J-A10018-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
JAMES J. KINDER,
Appellee No. 261 WDA 2015
Appeal from the Order Entered January 16, 2015
In the Court of Common Pleas of Washington County
Criminal Division at No(s): CP-63-CR-0001315-2014
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and SHOGAN, J.
MEMORANDUM BY BENDER, P.J.E.: FILED JULY 18, 2016
Appellant, the Commonwealth, appeals from the trial court’s order
denying reconsideration of a prior order granting James J. Kinder’s,
Appellee’s, motion for writ of habeas corpus. Essentially, the
Commonwealth complains that the case against Appellee for driving under
influence of alcohol (DUI), 75 Pa.C.S. § 3802(a)(1), was erroneously
dismissed for want of a prima facie case. After careful review, we affirm.
The trial court summarized the operative facts as follows:
The record reveals that David Stiffler, a volunteer
firefighter in Jefferson Township, responded to the scene, as a
medic, to a one-vehicle crash at Creek Lane involving an
overturned pick-up truck owned by [Appellee]. Weather
conditions were bad and the ground was covered in
approximately six or seven inches of snow. Upon arriving at the
crash scene, Mr. Stiffler testified that "[w]e were told at that
time by some bystanders that were in that area or live on that
road that [the occupants] had exited the vehicle and was [sic] in
the home. So there was nobody in the vehicle when we
J-A10018-16
arrived." Mr. Stiffler then proceeded to the house where
[Appellee] resided, based on the information gathered from the
bystanders, to check on the occupants who were apparently
involved in the accident.
At [Appellee]'s house, Mr. Stiffler was informed by an
elderly woman that a female was just at the house but left. Mr.
Stiffler believed that the elderly woman was [Appellee]'s mother.
The elderly woman stated that the female went out the door and
up over the hill after arguing with [Appellee]. However,
[Appellee] was in the house at this time. Mr. Stiffler completed
a general assessment of [Appellee] to make sure that he was not
injured. Mr. Stiffler stated that he did not smell anything, such
as alcohol. However, he noticed "slurred speech, and just typical
interaction, I was able to tell that he had been drinking at some
point." After completing a general assessment, Mr. Stiffler
searched for the female occupant. When he exited the house,
he noticed one set of footprints in the snow that went over the
hill, into the woods, and ended at Eldersville Road. After the
search, he was unable to locate her. Mr. Stiffler testified that he
did not observe which occupant was driving the vehicle, nor was
he informed by any of the eyewitnesses which occupant was
driving.
At some point while Mr. Stiffler was in the house assessing
[Appellee], Trooper Chad Weaver of the Pennsylvania State
Police arrived at the crash scene. Trooper Weaver testified at
the preliminary hearing on May 28, 2014, and the transcript
from the preliminary hearing was admitted into evidence at the
subsequent January 14, 2015 hearing before this Court. Trooper
Weaver stated that he observed heavy damage to the right
passenger side of the vehicle, and he did not see an operator at
the scene. Further, according to Trooper Weaver, the driver's
side door was pinned and could not have been an exit.
Thereafter, Trooper Weaver walked up to [Appellee]'s house and
questioned [Appellee], but [Appellee] never admitted to driving
and never said who was driving. At the preliminary hearing,
Trooper Weaver admitted that [Appellee] did not want to
implicate himself or anyone else. The female occupant of the
vehicle was never located or questioned. [Appellee] was placed
under arrest for suspicion of DUI. After [Appellee] was arrested,
Trooper Weaver found keys to the crashed pick-up truck and a
bottle of pills on [Appellee].
-2-
J-A10018-16
[Appellee] was charged with [DUI] and other related
charges. On May 28, 2014, a Preliminary Hearing was held
before Magisterial District Judge Gary Havelka and the charges
were held for court. On September 22, 2014, [Appellee] filed a
Pretrial Motion seeking to have the charges dismissed. On
January 14, 2015, a hearing was held on [Appellee]'s Pretrial
Motion. In an Order dated January 16, 2015, this Court granted
[Appellee]'s Pretrial Motion, dismissed Counts 1 and 2 of the
criminal complaint, and ordered [Appellee] to appear for plea
court to address his remaining summary charges. On February
9, 2015, the Commonwealth filed a Notice of Appeal. Thereafter,
on February 10, 2015, this Court issued an order directing the
Commonwealth to file and serve a [Pa.R.A.P. 1925(b)] Concise
Statement of Matters Complained of on Appeal.... The
Commonwealth filed and served its [Rule 1925(b)] on February
27, 2015.
