                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-18-1997

Orban v. Vaughn
Precedential or Non-Precedential:

Docket 96-2116




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Recommended Citation
"Orban v. Vaughn" (1997). 1997 Decisions. Paper 195.
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iled August 18, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-2116

ATTILA ORBAN

v.

DONALD T. VAUGHN; DISTRICT ATTORNEY FOR
PHILADELPHIA COUNTY; THE ATTORNEY GENERAL OF
THE STATE OF PENNSYLVANIA,

Appellants

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ. No. 95-05962)

Argued June 26, 1997

BEFORE: GREENBERG and MCKEE, Circuit Judges,
and GREENAWAY,* District Judge

(Filed: August 18, 1997)

Jeffrey M. Miller
Carmen C. Nasuti (argued)
Nasuti & Miller
21 South 5th Street
The Bourse Building
Suite 860
Philadelphia, PA 19106

 Attorneys for Appellee
_________________________________________________________________

*Honorable Joseph A. Greenaway, Jr., Judge of the United States
District Court for the District of New Jersey, sitting by designation.
Donna G. Zucker (argued)
Chief, Federal Litigation
Ronald Eisenberg
Deputy District Attorney
Law Division
Arnold H. Gordon
First Assistant District Attorney
Lynne Abraham
District Attorney
1421 Arch Street
Philadelphia, PA 19102-1582

Attorneys for Appellant

OPINION OF THE COURT

GREENBERG, Circuit Judge.

Respondents, Donald T. Vaughn, the District Attorney of
Philadelphia County, and the Attorney General of
Pennsylvania, whom we will call collectively the
Commonwealth of Pennsylvania, appeal from an order
entered November 6, 1996, in the district court in favor of
petitioner, Attila Orban. The district court order granted
Orban's petition for a writ of habeas corpus to the extent of
vacating his convictions and sentences entered in state
court following a nonjury trial for aggravated assault and
recklessly endangering another person (two counts on each
charge) arising out of a motor vehicle accident in which
three people were killed and two others injured. The district
court predicated its order on its conclusion that the vacated
convictions were not supported by sufficient evidence. The
order in all other respects denied Orban's petition. It also
directed that he be released from custody unless the state
court resentenced him on his remaining convictions arising
from the accident. We reject the district court's conclusion
that the convictions were not supported by sufficient
evidence. Therefore, we will reverse the order of the district
court to the extent that it granted Orban habeas corpus
relief.

                               2
I. JURISDICTION AND STANDARD OF REVIEW

Orban brought this action under 28 U.S.C. § 2254. We
have jurisdiction under 28 U.S.C. §§ 1291 and 2253. On
this appeal, we exercise plenary review over the district
court's legal conclusions. Alston v. Redman, 34 F.3d 1237,
1242 (3d Cir. 1994). Furthermore, inasmuch as the district
court relied on the state court record in concluding that the
evidence was insufficient to support the convictions, we will
exercise plenary review of that conclusion. See Jackson v.
Byrd, 105 F.3d 145, 147 (3d Cir.), cert. denied, 117 S.Ct.
2442 (1997).

II. FACTUAL HISTORY

On Sunday, April 20, 1990, Orban was traveling north in
his truck on Interstate 95 in Philadelphia. He drove his
vehicle across three lanes of traffic and then hit and
crossed the guardrail and struck a car heading south.
Three occupants of the car hit by Orban were killed and the
other two were injured seriously.

Several eyewitnesses testified at the nonjury trial in this
case. Edmond F. McGowan, who also was driving north on
Route 95, observed Orban's truck rapidly approaching from
his rear, traveling at approximately 65-70 miles per hour.
When McGowan observed Orban "going back and forth"
within the right hand lane and even crossing the dotted line
into the next lane, he changed lanes to avoid Orban's
vehicle. After Orban passed McGowan, McGowan saw
Orban proceeding in the right hand lane for one quarter
mile without weaving. Then McGowan saw Orban suddenly
make a 90-degree turn across all lanes of traffic and into
and over the guardrail. Frank Sprangle and Steven Siegel
testified that they observed Orban weaving in traffic and
suddenly hit and jump over the guardrail.

