J-A14004-18


                                 2018 PA Super 213

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                     Appellant             :
                                           :
               v.                          :
                                           :
 SEAN J. KARNER                            :
                                           :
                     Appellee              :         No. 3959 EDA 2017

               Appeal from the Order Entered November 13, 2017
                 In the Court of Common Pleas of Bucks County
              Criminal Division at No(s): CP-09-CR-0006386-2017


BEFORE:      GANTMAN, P.J., SHOGAN, J., and PLATT*, J.

OPINION BY GANTMAN, P.J.:                                   Filed July 20, 2018

      Appellant, the Commonwealth of Pennsylvania, appeals from the order

entered in the Bucks County Court of Common Pleas, which granted the

petition for writ of habeas corpus filed on behalf of Appellee, Sean J. Karner,

and dismissed counts two and three against him for failure to present a prima

facie case. We affirm.

      The trial court opinion sets forth the relevant facts of this case as

follows:

           On June 16, 2017, [Appellee] was involved in a two vehicle
           accident in which the Ford pickup truck that he was driving
           impacted the rear end of a Honda sedan driven by
           Jacqueline Grosso, as the vehicles traveled northbound on
           Route 202 near New Hope, Bucks County, Pennsylvania.
           Upon impact, the Honda automobile spun clockwise across
           a parking lot and hit a nearby building. Jacqueline Grosso
           was severely injured and Ralph Grosso, Jacqueline’s
           husband who was occupying the passenger's seat, was
           killed. [Appellee]’s truck also crashed into the building.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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          As a result of that vehicle collision, [Appellee] was
          subsequently arrested and charged on or about August 18,
          2017, with one count each of Homicide by Vehicle While
          Driving Under the Influence (DUI); Homicide by Vehicle;
          Aggravated Assault by Vehicle While DUI; Aggravated
          Assault by Vehicle; Simple Assault; Recklessly Endangering
          Another Person; DUI: Controlled Substance−Impaired
          Ability−2nd Offense; DUI: Controlled Substance−Schedule 2
          or    3−2nd    Offense;   DUI:     Controlled   Substance–
          Metabolite−2 nd  Offense; and the summary offenses of
          Reckless Driving; Following Too Closely; and Driving at Safe
          Speed.[1]

          A preliminary hearing was held on September 18, 2017, and
          all charges were bound over for trial in the Bucks County
          Court of Common Pleas.

          On October 5, 2017, [Appellee] filed a Petition for Writ of
          Habeas Corpus seeking the dismissal of the non−DUI counts
          for Homicide by Vehicle And Aggravated Assault by Vehicle,
          claiming that the Commonwealth failed to establish a prima
          facie case as to those charges. Specifically, [Appellee]
          argued that the Commonwealth failed to establish the
          element of recklessness or gross negligence necessary to
          support those charges.

          A hearing on [Appellee]’s Petition was held on October 27,
          2017, after which the matter was taken under advisement.
          On November 9, 2017, [the court] issued the Order, which
          was docketed on November 13, 2017, granting [Appellee]’s
          request and dismissing the non-DUI counts for Homicide by
          Vehicle and Aggravated Assault by Vehicle.

          On December 8, 2017, the Commonwealth filed a Notice of
          Appeal to the Superior Court of Pennsylvania from the
          November 9, 2017 Order. In compliance with [the court’s]
          Order of December 13, 2017, the Commonwealth filed on


____________________________________________


175 Pa.C.S.A. §§ 3735(a), 3732(a), 3735.1(a), 3732.1(a); 18 Pa.C.S.A. §§
2701(a)(1),    2705;    75   Pa.C.S.A.   §§    3802(d)(2), 3802(d)(1)(ii),
33802(d)(1)(iii), 3736(a), 3310(a), 3361, respectively.

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         December 22, 2017, its Concise Statement of [Errors]
         Complained of on Appeal pursuant to Pa.R.A.P. 1925(b).

