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J. S07017/03
2003 PA Super 99
COMMONWEALTH OF PENNSYLVANIA, :
IN THE SUPERIOR COURT OF
Appellee
:
PENNSYLVANIA

:

v.

:

:
LUANN
WOOSNAM,
:

Appellant
:
No. 1165 EDA 2002

Appeal from the Judgment of Sentence of April 1, 2002, in
the Court of Common Pleas of Bucks County, Criminal
Division, at No. 5867-01.

BEFORE: KLEIN AND BOWES, JJ. AND MCEWEN, P.J.E.
***REVISED MAY 5, 2003***
OPINION BY BOWES, J.:

Filed: March 12, 2003
¶ 1 At issue in this case is whether the trial court erred when it refused to
instruct the jury that Appellant, Luann Woosnam, was guilty of leaving the
scene of an accident involving death or personal injury of a person, 75
Pa.C.S. § 3742, if she knew or should have known that she was involved in
an accident involving death or injury. We conclude that a mens rea element
is a necessary component of a violation of this statute and the trial court's
failure to instruct the jury as to this element pursuant to 18 Pa.C.S.
§ 302(b)(4) requires the grant of a new trial. We reverse and remand.
¶ 2 At Appellant's jury trial, eyewitness James Nowery testified as follows.
At approximately 1:45 a.m. on March 30, 2001, Mr. Nowery and the victim,
John Zilley, Mr. Nowery's brother in law, left the Dublin Inn in Dublin,
Pennsylvania, where they had been drinking for approximately two hours. It
was raining heavily, and the two men walked toward Mr. Nowery's
apartment. They began to walk down Middle Road with Mr. Zilley walking

J. S07017/03
behind Mr. Nowery when Mr. Nowery heard a "big snapping sound." N.T.
Trial, 2/5/02, at 23. Mr. Nowery turned around and saw Mr. Zilley laying
face down on the road with his arms outstretched and with clothing torn
from his body, and observed "a car going by." Id. He was not able to view
the car clearly because he was in shock, but he did notice that it was a dark
foreign car such as a Subaru or Toyota. The vehicle, which was traveling
very fast, did not stop.
¶ 3 Mr. Nowery admitted on cross-examination that he and the victim had
been drinking since 3:00 p.m. that afternoon. He also stated that at the
time of the incident, it was pitch black, windy, and raining very heavily.
Finally, he indicated that they were walking on the road and that the car that
struck his brother-in-law was in the proper lane of traffic.
¶ 4 Dublin Borough Police Officer Brian Lehman was the Commonwealth's
next witness and one of the officers who responded to the radio broadcast
about the accident. He confirmed that at the time of the accident, "it was
cold, raining heavily, [and] windy" and that it was "dark" because
Middle Road does not have streetlights in the area. Id. at 45-46.
Officer Lehman observed the decedent in the middle of the road, his shoes
and his coat lying on different parts of the road, and pieces of black plastic,
which Officer Lehman recovered, scattered over the road. When
Officer Lehman aided in the execution of a search warrant on Appellant's
car, a white Subaru Outback station wagon, in a mechanic's shop on April 5,

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J. S07017/03
2001, he discovered similar pieces of black plastic from around the driver's-
side headlight. Officer Lehman stated that the driver's-side windshield of the
car was broken, the hood was damaged, and the driver's-side windshield
wiper was bent. Officer Lehman transported all of the pieces of black
plastic, together with glass fragments recovered from the driver's seat, the
windshield wiper, the damaged hood, and the windshield, to the state police
laboratory in Bethlehem. In a backpack located in the back of the car, he
discovered what he suspected was marijuana, a pipe, and papers containing
Appellant's name. These items were transported to the Bucks County Crime
Laboratory for analysis. Another Commonwealth witness established that
the substance in the backpack was marijuana.
¶ 5 Bucks County Detective Martin McDonough testified as follows. He
executed a search warrant at Appellant's residence on the afternoon of
March 30, 2001. He took photographs of Appellant's car, and these
photographs were introduced into evidence. They show that the driver's-
side windshield was damaged and the windshield wiper was bent.