At the scene of the accident Orban offered three different
explanations for his behavior. He said that someone had
struck his truck from behind, a friend had been driving the
truck, and he must have fallen asleep at the wheel. Orban,
however, later abandoned these explanations. At trial, he
stated that his truck may have been hit from behind
causing his head to hit the windshield, and he may have

                               3
experienced a diabetic seizure which rendered him
unconscious and unable to control the vehicle.

III. PROCEDURAL HISTORY

Based on these facts, the state trial judge convicted
Orban of three counts of homicide by vehicle, two counts of
aggravated assault, and two counts of recklessly
endangering another person. Commonwealth v. Orban, Nos.
1698-1707, Feb. Term, 1991 (Phil. C.P. 1991). The court
sentenced Orban to a total sentence of 7 to 15 years for the
aggravated assault and homicide by vehicle convictions, but
suspended his sentence on the reckless endangerment
counts. On July 3, 1992, the trial judge filed a
comprehensive opinion explaining why its verdict should
not be disturbed.

Orban appealed to the Pennsylvania Superior Court
where he claimed that the verdict was against the weight of
the evidence and that the evidence was insufficient to
support the verdict. He further contended that his counsel
ineffectively represented him at trial because he failed to
present a defense of unconsciousness brought about by
diabetic seizure. In January 1993, the Superior Court filed
an opinion affirming Orban's convictions. The court
concluded that Orban waived his argument with respect to
the weight of the evidence, which in any event was
meritless, and that the ineffective assistance of counsel
claim failed for lack of specificity. Commonwealth v. Orban,
626 A.2d 648 (Pa. Super. Ct. 1993) (table). The court did
not make a specific disposition of Orban's insufficiency of
evidence argument, though it plainly rejected that
argument, indicating that the trial court's post-trial opinion
"properly and adequately" addressed the issues he raised.
In that opinion, the trial court found that the
Commonwealth proved Orban's guilt beyond a reasonable
doubt. Of course, the Superior Court's conclusion that the
verdict was not against the weight of the evidence
necessarily meant that it concluded that the evidence was
sufficient to support the verdict. Orban then filed a petition
for allocatur with the Pennsylvania Supreme Court which
that court denied. Orban v. Commonwealth, 627 A.2d 180
(Pa. 1993) (table).

                               4
In February 1994, Orban filed an action in the common
pleas court under the Pennsylvania Post-Conviction Relief
Act ("PCRA"), 42 Pa. Cons. Stat. Ann. § 9541 (West Supp.
1997), seeking relief from his convictions, but the common
pleas court dismissed that action. Commonwealth v. Orban,
No. 1698-1707, Feb. Term, 1991 (Phil. C.P. 1994). In June
1994, Orban appealed to the Pennsylvania Superior Court,
claiming that: (1) the trial judge should have ordered PCRA
counsel to amend the petition to state a claim other than
the previously litigated ineffectiveness claim; (2) trial
counsel was ineffective for failing to call Orban's physician
as a witness to testify regarding his diabetic condition; and
(3) post-verdict counsel was ineffective for failing to present
his physician and trial counsel at the hearing on the post-
verdict motions. On March 8, 1995, the Superior Court
affirmed the denial of PCRA relief. Commonwealth v. Orban,
No. 2387 Phil. 1994 (Pa. Super. Ct. 1995).

Orban then filed a petition for allocatur with the
Pennsylvania Supreme Court. While that petition was
pending he also filed a petition in the Supreme Court
seeking leave to supplement his petition for allocatur so
that he could rely on Commonwealth v. O'Hanlon, 653 A.2d
616 (Pa. 1995), which the Supreme Court decided shortly
before the Superior Court affirmed the order denying him
PCRA relief. Orban understandably wanted to rely on
O'Hanlon as that case defined recklessness in an
aggravated assault case in a rather confined manner. The
Supreme Court denied both the petition to supplement and
the petition for allocatur on July 26, 1995. Commonwealth
v. Orban, No. 0251 E.D. Alloc. Docket (Pa. 1995).

