Com. v. Ream, D. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DAVID CRAIGE REAM :
:
Appellant : No. 1286 MDA 2020
Appeal from the Judgment of Sentence Entered September 3, 2020,
in the Court of Common Pleas of Lancaster County,
Criminal Division at No(s): CP-36-CR-0006456-2019.
BEFORE: STABILE, J., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED: AUGUST 19, 2021
David Craige Ream appeals from the judgment of sentence of 72 hours
to six months’ incarceration in the county jail. Because the Commonwealth
did not prove beyond a reasonable doubt that Mr. Ream was intoxicated when
he drove his motorcycle,1 we vacate the convictions and sentence.
On July 30, 2019, in the early morning hours, Mr. Ream drove his
motorcycle westbound on State Route 999 in Lancaster County. However, no
one observed that drive or how his bike ended up in someone’s front yard.
According to the police officer’s crash report, Mr. Ream stated he drove
off the roadway “at approximately 0100 hours when a deer came out of a corn
field. This caused him to swerve . . . and crash.” Commonwealth’s Ex. 2, at
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 The trial court convicted Mr. Ream of driving under the influence (one count
of general impairment and one count of high rate of alcohol). See 75
Pa.C.S.A. §§ 3802(a)(1) and 3802(b).
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4. The Commonwealth offered no other evidence to establish when Mr. Ream
drove his motorcycle or when he became intoxicated. That said, there were
no skid marks on the road, grass stains on Mr. Ream’s clothing, or damage to
the lawn. See id.
Two-and-half hours later, around 3:32 a.m., a police officer performed
an unrelated traffic stop directly across the street from Mr. Ream’s motorcycle.
The bike’s reflectors and/or taillights appeared in the video from the officer’s
dashboard camera, approximately 30 yards away, behind a large tree. See
Commonwealth’s Ex. 1, Video File at 0:24.
As the officer was speaking with the stopped driver, Mr. Ream’s legs
entered the camera shot, but the large tree initially camouflaged his torso.
See id. at 1:47. Mr. Ream then walked out from the tree, stood on his side
of the road, and waited for the officer to take the driver’s paperwork back to
the police cruiser. See id. at 2:02 – 2:25. Mr. Ream walked across Rt. 999
to speak with the driver. While the audio did not record what they said, Mr.
Ream and the driver spoke for approximately two minutes. See id. at 2:30 –
2:33. Mr. Ream strolled back across the roadway and disappeared into the
darkness near his motorcycle.
A minute-and-a-half later, the officer returned to the stopped vehicle.
See id. at 6:02. He asked the driver, “Do you know him?” Commonwealth’s
Ex. 1, Audio File at 6:48.
The driver replied, “No, I don’t know him . . . He approached me; he
just walked towards me. I was like, you know, this is an awkward place to be
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approached by somebody.” Id. at 6:50 – 6:58. The officer eventually ended
the traffic stop and drove away. He soon received a radio dispatch for him to
return to the same location to investigate a car accident. There is nothing of
record to indicate who called 911 regarding this accident or when.
The officer returned to the same location on Route 999 between 3:40
and 3:45 am. See N.T., 9/3/20, at 7, 32-33. He found Mr. Ream “laying next
to [his] motorcycle off to the side of the road.” Id. at 7. The bike appeared
to be laying on its side and not the result of a car accident. The officer testified
there were “tire marks leading from the roadway to the point where the bike
was laying.” Id. at 8.
“Just fresh tire marks on the grass?” the prosecutor asked. Id.
The officer answered, “Correct.” Id.
According to the officer, Mr. Ream immediately told him “a deer jumped
out in front of him [and] he crashed his bike, because a deer jumped out in
front of him while he was driving.” Id. at 12. However, there “was no
evidence of a deer [being] involved in the crash.” Id. at 17. The officer
therefore believed Mr. Ream “drove to the left of the roadway and laid his bike
down.” Id.
When the officer asked Mr. Ream if he wanted assistance, Mr. Ream said
he could not lift the bike by himself. See id. at 13. He told the officer that
his wife was coming to get him. See id. at 21. The officer then looked around
with his flashlight. He did not find any containers of alcoholic beverages, Mr.
