Com. v. Peters, K. ( 2023 )

J-A21028-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEVIN R. PETERS :
:
Appellant : No. 2591 EDA 2021
Appeal from the Judgment of Sentence Entered October 15, 2021
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0003901-2020
BEFORE: LAZARUS, J., MURRAY, J., and McCAFFERY, J.
MEMORANDUM BY LAZARUS, J.: FILED FEBRUARY 24, 2023
Kevin R. Peters appeals from the judgment of sentence, entered in the
Court of Common Pleas of Bucks County, following his convictions of two
counts each of third-degree murder,1 aggravated assault – serious bodily
injury,2 recklessly endangering another person,3 homicide by vehicle while
driving under the influence (DUI),4 aggravated assault by vehicle while DUI,5
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1 18 Pa.C.S.A. § 2502(c).
2 Id. at § 2702(a)(1).
3 Id. at § 2705.
4 75 Pa.C.S.A. § 3735(a)(1)(i).
5 Id. at § 3735.1(a).
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homicide by vehicle,6 and aggravated assault by vehicle.7 The trial court
separately found Peters guilty of DUI – general impairment,8 DUI – high rate
of alcohol,9 and summary offenses of driving within single lane,10 following too
closely,11 driving vehicle at safe speed,12 and reckless driving13 (collectively,
“non-jury offenses”). Peters challenges the sufficiency of the evidence with
respect to the third-degree murder and aggravated assault convictions. In
particular he argues the Commonwealth did not prove malice. After careful
review, we affirm in part, reverse in part, and vacate Peters’ convictions of
third-degree murder and aggravated assault – serious bodily injury.
The trial court summarized the factual history as follows:
Shortly after midnight on Friday, December 6, 2019, Nicholas
Hafto called 911 police emergency and reported that he was
driving on Interstate 95 (I-95) North, and that “there is a white
Mazda SUV, swerving, almost sideswiped me, he came flying right
by me.” At trial, [] Hafto further explained that the SUV erratically
changed speeds, back and forth from fast to slow. He stated that
the SUV made an abrupt exit off I-95 at the Route 29 New Jersey
____________________________________________
6 Id. at § 3732(a).
7 Id. at § 3732.1(a).
8 Id. at § 3802(a)(1).
9 Id. at § 3802(b).
10 Id. at § 3309(1).
11 Id. at § 3310(a).
12 Id. at § 3361.
13 Id. at § 3736(a).
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exit, noting that while exiting, the operator of the SUV slammed
on his brakes.
Another motorist, Scott Emrick, also called 911. He reported that
he was also traveling on I-95 and observed a white Mazda SUV
“swerving left and right.” He also reported erratic acceleration,
deceleration, and a sharp exit off I-95 and noted that the vehicle’s
headlights were not on.
Surveillance cameras captured images of the SUV as it exited I-
95 into New Jersey. Approximately one minute later, the vehicle
reentered the highway and proceeded south.
At approximately 1:00 a.m., Edmonde Sestini, Jr., a driver
working for Clarion Ambulance, was driving south on I-95 at a
speed between 50 and 60 miles per hour [(mph)] when a white
Mazda SUV passed him at a high rate of speed. [] Sestini testified
that the SUV “came flying past me on the left-hand side.”
Approximately half a minute later, and approximately [one-]half[
]mile further down I-95, [] Sestini came upon the SUV stopped
behind a second vehicle[,] which was facing north in the
southbound lane of traffic and completely engulfed in flames. One
man had already been able to get out of [the burning] vehicle,
[and] another man was trying to get out. [] Sestini and his
partner removed [Peters] from behind the wheel of the [white
Mazda] SUV, and due to complaints of hip pain, placed him on the
ground and dragged him away from the fire.
The collision occurred near the Ford Road overpass in Bristol
Township, Bucks County. At approximately 1:05 a.m., the State
Police were dispatched. Upon arrival at the scene, police found a
van fully engulfed in flames and a 2016 Mazda CX-5 SUV, bearing
PA registration KFY-1783, with heavy front-end damage. . . .
[Peters] was transported from the scene to Jefferson Torresdale
Hospital in Northeast Philadelphia.
