Com. v. Sitler, R.

J-A33034-14

2015 PA Super 122

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant

v.

ROBERT N. SITLER

Appellee No. 3051 EDA 2013

Appeal from the Order of November 1, 2013
In the Court of Common Pleas of Montgomery County
Criminal Division at No.: CP-46-CR-0000389-2013

BEFORE: LAZARUS, J., WECHT, J., and STRASSBURGER, J.*

OPINION BY STRASSBURGER, J.: FILED MAY 21, 2015

This case comes before us on the Commonwealth’s interlocutory

appeal. Robert Sitler was charged with multiple vehicular and criminal

offenses following a traffic accident that he caused. Before trial, Sitler filed a

motion in limine seeking to preclude the Commonwealth from introducing,

inter alia, evidence of false statements that Sitler had made to the police

during the investigation, evidence of Sitler’s prior homicide by vehicle

conviction, and evidence of Sitler’s consumption of alcohol before the

accident. On November 1, 2013, the trial court granted Sitler’s motion.

Certifying that the trial court’s order substantially handicapped the

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*
Retired Senior Judge assigned to the Superior Court.
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prosecution,1 the Commonwealth appealed the court’s order. Upon review,

we vacate the order in part and affirm the order in part.

Because this case has not yet been tried, and because the case has

not yet been presented to the fact-finder, the following is a summary of the

facts underlying Sitler’s charges that we derive from the certified record and

from Sitler’s preliminary hearing.

On November 12, 2012, Regina Qawasmy was returning to her home

from work at approximately 9:00 p.m. on High Street in Lower Pottsgrove

Township, Montgomery County, Pennsylvania. While traveling on High

Street, Qawasmy noticed a pick-up truck driving very close to her rear

bumper. Qawasmy repeatedly applied her brakes in an effort to get the

truck to back away from her vehicle, to no avail. Soon thereafter, Qawasmy

activated her turn signal to inform the trailing pick-up that she was going to

turn right onto Sunnyside Road. The driver of the truck immediately revved

the engine, and accelerated to the left around Qawasmy’s turning vehicle.

When the truck sped around Qawasmy, it struck and killed a sixteen-

year-old boy who was standing in the center lane of the roadway. After the

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1
See Pa.R.A.P. 311(d) (“In a criminal case, under the circumstances
provided by law, the Commonwealth may take an appeal as of right from an
order that does not end the entire case where the Commonwealth certifies in
the notice of appeal that the order will terminate or substantially handicap
the prosecution.”).

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collision, both Qawasmy and the pick-up truck pulled over to the side of the

road and parked the vehicles.

Officer Matthew Meitzler of the Lower Pottsgrove Police Department

was dispatched to the scene of the accident. When Officer Meitzler arrived

at the scene, he located the victim lying against a curb, bleeding from the

nose, mouth, and ear. Initially, Officer Meitzler detected a faint pulse. He

and an EMT who had arrived on the scene began to perform CPR on the

victim until an ambulance arrived and transported the victim to the hospital.

The victim died that night at the hospital.

While Officer Meitzler was attending to the victim, Sitler’s girlfriend,

Denise Dinnocenti, stated that she was the driver of the pick-up truck.

Officer Meitzler was directed to escort Dinnocenti to a local hospital to have

her blood drawn to ascertain whether she was operating the truck under the

influence of alcohol. Officer Meitzler did not take Sitler or anyone else to the

hospital for a blood draw.

Officer Meitzler took two written statements from Sitler, one on the

night of the accident (November 12, 2012), and one on November 17, 2012.

In his initial statement, Sitler claimed that Dinnocenti was driving the vehicle

at the time of the accident, and that he was positioned in the front

passenger seat at all relevant times. Sitler informed the police that, while

he and Dinnocenti were travelling behind the van, Qawasmy abruptly

activated her turn signal and quickly began to make the turn. This swift

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action forced Dinnocenti immediately to veer into the center lane to avoid

hitting Qawasmy’s van, thereby striking the victim crossing the road.

Dinnocenti had provided the police a written statement on the night in

question that conformed to the version of events provided by Sitler in his

first statement. However, upon reviewing the Sitler and Dinnocenti

statements a few days after the accident, Officer Meitzler began to notice

some material inconsistencies. He decided to re-interview both individuals.