Trial Court Opinion (TCO), 4/6/15, at 1-3 (citations omitted). The trial court
issued its Rule 1925(a) opinion on April 6, 2015.
The Commonwealth now presents the following question for our
review: “Did the Trial Court err in granting the [Appellee]'s omnibus pretrial
motion for writ of habeas corpus where the evidence, viewed in a light most
favorable to the Commonwealth, established sufficient evidence for a prima
facie case of [DUI]?” Commonwealth's Brief, at 6 (italics added).
Initially, we note that where the facts are not in dispute
the determination of whether a prima facie case has been
established is a question of law. Commonwealth v. Finn, 344
Pa.Super. 571, 496 A.2d 1254, 1255 (1985). Accordingly, our
scope of review is limited to determining whether the trial court
committed an error of law. Id. “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. Martin, 727 A.2d 1136, 1142 (Pa.
Super. 1999), appeal denied, 560 Pa. 722, 745 A.2d 1220
(1999) (quoting Commonwealth v. Allbeck, 715 A.2d 1213,
1214 (Pa. Super. 1998)). “[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
-3-
J-A10018-16
each and every element of the crime charged.” Id. Moreover,
the weight and credibility of the evidence are not factors at this
stage, and the Commonwealth need only demonstrate sufficient
probable cause to believe the person charged has committed the
offense. Commonwealth v. Wojdak, 502 Pa. 359, 369, 466
A.2d 991, 1000 (1983); …. “Inferences reasonably drawn from
the evidence of record which would support a verdict of guilty
are to be given effect, and the evidence must be read in the light
most favorable to the Commonwealth's case.” Commonwealth
v. Owen, 397 Pa.Super. 507, 580 A.2d 412, 414 (1990)
(citations omitted).
Commonwealth v. Marti, 779 A.2d 1177, 1180 (Pa. Super. 2001) (citation
omitted).
The critical issue in this case is whether the Commonwealth
established a prima facie case that Appellee was driving the vehicle when it
crashed. The trial court determined that “[e]ven when … view[ed] … in the
light most favorable to the Commonwealth, and considering all reasonable
inferences in favor of the Commonwealth, the evidence produced [was]
incapable of supporting a guilty verdict.” TCO, at 9. In this regard, the trial
court found that the evidence produced by the Commonwealth in this case
could not “show that it is more likely than not that [Appellee] was the one
driving.” Id.
The statutory language at issue is 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.
-4-
J-A10018-16
While the Commonwealth is obligated to prove the ‘operation’ element
of this offense, it is not mandatory to prove that element with direct
testimony or direct evidence. Rather, as this Court discussed in
Commonwealth v. Johnson, 833 A.2d 260 (Pa. Super. 2003), “it is clear
that the Commonwealth may establish, by the totality of the circumstances,
that a defendant was driving, operating or in actual physical control of a
motor vehicle.” Id. at 266. The Johnson Court summarized some of the
many instances in which a DUI conviction was upheld against challenges that
the defendants were not directly observed operating a vehicle:
In [Commonwealth v. Woodruff, 668 A.2d 1158 (Pa.
Super. 1995)], in the early hours of April 15, 1993, the police
found [the] appellant in a slumped position and sleeping in his
automobile along the side of Route 6 in Wyalusing Township,
Pennsylvania. That location was fifty yards from a convenience
store from where the appellant previously purchased alcoholic
beverages. The appellant's vehicle was protruding over the fog
lines into the lane of traffic. The engine of the automobile was
running and its high beam lights were activated. The appellant,
who was seated behind the steering wheel of the vehicle,
smelled of alcohol and had many cans of beer in the vehicle.