Detective McDonough testified that he observed broken glass inside the car
on the driver's seat and the back seat.
¶ 6 Dublin Borough Police Chief Thomas Supplee testified as follows. He
accompanied Detective McDonough when the search warrant was executed.
When he arrived at Appellant's residence, he noticed the damaged Subaru
parked in the driveway. Appellant exited her house and asked the police

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why they were there. Chief Supplee responded that they were investigating
an accident involving her vehicle. Appellant, who seemed distraught, said,
"[W]hat did I do?" and then hesitated momentarily before asking the
question again. N.T. Trial, 2/6/02, at 31.
¶ 7 Chief Supplee was cross-examined with his police report. That report
indicates that Appellant initially was not distraught when she saw police and
that she did not ask what she did. Instead, Chief Supplee's report indicates
that Appellant "asked why [police] were there, and [Chief Supplee] advised
[Appellant] that we believed her vehicle was involved in an accident, at
which point she stated what did I hit. [Appellant ] appeared distraught and
again asked what did I hit. [Chief Supplee] advised her that she had hit a
person and he had died, and [Appellant] appeared even more upset and
began to cry." Id. at 37.
¶ 8 Appellant was with Scott Famielietti in the hours before the accident,
and he testified as follows. Mr. Famielietti and Appellant were together all
evening and until about 1:00 a.m., when she left for home. At that time,
Appellant's car was not damaged. Appellant consumed approximately two
rum and cokes that evening. When Mr. Famielietti awoke the next morning,
Appellant called him. She started to speak on his answering machine,
saying that she had an accident and that "she didn't know what hit her." Id.
at 76. Mr. Famielietti picked up the telephone, and Appellant also told him

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that police were at her home and that "she was driving on the road, she
looked down and heard a crash and she had glass all over her." Id.
¶ 9 The Commonwealth also presented the testimony of a forensic
scientist, Clyde Lideick, who analyzed the evidence taken from the crime
scene and Appellant's car. He concluded that some of the pieces of black
plastic from the crime scene were from the area around Appellant's driver's-
side headlight and that other, smaller pieces were from her windshield
wiper. Fibers matching the decedent's jacket were recovered from the
broken windshield in Appellant's car.
¶
10 The Commonwealth qualified Hilltown Township Police Sergeant
Randall Tanghe as an expert in accident reconstruction. Based on his review
of the accident scene, which he examined on the night of the accident, as
well as his examination of the damage to Appellant's car, he concluded that
the following occurred. The victim initially was struck with the front bumper
of Appellant's car, his body then rotated backward up onto the hood, his
head struck the windshield, and he rolled off the car from the front of the
driver's side. Sergeant Tanghe indicated that Appellant was traveling at
forty to forty-two miles per hour.
¶
11 On cross-examination, Sergeant Tanghe acknowledged that the
decedent was wearing all dark clothing, including dark trousers, a long dark
long-sleeved shirt, and a dark-colored, hooded jacket. The expert witness
conceded both that the ability to see Mr. Zilley, given the conditions on the

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J. S07017/03
night in question, would have been "very, very poor," and that the time it
would have taken the victim to strike and roll from the car would have been
"very quick." N.T. 2/9/02, at 106, 115. Sergeant Tanghe stated that the
car's path of travel was not interrupted by striking Mr. Zilley and that the
victim did not land under the car. In addition, the victim's blood alcohol
content was .26%.
¶ 12 Appellant testified on her own behalf. She has an eightyear-old child
and a five-year-old child and is self-employed as a house cleaner. She and
her husband were separated on the night in question but continued to reside
in the same residence. She was out that evening because under their
custody arrangement, each party was to spend alternating evenings alone
with the children. She testified as follows regarding the accident:
Q.
Did you see anybody on Middle Road at all?

A.
No.

Q.
Did you see anything on Middle Road at all on the
roadway?

A. No.

Q.
What happened as you were driving on Middle Road?

A.
My window crashed.

Q. What did you think happened when the window
crashed?

A.
Something hit me.

Q.
Where did you think it had come from?

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J. S07017/03
A. Above.

Q.
What did you think it was?

A. A
limb.

Q.
A limb from what?

A.
One of the trees that are right around there.

Q.
What did you do when the windshield shattered?

A.
I moved my head out of the way.

Q.
Could you describe for us what happened when the
windshield shattered?

A.
Glass flew in at me.

Q.
Did you think you had hit anything?

A. No.

Q.
What did you think had happened?

A.
I thought something hit me.

Q.
Did you feel any change in the direction of your car
when the windshield was struck?

A. No.

Q.
Did you feel yourself going over anything?

A. No.

. . . .