Two men involved in the collision, . . . Juan Tavarez, and his son,
Charlys Tavarez Santelises, were able to extricate themselves
from the burning vehicle and make their way to Jefferson
Torresdale Hospital. The bodies of [Tavarez’s other son, Juan Jose
Tavarez Santelises] and Claribel Dominguez were removed from
the rear seat of the van. Later that same day, forensic pathologist
Dr. Ian Hood autopsied the bodies and determined to a reasonable
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degree of medical certainty that thermal burns caused the death
of both individuals.
The survivors, [] Tavarez and [] Santelises, suffered permanent
injuries and testified at length to the extent of their injuries and
the treatment they received.
* * *
Subsequent investigation into the cause of the collision revealed
that the occupants of the van were driving on I-95 south returning
from working an 11-hour shift at a New Jersey package[-]sorting
plant. [] Tavarez, the driver of the van, drove at a speed of
between 50 and 55 [mph] as a precautionary measure due to a
slight whistling sound in the van. Because of their reduced speed,
. . . Tavarez[] activated his emergency flashers and moved into
the right lane of traffic. The first indication that he had of what
was about to occur was what [] Tavarez described to be like a
bomb going off, immediately followed by an engulfing fire.
[Peters] had spent the evening at an open bar social event before
proceeding to two separate bars. The open bar event was held in
a private room at Ruth’s Chris Steak House in Philadelphia and ran
from 5:00 p.m. through 8:00 p.m. During these hours[, Peters]
was drinking vodka. He and his co-workers then moved to the
[Ruth’s Chris Steak House] public bar where [Peters] consumed
bourbon. Co-worker Jacquelyn Smith testified that she had
offered [Peters] a ride home shortly after 10:00 p.m., but he
declined, instead [] asking to be taken to another bar, the
“Rogue’s Gallery,” with one of his co-workers. The other co-
workers used private transport services. A receipt from the
Rogue’s Gallery indicated three drinks were ordered in total: one
“Love City Lager” and two “Neshaminy 2X IPAs.” [Peters] testified
that he consumed two of these drinks. The bill was paid at 12:18
a.m. Shortly thereafter, a video from the parking garage of
[Peters’] workplace showed that he was unable to operate the
automated payment machine. [Peters] physically lifted the gate
to leave the garage[, causing damage to the gate]. Once he left
the garage, surveillance cameras captured images of [Peters]
driving through a stop sign. Video surveillance footage from the
Scudder-Falls Bridge area as it crosses [from] Pennsylvania into
New Jersey shows [Peters] changing lanes and exiting the
highway without using turn signals.
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On December 6, 2019, at 1:45 a.m., an employee of Jefferson
Torresdale Hospital drew a blood sample from [Peters]. Police
seized a serum plasma sample from [the blood previously drawn
on December 6, 2019] pursuant to a search warrant executed on
December 18, 2019. That sample was later submitted to National
Medical Services for analysis. The alcohol content of the serum
plasma was determined to be 183 milligrams per deciliter. The
plasma alcohol concentration was then converted into whole blood
alcohol concentration [(BAC)]. [Peters] had a [BAC] of .151
percent. Toxicologist Donna Papsun offered her expert opinion
that an individual with a BAC of .151 percent is incapable of safe
driving.
Corporal Brianne Glad, an accident reconstruction expert, testified
that she downloaded information from the event date recorder, or
“black box,” from [Peters’] vehicle. That information established
[Peters] was traveling at a speed of 113 [mph] five seconds prior
to the collision with the victims’ van. . . . Half a second prior to
the collision, [Peters] was traveling at 115 [mph]. [Peters] did
not apply [his vehicle’s] brakes until [] four-tenths of a second
before impact. [Peters testified that immediately before the
collision, he momentarily took his eyes off the road, and reached
over to retrieve his cell phone, located in a backpack on the front
passenger seat.]
Trial Court Opinion, 3/4/22, at 1-3, 5-6 (citations omitted).
In May 2020, the Commonwealth charged Peters with the
aforementioned offenses. On September 13, 2021, Peters proceeded to a jury
trial. The jury subsequently convicted Peters of the aforementioned crimes,
and the trial court convicted him of the non-jury offenses. On October 15,
2021, the trial court imposed an aggregate sentence of 19½ to 39 years of
imprisonment. Ten days later, Peters filed a motion for reconsideration of
sentence, which the trial court denied on November 9, 2021. Peters filed a
timely notice of appeal. Both Peters and the trial court have complied with
Pa.R.A.P. 1925.