(Trial Court Opinion, February 6, 2018, at 1-3) (internal footnotes omitted).

      The Commonwealth raises the following issue on appeal:

         DID THE TRIAL COURT ERR BY GRANTING APPELLEE’S
         PETITION FOR WRIT OF HABEAS CORPUS AND DISMISSING
         THE COUNTS OF HOMICIDE BY VEHICLE (NON-DUI) AND
         AGGRAVATED ASSAULT BY VEHICLE (NON-DUI), RULING
         THAT THE COMMONWEALTH FAILED TO ESTABLISH A
         PRIMA FACIE CASE IN CONNECTION TO SAME, WHERE THE
         EVIDENCE PRESENTED WAS SUFFICIENT TO SUPPORT
         EACH COUNT FOR SUBMISSION TO A JURY?

(Commonwealth’s Brief at 4).

      The Commonwealth argues the evidence was sufficient to establish a

prima facie case as to the mens rea of recklessness or gross negligence for

the charges of homicide by vehicle and aggravated assault by vehicle. The

Commonwealth asserts the record demonstrated that Appellee was speeding

and had also violated several provisions of the motor vehicle code while under

the influence of the drug, Xanax, and had heroin metabolites in his blood. The

Commonwealth submits Appellee’s several violations of the motor vehicle code

and the presence of drugs in his system are sufficient to establish the mens

rea of recklessness or gross negligence. The Commonwealth also contends

that the trial court erred in taking the substantially slower speed of the Victims’

vehicle into account in its decision.      The Commonwealth complains any

reference to the speed of the Victims’ vehicle constitutes contributory

negligence, which is not a suitable consideration in the criminal context and


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constituted error. The Commonwealth additionally contends the trial court

acted on an incomplete record because the court relied on evidence only from

the habeas corpus hearing. The Commonwealth reasons the evidence at the

preliminary hearing supported a prima facie case because the magistrate

judge bound over the charges for the trial court.

        In response, Appellee argues motor vehicle code violations, even if true,

do not alone establish recklessness or gross negligence.            Specifically,

Appellee maintains that the presence of drugs in his system is irrelevant to

the non-DUI charges at issue, because the statutes for homicide by vehicle

and aggravated assault by vehicle expressly exempt driving under the

influence from the inquiry.2 Appellee also submits that the Victims’ slow rate


____________________________________________


2   The motor vehicle code in part provides:

           § 3732. Homicide by vehicle

           (a) Offense.−Any person who recklessly or with gross
           negligence causes the death of another person while
           engaged in the violation of any law of this Commonwealth
           or municipal ordinance applying to the operation or use of a
           vehicle or to the regulation of traffic except section 3802
           (relating to driving under influence of alcohol or
           controlled substance) is guilty of homicide by vehicle, a
           felony of the third degree, when the violation is the cause
           of death.

75 Pa.C.S.A. § 3732(a) (emphasis added). Likewise, Section 3732.1 provides:

           § 3732.1. Aggravated assault by vehicle




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of speed is relevant and informative on whether he was reckless or grossly

negligent.

       Appellee further claims the Commonwealth’s appeal is improper under

this Court’s decision in Commonwealth v. Wolgemuth, 737 A.2d 757

(Pa.Super. 1999), and the proper procedure following the dismissal of charges

for failing to make a prima facie case is for the Commonwealth to re-arrest

and re-charge Appellee. Appellee similarly contends that the Commonwealth’s

statement of questions presented is deficient under Pa.R.A.P. 2116(a) for


____________________________________________


          (a) Offense.−Any person who recklessly or with gross
          negligence causes serious bodily injury to another person
          while engaged in the violation of any law of this
          Commonwealth or municipal ordinance applying to the
          operation or use of a vehicle or to the regulation of traffic,
          except section 3802 (relating to driving under
          influence of alcohol or controlled substance), is guilty
          of aggravated assault by vehicle, a felony of the third degree
          when the violation is the cause of the injury.

