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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA


                   v.

MICHAEL FRANK KRALOVIC

                        Appellant                  No. 1562 WDA 2016


           Appeal from the Judgment of Sentence April 25, 2016
          In the Court of Common Pleas of Westmoreland County
            Criminal Division at No(s): CP-65-CR-0004702-2013


BEFORE: BOWES, J., SOLANO, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.:                      FILED DECEMBER 27, 2017

     Michael Frank Kralovic appeals his judgment of sentence of three to six

years incarceration, plus one year probation, imposed after a jury convicted

him of homicide by vehicle while driving under the influence, involuntary

manslaughter, recklessly endangering another person, driving under the

influence (“DUI”) – general impairment, DUI – high rate of alcohol, DUI by a

minor, reckless driving, and numerous other summary traffic offenses. He

was acquitted of homicide by vehicle. We affirm.

     On June 23, 2012, Andrew Lysell died following a tragic motor vehicle

accident. During the previous evening and early morning hours of the day in

question, the victim, Appellant, and Jacob Vrudney, each eighteen-years-old,

drank several alcoholic beverages. Shortly before 5:30 a.m., Appellant and
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Mr. Vrudney decided to leave a party.        They agreed to travel by different

routes to Appellant’s house in order to see who would arrive first. Mr. Lysell

traveled with Appellant in a Lincoln sedan, and Mr. Vrudney drove separately

in a Ford S-10 pickup truck.

      While traveling eastbound at eight-five miles per hour in a forty-five

mile per hour zone, Appellant failed to negotiate an uphill curve along

Saltsburg Road, in Murrysville, Westmoreland County.           The car veered

across the road and onto an embankment.           It then flipped and slid back

across the road, coming to rest at an angle in the eastbound lane. Appellant

and Mr. Lysell exited the vehicle, and Appellant retreated to safety at the

side of the road.   Mr. Lysell, on the other hand, had to exit toward the

westbound lane.     At this moment, Mr. Vrudney, traveling seventy-eight

miles per hour, sideswiped the overturned Lincoln and hit Mr. Lysell as he

stood in the westbound lane.     Upon impact, Mr. Lysell’s body was thrown

approximately thirty yards down the road, where he sustained a severe head

injury upon impact. As a result of his injuries, Mr. Lysell perished. Following

the accident, a blood test indicated that Mr. Vrudney had a blood alcohol

content (“BAC”) of 0.154%, and Appellant had a BAC of 0.135% within two

hours of operating their vehicles.

      Based    on   the   foregoing,    Appellant   was    charged   with   the

aforementioned offenses.       After protracted pre-trial litigation, including

numerous continuances, a joint, three-day jury trial commenced on January

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12, 2016.      The jury returned a verdict as delineated above, and

subsequently, the trial court imposed a sentence of three to six years

incarceration for homicide by vehicle while DUI, a concurrent sentence of

nine to eighteen months imprisonment for involuntary manslaughter, and

one year probation for recklessly endangering another person. The court did

not impose any further sentences at the remaining counts. Appellant filed a

post-sentence motion, and, following a hearing, the trial court denied that

motion. Appellant filed a timely notice of appeal and complied with the trial

court’s order to file a Rule 1925(b) concise statement of errors complained

of on appeal. The court authored its Rule 1925(a) opinion, and this matter

is now ready for our consideration.

      Appellant raises two questions for our review:

      I.    Whether the verdict of guilty of homicide by vehicle while
            DUI, and involuntary manslaughter were supported by
            sufficient evidence where the victim’s death was cause[d]
            by the driving of the co-defendant?

      II.   Whether the trial court erred in prohibiting [Appellant]
            from presenting character testimony through the victim’s
            mother as to his good character?

Appellant’s brief at 5.