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Peters now raises a single question for our review:
Was the evidence insufficient as a matter of law to sustain the
verdicts for [t]hird[-d]egree [m]urder and [a]ggravated [a]ssault
[– c]ausing [s]erious [b]odily [i]njury where the prosecution[’s]
proof showed that [Peters], intoxicated, caused a tragic accident
resulting in deaths and injuries but did not establish the requisite
mens rea of malice?
Brief for Appellant, at 5.
Peters’ sole contention on appeal is that the Commonwealth presented
insufficient evidence to prove he acted with malice in the vehicle accident that
caused the deaths of Juan Jose Tavarez Santelises and Claribel Dominguez,
as well as the serious injuries of Juan Tavarez and Charlys Tavarez Santelises.
See id. at 17-26. Peters argues that, under Pennsylvania law, merely driving
while intoxicated does not sustain a finding of malice. Id. at 18-20. Peters
contends that he, while driving at high speeds, attempted to apply the brakes
prior to the accident and attempted to swerve out of the way of the minivan.
Id. at 20-26. Peters asserts that, just prior to the accident, he was seen
operating his vehicle at speeds both higher and lower than the posted speed
limit, passing vehicles in the left lane, exiting a highway at a safe speed, and
operating his vehicle within a single lane of travel. Id. Additionally, Peters
argues that no one, prior to the accident, informed Peters that he was too
drunk to drive. Id. at 20. Peters further argues that he has no history of
drunk driving, or being too intoxicated to drive, that none of the videos depicts
any signs of visible impairment, and that he was not belligerent after the crash
and did not attempt to the flee the scene. Id. In total, Peters asserts that
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these factors preclude a finding of malice under Pennsylvania case law. Id.
at 20-26. We are constrained to agree.
When examining a challenge to the sufficiency of the evidence, we
adhere to the following standard of review:
The standard we apply in reviewing the sufficiency of the evidence
is whether[,] viewing all 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 [re-
]weigh the evidence and substitute our judgment for [that of] 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 [trier] of fact[,] while
passing upon the credibility of witnesses and the weight of the
evidence produced, is free to believe all, part[,] or none of the
evidence.
Commonwealth v. Smith, 97 A.3d 782, 790 (Pa. Super. 2014) (citation
omitted).
The Crimes Code defines aggravated assault – serious bodily injury as
“when a person attempts to cause serious bodily injury to another, or causes
such injury intentionally, knowingly[,] or recklessly under circumstances
manifesting an extreme indifference to the value of human life.” 18 Pa.C.S.A.
§ 2702(a)(1).
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The Crimes Code defines third-degree murder as “[a]ll other kinds of
murder” other than first and second-degree murder and classifies it as “a
felony of the first degree.” 18 Pa.C.S.A. § 2502(c). To sustain a conviction
of third-degree murder, the Commonwealth must prove that the defendant
killed another person with malice. Commonwealth v. Hardy, 918 A.2d 766,
774 (Pa. Super. 2007). “Third[-]degree murder occurs when a person
commits a killing [that] is neither intentional nor committed during the
perpetration of a felony, but contains the requisite malice.” Commonwealth
v. Truong, 36 A.3d 592, 597 (Pa. Super. 2012) (en banc) (citation omitted).
Malice is a legal term, which encompasses “not only a particular ill-will, but
every case where there is a wickedness of disposition, hardness of heart,
cruelty, recklessness of consequences, and a mind regardless of social duty,
although a particular person may not be intended to be injured.”
Commonwealth v. Packer, 168 A.3d 161, 168 (Pa. 2017) (citation omitted).
A fact-finder may find malice not only in an intentional killing, “but also in an
unintentional homicide where the perpetrator consciously disregarded an
unjustified and extremely high risk that his actions might cause death or
serious bodily injury.” Commonwealth v. Ludwig, 874 A.2d 623, 632 (Pa.
2005) (quotation and citation omitted).
The malice requirements for aggravated assault and third-degree
murder are the same. Packer, 168 A.3d at 168. The malice required to
sustain a third-degree murder or an aggravated assault conviction exists
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“where the accused acts in gross deviation from the standard of reasonable
care, failing to perceive that such actions might create a substantial and
unjustifiable risk of death or serious bodily injury.” Commonwealth v.
