Full Opinion (html_with_citations)

J-A18001-23
2023 PA Super 265



    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RILEY GRAYSON WEBBER                       :
                                               :
                       Appellant               :   No. 1420 WDA 2022

      Appeal from the Judgment of Sentence Entered October 31, 2022
     In the Court of Common Pleas of Greene County Criminal Division at
                       No(s): CP-30-SA-0000046-2022


BEFORE: BENDER, P.J.E., LAZARUS, J., and KUNSELMAN, J.

OPINION BY BENDER, P.J.E.:                         FILED: DECEMBER 12, 2023

       Riley Grayson Webber, Appellant, appeals from the judgment of

sentence of a $300 fine imposed following his conviction for one count of

permitting violation of title, 75 Pa.C.S. § 1575(a), based on Appellant’s

allowing an intoxicated minor to drive his vehicle. We agree with Appellant

that the Commonwealth presented insufficient evidence and therefore

discharge the conviction.1

       The following evidence was presented at Appellant’s summary appeal

before the court of common pleas. Pennsylvania State Police Trooper Gregory

Gutta testified that, on May 8, 2022, he stopped a vehicle shortly after 10

p.m., due to its “weaving within its lane,” as well as crossing the center line

one time and the right fog line two times. N.T., 10/31/22, at 5. The vehicle
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1  Appellant was also charged with a separate summary offense concerning
his vehicle’s equipment, which is not at issue in this appeal.
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was registered to Appellant, who was in the passenger seat. Trooper Gutta

spoke with the driver, identified as Riley Richards, and “smelled the strong

odor of an alcoholic beverage emanating from within … the vehicle[.]” Id. at

6.   Trooper Gutta also observed “signs of impairment.”       Id.   No further

testimony was adduced on these points. Trooper Gutta stated that he filed

driving under the influence (“DUI”) charges against Richards and charged

Appellant with one count of violating 75 Pa.C.S. § 1575(a) (“No person shall

authorize or knowingly permit a motor vehicle owned by him or under his

control to be driven in violation of any of the provisions of this title.”).

Specifically, Appellant was cited for permitting Richards to violate 75 Pa.C.S.

§ 3802(e), which is the DUI provision applicable to minors and criminalizes

operating a motor vehicle with a blood alcohol content (“BAC”) at or above

0.02 without any need to establish impairment.2

       At the close of the Commonwealth’s case, Appellant moved for judgment

of acquittal, asserting that the statute required proof that Appellant “knew

that Ms. Richards had alcohol” in her system. Id. at 14. Appellant specifically

referenced the Section 3802(e) charge threshold of a .02 BAC and argued that

there is no way for Appellant to know if a given individual is above that

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2 The Commonwealth did not establish Richards’ age.    Trooper Gutta testified
that he was familiar with Richards due to a previous interaction and “verified
her age on my mobile data terminal from PennDOT records.” N.T. at 7. The
Commonwealth, during argument, stated that Richards was eighteen. Id. at
18. Appellant does not challenge the Commonwealth’s failure to produce
sufficient evidence that he knew Richards’ age, and we therefore do not
address that aspect of the case.

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threshold. Appellant argued that the Commonwealth, when proving an actual

DUI charge, must introduce scientific evidence to establish an offender’s BAC.

He asserted that similar logic should prevail here with respect to his inability

to ascertain Richards’ BAC level without scientific testing.

      The Commonwealth responded by            referencing the DUI general

impairment provisions, arguing that Appellant knew Richards “was intoxicated

enough and showed signs … that any reasonable person would likely know

that … she was under the influence to the point that she shouldn’t be driving.”

Id. at 16. The trial judge pointed out that Appellant was challenging the .02

BAC threshold, and the prosecutor responded, “I don’t know what [Richards]

was charged with in terms of DUI. … I think that our argument is just that a

reasonable person, you know, would know that [Richards] was intoxicated.”

Id.

      The trial court denied the motion, and Appellant declined to present any

evidence. The trial court found Appellant guilty on the basis that the driver

“smelled of alcohol.” Id. at 20. Appellant filed a timely notice of appeal and

complied with the court’s order to file a statement of matters complained of

on appeal. Appellant raised two claims: that the weight of the evidence did

not support the verdict, and that “Title 75 [§] 3802(e) is unconstitutional” as

it is “impossible to know how much alcohol is in a minor’s blood without testing

it.” Concise Statement, 12/29/22, at 1 (single page). The trial court authored

a Pa.R.A.P. 1925(a) opinion crediting Trooper Gutta’s testimony that he

“immediately noticed the smell of alcohol” and that Richards “showed signs of

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impairment[.]” Trial Court Opinion, 1/31/23, at 3, 4. The court addressed

the claim as involving the sufficiency of the evidence, interpreting Appellant’s

argument to be “that he did not know [Richards’] BAC level.”            Id. at 3.

