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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
MICHELLE LEIGH STARRY,
Appellee No. 2028 WDA 2015
Appeal from the Order Entered December 16, 2015
In the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0001154-2014
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and STRASSBURGER,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 29, 2016
The Commonwealth appeals from the order that granted Michelle Leigh
Starry’s (“Appellee”) petition for habeas corpus. After careful consideration,
we reverse and remand.
The record reflects the following facts. On January 26, 2014, an
individual identified as Mr. Teeter contacted State Police, indicating that
Appellee had left his residence at approximately 11:00 a.m., driving the
Hyundai registered in her name.1 N.T., Omnibus Pretrial Hearing, 7/30/15,
at 16-18, 23. At 11:49 a.m., Joseph Gabor called 911 to report that he had
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*
Retired Senior Judge assigned to the Superior Court.
1
It is unclear from the record why Mr. Teeter called State Police that
morning. We reference this fact due to its relevance in establishing that
Appellee was operating her vehicle at that time on that date.
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arrived upon the scene of a crashed vehicle along County Road in
Loyalhanna Township, Pennsylvania. Id. at 10.
At the scene, first responders found the vehicle registered to Appellee
along the berm of the road where it had impacted a tree. N.T., Preliminary
Hearing, 3/10/14, at 10; N.T., Omnibus Pretrial Hearing, 7/30/15, at 12.
Appellee was discovered sleeping in the back seat of the vehicle. N.T.,
Preliminary Hearing, 3/10/14, at 7-8, 10. There were no other individuals in
the vehicle, and the first responders noted that, apart from the footprints
belonging to Mr. Gabor, there were no other footprints in the snow that
would indicate that anyone had left the scene of the crash. Id. at 6. The
driver-side airbag had deployed. N.T., Omnibus Pretrial Hearing, 7/30/15,
at 18. Inside the passenger side door area of the vehicle was a Coors beer
glass that appeared to be half-full of beer. N.T., Preliminary Hearing,
3/10/14, at 6.; N.T., Omnibus Pretrial Hearing, 7/30/15, at 29.
Upon urging by the first responders, Appellee attempted to exit the
vehicle, only to fall down. N.T., Preliminary Hearing, 3/10/14, at 8. The
first responders helped Appellee out of the vehicle and aided her to the
ambulance. Id. Examination of Appellee by medical personnel indicated
that Appellee had bruising to her chest and abdomen area, which would be
consistent with an impact with the steering wheel. Id. at 8.
Trooper Todd Adamski was dispatched to the accident and observed
Appellee’s vehicle where it had impacted a tree. N.T., Preliminary Hearing,
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3/10/14, at 5. At the time of the trooper’s arrival, Appellee was being
treated in the back of the ambulance. Id. at 5. Upon interviewing Appellee,
Trooper Adamski detected an odor of alcohol coming from Appellee. Id. at
5. Trooper Adamski also noted that Appellee’s speech was slurred and “she
was unable to complete her thoughts.” Id. at 5. It was Trooper Adamski’s
opinion, based upon his interaction with Appellee, that she was under the
influence of alcohol to a degree that would render her incapable of safe
driving. Id. at 6. Trooper Adamski ended his interview of Appellee so that
she could be properly treated for her medical needs. N.T., Omnibus Pretrial
Hearing, 7/30/15, at 25. Trooper Adamski testified that from the time of his
arrival at 12:36 p.m. until Appellee was removed from the scene by
ambulance at 12:56 p.m., Appellee did not consume any alcohol. Id. at 24.
Appellee’s blood was drawn at Forbes Regional Hospital at 1:40 p.m. and
produced a .304% blood alcohol content (“BAC”) result. Id. at 13, 17.
Appellee was charged with two counts of driving under the influence
(“DUI”): one count under 75 Pa.C.S. § 3802(a)(1), general impairment, and
one count under 75 Pa.C.S. § 3802(c), highest rate of alcohol. Following a
preliminary hearing, the magisterial district justice determined that a prima
facie case of the offenses had been made and held the charges over for trial.
N.T., Preliminary Hearing, 3/10/14, at 19. Appellee then filed an omnibus
pretrial motion, which included a petition for writ of habeas corpus.
Omnibus Pretrial Motion, 7/2/14. A hearing on the motion was held on July
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30, 2015. By order entered December 16, 2015, the trial court granted
Appellee’s petition for writ of habeas corpus, concluding that the
Commonwealth failed to establish a prima facie case of the offenses
charged. The Commonwealth filed a notice of appeal on December 22,
2015. The trial court directed the Commonwealth to file a Pa.R.A.P. 1925(b)
statement, and the Commonwealth complied. The trial court issued a decree
pursuant to Pa.R.A.P. 1925(a), indicating that the reasons for the court’s
ruling could be found in the order entered December 16, 2015.
