Commonwealth v. Sitler , 2016 Pa. Super. 168 ( 2016 )

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2016 Pa. Super. 168
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
ROBERT N. SITLER
Appellee No. 3051 EDA 2013
Appeal from the Order November 1, 2013
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0000389-2013
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., BOWES, J., SHOGAN, J.,
LAZARUS, J., MUNDY, J., OLSON, J., OTT, J., and STABILE, J.
OPINION BY OTT, J.: FILED JULY 26, 2016
The Commonwealth brings this interlocutory appeal pursuant to
Pa.R.A.P. 311(d) from the order entered on the record on November 1,
2013, in the Court of Common Pleas of Montgomery County, granting Robert
N. Sitler’s pre-trial motions in limine.1 Sitler was charged with multiple
vehicular and criminal offenses following a traffic accident that he caused on
November 12, 2012. The trial court’s order precluded the Commonwealth
from introducing, inter alia, evidence of Sitler’s prior vehicular criminal
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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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conviction, evidence of Sitler’s consumption of alcohol before the accident,
and evidence pertaining to Sitler’s crimen falsi offenses should he plead
guilty to those charges. We affirm in part, reverse in part, and vacate in
part, and remand for trial.
Because this case has not yet been tried, and because the case has
not yet been presented to the fact-finder, we derive the following summary
of the facts underlying Sitler’s charges 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, Ms. Qawasmy noticed a pick-up truck driving very closely to her rear
bumper. Ms. Qawasmy repeatedly applied her brakes in an effort to get the
truck to back away from her vehicle, to no avail. Soon thereafter, Ms.
Qawasmy activated her turn signal to inform the pick-up truck 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 Ms. Qawasmy’s
turning vehicle.
When the truck sped around Ms. Qawasmy, it struck and killed a
sixteen-year-old boy who was standing in the center lane of the roadway.
After the collision, both Ms. Qawasmy and the pick-up truck driver pulled
over to the side of the road and parked the vehicles.
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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. Officer Meitzler detected a faint pulse initially. 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 she was the driver of the pick-up truck. Officer
Meitzler was directed to escort Ms. 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 said that Ms. 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 Ms. Dinnocenti were travelling behind the van, Ms. Qawasmy
abruptly activated her turn signal and quickly began to make the turn. This
swift action forced Ms. Dinnocenti immediately to veer into the center lane to
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avoid hitting Ms. Qawasmy’s van, thereby striking the victim crossing the
road.
Ms. 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, Ms. Dinnocenti revealed that she was not the driver
of the pick-up truck. Ms. 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 2006.
Sitler had served a significant sentence for that crime, and he feared that, if
he was charged and convicted of a crime for the instant accident, he would
be severely punished. Therefore, he instructed Ms. Dinnocenti and her
children (who also were in the car at the time of the accident) to lie to the
authorities about who was driving the vehicle. Sitler also admitted to
drinking three beers before driving the pick-up truck.
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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 Ms. 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 50 miles per hour at the time of impact, which is
15 miles per hour more than the posted speed limit of 35 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.
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
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Ms. Dinnocenti was driving the pick-up truck 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 homicide by vehicle,2 and a host of other violations
of the Motor Vehicle Code.3 In addition, Sitler was charged under the Crimes
Code with numerous offenses, stemming from the lies he told about who
was driving the pick-up truck. Specifically, Sitler was charged with
insurance fraud, false reports, unsworn falsifications, tampering
with/fabricating physical evidence, obstructing the administration of law,
corruption of minors, and criminal conspiracy.4 Sitler filed a pre-trial motion
seeking to sever the crimes arising from the Crimes Code, which were acts
of crimen falsi, from the trial on the homicide by vehicle and Motor Vehicle
Violations. The trial court denied the motion.
On October 11, 2013, Sitler filed pre-trial motions in limine to
preclude, inter alia, evidence related to his previous vehicular manslaughter
conviction in Alabama in 2006, and evidence related to his consumption of
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2
75 Pa.C.S. § 3732(a).
3
Sitler was also charged with following too closely, driving at an unsafe
speed, driving over the speed limit, disregard for traffic lanes, passing
improperly, careless driving, and reckless driving. See 75 Pa.C.S. §§
3310(a), 3361, 3362(a)(1), 3309(1), 3303(a)(1), 3714(a) & (b), and
3736(a), respectively.