Woodruff, 668 A.2d at 1160. The police roused the appellant,
and administered field sobriety tests which the appellant failed.
Following his conviction of driving under the influence, on
appeal, the appellant did not contest that he was under the
influence of alcohol when he was arrested. Rather, he argued
that the evidence was insufficient to establish that he was
driving, operating or in actual physical control of the automobile.
We rejected this argument and noted that “the suspect location
of an automobile ‘supports an inference that it was driven, ... a
key factor in the finding of actual control.’” Id. at 1161. We
also emphasized that for a DUI conviction, no observation was
necessary that the defendant's car was in motion. Id.
In Commonwealth v. Bowser, 425 Pa. Super. 24, 624
A.2d 125 (1993)[,] appeal denied, 537 Pa. 638, 644 A.2d 161
-5-
J-A10018-16
(1994), cert. denied 513 U.S. 867, 115 S.Ct. 186, 130 L.Ed.2d
120 (1994), the evidence established that the intoxicated
Bowser was found clutching the steering wheel of a car that had
been involved in a two-car accident and was stopped in the road.
Shortly after the accident, an individual named David Waters
arrived on the scene. He subsequently removed the driver of
the other vehicle, Ms. Furlong from her burning automobile and
placed her in the back of his truck. Mr. Waters then proceeded
to Bowser's vehicle and eventually utilized force to remove
Bowser from the vehicle. See Bowser, 624 A.2d at 129. When
the police arrived, Mr. Waters informed them that Bowser was
one of the drivers involved in the accident. Bowser was
subsequently convicted of DUI. On appeal, our Court found this
evidence sufficient to sustain Bowser's DUI conviction even
though no one actually saw Bowser driving the vehicle. See
[i]d. at 130.
In Commonwealth v. Devereaux, 304 Pa. Super. 327,
450 A.2d 704 (1982), two witnesses heard a crash and went to
the scene to investigate. At the scene, one of the witnesses saw
Devereaux in the passenger seat of a car that had been involved
in a one-car accident. No one else was in the vicinity other than
Devereaux and another man who was standing outside
Devereaux's car attempting to render aid to Devereaux.
Although no one actually saw Devereaux driving the car and no
one saw him in the driver's seat or behind the steering wheel,
this Court upheld Devereaux's DUI conviction based on the
reasonable inference that Devereaux was driving or operating
the vehicle at the time of the accident.
Commonwealth v. Leib, 403 Pa. Super. 223, 588 A.2d
922 (1991)[,] presents yet another example of a situation where
this Court upheld a DUI conviction even though nobody actually
saw the appellant drive the vehicle. In that case, the police
found the appellant, unconscious and slumped over the steering
wheel of his vehicle which was parked in the middle of the road.
Id. at 924. Although the car was not running, the keys were in
the ignition. After the police awakened the appellant, who
smelled of alcohol and had glassy and bloodshot eyes, they
subsequently administered field sobriety tests which the
appellant failed. The appellant's blood alcohol content was later
determined to be .263. Id. Following his DUI conviction, on
appeal the appellant maintained that the evidence was
insufficient to establish that he was driving, operating or in
-6-
J-A10018-16
actual physical control of the vehicle. He argued that his car
broke down at the location where he was arrested and that he
consumed alcohol after his car broke down. We rejected the
appellant's argument, noting that the jury did not believe his
version of the events.
Johnson, 833 A.2d at 265-66.
Then, in Johnson,
one of the cars involved in the accident (the Chevy Impala) was
owned by [Johnson] and was registered in his name. The other
car involved in the accident (the Pontiac) sustained rear-end
damage while [Johnson]'s vehicle sustained front-end damage.
When the police arrived, [Johnson]'s vehicle was located on a
travel lane on a public street behind the other vehicle involved in
the accident. This indicates that [Johnson]'s vehicle was driven
to that location: the vehicle did not suddenly emerge from
nowhere onto the travel lane of a public street. [Johnson] was
leaning against the driver's side door of his vehicle when the
police arrived. Thus, it can reasonably be inferred that [Johnson]
drove his car to the accident scene: [Johnson] and his car did
not suddenly emerge from nowhere onto the travel lane of a
public street behind another car that had just been rear-ended.