75 Pa.C.S.A. § 3732.1(a) (emphasis added). Thus, the charges of homicide
by vehicle and aggravated assault by vehicle exclude Section 3802 (relating
to driving under influence of alcohol or controlled substance). 75 Pa.C.S.A.
§§ 3732(a), 3732.1(a). See also Commonwealth v. Mastromatteo, 719
A.2d 1081, 1083 (Pa.Super. 1998) (stating: “[D]riving under the influence of
intoxicating substances does not create legal recklessness per se but must be
accompanied with other tangible indicia of unsafe driving to a degree that
creates a substantial risk of injury which is consciously disregarded”). Further,
75 Pa.C.S.A. § 3802(d)(1)(iii), concerning metabolite in the blood, is a strict
liability offense per se and does not have a mens rea of recklessness or gross
negligence. See generally Commonwealth v. Jones, 121 A.3d 524, 529
(Pa.Super. 2015) (stating: “[T]he Vehicle Code precludes an individual from
operating a motor vehicle with any amount of scheduled controlled substance,
or a metabolite thereof, in the driver's blood”) (emphasis in original).



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failing to include every subsidiary argument raised on appeal, which means

the Commonwealth waived its issues, and this Court should deny the appeal.

Appellee also maintains the correct appellate standard of review is an abuse

of discretion, and absent a manifestly unreasonable judgment, the trial court

ruling should be upheld.

       The Commonwealth replies that an appeal to this Court is the only

procedurally proper response to the trial court’s order granting habeas corpus

relief in the form of dismissal of the charges.         The Commonwealth

distinguishes Wolgemuth, supra, because that case concerned the dismissal

of charges by the magisterial district court, not the Court of Common Pleas.

Because this appeal arises from a dismissal of charges in the Court of Common

Pleas, and not the magistrate, the Commonwealth’s only option for review is

to take a direct appeal to this Court.3 As to Appellee’s contention that the

Commonwealth’s Rule 1925(b) statement is deficient, the Commonwealth

submits Appellee is mistaken.4 Further, the Commonwealth observes that its

appellate brief materially conforms in all respects with the applicable rules,



____________________________________________


3The Commonwealth’s appeal is procedurally proper. See Pa.R.A.P. 311(d);
Commonwealth v. Dantzler, 135 A.3d 1109, 1110 n.1 (Pa.Super. 2016) (en
banc). Thus, Appellee’s reliance on Wolgemuth, supra is misplaced. There
are simply no jurisdictional impediments to our review at this time.

4 Rule 2116 expressly provides that the appellant’s question presented must
be concisely stated and “will be deemed to include every subsidiary question
fairly comprised therein.” See Pa.R.A.P. 2116(a). Thus, the Commonwealth
is correct on this point of contention.

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and the omissions alleged are not “substantial” or significantly impair

appellate review. Finally, the Commonwealth asserts the correct standard of

review on appeal in the present case is plenary, rather than an abuse of

discretion. For all these reasons, the Commonwealth concludes we should

reverse the order of the trial court which dismissed the counts of homicide by

vehicle (non-DUI) and aggravated assault by vehicle (non-DUI) and direct the

court to reinstate these charges. We disagree.

      A pre-trial habeas decision is not subject to an abuse of discretion

standard. Commonwealth v. Karetny, 583 Pa. 514, 880 A.2d 505 (2005).

Instead, the trial court’s decision on whether the Commonwealth’s evidence

makes out a prima facie case for a charged crime is a question of law subject

to plenary review. Dantzler, supra at 1112 (citing Karetny, supra).

      In response to the Commonwealth’s claims, the trial court reasoned as

follows:

                                  Discussion

           The Superior Court of Pennsylvania has instructed:

             [I]n reviewing a trial court’s order granting a defendant’s
             petition for writ of habeas corpus, we must generally
             consider whether the record supports the trial court’s
             findings, and whether the inferences and legal
             conclusions drawn from those findings are free from
             error. A trial court may grant a defendant’s petition for
             writ [of] habeas corpus [after a preliminary hearing]
             where the Commonwealth has failed to present a prima
             facie case against the defendant.