Mercado, 649 A.2d 946, 955 (Pa. Super. 1994) (citation omitted). “In view
of this heightened mens rea, motor vehicle crashes seldom give rise to proof
of the malice needed to sustain a conviction for third[-]degree murder[.]”
Commonwealth v. Kling, 731 A.2d 145, 148 (Pa. Super. 1999). “However,
in some circumstances, the malice requirement has been met, and this [C]ourt
has not hesitated to uphold an aggravated assault or a third[-]degree murder
charge depending on the particular facts of a motor vehicle crash.”
Commonwealth v. Riggs, 68 A.3d 780, 785 (Pa. Super. 2012).
In the context of a DUI, the decision to drive while under the influence
of alcohol and/or a controlled substance does not, standing alone, constitute
malice. Commonwealth v. O’Hanlon, 653 A.2d 616, 618 (Pa. 1995). This
type of crime “requires a higher degree of culpability, i.e., that which considers
and then disregards the threat necessarily posed to human life by the
offending conduct,” and entails “an element of deliberation or conscious
disregard of danger[.]” Id. “For th[is] degree of recklessness . . . to occur,
the offensive act must be performed under circumstances [that] almost
assure that injury or death will ensue.” Id. (emphasis added). “The
recklessness must, therefore, be such that life threatening injury is
essentially certain to occur.” Id. (emphasis added). “This state of mind is,
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accordingly, equivalent to that which seeks to cause injury.” Id. This mens
rea requirement is met only in circumstances where “the defendant could
reasonably anticipate that serious bodily injury or death would be the likely
and logical consequence of his actions . . . [but that] consequence was
ignored.” Packer, 168 A.3d at 170-71 (reaffirming distinction between
ordinary recklessness and malice).
Pennsylvania courts have frequently had occasion to address the
concept of “malice” as applied in the context of motor vehicle accidents. Our
Supreme Court previously announced the requisite degree of malice and
recklessness, described above, in O’Hanlon, supra and Commonwealth v.
Comer, 716 A.2d 593 (Pa. 1998), and recently reaffirmed in Packer, supra.
In Packer, our Supreme Court addressed this “notice,” or “warning,”
requirement of malice with respect to motor vehicle accidents, noting:
Packer huffed DFE [difluoroethane] immediately prior to and while
operating a vehicle on a public highway. She knew, from the
clearly marked label and the bittering agent added to the Dust-
Off, that this product was not intended to be ingested. She further
knew, from her numerous prior experiences with huffing,
that the effects of DFE on her were immediate,
debilitating[,] and persisted for ten to fifteen minutes
following inhalation. Moreover, she knew that huffing had
caused her to lose consciousness on other occasions in the
past.
With all of this knowledge of DFE and the immediate and
overwhelming effects it had on her, she nonetheless made the
conscious and informed decision to huff four or five bursts of DFE,
inhaling the chemical for a total of fourteen to twenty-four seconds
within a five-minute timespan. She inhaled immediately before
driving on a public roadway and again while temporarily stopped
a red light. Precisely what had previously occurred after huffing
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happened to her again on the night in question—after inhaling her
final bursts of DFE at the red light and proceeding to drive her
vehicle on the public highway, she lost consciousness.
Predictably, without control of her vehicle, she killed [the victim].
Viewing the evidence, as we must, in the light most favorable to
the Commonwealth, her awareness of the particular dangers her
conduct posed is further demonstrated by her behavior before and
after the accident. The record reflects that after huffing in the
Walmart parking lot, but before driving, she paused to ask [her
fiancé] how much he trusted her. . . . [I]mmediately following
the accident (after she regained consciousness), she lied about
what happened, asked about the detectability of DFE in her
bloodstream, and repeatedly asked if she was going to jail.
This is not a typical case of ordinary recklessness that arises when
someone chooses to drive while intoxicated. Packer consciously
disregarded an unjustified and extremely high risk that her chosen
course of action might cause a death or serious bodily injury.
Because of Packer’s history of losing consciousness after
huffing and her knowledge of the immediacy of the effects
of huffing on her, she “could reasonably anticipate that serious
bodily injury or death would be the likely and logical consequence
of [her] actions . . . [but] the consequence was ignored.
Packer, 168 A.3d at 171 (emphasis added) (citations omitted).