      Appellant’s first issue challenges the sufficiency of the evidence

underpinning his convictions for homicide by vehicle while DUI and

involuntary manslaughter. We are guided by the following principles:

      When evaluating a sufficiency claim, our standard is whether,
      viewing all the evidence and reasonable inferences in the light

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      most favorable to the Commonwealth, the factfinder reasonably
      could have determined that each element of the crime was
      established beyond a reasonable doubt. This Court considers all
      the evidence admitted, without regard to any claim that some of
      the evidence was wrongly allowed.         We do not weigh the
      evidence or make credibility determinations. Moreover, any
      doubts concerning a defendant’s guilt were to be resolved by the
      factfinder unless the evidence was so weak and inconclusive that
      no probability of fact could be drawn from that evidence.

Commonwealth v. Moyer, 171 A.3d 849, 852 (Pa.Super. 2017) (citation

omitted).

      The Vehicle Code defines the offense of homicide by vehicle while DUI

as:

      Any person who unintentionally causes the death of another
      person as the result of a violation of section 3802 (relating to
      driving under influence of alcohol or controlled substance) and
      who is convicted of violating section 3802 is guilty of a felony of
      the second degree when the violation is the cause of death and
      the sentencing court shall order the person to serve a minimum
      term of imprisonment of not less than three years.               A
      consecutive three-year term of imprisonment shall be imposed
      for each victim whose death is the result of the violation of
      section 3802.

75 Pa.C.S. § 3755(a).

      In    order   to   establish   homicide   by   vehicle   while   DUI,   the

Commonwealth must prove beyond a reasonable doubt:                “[1] a driving

under the influence conviction, [2] the death of another person, and [3] the

death [was] a direct result of driving under the influence.” Commonwealth

v. Tanner, 61 A.3d 1043, 1047 (Pa.Super. 2013) (citing Commonwealth

v. Caine 683 A.2d 890 (Pa.Super. 1996) (en banc)).



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         A person commits 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).       Thus, “involuntary

manslaughter requires 1) a mental state of either recklessness or gross

negligence[,] and 2) a causal nexus between the conduct of the accused and

the death of the victim.”       Commonwealth v. Fabian, 60 A.3d 146, 151

(Pa.Super. 2013) (citation omitted).

         Appellant contends that the Commonwealth failed to prove that his

DUI was a direct and substantial cause of the death of Mr. Lysell. He asserts

that the evidence proffered at trial indicates that his co-defendant, Mr.

Vrudney, directly caused the victim’s death when he hit him with his pickup

truck.     Further, Appellant maintains that he cannot be held accountable

based on a theory of accomplice liability because the evidence does not

support the conclusion that he and Mr. Vrudney were racing at the time of

the accident. Rather, he asserts that his accident was a separate incident

unrelated to the victim’s death, and the victim’s own reckless behavior was

an intervening factor which contributed to his demise. We disagree.

         In this case, it is undisputed that Mr. Lysell died following the vehicular

accidents occurring on June 23, 2012.           Additionally, Appellant does not

challenge the evidence supporting his convictions for DUI.               Thus, his

challenge to the sufficiency of the evidence underlying his convictions for

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homicide by vehicle while DUI and involuntary manslaughter is centered

upon whether he caused the victim’s death.

     The following informs our analysis:

     It is undisputed that the Commonwealth must prove a direct
     causal relationship between the acts of a defendant and the
     victim’s death.    Criminal responsibility is properly assessed
     against one whose conduct was a direct and substantial factor
     producing the death. This is true even though “other factors
     combined with that conduct to achieve the result.”

Fabian, supra at 152 (citations and emphasis omitted). In this regard, we

have found direct criminal causation when “the defendant’s [conduct]

started the chain of causation which led to the victim’s death[.]”       Id.

(citation omitted).      Further, “it has never been the law of this

Commonwealth that criminal responsibility must be confined to the sole or

immediate cause of death.” Id. (citation omitted).