Q.
Did the flight of the car change at all as the thing
impacted your windshield?

A. No.

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J. S07017/03
Q.
Did you see anything at all after the impact on the
roadway?

A. No.

Q.
Did you look?

A.
It was dark, it was raining.

Q.
You couldn't see anything at all?

A.
You couldn't see anything, no.

Q. Did you have any reason to believe there was
somebody walking down the middle of the road?

A. No.

Q.
How often do you drive Middle Road?

A.
At least twice a day every day.

Q. Have you ever had the experience of someone
walking down the middle of the road on Middle Road?

A. No.

Q.
Have you ever seen people walking on Middle Road?

A.
Not on the road. On the sidewalks.

N.T. Trial, 2/7/02, at 16-18. Appellant also testified that when she returned
home, she left her car in plain view in the driveway outside her home. She
further stated that she "definitely would have stopped" had she known that
she struck someone and that she "had a phone" with her. She stated she
"could have called right away." Id. at 21. She was shocked when she
discovered that she struck someone that night.

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J. S07017/03
¶ 13 Following the close of the evidence, the trial court instructed the jury
as follows regarding the elements of 75 Pa.C.S. § 3742, accidents involving
death or personal injury:
I'm going to review the crimes charged with you. First,
the crime of accidents involving death or personal injury, which
is commonly referred to, as you have heard, as the crime of hit-
and-run. The defendant here, Luann Woosnam, is charged with
accidents involving death or personal injury. Under the law of
Pennsylvania a person is guilty of this crime if, while driving a
vehicle, he or she is involved in an accident resulting in the
death of any person and the driver does not fulfill two duties.
First, the duty to stop; and second, the duty to give information
and render aid.

Id. at 43. The trial court continued by defining the duties to stop, give
information, and render aid.
¶ 14 Following the close of jury instructions, Appellant objected to the trial
court's failure to instruct the jury that the Commonwealth had to prove
beyond a reasonable doubt that Appellant knew or should have known that
she had been involved in an accident involving death or injury. N.T. Trial,
2/7/02, at 73. That objection was overruled, and the court refused to
charge the jury in accordance with Appellant's request.
¶ 15 Based on the above evidence, Appellant was convicted of possession of
marijuana and leaving the scene of an accident involving death or injury.
She was sentenced to eighteen to thirty-six months imprisonment, fines,
and costs. The court refused to grant her work release. This appeal
followed.

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J. S07017/03
¶ 16 On April 18, 2002, Appellant was ordered to file a concise statement of
matters to be raised on appeal. Appellant filed that statement on April 26,
2002, and it reads as follows:
1. The Court erred in failing to suppress evidence
seized as a result of a search warrant issued on March 30, 2001.
The warrant was issued without probable cause.

2.
The Court erred in failing to instruct the jury that in
order to convict Defendant on the charge of leaving the scene of
an accident involving death or personal injury, the
Commonwealth was required to prove beyond a reasonable
doubt that Defendant knew or should have known that she had
hit and injured an individual and failed to stop.

3. Defendant reserves the right to amend this
statement after a review of the trial transcript.

Concise Statement of Matters Complained of, 4/26/02, at 1. On August 19,
2002, the trial court issued its opinion addressing the two contentions raised
in this statement, and the record was transmitted to this Court. On
September 18, 2002, Appellant filed a document entitled "Addendum to
Concise Statement of Matters [Complained] of." In that document,
Appellant raised the contention that the evidence was not sufficient to
sustain her convictions.
¶ 17 On appeal, Appellant raises the following issues:
A.
The trial court erred in failing to instruct the jury that the
Commonwealth must prove that Ms. Woosnam knew or should
have known that she had been involved in an accident requiring
her to stop in order to convict her of leaving the scene of an
accident.

B.
The Commonwealth failed to prove beyond a reasonable
doubt that Ms. Woosnam violated 75 PA.C.S.A. Section 3742.

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J. S07017/03
C.
The trial court erred in finding that probable cause existed
for the search of Ms. Woosnam's 2000 Subaru Outback.

