Com. v. Savage, O. ( 2016 )

J-A30036-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
OLIVER FRANKLIN SAVAGE :
:
:
: No. 3345 EDA 2014
Appeal from the Order October 29, 2014
In the Court of Common Pleas of Lehigh County
Criminal Division No(s): CP-39-CR-2092-2014
BEFORE: MUNDY, JENKINS, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED MAY 27, 2016
The Commonwealth takes this appeal from pretrial order of the Lehigh
County Court of Common Pleas granting Appellee Oliver Savage’s petition for
writ of habeas corpus, dismissing the charges of involuntary manslaughter,
recklessly endangering another person, and homicide by vehicle, 1 and
holding over summary traffic offenses for further proceedings. The
Commonwealth claims it established a prima facie case that Appellee was
reckless when he caused a motor vehicle accident that killed the decedent,
James Knappenberger. We affirm.
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. §§ 2504, 2705; 75 Pa.C.S. § 3732.
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The trial court’s summary of the evidence presented by the
Commonwealth, see Trial Ct. Op., 10/29/14, at 3-6, is not in dispute and
will be discussed in further detail below. It suffices presently to note that on
February 10, 2014, Appellee was driving a Freightliner truck tractor on Route
222 (“Hamilton Boulevard”) North2 toward the intersection of Hamilton
Boulevard and Newton/Breinigsville Road.3 Appellee failed to recognize that
several vehicles were stopped, or slowly moving, on Hamilton Boulevard
North at the traffic light at the intersection. Appellee braked and swerved to
the right. However, Appellee’s truck struck the decedent’s Dodge Caravan
minivan, which was the last vehicle in the line of traffic. The angle of the
impact forced the decedent’s minivan through the middle, left-turn lane near
the intersection and into the opposite lane of travel, where it struck the side
of a second tractor-trailer traveling on Hamilton Boulevard South. The
second impact spun decedent’s vehicle 180-degrees, and it came to a stop in
the middle lane. The decedent suffered multiple traumatic injuries and was
pronounced dead at the scene.
On April 30, 2014, the police filed a criminal complaint against
Appellee charging him with involuntary manslaughter, two counts of
recklessly endangering another person, and homicide by vehicle, as well as
2
Although officially designated as a north/south route, Hamilton Boulevard
ran east/west in the area Appellee was driving.
3
Newtown Road is re-designated Breinigsville Road after it crosses Hamilton
Boulevard.
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four summary traffic violations: following too closely, driving at safe speed,
careless driving, and reckless driving.4 On July 28, 2014, Appellee filed an
omnibus pretrial motion, which included a petition for writ of habeas corpus
seeking the dismissal of all non-summary offenses. The trial court held a
hearing on September 4, 2014, at which the Commonwealth admitted into
the record four photographic exhibits, the transcript of the preliminary
hearing, a copy of the autopsy report, a map of the area around the incident
scene, and an accident reconstruction diagram. Additionally, Sergeant Cory
Reader testified as an expert in accident reconstruction for the
Commonwealth. The parties submitted memoranda following the hearing.
On October 29, 2014, the trial court entered the instant order
dismissing the charges of homicide by vehicle, involuntary manslaughter and
recklessly endangering another person, releasing Appellee from jail, and
directing the parties to appear for a hearing on the charged summary
offenses. The court concluded “[t]here [was] no evidence even inferring
that [Appellee] consciously disregarded a known risk when he collided with
[the decedent’s] vehicle.” Trial Ct. Op. at 10.
The Commonwealth filed a notice of appeal asserting that “the Order
appealed from is a final order pursuant to 42 Pa.C.S.[ ] § 742 and Pa.R.A.P.
341(a), (b)(1).” Notice of Appeal, 11/19/14. The Commonwealth did not
4
75 Pa.C.S. §§ 3310, 3361, 3714, 3736.
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certify its right to appeal an interlocutory order that terminates or
substantially handicaps its prosecution. See Pa.R.A.P. 311(d).
Preliminarily, the Commonwealth’s assertion that the underlying order
is final requires further discussion. See Commonwealth v. Allburn, 721
A.2d 363, 365 (Pa. Super. 1988) (reiterating that this Court may raise
jurisdictional questions sua sponte).