4
See 18 Pa.C.S. §§ 4117(a)(2), 4906(b)(1), 4904(a)(1), 4910(1), 5101,
6301(a)(1)(i), and 903(c), respectively.
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alcohol prior to the collision. A hearing on the motions in limine was held on
October 31, 2013, and November 1, 2013. On November 1, 2013, the trial
court granted the motions, thereby precluding the Commonwealth from
introducing testimony or evidence related to Sitler’s prior conviction and his
consumption of alcohol.
In addition, on November 1, 2013, before the trial court, Sitler
indicated that he wanted to plead guilty to the crimen falsi charges
stemming from his false statements, and then proceed to trial on the
homicide by vehicle and related Motor Vehicle violations. In connection with
this representation, he sought a ruling to preclude the Commonwealth from
introducing evidence of his crimen falsi convictions at trial. The court
determined that Sitler could plead guilty separately to the Crimes Code
violations without any of the evidence related to those crimes being
admitted at his trial for homicide by vehicle. This appeal by the
Commonwealth followed.5
A divided panel of this Court affirmed the trial court’s preclusion of
evidence of Sitler’s prior conviction and consumption of alcohol, and vacated
the portion of the trial court’s order precluding evidence of Sitler’s false
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5
Following the notice of appeal, 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).
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statements, finding the trial court addressed the issue prematurely.
Thereafter, the Commonwealth sought en banc review, which this Court
granted. The matter is now ready for our review.
The Commonwealth frames three issues for this Court’s consideration,
as follows:
I. Whether the trial court abused its discretion when it
precluded the Commonwealth from introducing evidence of
[Sitler’s] prior vehicular manslaughter conviction, where
the conviction contained commonalities amply sufficient to
demonstrate the required close factual nexus to
demonstrate the connective relevance of the prior
conviction to the current crime, and was admissible to
prove [Sitler’s] knowledge that his conduct could result in
the death of another person for purposes of establishing
the recklessness element of homicide by vehicle, and to
establish his motive to lie in connection with his crimen
falsi and conspiracy offenses?
II. Whether the trial court abused its discretion when it
excluded all evidence of [Sitler’s] alcohol consumption
prior to the fatal collision without taking into consideration
all the circumstances surrounding [Sitler’s] drinking, such
as, inter alia, his erratic driving, where the evidence was
admissible to establish the recklessness element of
homicide by vehicle, and to establish [Sitler’s] motive to lie
in connection with his crimen falsi and conspiracy
offenses?
III. Whether the trial court abused its discretion in excluding
all evidence of [Sitler’s] crimen falsi charges stemming
from the lies he told immediately following the fatal
collision, where the unequivocal precedent in the
Commonwealth establishes that this evidence is admissible
as substantive evidence of consciousness of guilt?
Substituted Brief for the Commonwealth at 4–5.
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The Commonwealth first challenges the trial court’s ruling that Sitler’s
2006 Alabama vehicular manslaughter conviction was inadmissible at Sitler’s
upcoming trial.6 The Commonwealth argues Sitler’s conviction is admissible
as a prior bad act pursuant to Pennsylvania Rule of Evidence 404(b) to
prove, inter alia, 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.7 We agree with the Commonwealth.
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6
The trial court set forth the following facts related to Sitler’s prior
conviction:
In 2006, an Alabama grand jury indicted [Sitler], inter alia, of
“Recklessly Causing the Death of Another Person While
Operating a Motor Vehicle.” This charge is akin to
Pennsylvania’s Homicide by Motor Vehicle. In the Alabama
matter, [Sitler] was driving at 6 o’clock in the morning when he
encountered a thick, dense fog bank. The driver in front of
[Sitler] slammed on the brakes, and when [Sitler] swerved to
avoid the same, he entered the opposing lane of traffic thereby
killing the woman in the opposing vehicle. The Alabama case
proceeded to trial, but resulted in a deadlocked jury.
Accordingly, a mistrial was declared. Four (4) months later,
[Sitler] plead[ed] guilty to homicide by vehicle in exchange for
house arrest.
Trial Court Opinion, 4/30/2014, at 8–9 (record citation omitted).
7
Pennsylvania Rule of Evidence 404(b) states, in pertinent part:
(b) Crimes, Wrongs or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is
not admissible to prove a person's character in order to show
that on a particular occasion the person acted in accordance with
the character.