The Commonwealth presents the following issue for our review:
Whether the Commonwealth established a prima facie case
of DUI when [Appellee] was seen alone, driving a vehicle
registered to her, and then 50 minutes later, her vehicle was
discovered, crashed into a tree, with [Appellee] inside, alone,
exhibiting signs of intoxication; with no footprints in the snow to
suggest other occupants, bearing injury consistent with hitting a
steering wheel, and [Appellee’s] BAC being measured at .304%
when her blood was drawn, approximately two hours after she
was found.
Commonwealth’s Brief at 4.
As this Court has explained:
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.
Commonwealth v. Dantzler, 135 A.3d 1109, 1112 (Pa. Super. 2016) (en
banc) (internal citations and quotations marks omitted).
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A prima facie case consists of evidence, read in the light most
favorable to the Commonwealth, that sufficiently establishes
both the commission of a crime and that the accused is probably
the perpetrator of that crime. The Commonwealth need not
prove the defendant’s guilt beyond a reasonable doubt. Rather
the Commonwealth must show sufficient probable cause that the
defendant committed the offense, and 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. In
determining the presence or absence of a prima facie case,
inferences reasonably drawn from the evidence of record that
would support a verdict of guilty are to be given effect, but
suspicion and conjecture are not evidence and are unacceptable
as such.
Commonwealth v. Hendricks, 927 A.2d 289, 291 (Pa. Super. 2007).
The proper standard of review has been stated as follows:
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. James, 863 A.2d 1179,
1182 (Pa.Super.2004) (en banc). In Commonwealth v.
Karetny, 583 Pa. 514, 880 A.2d 505 (2005), our Supreme Court
found that this Court erred in applying an abuse of discretion
standard in considering a pre-trial habeas matter to determine
whether the Commonwealth had provided prima facie evidence.
The Karetny Court opined, “the Commonwealth’s prima facie
case for a charged crime is a question of law as to which an
appellate court’s review is plenary.” Id. at 513, 880 A.2d 505;
see also Commonwealth v. Huggins, 575 Pa. 395, 836 A.2d
862, 865 (2003) (“The question of the evidentiary sufficiency of
the Commonwealth’s prima facie case is one of law [.]”). The
High Court in Karetny continued, “[i]ndeed, 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.” Karetny, supra at 513, 880
A.2d 505. Hence, we are not bound by the legal determinations
of the trial court. To the extent prior cases from this Court have
set forth that we evaluate the decision to grant a pre-trial
habeas corpus motion under an abuse of discretion standard, our
Supreme Court has rejected that view. See id.
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Dantzler, 135 A.3d at 1111-1112. See also Commonwealth v. Marti,
779 A.2d 1177, 1180 (Pa. Super. 2001) (stating prima facie standard
requires evidence of each and every element of crime charged; weight and
credibility of evidence are not factors at this stage of proceedings). The
Commonwealth may sustain its burden of proving every element of the
crime by means of wholly circumstantial evidence. Commonwealth v.
Hansley, 24 A.3d 410, 416 (Pa. Super. 2011).
A violation for DUI pursuant to 75 Pa.C.S. § 3802(a)(1) is defined 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(a)(1). 75 Pa.C.S. § 3802(c) further provides:
(c) Highest rate of alcohol.--An individual may not drive,
operate or be in actual physical control of the movement of a
vehicle after imbibing a sufficient amount of alcohol such that
the alcohol concentration in the individual’s blood or breath is
0.16% or higher within two hours after the individual has driven,
operated or been in actual physical control of the movement of
the vehicle.
75 Pa.C.S. § 3802(c).
“The term ‘operate’ requires evidence of actual physical control of
either the machinery of the motor vehicle or the management of the
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vehicle’s movement, but not evidence that the vehicle was in motion.”
Commonwealth v. Johnson, 833 A.2d 260, 263 (Pa. Super. 2003).
A determination of actual physical control of a vehicle is based
upon the totality of the circumstances. The Commonwealth can
establish through wholly circumstantial evidence that a
defendant was driving, operating or in actual physical control of
a motor vehicle.
Commonwealth v. Williams, 871 A.2d 254, 259 (Pa. Super. 2005)
(internal citations omitted).
The Commonwealth argues that it made out a prima facie case as to
both charges. Commonwealth’s Brief at 9. The Commonwealth contends
that it presented ample circumstantial evidence that Appellee drove,
operated, or was in actual physical control of her vehicle before and after the
crash. Id. at 11. The Commonwealth relies on the following evidence:
Appellee was observed driving her vehicle forty-nine minutes prior to the
crash; the vehicle registered to Appellee was crashed into a tree and
Appellee was found sleeping in the backseat of the vehicle; at the scene of
the accident, Appellee was difficult to rouse, smelled of alcohol, and was
incoherent when speaking to police; the snow on the ground revealed no
indication that anyone else had left the scene; trauma to Appellee’s chest
was consistent with impact with the steering wheel; the driver-side airbag
deployed; there was an open container of alcohol in the vehicle; and
Appellee’s BAC was .304%. Commonwealth’s Brief at 11-13.