[T]he appealability of an order directly implicates the
jurisdiction of the court asked to review the order. In this
Commonwealth, an appeal may only be taken from: 1) a
final order or one certified by the trial court as final; 2) an
interlocutory order as of right; 3) an interlocutory order by
permission; or 4) a collateral order.
Commonwealth v. Brister, 16 A.3d 530, 533 (Pa. Super. 2011) (citations
and quotation marks omitted).
First, a final order is one that “disposes of all claims and all parties” or
“is expressly defined as a final order by statute[.]” Pa.R.A.P. 341(b)(1), (2).
Alternatively, the trial court “may enter a final order as to one or more but
fewer than all of the claims and parties only upon an express determination
that an immediate appeal would facilitate resolution of the entire case.”
Pa.R.A.P. 341(b)(3), (c).
Second, the Commonwealth may take an interlocutory appeal as of
right if it “certifies in the notice of appeal that the order will terminate or
substantially handicap the prosecution.” Pa.R.A.P. 311(d). However, the
Commonwealth must include the required certification to invoke this Court’s
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jurisdiction under Rule 311(d). See Pa.R.A.P. 311(d), 904(e);
Commonwealth v. Knoeppel, 788 A.2d 404, 407 (Pa. Super. 2002).
Third, a trial court may also certify that its interlocutory order
“involves a controlling question of law as to which there is substantial
ground for difference of opinion and that an immediate appeal from the
order may materially advance the ultimate termination of the matter . . . .”
42 Pa.C.S. § 702(b). However, the trial court’s issuance of a certification, or
refusal to issue a certification, is a prerequisite to the exercise of appellate
jurisdiction. See Commonwealth v. Dennis, 859 A.2d 1270, 1275 (Pa.
2004); Brister, 16 A.3d at 534.
Fourth, a collateral order is one “separable from and collateral to the
main cause of action where the right involved is too important to be denied
review and the question presented is such that if review is postponed until
final judgment in the case, the claim will be irreparably lost.” Pa.R.A.P.
313(b). There are three elements of a collateral order, all of which must be
satisfied: (1) the “review of the order in question does not implicate the
merits of the underlying dispute[;]” (2) “the interests at stake are too
important to be denied review[;]” (3) a claim would be lost or an interest
irreparably injured by a delay. See Commonwealth v. Wright, 78 A.3d
1070, 1077 (Pa. 2013).
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The instant order cannot be regarded as final. The order did not
dispose of the summary traffic offenses joined in the underlying action, 5 was
not defined as final by statute,6 and was not determined to be final by the
trial court under Pa.R.A.P. 341(c). Further, we cannot consider this
interlocutory appeal as one of right or by permission, because the
Commonwealth did not include a Pa.R.A.P. 311(d) certification and the trial
court did not certify, or refuse to certify, the order as appealable. Lastly, the
order cannot be deemed collateral, because the dismissal of the charges
5
Additionally, when addressing whether orders dismissing charges at the
preliminary hearing for lack of a prima facie case are appealable, our courts
have considered whether the defect requiring dismissal could be cured.
See, e.g., Commonwealth v. Waller, 682 A.2d 1292, 1294 (Pa. Super.
1996) (en banc); Commonwealth v. Finn, 496 A.2d 1254, 1255 (Pa.
Super. 1985) (noting dismissal of charges at preliminary hearing “not
ordinarily appealable since the defendant is normally subject to rearrest”).
The refiling of charges based on additional evidence is a viable procedure to
cure a defect that caused the dismissal of charges upon a defendant’s
petition for writ of habeas corpus. Commonwealth v. Carbo, 822 A.2d 60,
72 (Pa. Super. 2003) (en banc).
6
To the contrary, the comments to Pa.R.Crim.P. 589 suggest an appeal
under Pa.R.A.P. 311(d) is proper:
In any case in which a summary offense is joined with a
misdemeanor, felony, or murder charge, and therefore is
part of the court case, when an appeal of a pretrial
disposition of the misdemeanor, felony, or murder charge
is taken, disposition of the summary offense should be
delayed pending the appeal. See Rules of Appellate
Procedure 311 (Interlocutory Appeals as of Right), 903
(Time for Appeal), and 1701 (Effect of Appeal Generally).
Pa.R.Crim.P. 589 cmt.