In Comer, the defendant drove after drinking and ingesting “muscle
relaxers.” See Comer, 716 A.2d at 595. The defendant was observed, just
prior to the crash, scraping his right tire against the curb, traveling in excess
of the speed limit, veering off the road, and crashing through a bus stand and
into a brick wall. Id. He struck two pedestrians in the process, killing one
and seriously injuring the other. Id.
Our Supreme Court concluded that the evidence in Comer did not
support a finding of malice. Notably, the Court determined that after
examining the defendant’s behavior before and after the accident, there was
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no evidence “that he was aware of his reckless conduct” or that he
“considered, then disregarded, the threat to the life of the victim.” Id. at 596-
97.
Instantly, the trial court concluded that the Commonwealth had
presented sufficient evidence of malice. See Trial Court Opinion, 3/4/22, at
10-12. The trial court relied on a series of decisions made by Peters and found
that he had exhibited a “conscious disregard for the safety of others.” Id. at
10. In particular, the trial court faulted Peters for failing to take the train
home; failing to stay at a hotel; failing to take an Uber, Lyft, or taxi; failing to
accept a ride offered by a co-worker; deciding to drive after he was unable to
operate the parking garage gate; failing to use turn signals; alternating his
speeds from fast to slow; passing other vehicles too closely; and taking his
eyes off the road to look for his phone. Id. at 11.
The Commonwealth, in its brief, argues the same points as relied upon
by the trial court. See Commonwealth’s Brief, at 27-57. The Commonwealth
further contends that Peters’ actions were malicious, cruel, and demonstrated
a lack of care for others’ safety. Id.
After reviewing the record, we conclude that the Commonwealth failed
to present sufficient evidence of the required malice to sustain Peters’
convictions of aggravated assault and third-degree murder. First, malice
requires that the recklessness exhibited must be essentially certain to cause
the death or serious bodily injury. See O’Hanlon, supra; Packer, supra.
It is insufficient to prove that someone’s bad decisions could have or may
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have or likely would result in death or serious bodily injury. O’Hanlon,
supra; Packer, supra. The trial court’s opinion omits mention of this
essential requirement, and the Commonwealth appears to ignore it as well,
encouraging this Court to view the facts in a light inappropriately favorable to
itself.14 See Trial Court Opinion, 3/4/22, at 1-12; Commonwealth’s Brief, at
29, 30, 50.
Second, Peters’ decisions to drive his vehicle instead of taking a train or
taxi, and to use a highway rather than a local road, are of no moment. See
Trial Court Opinion, 3/4/22, at 10-11. Indeed, our law is clear that the mere
decision to drive intoxicated does not satisfy the malice requirement. If these
factors met the requirement of malice, then every DUI homicide would result
in a third-degree murder conviction. We emphasize, again, that merely
driving drunk does not meet the heightened mens rea requirement outlined in
O’Hanlon and Comer, and reaffirmed in Packer.
Third, the facts of this case reveal that the Commonwealth failed to
present sufficient evidence of the “warning” requirement of malice necessary
for third-degree murder and aggravated assault in the DUI context. Peters’
inability to operate the parking garage kiosks is not a “warning” contemplated
____________________________________________
14 The Commonwealth also suggests that the proper analysis of malice is
whether Peters’ actions “might” create a risk of death or serious bodily injury
and that Peters should have “reasonably anticipate[d]” that death or serious
bodily injury would “likely” result.” See id. at 29, 30, 50. This interpretation
of the law is incorrect and represents a significantly lesser burden than
Pennsylvania courts have routinely required for decades. See Packer,
supra; O’Hanlon, supra.
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by our case law. See Commonwealth v. Urbanski, 627 A.2d 789, 793 (Pa.
Super. 1993) (concluding appellant’s wife’s repeated reminders of the danger
of drunk driving and repeated requests he let her drive instead, conveyed a
sufficient warning for malice). Additionally, the record is equally silent on
whether Peters had a history of drunk driving. See Packer, supra
(defendant’s personal knowledge that inhaling DFE caused defendant to black
out previously while driving plus asking if fiancé “trusted her,” exhibited
conscious disregard for almost certain death or serious bodily injury).
Moreover, the Commonwealth’s urging that the malice requirement is satisfied
because “every adult” knows the dangers of alcohol is similarly unavailing.