Orban then filed this habeas corpus action in the district
court in September 1995, claiming that:

1. the evidence was insufficient to sustain his
convictions for aggravated assault and reckless
endangerment;

2. the trial court deprived him of due process by
inferring that petitioner was driving in a reckless
manner;

3. trial counsel was ineffective in failing to call a
physician who could have testified in support of

                               5
petitioner's defense that petitioner's diabetic condition
was a possible cause of the accident; and

4. PCRA counsel was ineffective because he presented
in the collateral action a claim of ineffective counsel
that had been resolved on direct appeal.

The district court referred the petition to a magistrate
judge, who issued a report on February 5, 1996,
recommending its denial. On November 6, 1996, the district
court granted the petition in part, based on itsfinding that
the evidence was insufficient to support the aggravated
assault and reckless endangerment convictions. The court,
however, rejected Orban's claims regarding the homicide by
vehicle counts and ineffective assistance of counsel, and he
has not cross-appealed to advance those claims before us.
The district court stayed execution of its order to give the
Commonwealth an opportunity to appeal, which it did, on
December 6, 1996.1

IV. DISCUSSION

For Orban to raise a claim in federal court, he must have
presented the claim at each level of the state courts. See
Doctor v. Walters, 96 F.3d 675, 678 (3d. Cir. 1996). In his
federal habeas corpus action, Orban raised the applicability
of the definition of recklessness in an aggravated assault
action as set forth in Commonwealth v. O'Hanlon, 653 A.2d
616. But the first time Orban specifically raised the
applicability of O'Hanlon in the state courts was when he
sought to supplement his second petition for allocatur in
the Supreme Court. However, Orban could not have raised
O'Hanlon much earlier because the Supreme Court decided
O'Hanlon less than two months before the Superior Court
affirmed the order denying Orban's PCRA motion. The
district court entertained Orban's O'Hanlon argument as it
_________________________________________________________________

1. The district court order was procedurally defective because it "vacated"
Orban's conviction and dismissed the charges against him with
prejudice. The court could not grant such relief in a proceeding under 28
U.S.C. § 2254. See Fay v. Noia, 372 U.S. 391, 430-31, 83 S.Ct. 822, 844
(1963); Barry v. Brower, 864 F.2d 294, 300-01 (3d Cir. 1988); Rimmer v.
Fayetteville Police Dep't, 567 F.2d 273, 276-77 (4th Cir. 1977).

                               6
found the argument to be substantially the same as the
legal theory Orban argued throughout his state
proceedings, i.e., that his actions " `lack[ ] the indicators of
deliberate . . . disregard found necessary by the
Pennsylvania Supreme Court in O'Hanlon.' " While the
Commonwealth challenges this conclusion by the district
court, we will assume without deciding that it was correct
and we will consider O'Hanlon in deciding this case.2

Orban contends that the Commonwealth's evidence was
insufficient to sustain his convictions for aggravated
assault and recklessly endangering another person because
the Commonwealth did not prove that he possessed the
requisite mental state to be guilty of those offenses. Thus,
in his view, his convictions on these charges denied him
due process of law. See Jackson v. Virginia, 443 U.S. 307,
315-16, 99 S.Ct. 2781, 2787 (1979). On this appeal we
determine "whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime
beyond a reasonable doubt." Id. at 319, 99 S.Ct. at 2789.
We must apply the above standard "with explicit reference
to the substantive elements of the criminal offense as
defined by state law." Id. at 324 n.16, 99 S.Ct. at 2792
n.16.