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implicates the underlying dispute and does not involve rights that would be
irreparably lost.
Thus, the Commonwealth failed to invoke this Court’s jurisdiction
under a strict interpretation of the Rules of Appellate Procedure. The proper
course was for the Commonwealth to appeal under Pa.R.A.P. 311(d). See
Commonwealth v. Karetny, 880 A.2d 505, 512-13 (Pa. 2005); accord
Pa.R.Crim.P. 589 cmt.7 The Commonwealth, at a minimum, should have
certified that the order appealed from terminated or substantially
handicapped its prosecution. See Pa.R.A.P. 311(d), 904(e).
Although we could quash this appeal, the Rules of Appellate Procedure
must “be liberally construed to secure the just, speedy and inexpensive
determination of every matter to which they are applicable.” Pa.R.A.P.
105(a). Moreover, we may waive certain requirements or provisions in a
particular case when “[i]n the interest of expediting decision” or “for other
good cause shown.” Id.7
The comment to Pa.R.Crim.P. 589 states:
In any case in which a summary offense is joined with a
misdemeanor, felony, or murder charge, and therefore is
part of the court case, when an appeal of a pretrial
disposition of the misdemeanor, felony, or murder charge
is taken, disposition of the summary offense should be
delayed pending the appeal. See Rules of Appellate
Procedure 311 (Interlocutory Appeals as of Right), 903
(Time for Appeal), and 1701 (Effect of Appeal Generally).
Pa.R.Crim.P. 589 cmt.
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Historically, our courts have reviewed orders dismissing charges with
little discussion. See, e.g., Commonwealth v. Hess, 414 A.2d 1043, 1047
(Pa. 1980); Commonwealth v. Hughes, 364 A.2d 306, 308 n.2 (Pa. 1976)
(addressing quashal of one of three indictments under Appellate Court
Jurisdiction Act of 1970); cf. Commonwealth v. Huggins, 836 A.2d 862,
864 n.2 (Pa. 2003).8 Further, the scope of interlocutory appeals under
Pa.R.A.P. 311(d) generally involved orders precluding the Commonwealth’s
evidence. See, e.g., Commonwealth v. White, 910 A.2d 648 (Pa. 2006)
(plurality); Commonwealth v. Cosnek, 836 A.2d 876, 877 (Pa. 2003).
Thus, the law is not entirely clear. Moreover, there is no suggestion that the
Commonwealth took this appeal in bad faith. We thus decline to quash this
appeal, regard as done that which should have been done, and review the
trial court’s pretrial order dismissing the non-summary counts against
Appellee. See Pa.R.A.P. 105(a).
The Commonwealth’s sole claim is that the trial court erred in granting
Appellant’s petition for writ of habeas corpus and dismissing the charges of
involuntary manslaughter, recklessly endangering another person, and
8
In Huggins, the trial court dismissed charges of aggravated assault,
involuntary manslaughter, and reckless endangerment, but concluded the
Commonwealth established a prima facie case to proceed on charges of
homicide by vehicle. The court also granted the defendant’s motion to
suppress evidence regarding the failure to use seatbelts. Huggins, 836
A.2d at 864. Although the Huggins Court referred to Hess when discussing
appellate jurisdiction, a review of the procedural history of that case reveals
the Commonwealth filed a Pa.R.A.P. 311(d) certification. See
Commonwealth v. Huggins, 790 A.2d 1042 (Pa. Super. 2002) (en banc).
-8-
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homicide by vehicle. Commonwealth’s Brief at 2, 11. The Commonwealth
argues it established a prima facie case that Appellee acted recklessly. Id.
at 14. First, it relies on Commonwealth v. Lamonda, 52 A.3d 365 (Pa.
Super. 2012) (en banc), to assert “the evidence presented clearly
established that [Appellee] veered his tractor-trailer to the right, outside the
lane of travel when he could not do so safely.” Id. at 17. That decision,
according to the Commonwealth, exacerbated the effects of collision by
forcing the decedent’s vehicle into oncoming traffic. Id. The
Commonwealth thus emphasizes that Appellee’s choice of speed prior to the
accident and his decision to swerve out of his lane before the accident were
“volitional” acts. Id.
