Commonwealth v. Bostian

232 A.3d 898

COMMONWEALTH of Pennsylvania, Appellant

v.Brandon W.W. BOSTIAN, Appellee

No. 2212 EDA 2019

Superior Court of Pennsylvania.

Argued March 3, 2020

Filed May 14, 2020

Reargument Denied July 14, 2020

Hugh J. Burns Jr., Deputy Attorney General, Philadelphia, for Commonwealth, appellant.

Brian J. McMonagle, Philadelphia, for appellee.

BEFORE: STABILE, KING, JJ., and STEVENS, P.J.E.^*

OPINION BY STABILE, J.:

On May 12, 2015, Amtrak Train 188 ("Train 188") derailed at the Frankford Curve in Philadelphia, resulting in the deaths of eight passengers and serious injuries to numerous others.¹ The Commonwealth's Office of the Attorney General ("OAG")² charged the Appellee, Brandon W.W. Bostian, with causing catastrophe, eight counts of involuntary manslaughter, and 246 counts of REAP.³ Upon Appellee's motion for reconsideration, the Court of Common Pleas of Philadelphia County ("trial court"), by order entered July 23, 2019, dismissed all charges against Appellee based upon its conclusion that the Commonwealth failed to meet its burden of establishing a prima facie case on all charges. The Commonwealth now appeals. Upon review, we reverse and remand.

On September 12, 2017, Judge Thomas F. Gehret of the Philadelphia Municipal Court conducted a preliminary hearing, at which the Commonwealth offered the testimony of several witnesses. The Commonwealth first called to the stand Officer Michael Maresca of the Philadelphia Police Department. N.T. Preliminary Hearing, 9/12/17, at 30. Officer Maresca testified that, on the evening of May 12, 2015, he and his partner were assigned to the crime scene unit working a homicide case in the area of Frankford when he heard a loud sound that he described as "metallic—like a car crash, like a car crash, but a lot louder, a lot louder." Id. at 30-32. He testified that they then received a city-wide radio dispatch and responded to a major incident in the area of Frankford and Wheatsheaf Lane. Id. at 31, 37.

Recalling his observation of the incident, Officer Maresca testified:

When I got [to Wheatsheaf Lane and Frankford Avenue] there was no lighting. Officers were running towards the railroad. That's where we proceeded. When I got to the railroad, I had my camera with me. I observed eight, maybe nine Amtrak cars as if they were tossed around, just like a kid's toys. The engine, which was facing northbound, was to the far right. The one behind that would be the first car which looked like a tin can that had been kicked and stomped on, it was just rolled up [ ], and every car behind that was just going off to the side there.

Id. at 32-33. The area lacked lighting because the derailed train downed the power lines. Id. at 35, 38. Since the power lines were arcing and popping, emergency responders were forced to wait until the power was cut off. Id. at 36. Prior to arriving at the scene, Officer Maresca did not know how many people were on the train. Id. at 37. He further testified that he discovered several deceased and multiple injured individuals. Id. at 33-34. In addition, he also found dismembered and severed body parts, specifically limbs. Id. at 33-34, 40.

Next to testify for the Commonwealth was Blair Berman, a frequent Amtrak passenger who was traveling back to New York from Philadelphia on Train 188. Id. at 66-70. Ms. Berman testified that she was on the train for "about ten minutes." Id. at 69. She recalled that she was in the first car of the train, which is business class. Id. She testified that even though she was in the first car, she did not have a business class ticket. Id. She recalled entering the first car through coach as it was "normally empty" at night. Id. at 70. She recalled:

I take the train all the time so at first it felt normal. ... I noticed approaching the curve that the train started to speed up but nothing like clicked with me yet. Then like as we approached the turn, I just heard screaming from the front of my car and then just like a big bang and I blacked out, and I woke up in the woods, not on the train.

Id. at 69 (emphasis added). According to Ms. Berman, as the train was approaching the curve, she noticed that her body "was shifting to the right and [the train was] tilting and just going way too fast and not slowing down[.]" Id. at 70-71. She testified that the train was going "very fast." Id. at 71. Ms. Berman recalled that when she regained consciousness, she observed:

I was laying on the woods [sic ] and I had three other people on top of my left leg. So I like slid myself so I could get them off my leg and I tried standing up and I collapsed. So I held onto a tree branch and I was standing like a flamingo on my good leg, my left leg, and my left arm was holding onto the tree branch and I was just screaming for help. Like I lost all my belongings, my phone, my suitcase, my flip flops weren't on my feet when I woke up. I had blood everywhere and I was just screaming for help. It was pitch black and no one was around besides the other injured people.