Appellant raises one claim on appeal: “Is permitting a violation of … Section

1575(a) … for … Section 3802(e) unconstitutional in that it shifts the burden

of proof to [Appellant] to prove he did not know that the minor driving his

truck had a BAC of over .02?” Appellant’s Brief at 3.

      As indicated by the question presented, Appellant argues that the

statute should be struck down as unconstitutional because it improperly

relieves the Commonwealth of its burden to prove all elements of a crime

beyond a reasonable doubt.     It is axiomatic that the Commonwealth must

prove every element of a crime beyond a reasonable doubt. Patterson v.

New York,
432 U.S. 197
, 210 (1977) (“[T]he Due Process Clause requires

the prosecution to prove beyond a reasonable doubt all of the elements

included in the definition of the offense of which the defendant is charged.”).

The   government    may   impose    a    burden   on   the   defense   in   limited

circumstances. See generally Commonwealth v. Mouzon,
53 A.3d 738
,

743 (Pa. 2012) (“The overall principle that emerges from the High Court’s

decisional law is that federal due process permits States to place a burden on

the defendant to prove an affirmative defense by a preponderance of the

evidence, so long as the defendant is not thereby required to negate an

element of the offense.”). Appellant apparently views the operation of this

statute, at least as applied to an allegation that the defendant knowingly

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authorized a driver to commit a DUI offense involving a specific BAC level, to

require him to negate the element of knowing that the driver was above the

specified BAC threshold. He claims that the Commonwealth forced him “to

prove he did not know that [Richards’] blood alcohol level was over .02. … It

is the Commonwealth’s burden to prove that [Appellant] knew that Richards[’]

BAC was over .02, not the other way around.” Appellant’s Brief at 9.

       Notwithstanding       Appellant’s       request   to   declare   the   statute

unconstitutional, Appellant’s argument is a garden-variety sufficiency of the

evidence claim challenging whether the Commonwealth established that he

acted knowingly with respect to Richards’ violation of Section 3802(e).

Appellant does not need to establish that Richards’ BAC was below 0.02, and

the basis for his “burden shifting” argument is that the Commonwealth failed

to produce sufficient evidence of her BAC and his knowledge thereof.

Appellant’s Brief at 7 (“One of the element[s] of this offense is that [Appellant]

must have knowledge that the underage driver has a BAC of more than .02.

The Commonwealth offered no proof as to that element.”). We therefore view

the issue as one involving a challenge to the sufficiency of the evidence to

convict.3 Our standard of review is well-settled:


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3 While Appellant did not specifically state that the claim implicates the
sufficiency of the evidence, we view that issue as properly subsumed within
his claim. See Pa.R.A.P. 2116(a) (providing that the statement of the
questions involved “will be deemed to include every subsidiary question fairly
comprised therein”). Indeed, it would be impossible to address Appellant’s
(Footnote Continued Next Page)


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       The standard we apply in reviewing the sufficiency of the evidence
       is whether viewing all of the evidence admitted at trial in the light
       most favorable to the verdict winner, there is sufficient evidence
       to enable the fact-finder to find every element of the crime beyond
       a reasonable doubt. In applying the above test, we may not weigh
       the evidence and substitute our judgment for the fact-finder. In
       addition, we note that the facts and circumstances established by
       the Commonwealth need not preclude every possibility of
       innocence. Any doubts regarding a defendant’s guilt may be
       resolved by the fact-finder unless the evidence is so weak and
       inconclusive that as a matter of law no probability of fact may be
       drawn from the combined circumstances. The Commonwealth
       may sustain its burden of proving every element of the crime
       beyond a reasonable doubt by means of wholly circumstantial
       evidence. Moreover, in applying the above test, the entire record
       must be evaluated and all evidence actually received must be
       considered. Finally, the finder of fact while passing upon the
       credibility of witnesses and weight of the evidence produced, is
       free to believe all, part or none of the evidence.

Commonwealth v. Spence,
290 A.3d 301
, 309 (Pa. Super. 2023) (quoting

Commonwealth v. Gause,
164 A.3d 532
, 540–41 (Pa. Super. 2017) (en

banc)).

       There is a dearth of case law on criminal convictions under this statute.