Under Pennsylvania Law, a person is guilty of aggravated
assault if he "attempts to cause serious bodily injury to
another, or causes such injury intentionally, knowingly or
recklessly under circumstances manifesting extreme
indifference to the value of human life." 18 Pa. Cons. Stat.
Ann. § 2702 (a)(1)(West Supp. 1997). Inasmuch as the
Commonwealth does not argue that Orban acted
intentionally or knowingly, our inquiry is whether the
_________________________________________________________________

2. As in Johnson v. Rosemeyer, 117 F.3d 104 (3d Cir. 1997), the parties
have briefed the case and the district court decided the case without
reference to the Antiterrorism and Effective Death Penalty Act of 1966,
Pub. L. No. 104-132, 110 Stat. 1214 (1996), even though the district
court decided the case after the effective date of the act, April 24, 1996.
They may have been prescient in that regard. See Lindh v. Murphy, 117
S.Ct. 2059 (1997). We, too, will decide the case without reference to that
Act which certainly cannot have strengthened Orban's position. See
Johnson, slip op. at 9.

                               7
evidence supported a conclusion that Orban acted
recklessly in circumstances manifesting extreme
indifference to the value of human life. The statutory
definition of recklessness is that:

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 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 a
reasonable person would observe in the actor's
situation.

18 Pa. Cons. Stat. Ann. § 302(b)(3)(West 1983).

O'Hanlon sets forth the degree of recklessness required to
support an aggravated assault conviction under
Pennsylvania law:

[M]ere recklessness is insufficient to support a
conviction for aggravated assault, which requires a
higher degree of culpability, i.e., that which considers
then disregards the threat necessarily posed to human
life by the offending conduct. There must be an
element of deliberation or conscious disregard of
danger not present to the same extent in, e.g., either
reckless endangerment . . . or driving while intoxicated.

O'Hanlon, 653 A.2d. at 618. For a defendant to act with the
degree of recklessness required for an aggravated assault
conviction, the offensive act must be performed under
circumstances which "almost insure that injury or death
will ensue . . . . This state of mind is, accordingly,
equivalent to that which seeks to cause injury . . . only one
step short of murder. Aggravated assault is, indeed, the
functional equivalent of a murder in which, for some
reason, death fails to occur." Id. at 618. In O'Hanlon, the
defendant ran a red light while he was driving drunk and
hit another vehicle, seriously injuring the other driver and
himself. The Pennsylvania Supreme Court found that the
defendant's behavior was not so egregious to be considered
the equivalent of homicide. Id. at 618.

                               8
The O'Hanlon court discussed a number of cases in
which defendants had the state of mind required under 18
Pa. Cons. Stat. Ann. § 2702(a)(1) to be guilty of aggravated
assault. See Commonwealth v. Daniels, 354 A.2d 538 (Pa.
1976) (defendant fired a gun into crowd killing one man
and injuring another); Commonwealth v. Laing, 456 A.2d
204 (Pa. Super. Ct. 1983) (defendant drove car into a crowd
after having aimed it at one individual and then hit two
people).

Most similar to this case is Commonwealth v. Scofield,
521 A.2d 40 (Pa. Super. Ct. 1987). In Scofield, the
defendant's car "scrap[ed] up against the left front bumper
[of a car] that was parked on the east side of Broad Street
. . . . [The car] traveled another ten feet in this manner
before swerving onto to the sidewalk and striking a
building." Id. at 41. During this incident, the defendant ran
over and severely injured a pedestrian. Afterwards, the
defendant attempted to put his car in reverse and drive
away. Id. at 41. The court found that Scofield's erratic
driving prior to the accident established that he was
reckless, and his actions in leaving the scene showed that
he was fully aware of what had occurred. Id. at 42.

A reasonable fact finder could conclude that Orban's
actions were even more egregious than the actions of the
defendant in Scofield. After driving unpredictably in a much
longer distance than the distance involved in Scofield,
Orban drove his truck across three lanes of traffic and hit
the guardrail. The truck then flew through the air, landing
on top of a car. Orban's erratic driving prior to the accident,
which caused McGowan to take steps to avoid him, and his
inexplicable driving at the time of the accident, show that
he exhibited the conscious disregard of danger required by
O'Hanlon to sustain the conviction for aggravated assault.
Furthermore, unlike the defendant in O'Hanlon who was
drunk at the time of the accident, there was no explanation
for Orban's conduct that might negate the required mens
rea for recklessness under the statute. As the state trial
court said in its July 3, 1992 opinion, "[Orban] offered no
plausible reason for this criminally negligent and reckless
behavior." The evidence is therefore sufficient to establish
Orban's guilt beyond a reasonable doubt, and thus his

                               9
conviction for aggravated assault was proper even under
O'Hanlon. In short, we see no reason why the state court
could not judge the character of Orban's act, i.e., his
reckless disregard of human life, by what he did even
though there is no explanation for why he did it.