Second, the Commonwealth argues that the following evidence and
inferences established Appellee’s recklessness:
The physical evidence, including the damage to the
vehicles, the location of glass and other marks on the
roadway, and the final resting place of [Appellee’s] vehicle
support a conclusion that [Appellee] did not see the
vehicles in front of him until it was too late for him to avoid
a collision. He hit the brakes and swerved to the right.
This maneuver was deliberate, albeit not successful and, in
fact, caused greater damage than what might have
occurred had he simply braked.
* * *
[Appellee] had approximately 1600 feet of assured clear
distance in which to bring his vehicle to a stop. He was
approaching an intersection. He intentionally and willfully
drove at an unsafe speed, such that he could not stop
before striking [the decedent’s] minivan. This was
reckless because of the serious harm or death when a
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tractor-trailer strikes a passenger’s vehicle while in 9th
gear and traveling at about 40 miles per hour.
* * *
There is no evidence that [Appellee] slowed or tried to
apply his brakes at any time before the panic braking
immediately before impact. [Appellee’s] vehicle was in 9th
gear indicating [his] intent to maintain speed rather than
slow down.
Id. at 18-20. Lastly, the Commonwealth asserts that the mere fact that
Appellee was driving near the speed limit before the crash was not “a safe
haven” from criminal liability and concludes “[Appellee’s] failure to maintain
proper control of his vehicle is the only reason why [the decedent] was
killed.” Id. at 20-21. We conclude that the Commonwealth’s arguments do
not warrant appellate relief.
The principles governing our review are as follows:
At the pre-trial stage of a criminal prosecution, it is not
necessary for the Commonwealth to prove the defendant’s
guilt beyond a reasonable doubt, but rather, its burden is
merely to put forth a prima facie case of the defendant’s
guilt. A prima facie case exists when the Commonwealth
produces evidence of each of the material elements of the
crime charged and establishes sufficient probable cause to
warrant the belief that the accused committed the offense.
The evidence need only be such that, if presented at trial
and accepted as true, the judge would be warranted in
permitting the case to go to the jury. Moreover,
“[i]nferences reasonably drawn from the evidence of
record which would support a verdict of guilty are to be
given effect, and the evidence must be read in the light
most favorable to the Commonwealth’s case.”
Huggins, 836 A.2d at 866 (citations omitted).
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The Commonwealth concedes that all of the charges dismissed by the
trial court share the element of recklessness,9 which is defined as follows:
A person acts recklessly with respect to a material element
of an offense when he consciously disregards 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, considering the
nature and intent of the actor’s conduct and the
circumstances known to him, its disregard involves a gross
deviation from the standard of conduct that a reasonable
person would observe in the actor’s situation.
9
Section 2504 of the Crimes Code defines involuntary manslaughter as
follows: “A person is guilty of involuntary manslaughter when as a direct
result of the doing of an unlawful act in a reckless or grossly negligent
manner, or the doing of a lawful act in a reckless or grossly negligent
manner, he causes the death of another person.” 18 Pa.C.S. § 2504(a)
(emphasis added). Involuntary manslaughter is a first-degree misdemeanor
unless the victim is under twelve years old and in the care of the defendant.
18 Pa.C.S. § 2504(b). Recklessly endangering another person is a second-
degree misdemeanor committed when a person “recklessly engages in
conduct which places or may place another person in danger of death or
serious bodily injury.” 18 Pa.C.S. § 2705 (emphasis added).
The Vehicle Code defines homicide by vehicle as follows:
Any person who recklessly or with gross negligence
causes the death of another person while engaged in the
violation of any law of this Commonwealth or municipal
ordinance applying to the operation or use of a vehicle or
to the regulation of traffic except section 3802 (relating to
driving under influence of alcohol or controlled substance)
is guilty of homicide by vehicle, a felony of the third
degree, when the violation is the cause of death.
75 Pa.C.S. § 3732(a). Although the involuntary manslaughter and homicide
by vehicle statutes refer to “gross negligence” in the disjunctive, that term is
equivalent to recklessness as defined by 18 Pa.C.S. § 302(b)(3). See
Huggins, 836 A.2d at 868; Commonwealth v. Grimes, 842 A.2d 432, 435
& n.5 (Pa. Super. 2004).
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18 Pa.C.S. § 302(b)(3) (emphasis added).