Our decision in Commonwealth v. Tharp,
541 A.2d 14
 (Pa. Super. 1988), is

the most in-depth examination.           In that case, Tharp drove his co-worker,

Steven Scoviak, to a bar shortly after their work shift ended. While drinking,

Tharp’s eyes began to bother him, and he decided that he did not want to

____________________________________________


argument that the burden unconstitutionally shifted to him to rebut the
Commonwealth’s evidence without first assessing what the Commonwealth
proved. The Commonwealth likewise discusses sufficiency, arguing that the
statute is not unconstitutional because it presented sufficient evidence to
convict. “The challenged statute does not unconstitutionally shift the burden
of proof … as the Commonwealth had met [its] burden of proof at trial.”
Commonwealth’s Brief at 10.

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J-A18001-23



drive. He let Scoviak drive his vehicle to a party at another friend’s house and

the men left the keys in the ignition. Tharp testified that he left the party at

about 3:30 a.m., and went to sleep in his car’s passenger seat. He testified

that he was jolted awake at approximately 6:00 a.m., when Scoviak crashed

the vehicle into a guardrail. Scoviak was arrested and later convicted of DUI.

Tharp was charged with violating Section 1575(a), on the basis that he

unlawfully authorized Scoviak to use his vehicle to commit a DUI.

      We granted a new trial, concluding that the trial court erred in failing to

properly instruct the jury.     Our analysis largely centered on a dispute

concerning the scope of the authorization, i.e., whether Tharp’s authorization

to allow Scoviak to drive from the bar to his friend’s house automatically

extended to Scoviak’s driving Tharp home from that house party. We linked

the authorization to whether Tharp knew Scoviak would subsequently commit

a DUI:

      A common-sense reading of [S]ection 1575(a) leads to the
      inescapable conclusion that some level of knowledge is necessary.
      To whom does its prohibition apply? The owner of a vehicle, or
      the person under whose control the vehicle is. What must such a
      person not do? Authorize or permit. Authorize or permit whom?
      Another. To do what? To drive the owner’s vehicle. To drive
      how? In violation of the Motor Vehicle Code. The giving of
      authorization or permission must either be an affirmative act or a
      knowing accession. It is clear, then, that, at the minimum, the
      owner must know he is authorizing or permitting[,] and that this
      authorization or permission is specific to another’s operation of his
      vehicle. The question becomes whether any further knowledge on
      the owner’s part is necessary for culpability under [S]ection
      1575(a).

      Tharp argues that, absent proof beyond a reasonable doubt that
      an owner knew that the driver would operate his car illegally - in

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      this case[,] that Scoviak was under the influence - the
      Commonwealth could not convict him of the charged offense. He
      argues that such lack of knowledge is a complete defense to the
      charge and that he was entitled to a jury instruction to that effect.

      It is not per se illegal for a vehicle owner to allow someone else
      to drive his vehicle. Therefore, if the giving of such permission is
      to be a culpable act, it must have some relation to the conduct
      authorized. There must be some nexus between the giving of
      permission by the owner and the later violation of the Motor
      Vehicle Code by the driver.
Id.
 at 17–18.

      This establishes that Section 1575(a) involves two types of “knowledge.”

The first is a knowing authorization to use the vehicle, which may involve

considerations of the scope of authorization. The second is knowledge that

the driver, assuming a valid authorization to drive, would then violate a

specific provision of the Motor Vehicle Code. The first of these is not disputed

by Appellant. Instead, the focus is on whether the Commonwealth proved

that Appellant knew Richards would violate Section 3802(e) by operating his

vehicle.

      This implicates the applicable mens rea.         The General Assembly

endorsed the Tharp analysis when it amended the statute post-Tharp. The

statutory language at the time Tharp was decided did not contain any mens

rea; the statute merely stated that, “No person shall authorize or permit a

motor vehicle owned by him or under his control to be driven in violation of

any of the provisions of this title.” Id. at 16. Tharp read in a mens rea of

knowingly, and the statute as presently enacted added “knowingly” to the

text. 75 Pa.C.S. § 1575(a) (“No person shall authorize or knowingly permit a


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motor vehicle owned by him or under his control to be driven in violation of

any of the provisions of this title.”). Additionally, Section 302 of the Crimes

Code supplies a definition of “knowingly.”

      (b) Kinds of culpability defined.--

                                  ***

         (2) A person acts knowingly with respect to a material
         element of an offense when:

            (i) if the element involves the nature of his conduct or
            the attendant circumstances, he is aware that his
            conduct is of that nature or that such circumstances
            exist; and

            (ii) if the element involves a result of his conduct, he
            is aware that it is practically certain that his conduct
            will cause such a result.