     In Commonwealth v. Rementer, 598 A.2d 1300 (Pa.Super. 1991),

we set forth a two-part test for determining direct and substantial criminal

causation.   First, we determine “whether the defendant’s conduct was an

operative cause of the victim’s death.” Rementer, supra at 1305. That is,

the conduct must be “an antecedent but for which the result in question

would not have occurred.”    Id.   (citation omitted).   Second, we consider

whether “the result of the defendant’s actions were so extraordinary and

remote or attenuated that it would be unfair to hold the defendant criminally

responsible.” Id. This second prong raises a question of foreseeability, and



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requires us to consider whether the “fatal result was an unnatural or obscure

consequence of the defendant’s actions,” so that, “our sense of justice would

prevent us from allowing the result to impact on the defendant’s guilt.” Id.

at 1306-1307.

      Instantly, the Commonwealth proffered evidence that Appellant was

driving eastbound at eighty-five miles per hour in a forty-five mile per hour

zone at 5:30 a.m., when he lost control of his vehicle attempting to navigate

a long curve on Saltsburg Road. At the time of the accident, Appellant had a

BAC of 0.135%, well over the legal limit. As a result of Appellant’s reckless

driving, he lost control of his car, which then crossed the center line,

traveled off the road and onto an embankment, and then flipped as it

crossed back over the road. The vehicle came to a rest upside down and at

an angle blocking the eastbound lane.

      The evidence adduced at trial revealed that Appellant could hear the

sound of Mr. Vrudney’s engine as it rapidly approached while he was exiting

his vehicle, and that Mr. Lysell was shouting that they had to quickly escape.

Due to the manner in which the car was situated as it came to rest,

Appellant was able to exit the car and proceed safely to the side of the road.

Mr. Lysell, on the other hand, was forced to exit into the roadway, and

ultimately, into the westbound lane of travel.    At this point, Mr. Vrudney,

following closely behind at seventy-eight miles per hour, drove around the




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curve, sideswiped Appellant’s car, and, unfortunately, crossed into the

westbound lane where the victim was standing.

      We find that, when viewing this evidence in the light most favorable to

the Commonwealth, Appellant’s conduct satisfied both parts of the Remeter

causation test. First, Appellant’s reckless driving caused an accident, which

forced the victim into the middle of the roadway and directly in the path of

oncoming traffic. But for Appellant’s reckless driving, Mr. Lysell would not

have been exposed and vulnerable when Mr. Vrudney sped around the

curve.

      With regard to the second prong, we set forth the following.        The

record indicates that Appellant and Mr. Vrudney left a friend’s house, after a

night of heavy drinking, with the intent to travel to Appellant’s house by

different routes in order to see who would arrive first.   Nonetheless, their

separate courses required them both to travel along Saltsburg Road.

Appellant asserts that, relying on Commonwealth v. Jackson, 744 A.2d

271 (Pa.Super. 1999), he cannot be convicted of crimes relating to the

victim’s death since the Commonwealth did not proffer sufficient evidence

that he and Mr. Vrudney were “racing” at the time in question.

      We observe that the Vehicle Code defines “Race” as “[t]he use of one

or more vehicles in an attempt to outgain, outdistance or prevent another

vehicle from passing, to arrive at a given destination ahead of another

vehicle or vehicle, or to test the physical stamina or endurance of drivers

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over long distance driving routes.”     75 Pa.C.S. § 3367 (emphasis added).

This definition is consistent with a common understanding of the term. In

light of those statements, and the excessive speeds at which the men were

driving, it was reasonable for the jury to infer that they were engaged in

illegal racing at the time of the accident.

      As such, we find that it was predictable that Appellant’s decision to

race Mr. Vrudney at high speeds while DUI placed his passenger, Mr. Lysell,

in danger of death or serious bodily injury.        Moreover, after Appellant

crashed and blocked the roadway, it is unsurprising that the victim

attempted to flee that vehicle for safety, especially in light of the sound of

Mr. Vrudney’s truck fast-approaching. Finally, with Mr. Vrudney traveling at

high speeds close behind, it was abundantly likely that any accident

involving the front car, that is, Appellant’s vehicle, risked endangering the

second car.    Hence, based on the foregoing, we conclude that Appellant

could have foreseen that his decision to race Mr. Vrudney while DUI could

result in Mr. Lysell’s death.