In her second interview, Dinnocenti admitted that she was not the driver of

the pick-up truck. Dinnocenti told Officer Meitzler that Sitler was the driver,

and that she had admitted to being the driver due to Sitler’s criminal history

and her fear that he would face severe consequences if he was arrested.

She also told Officer Meitzler that Sitler had consumed a few alcoholic

beverages prior to driving the truck.

When Officer Meitzler re-interviewed Sitler, Sitler conceded that he

was driving the pick-up truck on the date in question. Sitler acknowledged

that he had been convicted of vehicular manslaughter in Alabama in 2004,

after he had struck and killed a pedestrian with his vehicle. Sitler had

served a significant sentence for that crime, and he feared that, if he were

charged and convicted of a crime for the instant accident, he would be

severely punished. Thus, he instructed Dinnocenti and her children (who

also were in the car at the time of the accident) to lie to the authorities

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about who was driving the vehicle. Sitler also admitted to drinking three

beers before driving the pick-up.

Detective David Schanes, an agent of the Montgomery County District

Attorney’s Office, testified as an expert in the field of accident

reconstruction. Detective Schanes was called to the scene of the accident on

November 12, 2012, and spoke with Sitler. During the conversation,

Detective Schanes noticed that Sitler’s body emitted an odor of alcoholic

beverages. Sitler admitted to Detective Schanes that he had consumed a

few alcoholic drinks, but adamantly denied that Dinnocenti had been

drinking.

Detective Schanes then investigated the accident. After doing so, he

opined that the victim’s body came to rest 182 feet from the impact location.

Based upon that information, Detective Schanes determined that the pick-up

truck was travelling at least fifty miles per hour at the time of impact, which

is fifteen miles per hour more than the posted speed limit of thirty-five miles

per hour on High Street. With the assistance of a mechanic, Detective

Schanes also determined that there were no mechanical problems with the

pick-up truck that could have contributed to the accident. Detective

Schanes concluded that the tailgating and the speed of the pick-up truck

coincided to cause the accident. Finally, Detective Schanes determined that

Sitler owned and insured the pick-up truck that struck and killed the victim.

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Detective Schanes also spoke with an agent of the company that

insured Sitler’s truck. The insurance agent indicated to Detective Schanes

that Sitler had reported the accident, and that he informed the agent that

Dinnocenti was driving the pick-up at the time of the accident. As noted,

this assertion was untrue.

Sitler was arrested and, on December 10, 2012, was charged by

criminal complaint with a litany of crimes, including homicide by vehicle,

insurance fraud, false reports, unsworn falsifications, criminal conspiracy,

and a variety of violations of the Motor Vehicle Code. Sitler filed a pre-trial

motion seeking to sever the crimes arising from the Crimes Code, i.e., the

insurance fraud, false reports, unsworn falsifications, and criminal

conspiracy, from the trial on the homicide by vehicle and Motor Vehicle Code

violations. The trial court denied the motion.

Sitler filed pre-trial motions in limine, all of which were heard by the

trial court on October 31 and November 1, 2013. The issues included, inter

alia, the preclusion of evidence related to Sitler’s alcohol consumption,

preclusion of evidence about Sitler’s prior homicide by vehicle conviction in

Alabama, and preclusion of evidence about false statements made to police

and the insurance company about the accident at issue.

On November 1, 2013, the trial court granted Sitler’s motions in

limine, in relevant part, holding that the Commonwealth was precluded from

introducing testimony or evidence about Sitler’s consumption of alcohol, his

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homicide by vehicle conviction in Alabama, and his false statements. On

November 4, 2013, the Commonwealth filed a notice of appeal, wherein the

Commonwealth certified that the trial court’s November 1, 2013 order

substantially handicapped its prosecution pursuant to Pa.R.A.P. 311(d). In

response, the trial court directed the Commonwealth to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

On November 27, 2013, the Commonwealth timely filed a concise

statement. On April 30, 2014, the trial court issued an opinion pursuant to

Pa.R.A.P. 1925(a).