18 Pa.C.S. § 302(b)(2)(i-ii).

      Our Supreme Court has recognized that Section 302 is based on the

definition of “knowingly” set forth by the Model Penal Code.              See

Commonwealth v. Howard,
257 A.3d 1217
, 1226 (Pa. 2021) (OAJC). The

lead opinion in Howard further stated, “as at least one commentator has

observed, the Model Penal Code, unfortunately, does not define adequately

the three kinds of objective elements of an offense − that is, to distinguish

conduct, circumstance, and result elements.”
Id.
 (quotation marks and

citation omitted). The parties here do not cite or discuss the applicability of

Section 302(b), and it is not entirely clear whether the relevant element

involves the “nature” of Appellant’s conduct when paired with the attendant

circumstances, i.e., knowingly allowing Richards to drive while knowing she


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was too drunk to lawfully do so, or whether it involves a “result” with respect

to Richards’ ultimately violating the Motor Vehicle Code. Regardless of any

distinctions between those concepts, the key fact is whether Appellant knew

that Richards’ BAC was at or above 0.02. Cf. Dixon v. United States,
548 U.S. 1
, 5 (2006) (explaining that as a general proposition “the term

‘knowingly’ merely requires proof of knowledge of the facts that constitute the

offense”). The relevant fact here that needed to be shown was Appellant’s

knowledge of Richards’ BAC.

       Even under a more relaxed “should have known” standard,4 we conclude

that the Commonwealth failed to produce sufficient evidence.               The

Commonwealth chose to charge Appellant with knowingly authorizing Richards

to violate Section 3802(e). “The criminal information ‘sets the stage for trial

and what the Commonwealth intends to prove.’” Commonwealth v. Martin,
297 A.3d 424
, 432 (Pa. Super. 2023) (quoting Commonwealth v. King,
234 A.3d 549
, 563 (Pa. 2020)).           While there was no criminal information as

Appellant was issued a citation by Trooper Gutta, that citation specifically

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4 In Tharp, we stated that the trial court’s instruction “did not adequately
cover the permission aspect and did not address the knowledge factor at all.
… Whether the jury would choose to believe that Tharp did not know or
should not have known Scoviak’s condition just prior to 6:00 a.m.….”
Tharp, 541 A.2d at 18 (emphasis added). See also Commonwealth v. J.F.
Lomma, Inc.,
590 A.2d 342
, 345–46 (Pa. Super. 1991) (observing that
Section 1575 does not impose absolute liability upon vehicle owners for the
conduct of their employees; “[Section] 1575 …. requires specifically that a
vehicle owner knew or should have known that an authorized operator of the
owner’s vehicle would violate provisions of the Vehicle Code.”) (citing Tharp).


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charged Appellant with permitting a violation of Section 3802(e). N.T. at 8

(Trooper Gutta stating that he issued “a summary violation of permitting

violation of title for 3802(e)”). “[I]t has long been the law in Pennsylvania

that the Commonwealth is restricted to proving what it has set forth” in a bill

of particulars. Commonwealth v. Simione,
291 A.2d 764
, 766 (Pa. 1972).

Where the citation is the only charging document to speak of, the

Commonwealth was required to establish that Appellant knew, or should have

known, that Richards BAC was at or above 0.02, not merely that she appeared

to be intoxicated at all.

      The evidence supporting a conclusion that Appellant knew Richards’ BAC

exceeded that level is lacking. The Commonwealth did not elicit what BAC

was obtained from Richards, if any.      The Commonwealth did not present

evidence concerning her performance on field sobriety tests or even whether

those tests were conducted. The record establishes only that Richards was

charged with a DUI violation. In fact, the Commonwealth conceded that it

was unaware what charges Richards faced. N.T. at 16 (the Commonwealth’s

stating: “I don’t know what she was charged with in terms of DUI. I don’t

know if it’s a general impairment or if it’s -- I – I don’t know, you know?”).

      The failure to develop the record is fatal to the Commonwealth’s case.

We agree with the Commonwealth that circumstantial evidence could suffice

to establish the statutory mens rea. Thus, we reject Appellant’s claim to the

extent that he argues it was impossible for the Commonwealth to establish

that he knew Richards’ BAC level was at least 0.02. See Appellant’s Brief at

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5 (arguing that Section 1575(a) should be deemed unconstitutional because

“[t]here would be no way … to know short of carrying around a portable BAC

testing machine” whether an individual’s BAC level exceeds the relevant

threshold).   If, for example, the Commonwealth presented evidence that

Richards’ BAC was extremely high and that she could not stand straight and

reeked of alcohol, a rational fact-finder could conclude that Appellant knew

her BAC was at, or exceeded, the very low threshold of 0.02.

