J-S77044-18

                                 2019 PA Super 29

COMMONWEALTH OF PENNSYLVANIA,                :    IN THE SUPERIOR COURT OF
                                             :          PENNSYLVANIA
                  Appellant                  :
                                             :
                       v.                    :
                                             :
FRANKLIN DALE WYATT,                         :
                                             :
                  Appellee                   :        No. 1832 EDA 2018

                  Appeal from the Order Entered June 20, 2018
                in the Court of Common Pleas of Monroe County
              Criminal Division at No(s): CP-45-CR-0001764-2017

BEFORE:      OTT, J., DUBOW, J. and STRASSBURGER, J.*

OPINION BY STRASSBURGER, J.:                     FILED FEBRUARY 07, 2019

        The Commonwealth of Pennsylvania appeals from the order granting

Franklin Dale Wyatt’s pre-trial motion for writ of habeas corpus. We affirm.

        We glean the following factual and procedural history from the record.

Briefly, on June 3, 2015, Wyatt was driving a tractor-trailer southbound on

Interstate 380 (I-380).        At approximately 10:00 a.m., Wyatt’s vehicle

crossed the grassy median separating the north- and southbound lanes of

travel on I-380 and struck a northbound tractor-trailer and passenger bus,

resulting in the deaths of three people and serious injuries to five others.

        Based on the foregoing, the Commonwealth charged Wyatt with eight

counts of aggravated assault by vehicle, three counts of homicide by vehicle,

three    counts   of    involuntary   manslaughter,    17   counts   of   recklessly




*Retired Senior Judge assigned to the Superior Court.
J-S77044-18


endangering another person, and one count each of disregarding traffic

lanes, careless driving, and reckless driving.

      Wyatt filed several pre-trial motions.1 Relevant to this appeal, he filed

a motion for writ of habeas corpus2 as to all charges, except disregarding

traffic lanes and careless driving, challenging the Commonwealth’s prima

facie evidence for the mens rea requirement of recklessness or gross

negligence.    A hearing was held on April 13, 2018.      At the hearing, the

Commonwealth presented the testimony of the affiant, Pennsylvania State

Police Trooper Tyler Waters, along with several exhibits, to support its

theory of recklessness based on distracted driving. On June 20, 2018, the

trial court issued an order and opinion which, inter alia, granted Wyatt’s

motion for writ of habeas corpus. This timely-filed appeal followed.3


1 According to Wyatt’s brief, he waived his preliminary hearing with the
understanding that he would be permitted to pursue a habeas corpus
petition. Wyatt’s Brief at 9.
2This motion was not included in the certified record on appeal, but appears
as a docket entry on March 8, 2018. See Commonwealth v. Bongiorno,
905 A.2d 998, 1000-01 (Pa. Super. 2006) (“[T]he ultimate responsibility of
ensuring that the transmitted record is complete rests squarely upon the
appellant and not upon the appellate courts.”). However, since our review
was not impeded by this failure, we need not remand for its inclusion in the
certified record.

3
 In its notice of appeal, the Commonwealth certified that the June 20, 2018
order handicapped its prosecution, thus permitting appeal pursuant to
Pa.R.A.P. 311(d). Notice of Appeal, 6/22/2018, at 4 (unnumbered). The
Commonwealth complied with Pa.R.A.P. 1925(b). In lieu of a Pa.R.A.P.
1925(a) opinion, the trial court issued a statement relying on its June 20,
(Footnote Continued Next Page)




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      On appeal, the Commonwealth presents one question for our review:

whether the Commonwealth presented sufficient evidence of recklessness or

gross negligence in order to sustain its prima facie burden at the habeas

corpus proceeding. Commonwealth’s Brief at 4. We begin with our standard

of review.

      “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. Dantzler, 135 A.3d 1109, 1111 (Pa. Super. 2016) (en

banc) (citation omitted). Whether the Commonwealth satisfied its burden of

establishing a prima facie case for each charged crime is a question of law,

to which this Court’s standard of review is de novo and our scope of review

is plenary.    See Commonwealth v. Karetny, 880 A.2d 505, 528 (Pa.