      Rementer, supra, is instructive.        In Rementer, Charles Rementer

was convicted of third-degree murder.         This conviction arose after Mary

Berry was crushed to death by a vehicle as she attempted to escape an

ongoing assault perpetrated by Rementer.          The pertinent facts are as

follows. Ms. Berry and Rementer engaged in a violent and public domestic

dispute after ingesting cocaine together. The argument began at a bar, and

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after she became extremely upset, Ms. Berry left the bar and entered her

truck, which was parked out front.          Rementer followed her, pushed Ms.

Berry out of the driver’s seat, and drove away. A struggle ensued wherein

Ms. Berry attempted numerous times to escape from Rementer’s violent

attacks, including by attempting to climb out of the truck’s window and

fleeing from Rementer on foot. Finally, Ms. Berry, with Rementer following

close behind, ran into traffic and attempted to enter a vehicle driven by Vito

Michielli and occupied by his wife and two children. Ms. Berry cried for help

and pleaded with Mr. Michielli to let her in the car, but Mr. Michielli,

frightened, locked the doors and drove away.         Ms. Berry was crushed to

death by the car as it left the area.

      On appeal, Rementer argued, inter alia, that the Commonwealth failed

to present sufficient evidence that he caused Ms. Berry’s death. In finding

that the Commonwealth had proffered sufficient evidence, we established

and applied the two-part test delineated above.        With regard to the first

prong, Rementer contended that the argument he was having with Ms. Berry

had ended when she sought help from Mr. Michielli. He maintained that Ms.

Berry’s own actions were intervening factors unrelated to the earlier dispute,

and thus, that he could not have caused her death.      We   found   that   the

evidence supported that the dispute was ongoing, and that Ms. Berry sought

help directly in response to Rementer’s actions, noting that he was “chasing

right behind her.” Rementer, supra at 1308.

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         With regard to the second prong, Rementer asserted that Ms. Berry’s

death was the result of an unforeseeable chain of events.            Again, we

disagreed.     We found that Ms. Berry’s attempt to escape from the assault

was entirely expected, observing, “it is completely natural and foreseeable

that any victim of an assault would respond to the danger by trying to

escape it.” Id. Further, we stated, “[t]he risk that [Ms.] Berry might suffer

serious injury or death either during the assault or in her attempt to avoid it,

was inherent in the situation [Rementer’s] attack created.”           Id.   We

concluded that Rementer was the direct cause of Ms. Berry’s death since it

would be “absurd to argue that the fatal result was so extraordinary or

accidental that [Rementer] should not be held criminally liable for the

consequences of his conduct.” Id.

         The case sub judice is analogous to the circumstances presented in

Rementer, supra. Herein, Appellant participated in a high-speed race with

another vehicle after both drivers imbibed alcoholic beverages. Appellant’s

conduct was so inherently dangerous that it was completely foreseeable that

Mr. Lysell, his passenger, might suffer serious bodily injury or death during

the race to Appellant’s house. As noted above, but for Appellant’s conduct,

Mr. Lysell would not have been faced with the danger from which he was

attempting to escape when he was struck by Mr. Vrudney’s S-10 pickup

truck.    As such, we are not persuaded by Appellant’s contentions that the

victim’s inebriated state or Mr. Vrudney’s actions were intervening factors

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obviating Appellant’s culpability. We acknowledge that Mr. Vrudney was the

immediate cause of Mr. Lysell’s death. Nevertheless, Appellant set in action

a chain of causation that directly and substantially caused the same.1       No

relief is due.

       Next, Appellant challenges the trial court’s ruling prohibiting him from

offering the testimony of the victim’s mother as character evidence of his

reputation for safe driving.         When reviewing a trial court’s evidentiary

determination,

       we give the trial court broad discretion, and we will only reverse
       a trial court’s decision to admit or deny evidence on a showing
       that the trial court clearly abused its discretion. An abuse of
       discretion is not merely an error in judgment, but an overriding
       misapplication of the law, or the exercise of judgment that is
       manifestly unreasonable, or the result of bias, prejudice, ill-will
       or partiality, as shown by the evidence or the record.