Appellant's brief at 1.1
¶ 18 The first issue that we address is whether Appellant's allegation
concerning the sufficiency of the evidence was waived, as the
Commonwealth contends, by her failure to include it in her timely filed
Pa.R.A.P. 1925(b) statement. We conclude that under the relevant case
law, it is.
¶ 19 In Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998), our
Supreme Court indicated that from the date of that decision forward, an
issue that is not included in a Pa.R.A.P. 1925(b) statement will be waived for
purposes of appeal. In Commonwealth v. Butler, Pa. , 812 A.2d 631
(2002), the Court further expanded on the Lord holding, stating that the
holding was firm and that wavier automatically applies when a statement is
not filed or if an issue is not included in the statement, even when the
question of waiver has not been raised by the other party and even when
the trial court has chosen to overlook the failure by addressing the issues it
assumed would be raised. The Court in Butler indicated that the purpose of
Pa.R.A.P. 1925(b) is two-fold, ensuring both that the trial court does not
have to speculate as to which issues present in the case will be raised on

1 This page of Appellant's brief is not numbered; however, it is the first
page after the title page.

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J. S07017/03
appeal and that the appellate courts have an adequate trial court opinion in
order to conduct effective appellate review.
¶ 20 In the present case, Appellant's Pa.R.A.P. 1925(b) statement raises
two issues that were addressed by the trial court. The addendum was filed
without the trial court's leave and after the trial court issued its opinion and
the record was transmitted to this Court. We therefore conclude that the
issue is waived for purposes of appeal. Commonwealth v. Overby, 744
A.2d 797 (Pa.Super. 2000) (untimely Pa.R.A.P. 1925(b) statement filed after
the trial court filed its opinion and record was transmitted to Superior Court
failed to preserve any issues for review).
¶ 21 Next, we determine if the trial court erred in refusing to charge the
jury, as an element of the crime of leaving the scene of an accident involving
injury or death, that the Commonwealth must prove beyond a reasonable
doubt that Appellant knew or should have known that she had been involved
in an accident. We start by examining the statutory language.
§ 3742. Accidents involving death or personal injury

(a) General Rule.--The driver of any vehicle involved in
an accident resulting in injury or death of any person
shall immediately stop the vehicle at the scene of the
accident or as close thereto as possible but shall
then forthwith return to and in every event shall
remain at the scene of the accident until he has
fulfilled the requirements of section 3744 (relating to
duty to give information and render aid). Every stop
shall be made without obstructing traffic more than
is necessary.

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J. S07017/03
75 Pa.C.S. § 3742. This crime is graded as a third degree felony if the
victim of the accident dies.
¶ 22 The statute itself does not contain a scienter requirement. In most
jurisdictions, motorists involved in an accident involving either property
damage or personal injuries are required by statute to stop, and in the event
of injury, to render aid. Marjorie A. Caner, Annotation, Necessity And
Sufficiency Of Showing, In Criminal Prosecution Under "Hit-And-Run"
Statute, Accused's Knowledge Of Accident, Injury, Or Damage, 26 A.L.R.5th
1 (2002) at 2(a). These statutes commonly are referred to as hit-and-run
statutes, and most of them require that the motorist have knowledge of the
occurrence of the collision, injury, or damage as a prerequisite to a
conviction under the statute. Id. In those jurisdictions where a mens rea
requirement is contained in the statute, the statutory element of knowledge
is considered satisfied if there is circumstantial evidence that indicates the
motorist had knowledge of the accident. Id.
¶ 23 However, in many jurisdictions, the statute "defining the offense of hit-
and-run does not contain the express requirement of knowledge by the
motorist of the accident, injury, or damage." Id. In these jurisdictions,
there are three approaches:
[S]ome courts have taken the view that proof of the defendant's
knowledge of the occurrence of the collision only was required,
and it need not also be shown that the defendant knew of any
resulting injury or damage (§ 3a). However, a number of courts
have held that, where the statute did not specifically require
proof of the defendant's knowledge of the collision or of the

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J. S07017/03
resulting injury or damage, that proof of the defendant's
knowledge of both the collision and the resultant injury or
damage was required (§ 3b).

In a few jurisdictions, courts have held or recognized that,
under hit-and-run statutes not including any express
requirement of knowledge by the defendant of the collision,
injury, or damage, such proof was not required in a prosecution
under the statute, essentially making the offense one of strict
liability, although noting that a showing of a lack of knowledge
may be a valid defense (§ 3c).