By comparison, “criminal negligence” requires that the defendant
“should be aware of a substantial and unjustifiable risk that the material
element exists or will result from his conduct.” 18 Pa.C.S. § 302(b)(4)
(emphasis added). Both recklessness and negligence require that the risk
be “of such a nature and degree that, considering the nature and intent of
the actor’s conduct and the circumstances known to him, its disregard
involves a gross deviation from the standard of conduct that a reasonable
person would observe in the actor’s situation.” 18 Pa.C.S. § 302(b)(3) &
(4). The phrase of “should be aware” in the definition of negligence speaks
to a failure to appreciate the risk, while the phase “consciously disregards” in
the definition of recklessness implies the defendant is aware of the risk. See
id.
The decisional law discussing drivers falling asleep is instructive. In
Huggins, the defendant was operating a van carrying twenty-one children,
some crowded into fifteen passenger-seats and some seated on the floor.
Huggins, 836 A.2d at 863-64. The defendant admitted that “he fell asleep”
and claimed “he awoke just before the van collided with the rear end of” a
sedan in front of him. Id. at 863. The driver of the sedan testified he was
“traveling at approximately sixty to sixty-five miles per hour” in the left lane
and “did not see the van until the collision.” Id. The van struck the sedan,
veered right across the right travel lane, and flipped over on the
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embankment on the right shoulder of the highway. Two of the children in
the van were killed. Id.
The defendant, in Huggins, was charged with numerous counts,
including homicide by vehicle and involuntary manslaughter, and sought
habeas corpus relief in the trial court. Id. at 864. The trial court, in
relevant part, concluded that the Commonwealth failed to establish a prima
facie case of recklessness and dismissed the involuntary manslaughter
counts. Id. The Commonwealth appealed, and this Court affirmed the
dismissal of the involuntary manslaughter counts. Id. at 864-65.
Specifically, we concluded the Commonwealth’s evidence did not indicate
that the defendant “‘had reason to believe he was dangerously tired before
falling asleep.’” Id. at 865.
The Pennsylvania Supreme Court granted allowance of appeal and
reversed this Court’s order affirming the trial court’s dismissal of the
charges. Huggins, 836 A.2d at 863. The Huggins Court rejected the
Commonwealth’s contention that the disjunctive language “recklessness or
gross negligence” in the involuntary manslaughter statute permitted a
finding of potential liability on a lesser degree of “recklessness” than set
forth in 18 Pa.C.S. § 302(b)(3). Id. at 867-68. However, the Court
concluded the Commonwealth’s evidence in that case was sufficient to
establish a prima facie case, reasoning:
Losing consciousness at the wheel differs in kind from
the acts of momentary inadvertence or inattention that
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often occasion car accidents and are commonly
encompassed in the term “negligence” in the tort arena. A
momentary lapse leaves the driver unprepared for the
unexpected or extraordinary. A loss of consciousness, on
the other hand, leaves one totally unprepared even for the
ordinary requirements for safe driving. Drivers have an
unflagging duty either to remain vigilant and awake or to
immediately desist from driving. It is therefore not
surprising that this Court, like many other courts, has
deemed the act of falling asleep at the wheel alone to be
enough to raise a jury question of negligence in the tort
arena.
[The defendant] appears to dispute this proposition,
suggesting that without affirmative evidence from the
Commonwealth that he had some warning that sleep was
coming, little or no inference of negligence or recklessness
may be drawn from the admitted fact that he fell asleep.
Of course, [the defendant-driver] is in the best and
perhaps only position to know if the common signs of
fatigue and impending sleep came upon him, which he
ignored; the Commonwealth was not required to obtain a
confession from [the defendant] in order to make out its
prima facie case. Rather, the Commonwealth could rely
upon the fact that it is common knowledge that sleep is
preceded by some internal warning. . . .
Id. at 869. The Huggins Court did “not resolve the question of whether
falling asleep alone is enough to raise a jury question of recklessness” and
summarized the additional circumstances evincing the defendant’s
“conscious disregard of the serious risk involved” in that case. Id. at 870.
Those circumstances included having children-passengers in excess of the
van’s capacity and his excessive speed, both of which were in his
“knowledge and control” and “increased the risk of collision, injury, and
death.” Id. at 870-71.