We recognize that in a motor vehicle collision case it
would be expected that a driver rarely would have the state
of mind necessary to sustain a conviction for aggravated
assault. After all, completely noncriminal driving can bring
about the most disastrous consequences. Nevertheless,
there is no question but that a driver can commit an
aggravated assault. In this unusual case, the absence of
circumstances sufficient to negate the required mens rea
justified the trial court in concluding that Orban acted with
the state of mind required by O'Hanlon to be guilty of
aggravated assault.

Orban also contends that his convictions for recklessly
endangering another person were based upon insufficient
evidence in violation of due process. Reckless
endangerment consists of "recklessly engag[ing] in conduct
which places or may place another person in danger of
death or serious bodily injury." 18 Pa. Cons. Stat. Ann.
§ 2705 (West 1983). Unlike aggravated assault, however, a
conviction for recklessly endangering another person does
not require that the prosecution show that the defendant
acted in "circumstances manifesting extreme indifference to
the value of human life."

Orban's actions justified his convictions for reckless
endangerment. Pennsylvania courts frequently have found
that motor vehicle drivers exhibited the required level of
recklessness while driving to justify a conviction for
recklessly endangering another person. In In Interest of
Becker, 536 A.2d 1370 (Pa. Super. Ct. 1988), the defendant
and his friend were in separate cars traveling either side by
side or closely following one another. Id. at 1372-73. While
the friend's car ran a red light and killed the driver of a
different car, the defendant stopped at the light and was in
the correct driving lane. Id. at 1371. However, the evidence
of the defendant's uncontrolled driving prior to the accident

                               10
was sufficient to support a finding that the defendant
recklessly endangered other drivers on the road. 3

In Commonwealth v. Henck, 478 A.2d 465 (Pa. Super. Ct.
1984), a police officer stopped the defendant for driving
straight through an intersection rather than turning right
as the road required. Then, as the officer returned to his
vehicle, the defendant sped away, ran a stop sign, and cut
off several other vehicles. The court found that the evidence
of the defendant's running through a stop sign and
blocking the path of other drivers while fleeing from a police
officer was sufficient to sustain a conviction for recklessly
endangering another person even though no one was
injured. See also Commonwealth v. Peer, 684 A.2d 1077
(Pa. Super. Ct. 1996) (possessing and brandishing a
weapon, combined with a struggle over control of the
weapon and a threat to kill two people, was sufficient to
convict the defendant for recklessly endangering another
person).

The facts in this case were more dramatic than those in
the cases we discuss above and demonstrate that Orban's
convictions for recklessly endangering another person were
proper. Orban was in his truck cutting across multiple
lanes of traffic just prior to the accident, and in doing so he
posed an extremely dangerous threat to other drivers.
Orban's erratic driving which resulted in the death of three
people and injury to two others establishes that the
evidence justified the convictions for recklessly endangering
another person.

V. CONCLUSION

We are satisfied that Orban's actions justify his
convictions for aggravated assault and for recklessly
endangering another person. The district court's order
entered November 6, 1996, to the extent it granted Orban's
petition for habeas corpus and vacated his convictions for
aggravated assault and recklessly endangering another
_________________________________________________________________

3. The Superior Court nevertheless reversed his adjudication of
delinquency on the ground that he had not been charged properly with
the offense of which he was convicted.

                               11
person will be reversed. Thus, we will remand the case to
the district court to enter an order reinstating the judgment
of conviction and sentence entered in the state court.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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