(Footnote Continued Next Page)
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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
256, 260 (Pa. Super. 2013) (citation omitted). “[I]f in reaching a conclusion
the trial court overrides 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).
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(Footnote Continued)
(2) Permitted Uses. This evidence may be admissible for another
purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or
lack of accident. In a criminal case this evidence is admissible
only if the probative value of the evidence outweighs its potential
for unfair prejudice.
Pa.R.E. 404(b)(1)-(2) (emphasis added).
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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) (en banc) (citations omitted).
In Ross, an en banc panel of this Court acknowledged the possibility
that Rule 404(b)(2)’s exceptions could swallow the general rule, and 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
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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. See, e.g., Commonwealth v. Kjersgaard,
276 Pa. Super. 368, 419 A.2d 502, 505 (Pa. Super. 1980).
Ross, 57 A.3d at 105-06. Mindful of this warning, we conclude that there
exists in this case “a close factual nexus sufficient to demonstrate the
connective relevance” of Sitler’s prior conviction for vehicular manslaughter
to the principal charge at issue in the present case.
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.” 75 Pa.C.S. § 3732(a).
Recklessness, an essential element of homicide by vehicle, is defined as
follows:
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.
18 Pa.C.S. § 302(b)(3) (emphasis added). Thus, the mens rea of
recklessness implicates knowledge in two ways: (1) the actor must
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consciously (i.e., with knowledge) disregard a substantial and unjustifiable
risk; and (2) the risk that the actor disregards is measured by the
circumstances known to the actor. By any reasonable measure, Sitler’s
knowledge that his conduct created a risk that he subsequently disregarded
is central to the Commonwealth’s case against him. Facially, therefore,
Sitler’s prior conviction for vehicular manslaughter would be admissible
pursuant to the knowledge exception codified in Pa.R.E. 404(b)(2).
However, per Ross, we must ascertain whether a close factual nexus exists
between the two events before determining admissibility with finality.
The Commonwealth alleges that Sitler, driving his pick-up truck,
followed perilously close to the rear bumper of Ms. Qawasmy’s van. When
Ms. Qawasmy activated her turn signal and initiated a right hand turn, Sitler
purportedly revved his engine, sped past Ms. Qawasmy’s van, and struck a
pedestrian, all while driving at least 15 miles per hour over the speed limit.
The facts of Sitler’s Alabama conviction bear a sufficient resemblance to
those in the case sub judice. In 2006, Sitler pleaded guilty to vehicular
manslaughter, a crime which also requires a demonstration of recklessness.
In that case, Sitler was driving closely behind another vehicle early in the
morning through a dense fog. When the driver in front of Sitler applied his
brakes, Sitler swerved around that driver and hit an oncoming vehicle, killing
a person inside. Sitler pleaded guilty to the crime, including the factual and
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legal averment that his actions were reckless and that said recklessness
resulted in the death of another person.
Although the facts of the cases differ in trivial ways, the commonalities
between the two are amply sufficient to create the necessary nexus
rendering the Alabama conviction admissible in the instant case. In both
cases, Sitler was operating a motor vehicle too closely to another vehicle
while travelling at an excessive speed; that combination of factors led to the
death of another person. Because of these similarities, the Alabama
conviction is admissible to demonstrate that Sitler knew that his hazardous
driving created a substantial risk that the death of another may result
therefrom. The conviction is also relevant to prove not only that Sitler knew
of the risk, but also that he consciously disregarded it.
Finally, even though facially admissible, the probative value of prior
bad acts evidence must still outweigh its “potential for unfair prejudice.”
Pa.R.E. 404(b)(2). There is inherent prejudice any time a prior bad act such
as a criminal conviction is introduced against a criminal defendant. That is
why we have been, and should be, very cautious in our evaluation of these
claims, and also why we issued the warning in Ross, discussed above.
However, recklessness is a component central to a homicide by vehicle
prosecution, and knowledge is essential to that proof. As such, the prior
conviction in this case has significant probative value. The probative value
would outweigh any potential prejudice that might inhere from the
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introduction of the prior crime, particularly if the crime is introduced to the
jury along with a cautionary instruction by the trial court. See Russell, 938
A.2d at 1092 (holding that admission of prior juvenile adjudication to prove
arsonist’s knowledge of accelerants was not unfairly prejudicial because,
inter alia, the evidence was accompanied by a curative instruction).
