COMMONWEALTH OF PENNSYLVANIA

vs

CASEY CARRUTHERS

	Defendant

IN THE COURT OF COMMON PLEAS FOR THE 26TH JUDICIAL DISTRICT, COLUMBIA COUNTY BRANCH, PENNSYLVANIA
CRIMINAL DIVISION

CASE NO:  99-690
OTN: H 040672-2

MICHAEL G. NAST, ESQUIRE, Deputy Attorney General for the Commonwealth of Pennsylvania
PAIGE ROSINI, ESQUIRE, Attorney for the Defendant

September 6, 2000.  JAMES, J.

OPINION

     This case is before the court as a result of a Petition for Writ of Habeas Corpus filed by defendant.  Defendant alleges that Commonwealth’s evidence is not sufficient to establish a prima facie case on the charges against him, i.e., Selling or Furnishing Liquor or Malt or Brewed Beverages to Minors and Disorderly Conduct.  Commonwealth agreed that the evidence did not sustain a charge of Disorderly Conduct.  However, Commonwealth believes that the evidence supports a prima facie case of Furnishing Alcohol to Minor.

     Defendant had waived his right to a preliminary hearing based on a belief that ARD would be offered to him.  ARD was not offered.  Defendant filed the present petition.  Instead of returning the matter to the District Justice, this court heard the matter on August 29, 2000, to determine whether the Commonwealth had sufficient evidence to establish a prima facie case against defendant for the charge of Selling or Furnishing Liquor or Malt or Brewed Beverages to Minors.
     The Pennsylvania Superior Court in Commonwealth ex rel. Lagana v. Commonwealth Office of Attorney General, 443 Pa.Super. 609, 613, 662 A.2d 1127, 1129 (1995), citing Commonwealth v. Lacey, 344 Pa.Super. 576, 496 A.2d 1256 (1985), discussed the purpose of a preliminary hearing and the concept of a “prima facie case”:  
A creature of statute, the preliminary hearing is intended to protect the accused from unlawful detention.  To that end, the prosecution must establish at least a prima facie case that a crime has been committed and that the accused is the one who committed it.  The Commonwealth’s burden at this stage falls short of proof beyond a reasonable doubt.  The proof need only be such that, if the evidence were presented at trial and accepted as true, the trial judge would be warranted in allowing the case to go to the jury.  Case law provides a mechanical standard of review:  Our function is to take the facts proven by the Commonwealth at the preliminary hearing and to determine whether the sum of those facts fits within the statutory definition of the types of conduct declared by the Pennsylvania legislature in the Crimes Code to be illegal conduct.  If the proven facts fit the definition of the offenses with which the [defendant is] charged, then a prima facie case was made out as to such… offenses.  If the facts do not fit the statutory definitions of the offenses charged against [the defendant] the [the defendant] is entitled to be discharged.

     With this in mind, we need to examine the definition of the crime in this case and the proven facts.  The charge of Selling or Furnishing Liquor or Malt or Brewed Beverages to Minors (18 P.C.S.A. §6310.1) indicates that ”a person commits a misdemeanor of the third degree if he intentionally and knowingly sells or intentionally and knowingly furnishes, or purchases with the intent to sell or furnish, any liquor or malt or brewed beverages to a person who is less than 21 years of age.”  18 P.C.S.A. §6310.6 defines “Furnish” to mean “to supply, give or provide to, or allow a minor to possess on premises or property owned or controlled by the person charged.” (emphasis provided)
    Commonwealth’s evidence consisted of testimony of  Bloomsburg police officer Leonard Rogutski.  The testimony indicated that on April 7, 1999, there was a large party at 351 Fair St. in Bloomsburg.  The police observed many people enter the house and saw beer kegs being delivered by a local beverage store.  Eventually, the police entered the house and separated the occupants into two groups, one group twenty-one years old and older and one group under twenty-one years.  There were seventy-three underage drinking citations issued.
     The evidence against defendant was that he was present on the premises and was one of six tenants on the lease of the house.  Specifically, he was not the person who was known to have purchased the beer.  There was no other evidence against defendant.
     The element of the crime at issue here is whether the Commonwealth proved that defendant “controlled” the premises under 18 P.C.S.A. §6310.3.  Commonwealth seeks to do this by the circumstantial evidence that he was present and was one of the six tenants on the lease, and the inferences arising therefrom.  “‘The use of inferences is a process of reasoning by which a fact or proposition sought to be established is deduced as the logical consequence from the existence of other facts which have been established.’ ….  The test for reviewing these inferences is well established:  Evidentiary inferences, like criminal presumptions, are constitutionally infirm unless the inferred fact is more likely than not to flow from the proved fact on which it is made to depend.  When the inference allowed is tenuously connected to the facts proved by the Commonwealth, due process is lacking….  The ‘more-likely-than-not test’ is, of course, a minimum standard against which we measure the reasonableness of the inferences used to establish a prima facie case of criminality.”  Commonwealth v. Lacey, 344 Pa.Super. 576, 584-585, 496 A.2d 1256, 1261 1985) (citations omitted).
     Commonwealth is asking the court to infer from defendant’s presence on the premises and the fact that he was one of six tenants on the lease that he “controlled” the premises and allowed minors on the premises where alcoholic beverages were available to them.  Perhaps defendant “controlled” the premises, but that conclusion requires a connection of evidentiary dots based on “tenuous” inferences, i.e., that he was one of the tenants who threw the party without asking for proof of age from the party-goers. If additional evidence of control of the premises exists, Commonwealth could surely have provided it.  Without more evidence, this court would not allow this case to go to a jury.  A conviction can be based on circumstantial evidence, but “mere suspicion or conjecture will not suffice.” Commonwealth v. Gallagher, 400 Pa.Super. 71, 78, 582 A.2d 1349, 1352 (1990).  Based on the evidence before it, the court must dismiss the charges against defendant.     

COMMONWEALTH OF PENNSYLVANIA

vs

CASEY CARRUTHERS

	Defendant

IN THE COURT OF COMMON PLEAS FOR THE 26TH JUDICIAL DISTRICT, COLUMBIA COUNTY BRANCH, PENNSYLVANIA
CRIMINAL DIVISION

CASE NO:  99-690
OTN: H 040672-2

ORDER

	AND NOW, this 6th day of September 2000, the charges against defendant of Selling or Furnishing Liquor or Malt or Brewed Beverages to Minors and Disorderly Conduct are DISMISSED.

			BY THE COURT:

			_________________________________ 
			HONORABLE THOMAS A. JAMES, JR., J.