Id. To summarize, only a few jurisdictions refuse to read a mental
culpability element into their hit-and-run statutes when those statutes do
not expressly contain that element. Instead, the vast majority of the
jurisdictions with those type of statutes require the prosecution to prove
some element of knowledge on the motorist's part of the accident, and
injury or damage.
¶ 24 In Pennsylvania, we already have had occasion to review another hit-
and-run statute, 75 Pa.C.S. § 3743, accidents involving damage to attended
vehicle or property, which provides:
(a) General rule.--The driver of any vehicle involved in an
accident resulting only in damage to a vehicle or other
property which is driven or attended by any person shall
immediately stop the vehicle at the scene of the accident
or as close thereto as possible but shall forthwith return to
and in every event shall remain at the scene of the
accident until he has fulfilled the requirements of section
3744 (relating to duty to give information and render aid).
Every stop shall be made without obstructing traffic more
than is necessary.

¶ 25 In Commonwealth v. Kauffman, 470 A.2d 634 (Pa.Super. 1983),
the defendant was found guilty of violating 75 Pa.C.S. § 3743. He claimed at

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J. S07017/03
trial that he was not aware that he struck a car and did not violate the
statute. On appeal, he contended that the trial court applied an erroneous
standard of law to find him guilty. The trial court had ruled that the evidence
was sufficient to prove the offense because it demonstrated that the
defendant negligently was unaware of having been involved in the accident.
The defendant claimed that the statute required that the motorist actually be
aware that he was involved in an accident.
¶ 26 In Kauffman, we noted that 75 Pa.C.S. § 3743 contains no element
regarding a particular mental state and then examined the case law of
jurisdictions interpreting similar hit-and-run statutes, observing that many of
them also are silent as to mental culpability. Our review in Kauffman
established that, in those jurisdictions, different approaches were utilized
when a statute is silent as to a mental culpability requirement: one approach
demanded actual knowledge of both collision and injury, another approach
required that the evidence indicate that a reasonable man under the
circumstances either knew or should have known that he was involved in an
accident, and a third approach imposed strict liability.
¶ 27 In Kauffman, we adopted the second approach for purposes of 75
Pa.C.S. § 3743, concluding that the Commonwealth had to prove beyond a
reasonable doubt the following scienter element as a prerequisite to a
conviction under accidents involving damage: that the circumstances of the
accident indicate that the defendant reasonably should have known that he

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J. S07017/03
or she was involved in an accident involving damage, as defined in 18 Pa.C.S.
§ 302(b)(4):
(4) A person acts negligently with respect to a material element
of an offense when he should be aware of a substantial and
unjustifiable risk that the material element exists or will result
from his conduct. The risk must be of such a nature and degree
that the actor's failure to perceive it, considering the nature and
intent of his conduct and the circumstances known to him,
involves a gross deviation from the standard of care that a
reasonable person would observe in the actor's situation.

¶ 28 In Kauffman, we affirmed the trial court's conclusion that the
evidence was sufficient to establish that the driver knew or should have
known that he was involved in an accident involving damage to a car. See
also Commonwealth v. Karl, 490 A.2d 887 (Pa.Super. 1985) (same).
¶ 29 We conclude that, in the present case, the same scienter element is to
be applied in order to obtain a conviction under accidents involving injury or
death. This holding finds support in our ruling in Kauffman, which
interprets a statute that is identical to the one at issue, except with respect
to the consequences of the accident. Our ruling also is buttressed by the
interpretation of identical statutes in the majority of jurisdictions. Finally,
our conclusion that 75 Pa.C.S. § 3742 has a mens rea element becomes
virtually compelled when we examine the precedent that interprets the
statute from which 75 Pa.C.S. § 3742 is derived.
¶ 30 Section 1025 (b) of the Act of May 1, 1929, P. L. 905, as amended by
section 3 of the Act of June 29, 1937, P. L. 2329, 75 P.S. § 634
(b)(repealed) provided:

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J. S07017/03
The driver and owner, if present, of any vehicle involved in
any accident, resulting in injury or death to any person or
damage to property, shall give his name, address, and the
registration number of his vehicle, and exhibit his operator's
license to the person struck, or the driver or occupants of any
vehicle involved, or the owner or custodian of any property
involved, unless the person struck, or the driver of the vehicle or
the custodian of the property involved, signifies that no injuries
have been received or damages sustained, and shall render to
any person injured in such accident reasonable assistance,
including the carrying of such person to a physician or surgeon
for medical or surgical treatment, if it is apparent that such
treatment is necessary, or is requested by the injured person.

