DocketNumber: 393 WDA 2016
Filed Date: 10/24/2016
Status: Precedential
Modified Date: 10/25/2016
J-S65041-16 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 IN THE SUPERIOR COURT OF PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA, Appellant ALEXAN DER BENJAMIN ORLOWSKI, l l l l l l l l V. l l l l l l l l l Appe||ee No. 393 WDA 2016 Appeal from the Order Entered March 1, 2016 in the Court of Common Pleas of Westmoreland County Criminal Division at No.: CP-65-CR-0002204-2015 BEFORE: LAzARus, J., ol_sol\l, J., and PLATr, J.* MEMORANDUM BY PLATr, J.: FILED ocTOBER 24, 2016 The Commonwealth appeals from the trial court's order1 granting the motion of Appe||ee, Alexander Benjamin Orlowsl987 A.2d 802, 804-05 (Pa. Super. 2010), appeal denied,8 A.3d 346(Pa. 2010) (citations and quotation marks omitted). With respect to the Commonwealth's burden to establish a prima facie case, our Supreme Court has stated: At the preliminary hearing it is incumbent on the Commonwealth to establish at least prima facie that a crime has been committed and that the accused is the one who committed it. In order to satisfy this burden of establishing a prima facie case, the Commonwealth must produce legally competent evidence, which demonstrates the existence of each of the material elements of the crime charged and legally competent evidence to demonstrate the existence of facts which connect the accused to the crime charged. Commonwealth ex rel. Buchanan v. Verbonitz,581 A.2d 172, 173-74 (Pa. 1990), cert. denied sub nom. Stevens v. Buchanan,499 U.S. 907(1991) (citations, quotation marks, and emphasis omitted). “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. Marti,779 A.2d 1177, 1180 (Pa. Super. 2001) (citations omitted). “[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 each and every element of the crime charged."Id.(citation omitted). _5_ J-S65041-16 In the instant case, as discussed above, the Commonwealth charged Appe||ee with two counts of DUI. The relevant portions of the DUI statute provide: (a) Genera|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. (c) Highest rate of alcoho|.-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.A. § 3802(a)(1), (c) (emphases added). Thus, the prohibited conduct under the statute is drinking excessively and then driving. See id.; see also Commonwealth v. Duda,923 A.2d 1138, 1148 (Pa. 2007). “[A]ny evidence that the defendant consumed alcohol after operating the vehicle would tend to undermine the prosecution's ability to prove the elements of [a DUI] offense." Duda, supra at 1151 n.14. Here, the trial court, after considering the testimony presented at the preliminary hearing and the hearing on the motion to quash, concluded that J-S65041-16 the Commonwealth failed to establish a prima facie case for DUI against Appe||ee. The court explained that it was: . . . reduced to considering whether [Appellee] was driving a vehicle, that the vehicle slid down a hill after [Appellee] alighted from it, that [he] admitted to consuming three beers before his vehicle slid down the hill, and consuming a great quantity of alcohol in a short period of time after the accident and prior to the administration of the blood alcohol test. Simply because his vehicle slid down a slippery hill proves nothing definitive about his operation of his vehicle, and his blood alcohol content cannot be attributed to him while driving because of his post-accident consumption of a copious amount of alcohol. Neither the police officers nor Quade Karas testified to any other indicia of the consumption of alcohol. Neither did the Commonwealth offer any evidence regarding any extrapolation that might have been made regarding the blood alcohol results. (Trial Ct. Op., at 4). After review of the record, we cannot conclude that the court clearly abused its discretion in granting Appe||ee's motion to quash the information, see Wyland,supra at 804-05, given that the accident occurred under adverse weather conditions on a slippery hill, Appe||ee imbibed a tremendous amount of alcohol immediately after the crash, and the blood draw was administered after he consumed the shots, following his operation of his truck. See Duda, supra at 1151 n.14. Accordingly, we affirm the order of the trial court. Order affirmed. Judge Lazarus joins the Memorandum. Judge Olson files a Dissenting Memorandum. J-565041-16 Judgment Entered. J seph D. Seletyn, Es . Prothonotary Date: 10/24/2016