Commonwealth v. Diehl, 140 A.3d 34, 41 (Pa.Super. 2016) (citation

omitted). Character evidence is “not admissible to prove that on a particular

occasion the person acted in accordance with the character or trait.” Pa.R.E.

404(a)(1). However, in a criminal case, “a defendant may offer evidence of



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1 Appellant’s argument largely conflates the “immediate cause” of death with
the “direct cause” of death. As explained infra, the direct cause of one’s
death is a legal term of art that does not necessarily track the common
understanding of the phrase.      Thus, although there can only be one
“immediate cause” of a person’s death, there can be multiple “direct
causes.”



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the defendant’s pertinent trait, and if the evidence is admitted, the

prosecution may offer evidence to rebut it[.]” Pa.R.E. 404(a)(2)(A).

      Appellant   argues   that   the    trial   court   abused   its   discretion   in

determining that the victim’s mother could not testify on his behalf since the

testimony of family members might lack credibility. He maintains that the

victim’s mother was not his family member, and that she could offer

testimony for his reputation for safe driving, which she learned from other

members of the victim’s family.

      We need not determine whether the trial court abused its discretion in

this regard, as we find that, even if the trial court erred, that error was

harmless.   An error is considered harmless where:          “(1) the error did not

prejudice the defendant or the prejudice was de minimis; or (2) the

erroneously admitted evidence was merely cumulative or other, untainted

evidence which was substantially similar to the erroneously admitted

evidence; or (3) the properly admitted and uncontradicted evidence of guilt

was so overwhelming and the prejudicial effect of the error was so

insignificant by comparison that the error could not have contributed to the

verdict.” Commonwealth v. Gause, 164 A.3d 532, 540 (Pa.Super. 2017)

(citing Commonwealth v. Williams, 573 A.2d 536, 538-39 (Pa. 1990)).

      Instantly, we find that the evidence of Appellant’s guilt was so

overwhelming that the prejudicial effect of not permitting the victim’s

mother to testify as to his reputation for safe driving was insignificant. As

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described above, the Commonwealth proffered evidence that Appellant was

driving at eighty-five miles per hour in a forty-five mile per hour zone while

intoxicated.    Appellant was decidedly not operating his vehicle in a safe

manner at the time of the accident.            We find that the testimony of the

victim’s mother that Appellant had a reputation in the community for being a

safe driver would not be sufficient to overcome the extensive, and

uncontroverted, evidence of his guilt. Thus, no relief is due.2

       Judgment of sentence affirmed.



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2 As a final matter, we observe that Appellant’s sentence is premised upon
the application of the mandatory minimum sentence provision contained
within 75 Pa.C.S. § 3735. Recent United States and Pennsylvania Supreme
Court case law has caused this Court to look with a suspicious eye toward
the application of any mandatory minimum sentence. See Alleyne v.
United States, 133 S.Ct. 2151 (2013); Commonwealth v. Hopkins, 117
A.3d 247 (Pa. 2015) (finding 18 Pa.C.S. § 6317 unconstitutional);
Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016) (finding 42 Pa.C.S. §
9718 unconstitutional). In those cases, our Supreme Court has stressed that
certain features of those sentencing provisions cannot be maintained in light
of Alleyne, notably, any statute that requires the sentencing judge, as
opposed to the jury, to find at sentencing any fact that increases
punishment. As § 3735 does not display the traditional hallmarks of a
statute that conflicts with Alleyne, and Appellant has not challenged the
constitutionality of his sentence, we will not analyze that issue herein,
despite our ability to do so sua sponte. Commonwealth v. Mosley, 114
A.3d 1072, 1087 (Pa.Super. 2015). Nevertheless, we are cognizant that our
Supreme Court continues to grapple with the constitutionality of various
mandatory minimum sentence statutes. See Commonwealth v. Resto,
125 A.3d 449 (Pa.Super. 2015), petition for allowance of appeal granted,
636 Pa. 462 (Pa. 2016).




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/27/2017




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