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In Commonwealth v. Pedota, 64 A.3d 634 (Pa. Super. 2013), the
defendant was operating a tractor-trailer on Interstate 78. Id. at 635. The
defendant’s tractor-trailer drifted from its lane of travel and struck another
tractor-trailer, killing the driver of that vehicle. Id. The defendant
proceeded to a stipulated bench trial on charges of involuntary manslaughter
and homicide by vehicle. Id. at 634-35. The record established the
defendant told the investigating police officer (1) he “must have fallen
asleep while operating” his tractor-trailer, (2) he “woke up when he heard
the crash[,]” and (3) he “just blackened out.” Id. at 639. An eyewitness
stated the defendant’s vehicle was not exceeding the speed limit, made no
erratic or sudden movements, and had no obvious mechanical failures. Id.The witness asserted the defendant “appeared to have fallen asleep allowing
[his tractor-trailer] to drift out of its lane and impact with” the decedent’s
truck. Id. The parties further agreed:
[T]he sole allegation of the Commonwealth as to the
proximate cause of the collision between [the defendant’s
tractor-trailer] and [the decedent’s tractor-trailer, which
resulted in the decedent’s death] is that [the defendant]
fell asleep or blacked out while operating [his tractor-
trailer], which drifted out of its lane of travel and onto the
right-side berm of Route 78 striking [the decedent’s
tractor-trailer].
Id.The trial court found the defendant guilty of involuntary manslaughter,
homicide by vehicle, and two summary traffic offenses, and sentenced him
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for homicide by vehicle.10 Id. at 635. The defendant appealed to this Court,
asserting that the trial court erred in finding he fell asleep and impermissibly
shifted the burden to him to establish that sleep “came completely
unannounced.” Id.The Pedota Court affirmed the judgment of sentence. Id. at 640.
The Court found the defendant’s admissions “that he must have fallen asleep
just prior to the accident . . . , effectively blacking out and thus having no
memory of the event” belied his attempt to distinguish “‘falling asleep’ from
‘blacking out[.]’” Id. The Court concluded the defendant’s “stipulation to
having fallen asleep while driving an eighteen-wheel tractor-trailer along
busy Interstate 78 supplied evidence of the gross negligence or recklessness
required to convict in this case.” Id.The Pedota Court also rejected the defendant’s claim that the trial
court impermissibly shifted the burden of proof, explaining that
so long as the evidence shows a driver fell asleep and
caused death amidst circumstances demonstrating a
reckless disregard of human life, these signs will be
implied and the Commonwealth will have met its burden of
proof as a matter of law. The burden of production then
shifts to the defendant driver to appeal to the finder of fact
that he was deprived of both warning signs and an
opportunity to act on them.
Id. at 640-41.
10
The trial court in Pedota merged the involuntary manslaughter count into
the homicide by vehicle count for sentencing. Pedota, 64 A.3d at 635 n.1.
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Thus, to establish recklessness, the Commonwealth bears the
preliminary burden that a defendant engaged in some conduct beyond
inattentiveness, and that he had some warning and opportunity to act to
prevent the harm flowing from his conduct. See Huggins, 836 A.2d at 869-
71; Pedota, 64 A.3d at 640-41. In the case of sleep, our courts have
created a rebuttable presumption that a defendant was aware of the
common warnings of the risk of falling asleep, but continued to operate a
vehicle in spite of those warnings. See Pedota, 64 A.3d at 640-41.
Nevertheless, the Commonwealth must carry its initial burden of proving
conduct that is either reckless or which may sustain an inference of
recklessness. See Huggins, 836 A.2d at 867-68.
Turning to the Commonwealth’s arguments in this appeal, its reliance
on Lamonda warrants no relief. In Lamonda, the defendant was convicted
of homicide by vehicle after he drove his tractor-trailer into “an oncoming
lane of traffic and struck a passenger vehicle, resulting in the death of all the
occupants of the passenger vehicle.” Lamonda, 52 A.3d at 367. The
defendant appealed, asserting, inter alia, the evidence was insufficient to
convict him of homicide by vehicle because the Commonwealth failed to
prove a predicate traffic offense. Id. at 368. This Court observed that the
defendant’s claim that his vehicle left its lane of travel “on its own after the
failure of the front left steering wheel” was “technically not an argument
over [his] state of mind, but a contention that there was no volitional act . .
