Appeal from Order of the Court of Common Pleas, Criminal Division, of Bradford County, No. 86-3066 CA.
Daniel J. Barrett, District Attorney, Athens, for Com., appellant.
David B. Keeffe, Sayre, for appellee.
Wieand, Montemuro and Johnson, JJ.
[ 364 Pa. Super. Page 465]
As a result of a fatal vehicular accident, in which a vehicle operated by Brian Otis crossed the center line of a two lane highway and collided with an oncoming vehicle, Otis was charged with involuntary manslaughter*fn1 and homicide by vehicle.*fn2 Following a preliminary hearing, the involuntary manslaughter charge was dismissed, but the charge of homicide by vehicle was returned to court for further proceedings.*fn3 After an information had been filed and Otis had been arraigned on the charge of homicide by vehicle, Otis filed an omnibus pre-trial motion which included a motion to dismiss. The trial court reviewed the record of the preliminary hearing, held that the evidence was insufficient, and dismissed the charge of homicide by vehicle. The Commonwealth appealed.*fn4
[ 364 Pa. Super. Page 466]
At or about 6:00 p.m. on July 6, 1985, Brian Otis was operating his vehicle eastwardly on Route 6 in Bradford County when the vehicle crossed into the westbound lane and collided head-on with a Volkswagen van approaching in the opposite direction. Robert Wright, the driver of the van, and his six year old daughter, Shannon, were killed as a result of the collision. Three other children were injured. When questioned by State Trooper George G. Gibblets, Otis said that he had not slept for thirty-six hours prior to the accident and had fallen asleep at the wheel before crossing into the opposing lane of travel. However, he told his girl friend that he had not fallen asleep prior to the accident.
The Commonwealth bears the burden at a preliminary hearing of establishing at least a prima facie case that a crime has been committed and that the accused is probably the one who committed it. Commonwealth v. Prado, 481 Pa. 485, 393 A.2d 8 (1978); Commonwealth v. Mullen, 460 Pa. 336, 333 A.2d 755 (1975). To sustain that burden it is well settled that the Commonwealth must produce evidence,
such as to present "sufficient probable cause to believe that the person charged has committed the offense stated" United States v. Johns, [4 U.S. (4 Dall.) 412, 413, 1 L.Ed. 888 (1806)]; in other words, it should make out a prima facie case of guilt. It should be such that if presented at the trial court, and accepted as true, the judge would be warranted in allowing the case to go to the jury.
Commonwealth ex rel. Scolio v. Hess, 149 Pa. Super. 371, 374-75, 27 A.2d 705, 707 (1942) (emphasis in original).
Commonwealth v. Wojdak, 502 Pa. 359, 367-368, 466 A.2d 991, ...