¶ 31 This early precursor to 75 Pa.C.S. § 3742 incorporates the elements of
both that section and the section of Motor Vehicle Code interpreted in
Kauffman because it requires a motorist to stop and perform certain duties
if the motorist is involved in an accident involving injury or damage. Even
though former 75 P.S. § 634 obviously contained no mental culpability
element, in applying it, we held, "Knowledge that one has injured some
person or damaged the property of another user of the highway is an
essential element of the offense. This may be shown by direct proof or by
proof of circumstances from which knowledge may reasonably be
inferred. . . but a strong suspicion that he knew is not sufficient. There is no
violation of section 1025 (b) as amended, 75 PS § 634 (b), unless it is
shown beyond a reasonable doubt that defendant had knowledge of the
accident." Commonwealth v. Adams, 23 A.2d 59, 61 (Pa.Super. 1941)
(citing Commonwealth v. Hyman, 178 A. 510 (Pa.Super. 1935); accord
Commonwealth v. Buckley, 177 A.2d 107 (Pa.Super. 1962) (interpreting

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J. S07017/03
section 1027 of The Vehicle Code of April 29, 1959, P.L. 58, 75 P.S. § 1027,
which was identical to and successor statute to statute under consideration
in Adams).
¶ 32 Fundamental notions of justice and fair play are offended herein.
Appellant was convicted of a third degree felony and was sentenced to
eighteen to thirty-six months imprisonment, but a jury has not made a
determination that she was negligent as defined by 18 Pa.C.S. § 302(b)(4)
with respect to her knowledge that she was involved in an accident involving
death or injury.
¶ 33 In the present case, the trial court made this third degree felony a
strict liability crime. It informed the jury that Appellant was guilty if the
Commonwealth proved beyond a reasonable doubt that she was involved in
the accident and left the scene; it refused to instruct the jury that the
Commonwealth had any burden of proving any amount of knowledge on
Appellant's part that she was involved in an accident involving death or
injury. This refusal was erroneous. Furthermore, the trial court removed
from the jury's consideration the only defense presented by Appellant and
virtually instructed the jury to find in favor of the Commonwealth.
¶ 34 Appellant testified that she thought she was struck by a tree branch,
and she averted her head when the glass entered the car. There was a
significant amount of circumstantial evidence to support the reasonableness
of this belief. It was pitch black outside, so dark that Appellant's white car

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appeared to be dark in color. It was raining very hard and was windy. A tree
branch easily could have been blown onto the car. The Commonwealth's own
expert witness conceded that the victim would not have been visible on the
night in question because his clothing was dark, there were no street lights in
the area, and it was a windy and rainy night. The accident reconstructionist
stated that the accident would have occurred very quickly, Appellant's car did
not run over the victim's body, and that Appellant's car would not have
changed directions as a result of the impact.
¶ 35 Furthermore, many of Appellant's actions were consistent with her
belief that a tree branch struck her car. She did not attempt to hide the car,
thus indicating a lack of guilty knowledge. Appellant told her friend that
something struck her car when she was on her way home. When police
arrived, she did not appear upset initially and asked them what she hit. She
was shocked and disbelieving when told that she had struck a pedestrian.

¶ 36 In conclusion, we find that Appellant was entitled to an instruction
pursuant to 18 Pa.C.S. § 302(b)(4) regarding her knowledge that she was
involved in an accident involving death or injury and that the trial court's
refusal to so instruct the jury requires the grant of a new trial.
¶ 37 Appellant also levels a challenge to the search conducted of her car.
Specifically, she maintains that the affidavit of probable cause was

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J. S07017/03
insufficient because there was no evidence linking her car to the accident.
Thus, we must address whether probable cause existed for issuance of the
search warrant for the Subaru Outback and begin by examining the affidavit
submitted to support the warrant. The affidavit first sets forth the facts and
location of the hit-and-run accident involving Mr. Zilley. The report states
that Mr. Nowery told police that the accident occurred so quickly that he
could not provide a description of the vehicle but that it may have been a
dark color. Then, the following facts are recited:
On March 30, 2001 at 1107 am Officer William Kirk, #06,
Dublin Boro Police Department, was contacted by Brett W.
Woosnam, 1317 Broad Street, Perkasie, Pennsylvania. I met
with Mr. Woosnam in the parking lot of the Milk House at Middle
Road and Broad Street, in Hilltown Township. Mr. Woosnam
stated that he was leaving for work this morning. He observed
damage to his vehicle, a 2000 Subaru Outback white in color,
Pennsylvania Registration # RC014E. He had heard of a hit and
run accident in Dublin Boro. He advised that his wife had been
operating the car last night. He stated that the car was at his
residence, and that his wife, Luann Woosnam, DOB/5-31-70 was
maybe leaving shortly.