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. .” Id. at 369 (discussing 18 Pa.C.S. § 301(a) (requiring “voluntary” act for
criminal liability)). The Lamonda Court rejected the claim, noting the
expert evidence that the defendant steered into the opposite lane of travel
due to his failure to recognize an obstacle in his lane and that the
defendant’s tire failed after the collision. Id. The Court concluded that the
expert evidence was thus sufficient “to establish [the defendant] moved the
tractor-trailer out of its lane of travel of his own volition.” Id. at 369.
Accordingly, we find Lamonda inapposite, and that case provides little
guidance regarding the specific issue of recklessness in this appeal.
As to the Commonwealth’s argument that its evidence was sufficient to
establish a prima facie case of recklessness, it focuses on three critical facts
established by the record. A review of the record in a light most favorable to
the Commonwealth reveals that the evidence and inferences therefrom are
not in dispute.
The accident occurred shortly before 9:00 a.m. on February 10, 2014.
There were no environmental, roadway, or mechanical factors substantially
contributing to the accident. Further, there was no evidence establishing
Appellee fell asleep, was intoxicated, was using his cell phone, or was
operating his vehicle in an unusual manner preceding his approach to the
intersection. Following the accident, Appellee’s vehicle was in ninth gear,
which indicated Appellee did not intend to slow or stop.
The trial court described the area of the accident as follows:
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The day was clear with no precipitation. The roadway was
dry with some wet spots. There was plowed snow off the
roadway beyond the fog line. For a motorist traveling
northbound for a considerable distance on Route 222
before entering this intersection as [Appellee] was, he
would pass through the village of Maxatawny where the
posted speed limit is 35 miles per hour. After traveling
through that village, there is a posted speed limit of 55
miles per hour which posting is the final one before the
motorist would arrive at this intersection. For the same
motor vehicle operator traveling northbound, he would first
see this intersection from approximately three-tenths of a
mile [approximately 1,600 feet] before arriving at it. In
the truck tractor that [Appellee] operated, he sat higher
than a person who operates a passenger vehicle.
Trial Ct. Op. at 3.
After the accident, Appellee remained at the scene and gave a
statement to Sergeant Easparr. According to the sergeant, Appellee
was crying at this time. When I asked him what
happened, he advised he was traveling northbound on
222. When he noticed a line of traffic stopped in front of
him it was too late. He tried to apply the hard brake on a
wet roadway, the vehicle was not stopping. He swerved to
the right and caused the passenger side rear of the
minivan that was last in line of the stopped vehicle that
propelled the minivan into the southbound lanes of travel .
...
N.T. Prelim. H’rg, 5/16/14, at 55. Appellee told the sergeant, “[I]t is my
fault, I did this.”11 Id.
The Commonwealth’s expert witness in accident reconstruction,
Sergeant Reader, observed Appellee’s truck was in ninth gear. Further, he
11
Although Appellee filed a motion to suppress his statements to Sergeant
Easparr, the trial court considered the statements for the purposes of his
petition for writ of habeas corpus.
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testified the electronic control module (“ECM”) from Appellee’s truck showed
a hard braking event without the clutch being engaged. He explained:
The data, especially the ECM data from the vehicle
indicates that [Appellee] failed to recognize the vehicles
were either stopped or slowed forward of his vehicle in a
reasonable amount of time to slow his vehicle and
maintain control of it. That failure caused the impact. His
braking was too short or too late to allow his vehicle to be
kept under control.
Id. at 26.
Sergeant Reader summarized his findings as follows. Appellee
was traveling down the roadway, gear selection indicates
he was traveling with open space in front of him prior to
getting to that intersection and did not recognize that the
open space was closing rapidly because there was vehicles
stopped in front of him. . . . [T]here were several vehicles
stopped in front of [the decedent. T]he traffic signal was
either red or just changed to green or some sort of
interaction where all those cars were stopped forward of
[Appellee’s] vehicle. He failed to recognize either enough
to bring his vehicle to a stop or at least slow to a point to
keep control of it until those cars started to proceed away
from him or forward of him.
Id. at 28.