                                   *    *    *


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          … 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. Further, the evidence must be considered in the
          light most favorable to the Commonwealth so that
          inferences that would support a guilty verdict are given
          effect.

          In addition, 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. The
          standard     clearly    does  not    require    that   the
          Commonwealth prove the accused’s guilt beyond a
          reasonable doubt at this stage. Most significant in this
          appeal, the weight and credibility of the evidence is not
          a factor at this stage.

       Commonwealth v. Hilliard, 172 A.3d 5, 10 (Pa.Super.
       2017) (internal citations and quotation marks omitted).

       The Superior Court has also observed:

          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, supra at 111[2]         (internal   citations   and
       quotation marks omitted).

       We are also aware that our Superior Court has stated that
       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.

                               *    *    *

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J-A14004-18



       18 Pa.C.S.A. § 302 of the Crimes Code defines the general
       requirements for culpability including in relevant part the
       elements of recklessness and negligence.

          § 302. General requirements of culpability

          (a) Minimum requirements of culpability.−Except
          as provided in section 305 of this title (relating to
          limitations on scope of culpability requirements), a
          person is not guilty of an offense unless he acted
          intentionally, knowingly, recklessly or negligently, as
          the law may require, with respect to each material
          element of the offense.

          (b) Kinds of culpability defined.−

                                *    *    *

             (3) 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.

             (4) A person acts negligently with respect to a
          material element of an offense when he should be
          aware of 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 the
          actor’s failure to perceive it, considering the nature
          and intent of his conduct and the circumstances
          known to him, involves a gross deviation from the
          standard of care that a reasonable person would
          observe in the actor’s situation.

       18 Pa.C.S.A. § 302[(a), (b)(3-4).]

       The Superior Court has observed, however, that extant case

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          law makes clear gross negligence is not the equivalent of
          criminal negligence as defined in 18 Pa.C.S.A. §
          302(b)(4)[;] rather the concept of gross negligence is
          encompassed within the concept of recklessness as set forth
          in Section 302(b)(3).[5]

          In evaluating Appellee’s request for a writ of habeas corpus
          to dismiss the non-DUI charges of Homicide by Vehicle and
          Aggravated Assault by Vehicle in the case sub judice, [the
          court] was aware of the legion of case law which requires
          that the evidence must be considered in the light most
          favorable to the Commonwealth….

          Here, however, after reviewing the evidence and
          considering the arguments of counsel, [the court]
          determined that…the Commonwealth had failed to produce
          any evidence of [Appellee’s] alleged recklessness or gross
          negligence that would support the charges of Homicide by
          Vehicle and Aggravated Assault by Vehicle. While there was
          a suggestion that Detective Corporal Koretsky “believed the
          defendant was on Xanax and that he had ingested heroin
          several days before, and he had pinpoint eye pupils,” …,
          there was no other evidence to demonstrate that
          [Appellee’s] behavior was reckless or grossly negligent.

          The evidence revealed that [Appellee] was travelling at
          approximately 53 to 57 miles per hour in a posted 45 mile
          per hour zone on a relatively straight and clear roadway.
          This would suggest that while [Appellee] was indeed driving
          in excess of the speed limit, his travel speed of 8 to 12 miles
          per hour over the posted speed limit in that area was not
          reckless or grossly negligent. Furthermore, the video that
          was played in court, …, showing [both] vehicles passing by,
          did not reveal reckless behavior by [Appellee].            The
          evidence indicated that the [Victims] were travelling at the
          substantially reduced speed of 25 to 26 miles per hour in
          that 45 mile per hour speed zone, which could arguably
          have contributed to the collision. Moreover, the evidence
          revealed that the right front of [Appellee’s] pickup truck
____________________________________________


5 See Commonwealth v. Huggins, 575 Pa. 395, 836 A.2d 862 (2003)
(stating generally that mens rea of recklessness and gross negligence in
criminal context are fundamentally equivalent).