The Commonwealth presents the following three issues for our review:

1. Whether the lower court abused its discretion in concluding
that [Sitler’s] false statements were not admissible as
evidence of consciousness of guilt of reckless driving, where it
imposed an additional admissibility requirement contrary to
law and, in doing so, impinged on the jury’s fact-finding
responsibilities?

2. Whether the lower court abused its discretion by not
admitting [Sitler’s] prior conviction for vehicular
manslaughter to prove his knowledge, where the court based
its holding on unsupported findings contrary to the record and
a misapplication of the legal standard for knowledge?

3. Whether the lower court abused its discretion by excluding all
evidence of [Sitler’s] alcohol consumption prior to the
collision, where it [used] an incorrect standard for
determining what supporting facts support alcohol
consumption’s admissibility, misapplied the law to the facts,
and erred regarding the burden of proof?

Commonwealth’s Brief at 5.

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The Commonwealth first takes issue with the trial court’s holding that

Sitler could plead guilty to the crimen falsi offenses without any of the

evidence related to those crimes being admitted at his trial for homicide by

vehicle. The Commonwealth contended before the trial court (as it does now

before this Court) that evidence that Sitler lied to the police about who was

driving the vehicle and that he instructed Dinnocenti and her minor children

to lie to the police was admissible to demonstrate Sitler’s consciousness of

guilt. In its opinion, the trial court concluded that the Commonwealth’s

issue is premature because Sitler has not yet pleaded guilty, and might

never do so. We agree that this issue is not yet ripe for our review.

The Commonwealth’s claim is predicated upon what evidence it may

admit at trial if Sitler first pleads guilty to the crimen falsi offenses. In other

words, Sitler must plead guilty before the Commonwealth’s argument ripens.

Sitler has not yet pleaded guilty, and it is possible that he might never do

so. “[T]he courts should not give answers to academic questions or render

advisory opinions or make decisions based on assertions as to hypothetical

events that might occur in the future.” Philadelphia Entm't & Dev.

Partners, L.P. v. City of Philadelphia, 927 A.2d 385, 392 (Pa. 2007).

Thus, because both the trial court and this Court are precluded from issuing

purely advisory opinions, see Commonwealth v. Neitzel, 678 A.2d 369,

375 (Pa. Super. 1996) (citing Erie Ins. Exch. V. Claypoole, 673 A.2d 348,

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352 (Pa. Super. 1996) (en banc)), we vacate that portion of the trial court’s

order.2

The Commonwealth next challenges the trial court’s holding that

Sitler’s Alabama conviction for homicide by vehicle was inadmissible at

Sitler’s upcoming trial. The Commonwealth argues that Sitler’s conviction

was admissible as a prior bad act pursuant to Pa.R.E. 404(b) to prove

Sitler’s knowledge that his conduct could result in the death of another

person for purposes of proving the recklessness element of homicide by

vehicle. Commonwealth’s Brief at 29-30.

Our standard of review is well-settled. “Questions concerning the

admission of evidence are left to the sound discretion of the trial court, and

we, as an appellate court, will not disturb the trial court’s rulings regarding

the admissibility of evidence absent an abuse of that discretion.”

Commonwealth v. Russell, 938 A.2d 1082, 1091 (Pa. Super. 2007) (citing

Commonwealth v. Whitaker, 878 A.2d 914, 923 (Pa. Super. 2005)). “An

abuse of discretion is not merely an error of judgment, but is rather the

overriding or misapplication of the law, or the exercise of judgment that is

manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality,

as shown by the evidence of record.” Commonwealth v. Mendez, 74 A.3d
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2
The Commonwealth is in no way precluded from raising this issue or
pursuing review if and when Sitler pleads guilty, and will suffer no
meaningful hardship by our decision.

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256, 260 (Pa. Super. 2013) (citation omitted). “[I]f in reaching a conclusion

the trial court over-rides or misapplies the law, discretion is then abused and

it is the duty of the appellate court to correct the error.” Commonwealth

v. Weakley, 972 A.2d 1182, 1188 (Pa. Super. 2009) (citation omitted).