As to Appellee’s operation of the tractor-trailer immediately preceding
the accident, Sergeant Reader testified there was a “hard” or “panic” braking
before impact without the clutch being engaged. Id. at 22-23. The skid
marks on the roadway, the disturbances of the snow that had been plowed
to the guardrails on the right shoulder, and the damage on the front driver’s
side of Appellee’s vehicle corroborated that he veered right. Id. at 26.
Regarding the accident itself, the sergeant opined Appellee
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struck the minivan in an offset type manner. So the
passenger side right corner or rear half of the minivan was
first impacted.
With that being said, there is a very good possibility
that had he not made that steering maneuver at the last
moment and had struck the vehicle completely across the
back, he probably would have pushed it into the vehicles
forward of it. But by being offset, he changed that, the
trajectory of the van left the impact which would have sent
it across the travel lane . . . . That impact put that van in a
location on the roadway that opened it up to a second
impact. A third vehicle involved in this crash struck the
van a second time in the lawful lane that the third vehicle
was traveling in. He [the driver of the third vehicle in the
opposite travel lane] was there . . . in a moment that he
really did not have time to do anything. In fact, unit three,
the other tractor-trailer did not strike the car with the front
of his vehicle, unit three was actually struck by the van
under the driver’s side door in the area of his fuel tank
which was on the driver’s side. So unit three was just in
the wrong place at the wrong time. But that offset initially
the steering input at the last moment which caused the
offset striking from the rear end is what put that vehicle
[the van] in that position in the first place.
Id. at 27-28.
On cross-examination, Sergeant Reader agreed that Appellee “was
doing everything he could to avoid” the impact. Id. at 37. The following
exchange also occurred:
[Appellee’s counsel]. You are not suggesting that he
should have thought at that point and smacked right into
the back of the minivan instead of trying to maneuver to
the right; you are not suggesting that?
[Sergeant Reader]. No. I don’t think it was a decision he
consciously made. I think it was what he unconsciously
or—
Q. It was a reaction?
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A. He had to do something.
Id. at 37-38.
Sergeant Reader did not offer an opinion on Appellee’s exact speed at
the point of impact, noting that “would be unfair and not accurate.” Id. at
39. He offered a range of speeds of thirty to fifty miles per hour based on
engine data, gear selection, and tire size, with the ECM giving a speed
“around 40.” Id. at 40. This testimony, as well as Sergeant Reader’s
description of the speed limits in the area surrounding the accident scene,
was not contradicted elsewhere in the record.
A review of the record thus reveals no evidence that Appellee’s failure
to recognize the traffic at the intersection arose from any affirmative
conduct, as opposed to inadvertence or inattentiveness. Similarly, there was
no indication that Appellee was aware of, and proceeded despite, the risk of
an accident as he approached the intersection from 1,600 feet. That
Appellee was driving in ninth gear does not itself bespeak the reckless
operation of his vehicle, but supports the Commonwealth’s expert’s opinion
that he failed to recognize the traffic in front of him and the open space was
rapidly closing. Moreover, although the Commonwealth focuses on
Appellee’s decision to veer to the right immediately before impact, which
ultimately forced the decedent’s vehicle into oncoming traffic, the
Commonwealth’s expert had no reason to dispute that Appellee was
attempting, but failed, to avoid the collision. Similarly, there is no indication
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either in the evidence or a reasonable inference from the evidence that
Appellee was disregarding a risk that the impact would force the decedent’s
vehicle into oncoming traffic. Accordingly, we agree with the trial court that
the Commonwealth did not adduce sufficient evidence to establish a prima
facie case of recklessness.
Lastly, we agree with the Commonwealth that driving at the speed
limit is not a safe harbor and may evince recklessness under the
circumstances of an accident. We also agree that Appellee’s failure to
appreciate the risk when traveling the approximately 1,600 feet to the
intersection12 could establish some degree of negligence. However, absent
additional evidence, there is no basis to conclude that Appellee was
engaging in any conduct that would elevate his culpability to a conscious
disregard of a substantial risk. See Huggins, 836 A.2d at 867-68.
Order affirmed.
Jenkins, J. Concurs in the Result.
Mundy, J. files a Dissenting Statement
12
We take notice that an object travelling at 55 miles per hour
(approximately 81 feet per second) would cover a distance of 1,600 feet in
approximately 20 seconds.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/27/2016
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