from the crash site. Trooper Demchak arrested
Appe||ee and a blood draw performed at approximately 6:00 p.m. revealed a
blood alcohol content of 0.255 percent.

The magisterial district court held a preliminary hearing on May 11,
2015, and the district judge held the charges over for court. On June 8,
2015, the Commonwealth filed a criminal information charging Appe||ee with
two counts of DUI.5 On July 15, 2015, Appe||ee filed an omnibus pretrial
motion seeking quashal of the information, claiming that the Commonwealth
failed to present a prima facie case for DUI at the preliminary hearing. At

the November 12, 2015 hearing on the motion, the trial court incorporated

 

4 Appe||ee did not drive himself back to the scene.

5 75 Pa.c.s.A. §§ 3802(¢), 3802(a)(1).

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the preliminary hearing transcript into the record, heard additional
testimony, and took the matter under advisement. On March 1, 2016, the
trial court entered its opinion and order granting Appe||ee's motion. This
timely appeal followed.6

The Commonwealth raises one question for our review:

Whether a prima facie showing of DUI has been established
when [Appellee] admits to having consumed three beers before
driving and then after getting out of his vehicle without putting
[it] into park resulting in it rolling away and crashing, then flees
the scene and returns about [twenty] minutes later and tells the
investigating Trooper “just arrest me, you know that I'm drunk”
and is revealed to have a blood alcohol content of .255% within
two hours of driving?

(Commonwealth's Brief, at 7).

The Commonwealth's issue on appeal challenges the trial court's grant
of Appe||ee's motion to quash the information. Specifically, it argues that
the record in this case supports a prima facie case for the two counts of DUI
with which Appe||ee was charged. (See id. at 13-21). This issue does not
merit relief.

Our standard of review is as follows:

The decision to grant a motion to quash a criminal
information or indictment is within the sound discretion of the
trial judge and will be reversed on appeal only where there has

 

6 Pursuant to the trial court's order, the Commonwealth filed a timely
concise statement of errors complained of on appeal on April 6, 2016. The
court entered an opinion on April 12, 2016, in which it referred this Court to
its opinion and order filed March 1, 2016, for the rationale for its decision.
See Pa.R.A.P. 1925.

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been a clear abuse of discretion. Discretion is abused when the
course pursued by the trial court represents not merely an error
ofjudgment, but where the judgment is manifestly unreasonable
or where the law is not applied or where the record shows that
the action is a result of partiality, prejudice, bias or ill will.

Commonwealth v. Wyland, 987 A.2d 802, 804-05 (Pa. Super. 2010),
appeal denied, 8 A.3d 346 (Pa. 2010) (citations and quotation marks
omitted).

With respect to the Commonwealth's burden to establish a prima facie

case, our Supreme Court has stated:

At the preliminary hearing it is incumbent on the Commonwealth
to establish at least prima facie that a crime has been committed
and that the accused is the one who committed it. In order to
satisfy this burden of establishing a prima facie case, the
Commonwealth must produce legally competent evidence, which
demonstrates the existence of each of the material elements of
the crime charged and legally competent evidence to
demonstrate the existence of facts which connect the accused to
the crime charged.

Commonwealth ex rel. Buchanan v. Verbonitz, 581 A.2d 172, 173-74
(Pa. 1990), cert. denied sub nom. Stevens v. Buchanan, 499 U.S. 907
(1991) (citations, quotation marks, and emphasis omitted). “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. Marti, 779 A.2d 1177, 1180 (Pa. Super.
2001) (citations omitted). “[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 each and every element of

the crime charged." Id. (citation omitted).

_5_

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In the instant case, as discussed above, the Commonwealth charged
Appe||ee with two counts of DUI. The relevant portions of the DUI statute
provide:

(a) Genera|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.

(c) Highest rate of alcoho|.-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.A. § 3802(a)(1), (c) (emphases added).

Thus, the prohibited conduct under the statute is drinking excessively
and then driving. See id.; see also Commonwealth v. Duda, 923 A.2d
1138, 1148 (Pa. 2007). “[A]ny evidence that the defendant consumed
alcohol after operating the vehicle would tend to undermine the
prosecution's ability to prove the elements of [a DUI] offense." Duda,
supra at 1151 n.14.

Here, the trial court, after considering the testimony presented at the

preliminary hearing and the hearing on the motion to quash, concluded that

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the Commonwealth failed to establish a prima facie case for DUI against

Appe||ee. The court explained that it was:

. . . reduced to considering whether [Appellee] was driving a
vehicle, that the vehicle slid down a hill after [Appellee] alighted
from it, that [he] admitted to consuming three beers before his
vehicle slid down the hill, and consuming a great quantity of
alcohol in a short period of time after the accident and prior to
the administration of the blood alcohol test.

Simply because his vehicle slid down a slippery hill proves
nothing definitive about his operation of his vehicle, and his
blood alcohol content cannot be attributed to him while driving
because of his post-accident consumption of a copious amount of
alcohol. Neither the police officers nor Quade Karas testified to
any other indicia of the consumption of alcohol. Neither did the

Commonwealth offer any evidence regarding any extrapolation
that might have been made regarding the blood alcohol results.

(Trial Ct. Op., at 4).

After review of the record, we cannot conclude that the court clearly
abused its discretion in granting Appe||ee's motion to quash the information,
see Wyland, supra at 804-05, given that the accident 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 truck. See Duda, supra at 1151 n.14. Accordingly, we affirm the
order of the trial court.

Order affirmed.

Judge Lazarus joins the Memorandum.

Judge Olson files a Dissenting Memorandum.

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Judgment Entered.

 

J seph D. Seletyn, Es .
Prothonotary

Date: 10/24/2016