Ream’s keys, or a cellular phone.
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He smelled alcohol on Mr. Ream and his eyes appeared glassy, so the
officer asked him to perform various field-sobriety tests. Just prior to starting
the sobriety tests, Mr. Ream’s wife pulled onto the scene in a car, after a 13-
minute drive from their home. See id. at 23. The officer believed she arrived
about ten minutes after he had located Mr. Ream, around 4:00 am. See id.
at 34.
Mr. Ream failed his first sobriety test. He then said that he could not
do the other tests because of a knee injury. The officer arrested him for DUI.
Eventually, the police took Mr. Ream to a hospital. At 5:00 am, health
practitioners drew and tested Mr. Ream’s blood, and the police obtained a
search warrant for the results. Mr. Ream had a blood-alcohol content of
0.111. See id. at 28. The Commonwealth charged Mr. Ream with various
counts of DUI.
At the close of the prosecution’s case, Mr. Ream moved for a judgment
of acquittal. He argued that, although he was intoxicated on the morning in
question, the Commonwealth had failed to prove beyond a reasonable doubt
that he drove the motorcycle while intoxicated or within two hours of the 5:00
am blood draw. See id. at 37.
In response, the Commonwealth admitted, “We cannot state with exact
specificity when the crash occurred.” Id. Despite this, the trial court found
as a fact that the officer “testified that the crash occurred, based on the
defendant’s own statement, shortly before [the officer’s] arrival.” Id. at 38.
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The trial court therefore placed the crash at around 3:30 a.m. and denied Mr.
Ream’s motion for judgment of acquittal.
The trial court convicted Mr. Ream and sentenced him as described
above. This timely appeal followed.
Mr. Ream raises two issues. They are:
1. Was the evidence . . . insufficient to prove beyond a
reasonable doubt that Mr. Ream was guilty of . . .
[DUI] High Rate of Alcohol [because] there was
insufficient evidence that Mr. Ream had driven,
operated, or been in actual physical control of the
movement of the motorcycle within the two-hour
timeframe prior to when his blood was drawn and
tested?
2. Was the evidence . . . insufficient to prove beyond a
reasonable doubt that Mr. Ream was guilty of . . .
General Impairment [because] there was insufficient
evidence that Mr. Ream had driven, operated, or been
in actual physical control of the movement of the
motorcycle after imbibing a sufficient amount of
alcohol such that he was incapable of safe driving?
Ream’s Brief at 5-6.
Essentially, the two issues raise the same challenge to the evidence that
the Commonwealth produced. They each assert that there is nothing of record
to place Mr. Ream on his motorcycle while intoxicated. We therefore address
them together.
In reviewing a sufficiency-of-the-evidence claim, our standard of review
is de novo; we must determine whether the evidence permits the trial court
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to find every criminal element beyond a reasonable doubt. 2 See
Commonwealth v. Burton, 2 A.3d 598, 601 (Pa. Super. 2010) (en banc).
“In doing so, a reviewing court views all the evidence and reasonable
inferences therefrom in the light most favorable to the Commonwealth.
Furthermore, in applying this standard, the Commonwealth may sustain its
burden of proof by means of wholly circumstantial evidence.” Id. “It is not
within this Court’s authority to re-weigh the evidence presented and substitute
our own judgment over that of the fact finder.” Commonwealth v. Shaw,
203 A.3d 281, 284 (Pa. Super. 2019), appeal denied, 215 A.3d 964 (Pa.
2019).
Even so, “No man should be deprived of his life under the forms of the
law unless [the evidence] is sufficient to show beyond a reasonable doubt the
existence of every fact necessary to constitute the crime[s] charged.” In re
Winship, 397 U.S. 358, 363 (1970) (emphasis added) (some punctuation
omitted). When someone stands accused of a crime, he “would be at a severe
disadvantage, a disadvantage amounting to a lack of fundamental fairness, if
he could be adjudged guilty and imprisoned for years on the strength of the
same evidence in a civil case.” Id.____________________________________________
2 “Reasonable doubt is a doubt that would cause a reasonably careful and
sensible person to hesitate before acting upon a matter of importance in his
or her own affairs.” Pa.S.S.J.I. (Crim.), §7.01. It is essentially, “the kind of
doubt that would restrain a reasonable man or woman from acting in a manner
of importance to himself or herself.” Commonwealth. v. Young, 317 A.2d
258, 263 (Pa. 1974) (some punctuation omitted).