      This case falls on the other side of that spectrum: the evidence

presented is so weak that the Commonwealth failed to show the requisite

mens rea. To show that Appellant knew or should have known that Richards’

BAC was at or above 0.02, the Commonwealth relies on two pieces of evidence

provided by the Trooper: an odor of alcohol and visual signs of impairment.

We do not find that the combination of these pieces of evidence is sufficient

to permit a rational inference that Appellant knew, beyond a reasonable doubt,

that Richards’ BAC was at or above 0.02.

      Beginning with the odor of alcohol, Trooper Gutta testified that the odor

of alcohol came from the interior of the vehicle, which obviously included

Appellant. The trooper stated: “I … identified the operator as [Richards] and

had smelled the strong odor of an alcoholic beverage emanating from within

the -- the vehicle….” N.T. at 6.   Notably, the Trooper did not testify that the

odor of alcohol emanated from Richards alone. While the Commonwealth is

not required to rule out innocent explanations, this extremely thin evidence

does not justify a rational inference that the “strong odor” came from Richards

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as opposed to Richards and/or Appellant. Cf. Commonwealth v. Brown,
52 A.3d 1139
, 1157 n.18 (Pa. 2012) (“[I]n those extreme situations where

witness testimony is so inherently unreliable and contradictory that it makes

the jury’s choice to believe that evidence an exercise of pure conjecture, … no

reasonable jury could rely on such evidence to find all of the essential

elements of the crime….”). The Commonwealth simply failed to establish the

source of the odor of alcohol. Appellant himself may have been intoxicated,

which would be an obvious reason for why he allowed Richards to drive his

vehicle in the first place. Without any further evidence showing that the odor

of alcohol was detected on Richards’ breath or from her person, we cannot

conclude that the Commonwealth established that Appellant knew or should

have known of her intoxicated state based merely on an odor of alcohol

coming from the vehicle’s interior.

      This leaves the trooper’s observation that Richards was obviously

impaired. The Commonwealth relies on case law holding that lay witnesses

may opine as to whether another individual was drunk. See Commonwealth

v. Bowser,
624 A.2d 125
, 133 (Pa. Super. 1993) (“Intoxication is a matter of

common knowledge, and opinions given by lay people are permissible on the

issue.”).   We accept arguendo that lay opinion could suffice to meet the

Commonwealth’s burden.         However, as with the odor of alcohol, the

Commonwealth      overstates   the    strength   of   this   evidence   and   the

corresponding inferences that may rationally be drawn from that evidence.

Trooper Gutta testified only that Richards exhibited signs of impairment, but

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J-A18001-23



was not asked to elaborate on this point. Therefore, the facts informing the

trooper’s perception do not appear in the record. We cannot assess whether

the Commonwealth established sufficient evidence to warrant a conclusion

that Appellant “knowingly” permitted Richards to violate Section 3802(e)

based merely on that short conclusory statement.

      The Commonwealth attempts to combat this by pointing out that

Appellant “was a passenger … and therefore privy to the same visual

information at the same time as Trooper Gutta[.]” Commonwealth’s Brief at

12.   We are unpersuaded.      Trooper Gutta filed criminal charges against

Richards and presumably performed field sobriety tests. Trooper Gutta may

well have formed his opinion regarding impairment based solely on his visual

observation of Richards. But he may have subsequently formed that opinion

based on field tests or interactions taking place outside the vehicle. Thus, the

Commonwealth’s argument that Appellant and Trooper Gutta were in equal

positions to assess her level of intoxication rests on an unsupported premise

that Trooper Gutta’s perception of Richards’ impairment was immediately

obvious upon speaking to Richards. We could perhaps credit that conclusion

if Richards’ BAC level was strikingly high. However, the record is silent as to

her BAC level.

      In sum, we reject Appellant’s argument to the extent that he claims it

would have been impossible for the Commonwealth to prevail even if it had

proven Richards’ BAC and offered detailed lay opinion testimony on her level

of intoxication. However, we agree that the Commonwealth’s evidence is so

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lacking that it does not permit a rational inference that Appellant knew or

should have known that Richards’ BAC was at or above 0.02. We therefore

discharge Appellant’s summary offense conviction for Section 1575(a).

     Conviction discharged for Section 1575(a) offense.




DATE: 12/12/2023




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