Indeed, as we stated and emphasize above, merely driving while intoxicated
does not create the requisite malice for third-degree murder or aggravated
assault serious bodily injury. See Packer, supra; Comer, supra.
Additionally, the Commonwealth’s argument that two drivers called 9-
1-1 to report Peters’ driving is of no moment.15 Neither of those phone calls
communicated the warning to Peters himself, and neither of the driver’s
testified that they warned Peters by flashing their headlights or utilizing their
____________________________________________
15 As to Peters’ claim that there was no evidence that drivers of other cars
were trying to stop him from driving, the Commonwealth states “there is no
evidence that there weren’t any actions of others trying to stop. Throughout
the entirety of his driving that night there may have been instances of cars
trying to get his attention to stop or slow down.” Commonwealth’s Brief, at
47 (emphasis added). We have found no support for this claim anywhere in
the record. While we can understand the difficulty in uncovering evidence in
cases such as this, we caution the Commonwealth that we cannot engage in
such speculation. If other drivers existed who warned Peters, it was the
Commonwealth’s burden to find them and bring that evidence to the jury.
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horns. Indeed, Hafto, the first 9-1-1 caller, testified that he observed Peters’
vehicle pass him at a high rate of speed. N.T. Jury Trial Day 1, 9/13/21, at
139-40. In response, Hafto stayed behind the Mazda and gave it a wide birth.
Id. Hafto testified that as he followed the Mazda, it drove both over and under
the posted speed limit of 65 miles per hour. Id. at 152-53. Hafto drove in
such a way that kept the Mazda in front of him at all times. Id. at 151-53
(Hafto testifying that he would decrease speed to avoid passing Mazda).
Emrick, the second 9-1-1 caller, initially testified that the Mazda was driving
erratically and, in the 9-1-1 phone call recording, stated that the driver’s
vehicle lights were off. See N.T. Jury Trial Day 2, 9/14/21, at 7-8; id. at 13
(Commonwealth Exhibits 3 and 4, Emrick’s 9-1-1 call, admitted into
evidence).16 However, Emrick also testified that the Mazda exited the highway
safely. Id. at 10. These phone calls certainly portrayed Peters’ driving as, no
doubt, negligent, careless, and reckless at times. Nevertheless, we emphasize
that neither of these drivers attempted to communicate to Peters, via horns
or headlight flashing, that he was driving erratically. See N.T. Jury Trial Day
1, 9/13/21, at 138-55 (Hafto’s testimony); N.T. Jury Trial Day 2, 9/14/21, at
5-26 (Emrick’s testimony).
Furthermore, the Commonwealth argues that the offer of a ride home
by Peters’ co-worker, Jacquelyn Smith, should have warned Peters that he
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16 Emrick’s 9-1-1 call was divided into two exhibits because, during Emrick’s
phone call, he and Peters crossed over the state line into New Jersey and his
call was transferred to New Jersey’s 9-1-1 service. See id. at 11-12.
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was unable to drive. Commonwealth’s Brief, at 9, 45-46. We are unpersuaded
by this contention. Smith testified that she offered a ride to every co-worker
at the party. N.T. Jury Trial Day 2, 9/14/21, at 114-15. Smith also testified
that, while she arrived late to the work party, she too was drinking alcohol.
Id. at 108-13 (Smith testifying between her arrival at 6:30 p.m. and her
departure at 10:00 p.m., everyone ordered at least three drinks).
Additionally, even though Smith offered Peters a ride, she did not caution
Peters that he had consumed too much alcohol or warn him not to drive. Id.
at 114-16 (Smith testifying she offered Peters a ride because they both lived
in Bucks County and she did not offer to drop him off at train station or any
other alternative). Under these facts, we cannot conclude that Smith’s actions
warned Peters of his inability to drive. See Urbanski, supra;Commonwealth v. Pigg, 571 A.2d 438, 442 (Pa. Super. 1990) (finding of
malice supported where defendant, operating 18-wheeler, drove other drivers
off road and ignored requests of fellow driver to stop driving).