2005).

             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.

Dantzler, 135 A.3d at 1112 (citations and quotations marks omitted).
(Footnote Continued)   _______________________



2018 Opinion and Order.                  Statement Pursuant to Pa.R.A.P. 1925(a),
8/28/2018, at 2.




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        In his memorandum in support of his petition for a writ of habeas

corpus, Wyatt contended that the Commonwealth could not establish

criminal culpability and thus failed to establish the mens rea requirement for

aggravated        assault   by    vehicle,    homicide    by   vehicle,   involuntary

manslaughter, recklessly endangering another person, and reckless driving.

Supplemental Memorandum of Law in Support of Defendant’s Motion to

Dismiss and Motion for Writ of Habeas Corpus, 5/1/2018, a 12-13

(unnumbered).        Because recklessness and gross negligence are equivalent

states of mind for the crimes Wyatt challenged, see Commonwealth v.

Huggins, 836 A.2d 862, 868 (Pa. 2003), we refer to the mens rea

requirement simply as recklessness, keeping the following in mind.

        A person acts recklessly with respect to a material element of an
        offense when he consciously disregards a substantial and
        unjustifiable risk that the material element exists or will result
        from his conduct. The risk must be of such a nature and degree
        that, considering the nature and intent of the actor’s conduct
        and the circumstances known to him, its disregard involves a
        gross deviation from the standard of conduct that a reasonable
        person would observe in the actor’s situation.

Id. at 868–69 (quoting 18 Pa.C.S. § 302(b)(3)).

        On appeal, the Commonwealth maintains that it presented sufficient

prima     facie    evidence      to   establish    that   Wyatt   acted   recklessly.

Commonwealth’s Brief at 9.            Specifically, the Commonwealth cites to the

lack of other contributing causes (weather, mechanical failures) and the

existence of potentially distracting circumstances (receiving text messages,




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unrestrained dogs in the cabin) to support its contention that Wyatt was

distracted, and that “such inattentiveness is, in and of itself, sufficient to

demonstrate the level of recklessness sufficient to sustain the charges at a

prima facie level.” Id. at 13-15. Further, the Commonwealth avers that it

“need not prove, in an affirmative way, the actual existence or cause of

[Wyatt’s] distracted driving (or put another way, inattentiveness)          if

circumstantial evidence supports such a conclusion at a prima facie level.

The [C]ommonwealth is entitled to that inference based on the proof

presented and wasn’t given it.” Id. at 16.

      The trial court disagreed with this conclusion when it granted Wyatt’s

motion.

      The evidence of record would, if believed by a jury, be sufficient
      to demonstrate [Wyatt’s] carelessness, however, the
      Commonwealth has not presented any evidence to conclude
      [Wyatt] was engaging in any conduct that would raise his
      culpability to a conscious disregard of a substantial risk so as to
      reach the level of reckless or grossly negligent behavior.

            The Commonwealth’s entire case rests on its assumption
      that [Wyatt] was distracted while driving, although Trooper
      Waters clearly testified at the Omnibus Hearing that no evidence
      exists to prove the requisite standard that [Wyatt] was
      distracted. In essence, the Commonwealth argues that this fatal
      motor vehicle accident occurred when, for factually unexplained
      reasons, [Wyatt] failed to maintain his lane of travel; and that,
      because non-criminal causes (i.e., weather, mechanical defects
      in the vehicles, or defects in the road) have been ruled out,
      [Wyatt] must have acted recklessly.

Trial Court Opinion and Order, 6/20/2018, at 11 (emphasis in original;

citations omitted).



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        Our review of the record reveals that at the hearing on Wyatt’s

petition, the Commonwealth relied in part on the Collision and Accident

Reconstruction Specialist (CARS) report, which concluded that speed,

weather conditions, and mechanical defects were not contributing factors to

the vehicle collision.   N.T., 4/13/2018, at 25, 27-28.        The report also

explored a potential human element of distracted driving, noting that the

cab of the truck contained food, beverages, radios, and two unrestrained

dogs.    The report ultimately concluded that driver distraction could not be

ruled out as a contributing factor. Id. at 29.