It can reasonably be inferred that [Johnson] must have driven
his car to that location.
Id. at 263-64.
Instantly, the Commonwealth essentially asks that this court extend
the Johnson ruling yet another step further,1 based on the following
circumstances:
(1) [Appellee] was the registered owner of the crashed truck;
(2) [Appellee] was located in the immediate vicinity of the
crashed truck inside of his home; (3) eyewitnesses directed
Captain Sti[f]fler to [Appellee]'s home, indicating that the
____________________________________________
1
The Commonwealth does not state their argument in these express terms.
However, the facts of this case do present another degree of separation from
a DUI-related vehicle than were present in Johnson.
-7-
J-A10018-16
occupants, a male and female, left the truck following the crash
and went inside [Appellee]'s home; (4) upon Captain Sti[f]fler's
assessment of [Appellee], never once did [Appellee] deny being
involved in a crash, and therefore did not need to be looked at
medically for possible injury; and (5) [Appellee] had the keys to
his crashed truck in his pocket.
Commonwealth’s Brief, at 17.
Initially, we address the fourth circumstance cited by the
Commonwealth. Here, the Commonwealth appears to suggest that
Appellee’s silence was evidence of his guilt, a foreign concept to our
jurisprudence, and one which we decline to countenance without some
citation to supporting authorities, which the Commonwealth fails to provide.2
The Commonwealth does cleverly try construe this fact as saying something
more than it does, i.e., that by not admitting to being involved in the crash,
Appellee was expressly denying that he was in one, or that the same was
implied by Appellee’s refusal of treatment.
However, no such admission or denial is to be found in the record.
Instead, the record demonstrates that Appellee did not deny being involved
in a crash. N.T., 1/14/15, at 11. He made no statements about driving the
vehicle. Id. He did not refuse treatment; yet, although he did not request
it, Appellee permitted Captain Stiffler to check him for injuries. Id. at 11-
12. Despite the fact that Appellee’s vehicle was found overturned and lying
____________________________________________
2
When directly asked about his role in the accident, Appellee twice told
Trooper Weaver that “he was pleading the 5th.” N.T., 5/28/14, at 5.
-8-
J-A10018-16
across both lanes of traffic, Captain Stiffler did not observe any injuries on
Appellee. Id. at 8; 11-12.
In any event, even had Appellee denied that he was in the vehicle
when it crashed, under no circumstances could such a fact be construed as
favorable to the Commonwealth. It would be, if anything, evidence that
Appellee had not been operating the vehicle. For the aforementioned
reasons, we reject the Commonwealth’s claim that Appellee’s purported
failure to deny being involved in an accident supports a prima facie case that
Appellee was operating the vehicle.
We do agree with the Commonwealth that the remaining four
circumstances tend to support a conclusion that Appellee was driving the
vehicle when it crashed. And, congruent with our standard of review, we
cannot evaluate the relative weight of these circumstances. Indeed, if these
facts existed in a vacuum, we would be persuaded that Johnson compels
reversal in this case. But Johnson does not compel reversal here, because
these were not the only facts demonstrated by the Commonwealth’s own
evidence.
The Commonwealth overlooks and/or understates another critical
circumstance present in this case, and the primary basis for the trial court’s
conclusion that the Commonwealth had failed to demonstrate a prima facie
case that Appellee had been operating the vehicle. The Commonwealth’s
own evidence demonstrated that there was another potential operator of
-9-
J-A10018-16
Appellee’s vehicle, a female, who fled before Captain Stiffler and Trooper
Weaver arrived.
The trial court explained the importance of this fact to its decision to
dismiss Appellee’s DUI charges as follows:
In [Commonwealth v. Young, 904 A.2d 947 (Pa. Super.
2006)], the Superior Court considered a combination of factors
in determining whether there was sufficient evidence for a prima
facie case where a witness observed a defendant standing near
the driver's side of his vehicle after it crashed into a utility pole.
The witness also provided a detailed description of the driver to
a police officer who arrived within a minute of being dispatched.