Next, throughout its brief, the Commonwealth argues that because
Peters’ vehicle lights were off, he was consciously disregarding a known risk
to other drivers. See Commonwealth Brief, at 42, 53-55. This contention
does not change the outcome of this case. It is clear, from our review of the
record, that Peters was never alerted to any issues with his lights. After the
accident, Trooper Robert Ace investigated Peters’ Mazda and concluded that
the headlight switch was in the “on” position, and that the damage from the
accident prevented an accurate assessment of whether the brake lights were
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operable. See N.T. Jury Trial Day 3, 9/15/21, at 22-28. Before the accident,
while both Hafto and Emrick testified that at various points it appeared as
though Peters’ headlights were off, neither warned Peters. See N.T. Jury Trial
Day 1, 9/13/21, at 138-55; N.T. Jury Trial Day 2, 9/14/21, at 5-26.
Additionally, in every video the Commonwealth presented of Peters’ driving,
his headlights were on and lit. See N.T. Jury Trial Day 3, 9/15/21, at 182-88,
196-97 (Trooper Brandon Corby, testifying regarding contents of videos
recovered); Commonwealth Exhibits 43 and 44 (surveillance videos from
parking garage, depicting Mazda’s headlights on); Commonwealth Exhibit 42
(security video from exterior of parking garage, depicting Mazda’s headlights
on, but brakes lights off); Commonwealth Exhibit 48 (Philadelphia street
surveillance video depicting Mazda’s headlights on, but brake lights off);
Commonwealth Exhibits 49 and 50 (Philadelphia street surveillance stills
depicting Mazda’s headlights on, but brake lights off); see also N.T. Jury Trial
Day 3, 9/15/21, at 197-200 (Trooper Corby testifying regarding Scudder-Falls
Bridge videos); Commonwealth Exhibit 52 (Scudder-Falls Bridge video
depicting Mazda’s headlights on, but brake lights off). At best, this evidence
demonstrates that Peters believed his brake lights and headlights were
operable, and on, at least some of the time leading up to the accident.
However, this evidence does not demonstrate Peters’ awareness or conscious
disregard of the failing brake lights. Accordingly, the Commonwealth’s
arguments regarding the brake lights does not support Peters’ conviction for
third-degree murder or aggravated assault – serious bodily injury.
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Finally, Corporal Glad, the Commonwealth’s accident reconstruction
expert, testified that Peters did apply his brakes before the collision. See N.T.
Jury Trial Day 3, 9/15/21, at 40-123 (Commonwealth expert testifying
regarding speed of vehicles and “black box” recordings). Corporal Glad
testified that the Mazda’s “black box” recorded speeds in excess of 100 miles
per hour just prior to the crash. Id. at 90-1 (Mazda approached speed of 115
miles per hour approximately one second before impact). Approximately four-
tenths of a second prior to the crash, the Mazda’s black box also recorded
“weight” being released from the accelerator pedal and “weight” being applied
to the brake pedal. Id. at 91-92. Corporal Glad explained that this data
indicates that the brakes were applied prior to the crash. Id. Thus, it is clear
from the evidence that Peters applied the brakes, albeit quite literally at the
last second. See Commonwealth v. Dellavecchia, 725 A.2d 186, 189 (Pa.
Super. 1998) (en banc) (Commonwealth presented insufficient evidence of
mens rea element of recklessness for aggravated assault where defendant
drove at excessive speeds, wove in and out of congested city traffic, had BAC
of .194%, but applied brakes prior to accident “in an effort to avoid impact”).
In conclusion, the Commonwealth presented insufficient evidence to
sustain the malice requirement of either third-degree murder or aggravated
assault – serious bodily injury. Smith, supra. Even considering the totality
of the circumstances, we are compelled to reverse these convictions. While
the facts of this case are horrific and heartrending, they simply do not support
a finding of malice. Accordingly, we vacate Peters’ convictions of third-degree
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murder and aggravated assault-serious bodily injury, and remand for re-
sentencing. See Commonwealth v. Williams, 997 A.2d 1205, 1210-11 (Pa.
Super. 2010) (“[I]f a correction by this Court may upset the sentencing
scheme envisioned by the trial court, the better practice is to remand [for
resentencing].”) (citation omitted).
Judgment of sentence vacated. Convictions for third-degree murder and
aggravated assault-serious bodily injury reversed. Appellant discharged
thereon. In all other respects, Appellant’s convictions are affirmed. Case
remanded for resentencing. Jurisdiction relinquished.
McCaffery, J., joins the Memorandum.
Murray, J., files a Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/24/2023
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