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“The reasonable-doubt standard plays a vital role in the American
scheme of criminal procedure. It is a prime instrument for reducing the risk
of convictions resting on factual error.” Id. Thus, when the “evidence offered
to support a verdict of guilt is so unreliable and/or contradictory as to make
any verdict based thereon pure conjecture, [the fact finder] may not be
permitted to return such a finding.” Commonwealth v. Sanchez, 36 A.3d
24, 40 (Pa 2011) (quoting Commonwealth v. Farquharson, 354 A.2d 545,
550 (Pa. 1976)). This is a “fundamental principle” of criminal law.
Farquharson, 354 A.2d at 550.
Here, the Commonwealth’s case is rife with speculation as to when Mr.
Ream drove his motorcycle. And, in this instance, the timeline of when events
occurred is absolutely critical for the Commonwealth to prove that Mr. Ream
drove while under the influence. If the Commonwealth cannot establish that
Mr. Ream drank prior to driving his motorcycle and was therefore drunk while
driving it, the Commonwealth cannot sustain its convictions.
As mentioned above, the trial court found he last drove around 3:30
a.m. and denied his motion for judgment of acquittal. As such, the trial court
based its denial of Mr. Ream’s motion for judgment of acquittal upon a finding
of fact that was clearly erroneous, because the record reveals that the trial
court’s recollection of the testimony was mistaken. The officer did not so
testify.
This erroneous factual finding directly contradicted what the officer
recorded contemporaneous with his investigation of the incident. On the
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morning in question, Mr. Ream told the officer he drove “west on Route 999
at approximately 0100 hours” – that is, 1:00 a.m. Commonwealth’s Ex. 2,
at 4 (emphasis added). This was over two-and-a-half hours before the officer
found Mr. Ream sitting next to his motorcycle and four hours prior to the blood
draw. Thus, based upon the only evidence that the Commonwealth admitted
regarding when Mr. Ream last drove his motorcycle, the record undoubtedly
reflects that he last drove and crashed his bike at 1:00 a.m., not 3:30 a.m.
The officer did not interact with Mr. Ream or begin to suspect that he was
drunk until around 3:40 a.m.
With this chronology in mind, we turn to the two offenses for which the
trial court convicted Mr. Ream.
First, the trial court convicted him of DUI (high rate of alcohol). In order
for Mr. Ream to have committed this offense, he needed to have a BAC of “at
least 0.10% but less than 0.16% within two hours after” driving his bike.
75 Pa.C.S.A. § 3802(b) (emphasis added).
The hospital took Mr. Ream’s blood at 5:00 a.m. on the morning of the
incident. Thus, the Commonwealth needed to prove beyond a reasonable
doubt that he drove his motorcycle after consuming alcohol and between 3:00
a.m. and 5:00 a.m. Other than Mr. Ream’s statement that he crashed his
bike at 1:00 a.m., there was no evidence showing when he last drove or
operated his motorcycle.
The closest the Commonwealth came to producing such evidence was
when the prosecutor asked the officer about the tire tracks Mr. Ream had
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made in the lawn and used the adjective “fresh” to describe them. N.T.,
9/3/20, at 9. The officer agreed with that description, but the Commonwealth
failed to develop this line of questioning further.
Hence, the tire tracks neither establish when Mr. Ream drove through
the yard nor sufficiently prove that he did so between 3:00 a.m. and 3:30
a.m. Mr. Ream could have made the tire marks at 1:00 a.m., as he told the
officer. Even viewing them in the light most favorable to the Commonwealth,
the tire tracks alone are not the level of proof that the law requires for criminal
convictions. See In re Winship, supra. They leave room for reasonable
doubt. At most, the Commonwealth offered proof that Mr. Ream more likely
than not drove off the road between 3:00 a.m. and 3:30 a.m.