Id. at 71-72. Her right arm was broken and she sustained other injuries. Id. at 72. At some point, she encountered Appellee in the field, whom she did not know at the time. Id. at 73, 76. She testified that Appellee had blood on his face, but otherwise did not appear to be injured. Id. at 88. According to Ms. Berman, Appellee was wearing a black T-shirt and jeans. Id. at 74. She testified that Appellee did not wear anything that would have revealed his employment with Amtrak. Id. He also did not identify himself to her as an Amtrak employee or the engineer of Train 188. Id. at 74, 89. She recalled asking Appellee to use his cell phone. Id. at 73-74. Appellee refused permission. Id. at 74. She testified that she "asked him again and again until he told me I could use his phone." Id. Ms. Berman called her father. Id. at 75. During the call, Ms. Berman asked Appellee whether he knew where they were or the train number. Id. at 76. According to Ms. Berman's testimony, Appellee responded in the affirmative, stating that they "were at Frankford Junction and Amtrak [Train] 188." Id.

Officer Eric McClendon of the Philadelphia Police Department was then called to testify for the Commonwealth. Id. at 91. Officer McClendon testified that he was assigned to the Bomb Disposal Unit on the night of May 12, 2015. He recalled that

[he] and Officer Edward McConnell [ ] responded to an incident of a train derailment, and upon entering that location we were met by my sergeant who's another bomb technician, Michael Bloom[.] It was reported to him and relayed to myself and Officer McConnell that there was a suspicious bag located on the locomotive section of the train that was derailed.

Id. at 92. According to Officer McClendon, their check of the incident site did not reveal any explosive devices. Id. at 94. Officer McClendon testified that they did, however, locate a green bookbag in the engineer's section of the locomotive. Id. 94, 97. He discovered "numerous files, numerous papers, charts, maps, a small tablet in the front, and the engineer's identification card" in the bag. Id. at 97. Appellee's name was on the identification card. Id.

Special Agent Brian Julian of the Federal Bureau of Investigation testified next. He was assigned to investigate the May 12, 2015 derailment. Id. at 105-06. He testified that the National Transportation Safety Board ("NTSB") took possession of the green bookbag. Id. at 109. The small tablet computer was not included on the NTSB list of contents, and could not be located at any point thereafter. Id. at 109-10. Thus, according to Special Agent Julian, the only electronic device submitted for analysis was the cell phone that was in Appellee's possession at the time of the incident. Id. at 109.

The Commonwealth called to the stand Detective Joseph Knoll, Northwest Detectives, Special Investigation Unit. Id. at 114. He testified that he was involved in investigating the derailment of Train 188. Id. Detective Knoll testified that he was dispatched to Einstein Hospital to interview and identify survivors. Id. at 114-15. While at the hospital, he observed Appellee enter the triage area and overheard him asking "a group of people by the nurses and doctors, are we in New York?" Id. at 116. Appellee eventually identified himself to Detective Knoll as the engineer of Train 188. Id. at 115. Detective Knoll testified that when he asked Appellee whether he recalled what had happened, Appellee replied, "I don't remember, the last thing I remember [i]s the North Philadelphia train station." Id. at 115-16.

Detective Joseph Degrazia, Amtrak Police Department, next testified that he was involved in the investigation of the derailment of Train 188 on May 12, 2015. Id. at 120. Detective Degrazia stated that he was assigned to assist "the FBI and the City of Philadelphia with obtaining various forms of information relating to Amtrak information." Id. at 120. He testified that his review of Amtrak records, specifically the passenger manifest, indicated that 251 people, including Appellee, were on Train 188 at the time of the incident. Id. at 121-22. Of these people, five were Amtrak crew members and three were deadheads, Amtrak employees who were "in the middle of service going from one location to another without having to pay a fa[re]." Id. at 122. Detective Degrazia acknowledged that, as part of Appellee's responsibilities to operate a passenger train on the Philadelphia to New York route, Appellee "was required to know the speed limit of every section on that route." Id. at 123. Detective Degrazia testified that, during the six weeks prior to the May 12, 2015 incident, Appellee went through the Frankford Curve 25 times at an average speed of 49 mph. Id. at 233-34.

Lastly, the Commonwealth presented the testimony of Jonathan Hines, Amtrak's Senior Director of Compliance and Certification. Id. at 125. Mr. Hines testified that he has been working for Amtrak for twenty-one years and oversees, in part, the certification of...