For all practical purposes, the trial court’s conclusion that the evidence
was inadmissible rested exclusively upon its premise that everyone who
drives knows that driving recklessly creates risk to other drivers and
pedestrians. See Trial Court Opinion, 4/30/2014, at 11. However, the
inquiry is not so simple. As set forth above, proof of knowledge plays a vital
role in the Commonwealth’s burden of proof for a homicide by vehicle
prosecution. The trial court ignored this role in toto, apparently believing
that, because every driver knows that driving recklessly creates risk, no
other evidence of knowledge has any probative value. We simply cannot
ignore the probative value that Sitler’s prior conviction has in a case such as
this one.
Therefore, we conclude the trial court abused its discretion in granting
Sitler’s motion in limine regarding his 2006 Alabama manslaughter
conviction. For the preceding reasons, Sitler’s prior conviction is admissible
pursuant to Pa.R.E. 404(b)(2).
The Commonwealth next argues that the trial court erred by
precluding any evidence of Sitler’s consumption of three alcoholic beverages
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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 Sitler’s right to a
fair trial. See Trial Court Opinion, 4/30/2014, at 3-8. Based on our review,
we disagree with the Commonwealth’s position that this evidence is
admissible, and that the trial court abused its discretion in precluding it from
trial. See Russell, supra (stating that our standard of review of evidentiary
rulings is an abuse of discretion).
For purposes of proving that 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.
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1982) (“Without question, the mere fact of consuming intoxicating liquor is
inadmissible to prove unfitness to drive.”). Nevertheless, 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.
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: Critzer v. Donovan, 289 Pa. 381, 384, 385, 137 A. 665, 666
[(1927).]” Id. (quotations and citation omitted). In Cave, 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
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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
the consumption of alcohol at a trial for a vehicular offense involving
recklessness. In Critzer,
the court reasoned 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, nor 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.”
Cave, at 736, citing Critzer, supra (citations omitted) (emphasis removed).
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
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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
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
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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. Therefore, 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
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, we agree with
the trial court that “the entry of the evidence would also improperly shift the
burden of proof to [Sitler]. That is, . . . [Sitler] would be forced to rebut the
innuendo that three (3) beers, three (3) 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. Therefore, the trial court did not abuse
its discretion in granting Sitler’s motion in limine in this regard.
In its final claim, the Commonwealth takes issue with the trial court’s
ruling that Sitler could plead guilty to the crimen falsi offenses charged
against him 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 (and now before this Court) that evidence that Sitler
lied to the police about who was driving the vehicle and that he instructed
Ms. Dinnocenti and her minor children to lie to the police was admissible to
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demonstrate Sitler’s consciousness of guilt with respect to the homicide by
vehicle offense. In its Rule 1925(a) opinion, the trial court reasoned that
the Commonwealth’s complaint is premature because Sitler has not yet
pleaded guilty, and that he might never do so. We agree that this issue is
not yet ripe for review.
The Commonwealth’s claim is predicated upon what evidence it may
present 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, 937 A.2d 385, 392 (Pa.
2007). Therefore, because both the trial court and this Court are precluded
from issuing purely advisory opinions,8 see Commonwealth v. Neitzel,
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8
The advisory nature of trial court’s ruling is particularly highlighted by the
fact the trial court denied the motion to sever and, therefore, Sitler’s
potential partial guilty plea related to charges that were contained in the
same criminal information on which he would be proceeding to trial.
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678 A.2d 369, 375 (Pa. Super. 1996), we vacate that portion of the trial
court’s order.9
In sum, we reverse the portion of the trial court’s order precluding
evidence of Sitler’s prior vehicular manslaughter conviction. We affirm the
portion of the order precluding evidence of Sitler’s consumption of alcohol.
We vacate the portion of the order precluding evidence of Sitler’s crimen
falsi offenses if he pleads guilty to those charges, as the trial court
addressed the issue prematurely.
Order affirmed in part, reversed in part, vacated in part. Case
remanded for trial. Jurisdiction relinquished.
P.J.E. Ford Elliott, P.J.E. Bender, Judge Shogan and Judge Olson join
this Opinion.
Judge Lazarus files a Concurring and Dissenting Opinion, to which
Judge Bowes, Judge Mundy and Judge Stabile join.
This decision was reached prior to July 25, 2016, with Judge Mundy’s
participation.
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9
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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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/26/2016
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