Accordingly, the Commonwealth did not sufficiently prove that Mr. Ream
drove or operated his motorcycle “within two hours” of the blood draw.3 75
Pa.C.S.A. § 3802(b). The trial court therefore erred by denying his motion for
judgment of acquittal on the first DUI count for high rate of alcohol.
Second, the trial court convicted Mr. Ream of DUI (general impairment).
In Pennsylvania, a person “may not drive, operate, or be in actual physical
control of the movement of the 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.”
____________________________________________
3 We also note that there is a good-cause exception to the two-hour window
for a blood draw. See, e.g., Commonwealth v. Benvenisti-Zarom, 229
A.3d 14 (Pa. Super. 2020). The Commonwealth did not claim that exception
applies to Mr. Ream’s case at trial or on appeal.
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75 Pa.C.S.A. § 3802(a)(1) (emphasis added). Thus, to convict a person of
this offense requires proof, beyond a reasonable doubt, that the defendant
was drunk while he drove on a highway of the Commonwealth.
Again, the Commonwealth has failed to prove the time element of this
offense. The prosecutor stated, “We cannot state with exact specificity when
the crash occurred.” N.T., 9/3/20, at 37. In fact, the only evidence the
Commonwealth offered regarding when Mr. Ream drove his motorcycle, was
Mr. Ream’s statement that he crashed at 1:00 a.m. The Commonwealth
cannot account for the missing hours between 1:00 a.m. and 3:33 a.m. It
therefore cannot prove beyond a reasonable doubt that the Mr. Ream had
consumed enough alcohol to render himself incapable of safe driving while
he drove down Route 999, as opposed to consuming it after the crash.
Tellingly, in response to this issue, the Commonwealth does not rely on
the strength of its own evidence to contend that we uphold the conviction.
Instead, it argues Mr. Ream’s defense was incredible. See Commonwealth’s
Brief at 10-11. The Commonwealth claims Mr. Ream’s “recollection of events
[i.e., his alibi] simply does not make sense.” Id. at 11.
The veracity of Mr. Ream’s defense is irrelevant to the sufficiency of the
Commonwealth’s prima facie case to establish its case-in-chief. We remind
the Commonwealth that Mr. Ream was not obliged to present any defense at
all, much less a defense that the trial court deemed credible. See U.S. Const.
amnd V; see also Pa. Const. art I § 9.
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Thus, the Commonwealth impermissibly attempts to shift the burden of
proof to the defendant. It seeks to sustain Mr. Ream’s conviction based upon
the deficiency of his defense, rather than the sufficiency of the prosecution’s
evidence. However, “the burden of proving defendant’s guilt beyond a
reasonable doubt never shifts . . . .” Commonwealth v. Bryson, 120 A.
552, 555 (Pa. 1923). The Commonwealth may not ask Mr. Ream to prove his
own innocence in this manner.
The trial court adopted a similar, unconstitutional, burden-shifting
approach in its Rule 1925(a) Opinion. See Trial Court Opinion, 12/15/20, at
7-9. Its analysis erroneously focuses upon what it perceived as shortcomings
in Mr. Ream’s version of events. But the trial court is silent as to what
evidence the Commonwealth produced to show when Mr. Ream drove his
motorcycle, relative to when he consumed alcohol. The fact that the officer
observed Mr. Ream’s blood-shot, glassy eyes; slurred speech; and his failed
sobriety tests at 3:45 a.m. does not establish that Mr. Ream was intoxicated
when he drove his motorcycle. The officer had no idea when the bike was
last in operation upon a highway of the Commonwealth or whether Mr. Ream
was then so intoxicated as to be incapable of safe driving.
Hence, the trial court erred by denying Mr. Ream’s motion for judgment
of acquittal on the second count of DUI (general impairment), as well. The
Commonwealth did not produce proof, beyond a reasonable doubt, that Mr.
Ream drove his motorcycle “after imbibing a sufficient amount of alcohol such
that [he was] incapable of safely driving, operating, or being in actual physical
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control of the movement of the vehicle.” 75 Pa.C.S.A. § 3802(a)(1) (emphasis
added).
Judgment of sentence vacated. Order denying motion for judgment of
acquittal on counts one and two reversed. Mr. Ream discharged.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/19/2021
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