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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 
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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].
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[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 
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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. 
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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 
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(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 
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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. 
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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. 
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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 
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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. 
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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.
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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