In Commonwealth v. Sherwood, 982 A.2d 483 (Pa. 2009), the

Pennsylvania Supreme Court set forth the general principles regarding the

admissibility of prior bad acts at trial as follows:

Generally, evidence of prior bad acts or unrelated criminal
activity is inadmissible to show that a defendant acted in
conformity with those past acts or to show criminal propensity.
Pa.R.E. 404(b)(1). However, evidence of prior bad acts may be
admissible when offered to prove some other relevant fact, such
as motive, opportunity, intent, preparation, plan, knowledge,
identity, and absence of mistake or accident. Pa.R.E. 404(b)(2).
In determining whether evidence of other prior bad acts is
admissible, the trial court is obliged to balance the probative
value of such evidence against its prejudicial impact.

Id. at 497 (citing Commonwealth v. Powell, 956 A.2d 406, 419 (Pa.

2008)). “The Commonwealth must prove beyond a reasonable doubt that a

defendant has committed the particular crime of which he is accused, and it

may not strip him of the presumption of innocence by proving that he has

committed other criminal acts.” Commonwealth v. Ross, 57 A.3d 85, 98-

99 (Pa. Super. 2012) (citing Commonwealth v. Stanley, 398 A.2d 631,

633 (Pa. 1979); Commonwealth v. Constant, 925 A.2d 810, 821 (Pa.

Super. 2007)).

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In Ross, we recognized the potential danger of Rule 404(b)(2)’s

exceptions swallowing the general rule, and we offered the following

caution:

The purpose of Rule 404(b)(1) is to prohibit the admission of
prior bad acts to prove “the character of a person in order to
show action in conformity therewith.” Pa.R.E. 404(b)(1). While
Rule 404(b)(1) gives way to recognized exceptions, the
exceptions cannot be stretched in ways that effectively eradicate
the rule. With a modicum of effort, in most cases it is possible
to note some similarities between the accused’s prior bad act
conduct and that alleged in a current case. To preserve the
purpose of Rule 404(b)(1), more must be required to establish
an exception to the rule—namely a close factual nexus sufficient
to demonstrate the connective relevance of the prior bad acts to
the crime in question…. [T]his Court has warned the prior bad
acts may not be admitted for the purposes of inviting the jury to
conclude that a defendant is a person “of unsavory character”
and thus inclined to have committed the crimes with which
he/she is charged.

Ross, 57 A.3d at 105-06 (citation omitted).

Instantly, Sitler is charged with, inter alia, homicide by vehicle. A

person is guilty of that crime if he “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…, when the violation is the cause of death.” 18 Pa.C.S.

§ 3732(a).

The trial court disagreed with the Commonwealth’s “tenuous”

argument that Sitler’s prior homicide by vehicle conviction was admissible

because “[e]ven without ever having been in an accident, most people

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generally know that reckless driving can kill others.” Trial Court Opinion,

4/30/2014, at 11.

We agree with the trial court. It does not take a prior conviction for

homicide by vehicle for a person to understand or have “knowledge” that

hazardous or reckless driving creates risk. Every driver knows this. Thus,

this evidence does not meet the requirements for the “knowledge”

exception, or any other exception set forth in the rule. In fact, Pa.R.E.

404(b) is designed specifically to keep evidence of the prior accident, which

is not connected in any way to the latter accident, from the jury.3

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3
This Court has held that the knowledge exception is applicable under
limited circumstances. In Commonwealth v. Russell, 938 A.2d 1082 (Pa.
Super. 2007), a panel of this Court held that the trial court admitted
properly evidence that Russell had used an accelerant to start a fire at a
juvenile detention facility under the knowledge exception. Specifically, this
Court indicated that knowledge about the nature of the liquid given to
Russell was crucial for the Commonwealth to establish Russell’s intent at
trial to assist in setting a dog on fire and thereby to prove her liability as an
accomplice and co-conspirator.

Additionally, this Court upheld admission of prior bad acts under the
knowledge exception in Commonwealth v. McCloskey, 835 A.2d 801 (Pa.
Super. 2003). In that case, McCloskey, the mother of a teenager, was being
prosecuted for involuntary manslaughter in connection with permitting her
teenager to host a party at her home involving alcohol. Teenagers who had
been consuming alcohol at that party were later involved in a fatal car crash.
McCloskey claimed she had no knowledge that the teenagers would be
consuming alcohol in her home. However, this Court upheld the admission
of evidence that teenagers had consumed alcohol at prior parties at
McCloskey’s home, with McCloskey’s permission, to show that McCloskey
had knowledge that alcohol might be consumed.