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As noted, in granting Appellee’s motion for habeas corpus, the trial
court concluded that the Commonwealth failed to provide sufficient evidence
to support a prima facie case of the offenses. Order, 12/16/15, at 1. In
making this determination, the trial court presented the following analysis:
No evidence was offered that proved that [Appellee] drove,
operated or was in actual physical control of a motor vehicle at
the time that she was observed asleep in the back seat of the
vehicle, while the engine was not running. There is insufficient
evidence from which any actual physical control of the
movement of a motor vehicle could be concluded or inferred.
In that no prima facie case has been made out, the
evidence of blood alcohol content will be excluded.
Order, 12/16/15, at 1.
Following review of the certified record, however, we are constrained
to disagree. The testimony at the preliminary hearing and the omnibus
pretrial motion hearing established that the car registered to Appellee had
been crashed into a tree on the side of a road. Appellee’s crashed vehicle
was discovered and reported by a passerby approximately forty-nine
minutes after Mr. Teeter had contacted police to report that Appellee had left
his house driving the vehicle registered to her. Appellee was found alone in
the vehicle, and the snow-covered ground did not reflect footprints
indicating that any individuals had left the scene. As a result of the impact,
the driver–side airbag deployed. Moreover, an open container of alcohol was
discovered inside the vehicle. Appellee was so intoxicated that she could not
independently exit the vehicle and needed assistance to get to the
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ambulance. Additionally, Appellee had bruising consistent with impact to the
steering wheel. During Trooper Adamski’s interview with Appellee, it was
obvious to him that Appellee was impaired, and the BAC results of .304%
later drawn reflected the level of impairment.
Accordingly, we are constrained to conclude that the Commonwealth
has established a prima facie case of DUI. Viewing the evidence in the light
most favorable to the Commonwealth, we agree that there exists a prima
facie case that Appellee had driven or operated the vehicle while intoxicated.
This Court has observed, “[T]he suspect location of an automobile supports
an inference that it was driven . . . a key factor in the finding of actual
control.” Commonwealth v. Woodruff, 668 A.2d 1158, 1161 (Pa. Super.
1995). The location of the vehicle in this case, along the side of the road
and crashed into a tree, supports an inference that the car was driven there
and supports a finding of actual control. The fact that Appellee was found
alone in that vehicle also supports the inference that she was the individual
who drove it to that location, thereby reflecting her control of the vehicle.
As noted, the Commonwealth can establish a prima facie case by wholly
circumstantial evidence. Thus, the evidence of record supports the
conclusion that Appellee was operating her vehicle on the roadway while
under the influence of alcohol.
Moreover, we note that the trial court applied an incorrect standard
when it concluded that “[n]o evidence was offered that proved that
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[Appellee] drove, operated or was in actual physical control of a motor
vehicle.” Order, 12/16/15, at 1 (emphasis added). As outlined above, when
confronted with a petition for habeas corpus, the Commonwealth is not
required to prove the elements of the crime. Instead, the Commonwealth
need only present evidence, viewed in the light most favorable to the
Commonwealth, establishing a prima facie case of the offense, sufficient for
the matter to proceed to trial.2 See Hendricks, 927 A.2d at 291 (“a prima
facie case consists of evidence, read in the light most favorable to the
Commonwealth, that sufficiently establishes both the commission of a crime
and that the accused is probably the perpetrator of that crime. The
Commonwealth need not prove the defendant’s guilt beyond a reasonable
doubt.”).
Upon review of the evidence presented, we conclude that the
evidence, when viewed in the light most favorable to the Commonwealth, is
sufficient to establish a prima facie case that Appellee was in actual physical
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2
We also note that there is no requirement that the engine must be running
in order for there to be a finding that Appellee had operated the vehicle.
See Commonwealth v. Leib, 588 A.2d 922, 926 (Pa. Super. 1991) (court
determined that there was sufficient evidence to convict the defendant of
DUI where he was found in parked car with keys in ignition, but motor was
not running). Indeed, individuals have been found to be guilty of DUI when
they are not even in the vehicle when the police arrive. See Johnson, 833
A.2d 260, 263-264 (Pa. super. 2003) (defendant was outside of his vehicle
at the time the police arrived at the crash scene, but there was sufficient
evidence to establish that he had driven, operated, or was in physical control
of the vehicle while DUI, based on the circumstantial evidence of the case).
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control of the movement of the vehicle in violation of 75 Pa.C.S. §
3802(a)(1) and (c). Thus, the Commonwealth has established a prima facie
case of the DUI charges filed against Appellee. Under these circumstances
and at this juncture of the proceedings, the trial court improperly dismissed
the charges against Appellee. Accordingly, we reverse the trial court’s order
dismissing the charges and remand for further proceedings.
Order reversed; case remanded for further proceedings. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/29/2016
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