Com. v. Ream, D.

• Court: Superior Court of Pennsylvania
• Decided: August 19, 2021
• Docket: 1286 MDA 2020
• Status: Unpublished

Opinion

J-S17027-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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). J-S17027-21

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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