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Moreover, even if this prior conviction is somehow admissible under

the knowledge exception, the Commonwealth still had the burden to show

that the probative value of this conviction outweighed the “potential for

unfair prejudice.” Pa.R.E. 404(b)(2).

Instantly, the Commonwealth’s contends that Sitler’s “prior conviction

is highly probative of his knowledge about the risks of the way he was

driving at the time of the collision, establishing the mental state of

recklessness.” Commonwealth’s Brief at 29. However, as we pointed out

previously, every driver is aware that driving in an unsafe manner could

create risk and cause injury. Thus, there is nothing specific to probe about

Sitler’s prior conviction. Moreover, the prejudice Sitler would suffer in

having a jury find out about this prior conviction is practically

insurmountable, even if the trial court provided a cautionary instruction.

Accordingly, we hold the trial court’s order excluding this evidence was not

an abuse of discretion.

In its final issue, the Commonwealth argues that the trial court erred

by precluding any evidence of Sitler’s consumption of three alcoholic

beverages before driving the pick-up truck. The trial court reasoned that the

evidence was inadmissible because the Commonwealth was not going to

produce an expert to testify that three beers would have caused Sitler to be

intoxicated, that consumption of alcohol without more is not evidence of

recklessness, and that the evidence would simply be too prejudicial to

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Sitler’s right to a fair trial. See Trial Court Opinion, 4/30/2014, at 3-8. We

disagree with the Commonwealth that this evidence was admissible, and

that the trial court abused its discretion in precluding it from trial. See

Russell, supra (stating that we review evidentiary rulings for an abuse of

discretion).

For purposes of determining whether a driver was reckless,

Pennsylvania Courts distinguish between evidence that a driver was

intoxicated and evidence that the driver only had been drinking, but was not

intoxicated. Although evidence of intoxication does not establish

recklessness per se, such evidence nonetheless is relevant and admissible.

See Commonwealth v. Jeter, 937 A.2d 466, 468 (Pa. Super. 2007).

Combined with other evidence, evidence of intoxication can be used as a

factor to prove recklessness. Id. However, where the Commonwealth

cannot demonstrate that the driver actually was intoxicated, evidence that

the driver had been drinking (such as the odor of alcohol emanating from

the driver) is inadmissible to prove that a person was driving recklessly.

See Commonwealth v. Buffington, 444 A.2d 1194, 1198 n.8 (Pa. Super.

1982) (“Without question, the mere fact of consuming intoxicating liquor is

inadmissible to prove unfitness to drive.”). However, the inadmissibility of

such evidence can be overcome “if in addition to drinking, facts are shown

from which a conclusion reasonably follows that the driver was under the

influence.” Commonwealth v. Cave, 281 A.2d 733, 734 (Pa. Super.

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1971). If the Commonwealth can adduce additional facts to prove

intoxication, “all the evidence … [is] admissible … to determine whether or

not the drinking was wholly or partly the cause of an accident.” Id.

In Cave, which the Commonwealth relies upon exclusively, Cave

consumed three beers and then immediately drove with excessive speed and

in a reckless manner. Within one mile of leaving the pub where he was

drinking, Cave failed to negotiate a curve, crossed the center line, and hit an

oncoming car head-on, killing a passenger. Id. at 734. Cave argued that

admission of evidence of his consumption of only three beers was erroneous,

and in violation of the long-standing principle that “the mere fact of drinking

intoxicating liquor is not admissible, being unfairly prejudicial, unless it

reasonably established a degree of intoxication which proves unfitness to

drive.” Id. (citing Critzer v. Donovan, 137 A. 665, 666 (Pa. 1927). We

clarified and expanded this rule, as follows:

It is true that the ‘mere’ drinking of intoxicating liquor is
inadmissible to prove that a driver was under the influence of
intoxicating liquor and unfit to drive an automobile. However, it
is also true that if in addition to the drinking, facts are shown
from which a conclusion reasonably follows that the driver was
under the influence of intoxicating liquor, all the evidence, the
drinking and the surrounding circumstances are admissible for
the consideration of the trier of facts to determine whether or
not the drinking was [w]holly or partly the cause of an accident
for which he is being held responsible.
Id.