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J-A14004-18


          impacted the left rear of the [Victims’] vehicle, which was
          clearly an “offset” impact. This suggests that the [Victims’]
          vehicle was turning off the roadway, albeit at a speed slower
          than [Appellee] anticipated. While we are not suggesting
          that the [Victims] caused the collision by driving at a slow
          speed in that area, that factor merits consideration when
          evaluating [Appellee’s] alleged reckless or grossly negligent
          conduct, and it would suggest that [Appellee’s] conduct was
          instead simply negligent.[6]

                                      Conclusion

          The Commonwealth has failed to produce evidence that
          would suggest that [Appellee] was reckless or grossly
          negligent as he was driving his pickup truck prior to colliding
          with the [Victims’] Honda sedan. Consequently, the charges
          of Homicide by Vehicle and Aggravated Assault by Vehicle
          are not supported, and we respectfully request for the
          reasons stated above that the Commonwealth’s appeal be
          denied.

(Trial Court Opinion at 4-8) (internal footnote omitted; some internal citations

and quotation marks omitted)). We agree. Here, the Commonwealth failed

to produce any evidence that Appellee acted with the criminal recklessness or

gross negligence needed to support the charges of non-DUI homicide by

vehicle and non-DUI aggravated assault by vehicle.

       We also reject the Commonwealth’s suggestion that Appellee’s

summary offenses alone established the requisite mens rea of recklessness,

because the assertion that a motor vehicle code violation, without more, is a


____________________________________________


6 We confirm that a victim’s contributory negligence is not a defense to a
criminal charge when evaluating whether the defendant’s actions were a
substantial factor causing the victim’s death.        Commonwealth v.
McCloskey, 835 A.2d 801, 809 (Pa.Super. 2003). Nevertheless, we are not
assessing causation in this case at this time.

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form of “recklessness per se” is contrary to case law. See Commonwealth

v. Bullick, 830 A.2d 998, 1003-04 (Pa.Super. 2003) (stating: “What is

material is actual reckless driving or conduct…for it is this conduct which

creates the peril in question”).

      Further, we reject the Commonwealth’s claim that the court acted on an

incomplete record because it relied only on evidence from the habeas corpus

hearing.    Here, upon defense objection to the non-DUI charges at the

preliminary hearing on the ground of lack of evidence of the requisite mens

rea, the Magistrate deferred the question of mens rea to the trial court,

stating: “I understand your argument, it’s very close. But I am going to hold

it for the hearing—or the trial, and certainly that’s something you can argue

at Common Pleas and you may prevail.”           (See N.T. Preliminary Hearing,

9/18/17, at 63; R.R. at Exhibit E, 72a.) The Commonwealth can hardly say

the Magistrate’s decision was definitive. Additionally, at the habeas corpus

hearing the trial court said it had not yet reviewed the preliminary hearing

testimony and, at the end of the hearing, the court declared it would take the

matter under advisement and issue an order in due course. (See N.T. Habeas

Corpus Hearing, 10/27/17, at 3, 36; R.R. at Exhibit F, 76a, 109a.)             The

Commonwealth can know only that the court did not review the preliminary

hearing testimony before the habeas corpus hearing. The Commonwealth

does not know for sure if the court ever reviewed the preliminary hearing

testimony   before   the   court   made   its   final   ruling.   Therefore,   the


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Commonwealth’s blanket statement on what the court did or did not review

has no basis.

     Based on the foregoing, we hold the trial court properly dismissed those

charges of homicide by vehicle (non-DUI) and aggravated assault by vehicle

(non-DUI) against Appellee for the Commonwealth’s failure to produce any

evidence that Appellee acted with the criminal recklessness or gross

negligence necessary to support those charges. Accordingly, we affirm.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/20/2018




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