Officer Kirk responded to 1317 Broad Street, Perkasie,
Pennsylvania, the Woosnam, which is approximately 2 miles
from the accident scene. Officer Kirk observed the vehicle that
Mr. Woosnam described parked in the driveway of the residence.
The car had a severely damaged windshield and damage to the
drivers side front of the vehicle. The damage appeared to have
recently occurred.

Officer Bohdan Gol, Dublin Boro Police Department, spoke to
Luann Woosnam at her residence and at the Dublin Boro Police
Department. Ms. Woosnam had an odor of alcohol about her
and appeared to be under the influence of alcohol.

Chief Thomas Supplee, Dublin Boro Police Department,
proceed to 1317 Broad Street, Perkasie, Pennsylvania and

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advised that he observed what appeared to be hair and fabric on
the windshield of the above mentioned vehicle. He also
observed a brown spot which appeared to be blood.

Through your affiants training and years of experience I am
aware that when an accident occurs normally there is a transfer
of evidence between the striking object and the object that is
struck. Based on the above your affiant has probable cause to
believe that the above vehicle was driven by Luann Woosnam on
March 30, 2001 and struck and killed Mr. Zilley. There is
probable cause to believe that Luann Woosnam was operating
under the influence of alcohol at the time of the accident.
Further there is probable cause to believe that Mr. Zilley's hair,
fiber and blood, tissue and or fabric will be found on the above
vehicle.

Affidavit of Probable Cause, 3/30/01, at 1.
¶ 38 We now review the legal principles applied when a court reviews the
sufficiency of an affidavit to determine whether it supports the magistrate's
conclusion that it established probable cause for issuance of a search
warrant:
Before an issuing authority may issue a
constitutionally valid search warrant, he or she must
be furnished with information sufficient to persuade
a reasonable person that probable cause exists to
conduct a search. The information offered to
demonstrate probable cause must be viewed in a
common sense, nontechnical, ungrudging and
positive manner. It must also be remembered that
probable cause is based on a finding of the
probability, not a prima facie showing of criminal
activity, and that deference is to be accorded a
magistrate's finding of probable cause.

Hearsay information is sufficient to form the basis
of a warrant so long as the magistrate has been
provided with sufficient information to make a
"neutral" and "detached" decision about whether
there is a fair probability that contraband or evidence

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of a crime will be found in a particular place. And the
duty of the reviewing court is simply to ensure that
the magistrate had a "substantial basis for
concluding that probable cause existed."
Commonwealth v. Baker, 532 Pa. 121, 615 A.2d 23, 25
(1992)(quoting Commonwealth v. Gray, 509 Pa. 476, 503
A.2d 921 (1985))(citing Illinois v. Gates, 462 U.S. 213, 236
(1983)).

Commonwealth v. Rivera, 2003 PA Super 29, 18.
¶ 39 In this case, the magistrate was given the following information.
Appellant lived two miles from the accident scene. Her husband, a reliable
source of information, indicated that Appellant had been driving the car on
the night of the accident and when she returned, it was damaged. Police
went and observed the car. Appellant's car had damage consistent with
what would have been sustained had it struck a pedestrian, including
damage to the windshield and bumper as well as what appeared to be blood
stains on the car and hair and clothing fiber in the broken windshield.
¶ 40 These facts indicate that the car probably was being driven at the time
of the accident and in the location of the accident. Furthermore, there was
evidence linking this car to the accident. It had been damaged recently and
contained evidence of having struck a pedestrian, including hair, clothing
fibers, and blood stains. Mr. Nowery, an eyewitness to the accident, told
police that the car that struck the decedent did not stop. We conclude that
these facts supported the probability that the vehicle was involved in the
crime committed, which is leaving the scene of an accident involving death

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or injury, and that the magistrate had a substantial basis for concluding that
probable cause existed.
¶ 41 Judgment of sentence reversed. Case remanded for a new trial.
Jurisdiction relinquished.
¶ 42 Judge Klein Concurs in the Result.

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