We then examined Critzer, in which our Supreme Court established

the still-precedential rules governing the admission of evidence relating to

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the consumption of alcohol at a trial for a vehicular offense involving

recklessness. In Critzer, the Pennsylvania Supreme Court held as follows:

It may be conceded that in an action wherein reckless or
careless driving is the matter at issue, proof of intoxication
would be relevant. When evidence of intoxication appears in a
case such as this[,] it is offered … to show a circumstance from
which recklessness or carelessness of the driver may be inferred.
Care should then be taken as to the use of such evidence. There
was no allegation or proof of intoxication, [n]or was there any
evidence of conduct or appearance from which a reasonable
inference could be drawn that the man was intoxicated….
Standing alone, the odor of liquor does not prove, nor is it
evidence of, intoxication: Joined with other facts it may become
so…. Proof of the odor of liquor is admissible for certain
purposes, but its natural consequence is not reckless driving.

Critzer, 137 A. at 666 (citations omitted).

Ultimately, in Cave, we held that the Critzer rule was inapplicable,

because there was “an abundance of evidence” to prove that Cave was

operating the vehicle “under the influence of intoxicating liquor.” Cave, 281

A.2d at 736-37. In other words, we held that there were other facts that

could be “joined” with the odor of alcohol to demonstrate that Cave was

intoxicated, and that the intoxication contributed to the accident. Notably,

Cave’s extremely dangerous driving occurred immediately after he left the

bar after drinking the alcohol.

The same cannot be said in the instant case. Based upon the still-

binding rules set forth in Cave and Critzer, evidence of intoxication would

be relevant and admissible to demonstrate that a driver was driving

recklessly. However, evidence short of intoxication, such as an odor of

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alcohol emanating from a person, without more, is not admissible to prove

recklessness when driving unless that evidence can be joined with other

relevant facts to establish intoxication. In the case sub judice, the evidence

that we can glean from the certified record demonstrates that Sitler had

consumed three beers approximately three hours before driving the vehicle.

Although each of the police officers at the scene described an odor of alcohol

emanating from Sitler, none of those officers alleged that Sitler appeared to

be intoxicated, unsteady, or otherwise influenced by the three beers. Unlike

Cave, Sitler did not drink three beers, jump into his truck, and immediately

drive in a hazardous manner that caused an accident killing a person within

one mile. In other words, no evidence exists other than the odor of alcohol

to suggest that Sitler was intoxicated.

In Pennsylvania, the focus on the admissibility of alcohol evidence is

intoxication. The odor of alcohol alone is insufficient to establish

intoxication. The record provides no evidence of intoxication, and the

Commonwealth has admitted that it will not be calling an expert at trial to

establish that Sitler’s consumption of three beers rendered him intoxicated,

or that those beers contributed to the accident. Thus, the Commonwealth

cannot establish any additional facts that would render the evidence

admissible.

Under such circumstances, we also note that the prejudice that would

result from the admission of this evidence would be insurmountable for

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Sitler. We agree with the trial court that the evidence would “improperly

suggest that [Sitler] was intoxicated, and that such intoxication caused the

accident[.]” Trial Court Opinion, 4/30/2014, at 7. Moreover, “[Sitler] would

be forced to rebut the innuendo that three beers, three hours earlier caused

him to drive recklessly at the time of the accident.” Id. Without more, the

evidence is too prejudicial to be admitted at trial. Thus, the trial court did

not abuse its discretion in granting Sitler’s motion in limine in this regard.

In sum, we vacate the portion of the order with respect to admission

of evidence of Sitler’s false statements, as the trial court addressed the issue

prematurely. We affirm the trial court’s order with regard to its ruling on the

admissibility of Sitler’s prior conviction and on the admissibility of the

evidence of Sitler’s consumption of alcohol.

Order affirmed and vacated in part. Jurisdiction relinquished.

Judge Lazarus joins the Opinion.

Judge Wecht files a Concurring and Dissenting Opinion.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/21/2015

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