        The Commonwealth also presented a GPS report from a device that

recorded certain periodic driving statistics from Wyatt’s tractor-trailer. Id.

at 29. Specifically, it indicated that Wyatt started the ignition on his tractor-

trailer at 8:09 a.m. on the day of the collision, and recorded a travel speed

of zero miles per hour at that time. Id. at 30. The next reading was at 9:24

a.m., which indicated a travel speed of three miles per hour. Id. at 30-31.

At 9:39 a.m., the tractor-trailer reached a speed of 66 miles per hour, and

at 9:54 a.m. was traveling at a speed of 61 miles per hour. Id. at 31. At

10:08 a.m., the GPS report indicated a moving speed of zero miles per hour,

which is consistent with when the collision occurred. Id. The speed limit on

I-380 ranges from 65 to 70 miles per hour, and it was determined that

speed was not a contributing factor to the collision. Id. at 27-28.




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      Next, the Commonwealth introduced Wyatt’s phone records. Between

9:24 a.m. and 10:08 a.m., while Wyatt was driving the tractor-trailer, he

received four text messages.     Id. at 33.    Wyatt did not send any text

messages until after the collision.    Id. at 67.       Inspections of all three

vehicles involved in the collision revealed no defects.       Id. at 35-36.   In

February 2015, the only restriction on Wyatt’s commercial driver’s license

was corrective lenses. Id. at 37.

      On cross-examination, Trooper Waters testified that no erratic driving

on Wyatt’s part was discovered, and the scene did not reveal braking or

skid-marks.   Id. at 43.     Trooper Waters conceded that there was no

evidence that Wyatt looked at his phone while driving, or was distracted by

radios, beverages, food, or his dogs. In fact, Trooper Waters testified that

there was no evidence that the phone, radios, beverages, food, dogs, or any

medical conditions contributed to the collision, and that the police would not

be able to develop any more evidence to support its theory of distracted

driving in the future. Id. at 49, 53-55, 63-64. When asked about Wyatt’s

version of events that he had told investigators and medical responders –

that he had blacked out and does not remember the collision – Trooper

Waters stated that it was a possible explanation, and that if Wyatt did black

out, the collision was not a crime. Id. at 56-57, 59.

      After hearing this evidence, the trial court found that the evidence

“establishes negligence, carelessness, or inattentiveness, at best. However,



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J-S77044-18


neither negligence nor the mere occurrence of an accident, even a fatal

accident, without more, is sufficient under the current law to establish or

raise a permissible inference of recklessness sufficient to support the

charges challenged by [Wyatt].” Trial Court Opinion and Order, 6/20/2018,

at 12.

         We agree with the trial court. The CARS report was inconclusive as to

whether the human element of driver distraction contributed to the collision.

The phone records established that Wyatt received four text messages while

driving, and sent one text message after the collision.       However, there is

absolutely no evidence that Wyatt looked at the received text messages

while driving or was even aware that they had been received.           While the

evidence revealed that Wyatt had two unrestrained Chihuahua dogs in his

cabin, there was no evidence that the dogs were distracting Wyatt in any

way prior to the collision. The CARS report mentioned the presence of food

and beverages in the cab, but there was no evidence as to what it was, or

whether Wyatt was consuming anything while driving. Finally, there was no

evidence of erratic driving prior to the collision.

         This collision was unquestionably tragic, and this Court is cognizant of

the extreme dangers of distracted driving. However, any reason proffered

by the Commonwealth for this collision, based on the evidence presented, is

mere speculation.      As such, the Commonwealth failed to present sufficient

evidence to establish the recklessness necessary for the crimes charged.



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J-S77044-18


See Commonwealth v. Karner, 193 A.3d 986, 993 (Pa. Super. 2018)

(concluding that the Commonwealth failed to produce any evidence at

preliminary hearing that Karner acted with recklessness necessary for

charges of homicide by vehicle and aggravated assault by vehicle).

Accordingly, we conclude that the trial court did not err in granting Wyatt’s

motion for writ of habeas corpus.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary


Date: 2/7/19




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