In addition to the observations and the description provided by
the eye witness, the Commonwealth produced additional
evidence which further supported that the defendant was the
driver. Specifically, the vehicle was registered in [the]
defendant's name, car keys were found in his pocket, a witness
observed him running away from the scene, and he attempted to
evade police by running into a wooded area. [Id.] at 951. The
Superior Court found this combination of factors sufficient to
establish a prima facie case that the defendant was driving the
vehicle. Id. But see Com[monwealth] v. Prado, 393 A.2d 8
(Pa. 1978) (finding [the] Commonwealth failed to establish a
prima facie case where Appellee emerged from an alley after the
shooting, but no witnesses to the shooting were presented and
no evidence of the murder weapon was presented).
Here[,] the Commonwealth failed to provide sufficient
evidence that would permit a conclusion similar to Young or
Johnson. Namely, neither Mr. Stiffler nor Trooper Weaver
observed an operator present at the scene. Trooper Weaver
testified that [Appellee] never admitted to driving and never said
who was driving. Witnesses informed Mr. Stiffler that there were
actually two different individuals who went into a nearby house
following the crash. But unlike the scenario in Young, the
witnesses in this case did not identify which occupant was
driving the vehicle nor did they provide a physical description or
identify the two individuals in any capacity. According to Mr.
Stiffler, witnesses informed him that the occupants "are up at
the house," but the witnesses did not provide a description
beyond the fact that the occupants were male and female.
- 10 -
J-A10018-16
When Mr. Stiffler arrived at the house, he found [Appellee] who
"denied there was a female with him, and that's when the elderly
woman came out of the other room and said that she had left
the house." It could be reasonably inferred that [Appellee] was
protecting the female because perhaps she was the driver having
fled the scene in six or seven inches of snow through the woods.
Mr. Stiffler noted that he observed only one set of tracks in the
snow, and the tracks led out to Eldersville Road, which is
consistent with the information that Mr. Stiffler received from the
elderly woman regarding a female fleeing the house.
Notably, this Court had a serious issue with the fact that
the female occupant who was observed by witnesses fled the
scene altogether, and the Commonwealth did not investigate this
matter further. Such an act casts serious doubt as to whether
[Appellee] was the driver. Additionally, [Appellee]'s attorney
noted that car owners have multiple sets of car keys, and the
fact that [Appellee] had the car keys in his pocket does not
automatically mean that he was driving the vehicle, or in the
vehicle, at the time that it crashed. In fact, Mr. Stiffler testified
that he did not notice any scratches, bumps, or bruises on
[Appellee], and he agreed that there was no evidence
whatsoever that [Appellee] was in a rollover crash. The
Commonwealth did not uncover or present any physical evidence
from the scene of the crash that would support their contention
that [Appellee] was the driver.
Accordingly, the Court finds that the Commonwealth did
not present sufficient evidence to establish a prima facie case
against [Appellee] under 75 Pa.C.S.A. § 3802(a)(1). Even when
viewing the evidence in the light most favorable to the
Commonwealth, and considering all reasonable inferences in
favor of the Commonwealth, the evidence produced is incapable
of supporting a guilty verdict. The Court notes that the
Commonwealth need not establish every element beyond
reasonable doubt; however, the evidence is insufficient to show
that it is more likely than not that [Appellee] was the one
driving. The Court properly granted [Appellee]'s Pre-trial Motion
because the Commonwealth failed to establish a prima facie
case.
TCO, at 7-9.
- 11 -
J-A10018-16
We ascertain no abuse of discretion in the trial court’s analysis and
conclusion. At best, after affording the Commonwealth the benefit of all
reasonable inferences, the evidence established a prima facie case that
Appellee was in the vehicle at the time of the crash. Placing Appellee in the
driver’s seat, however, was a hurdle that no factfinder could accomplish
under a beyond-a-reasonable-doubt standard. Thus, the trial court correctly
decided that a jury, while permitted to weigh all the evidence in the
Commonwealth’s favor, was not permitted to guess the identity of a
perpetrator of a crime by the functional equivalent of a coin-flip.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/18/2016
- 12 -