J-A27021-18

                                2020 PA Super 20

 COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 KATRINA A. SANDERS                        :
                                           :
                    Appellant              :    No. 3562 EDA 2017

            Appeal from the Judgment of Sentence July 17, 2017
   In the Court of Common Pleas of Montgomery County Criminal Division
                     at No(s): CP-46-CR-0003929-2016


BEFORE: BOWES, J., STABILE, J., and McLAUGHLIN, J.

DISSENTING OPINION BY McLAUGHLIN, J.:              FILED FEBRUARY 3, 2020

      Katrina A. Sanders admitted at trial that she was well aware of the

significant risk that she could hit a pedestrian when driving a bus, especially

a tandem bus such as she was driving on the day in question. N.T, 1/3/17, at

215, 217, 222. Yet on-board cameras captured her distractedly fiddling with

papers for 45 seconds while stopped at the subject intersection, and not

looking for traffic or pedestrians, until shortly before she struck and killed the

victim. Id. at 99. Sanders conceded that the victim was clearly visible during

that 45 seconds in recordings taken by the on-board cameras, but said she

did not see him on the day in question until he was directly in front of her bus.

Id. at 219, 221. The prosecution’s expert made it clear that Sanders’ view

from the driver’s seat was unobstructed and those 45 seconds gave her ample

opportunity to look for pedestrians, such as the victim. Yet despite knowing
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the risk and having plenty of time to look, she instead was examining the

papers in her hand. Id. at 98, 100.

      Sanders also admitted on the record that at the time of the victim’s

death, she was fully aware of a safety rule requiring her to stop and look for

a full four seconds before making a left turn. She conceded that the rule

existed because of the heightened risk that the driver of a tandem bus would

not see a pedestrian in a crosswalk when executing a left turn. Id. at 225-

226. Yet once again, the videos document her failure to obey that rule, which

was in place specifically to protect against hitting a pedestrian in a crosswalk,

when she turned left and hit and killed the victim.

      Based on this record, I believe the evidence was enough to establish

that Sanders consciously disregarded a known risk. The trial judge saw the

videos and heard all the testimony. He could reasonably conclude that

although Sanders knew the significant risks of hitting and even killing

pedestrians when turning a tandem bus left, she nonetheless was looking at

papers, and not into the intersection, for 45 seconds while stopped at the

intersection. Once the light turned green, the evidence shows, Sanders failed

to wait long enough to ensure there were no pedestrians in the path of her

bus before she turned, despite knowing the risk. As a result of her failures,

she struck and killed the victim. I therefore respectfully dissent.

      The Majority accurately sets forth the law as to sufficiency of the

evidence. To support a conviction for homicide by vehicle, the Commonwealth

must prove that the defendant caused the death of another, recklessly or with

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gross negligence, while violating a law or municipal ordinance “applying to the

operation or use of a vehicle or to the regulation of traffic except [75 Pa.C.S.A.

§] 3802,” and that the violation caused the death. 75 Pa.C.S.A. § 3732(a);

Commonwealth v. Pedota, 64 A.3d 634, 636 (Pa.Super. 2013). Here, there

is no dispute that Sanders violated vehicle or traffic laws, or that the collision

caused the victim’s death. The Majority, however, finds the Commonwealth

failed to establish that Sanders recklessly or with gross negligence caused the

victim’s death. I disagree.

      Here, the trial court explained why it believed the evidence was

sufficient to prove that Sanders acted recklessly or with gross negligence:

         [T]he evidence showed that the Defendant operated her bus
         in a grossly negligent or reckless manner. Specifically, the
         evidence adduced at trial indicated that: 1) [Sanders] was
         a professional driver with 20-30 years’ experience; 2)
         [Sanders] was aware of the risks involved in driving
         professionally, especially a 62 foot tandem bus; [3])
         [Sanders] stopped her bus in the cross walk perpendicular
         to where the victim was crossing; [4]) she was looking at
         route paperwork while stopped at the light for
         approximately 45 seconds, during which time nothing
         impeded her view of the victim waiting the cross the street;
         [5]) she briefly checked the intersection before moving, in
         violation of written SEPTA policy requiring a four second
         hesitation before turning; and [6]) she failed to see the
         pedestrian, who had the right of way and was in a marked
         crosswalk, until she struck him. [Sanders] was a
         professional driver and grossly deviated from the standard
         of conduct that a similarly qualified driver would have
         exercised. Therefore, the evidence was sufficient to support
         her conviction for homicide by vehicle.

Trial Court Opinion, filed 5/29/18, at 8-9 (“1925(a) Op.”).




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      The evidence was sufficient to support the trial court’s conclusion.

Sanders testified at trial that she was acutely aware of the heightened risk of

hitting a pedestrian when turning a tandem bus left and that the four-second

rule served to mitigate that risk. The potential for such a large vehicle to kill

a pedestrian is obvious. Yet the videos nevertheless showed Sanders

reviewing the papers instead of being alert to her surroundings, failing to scan

the area fully before turning, and failing to follow a rule designed to ensure

no pedestrians were in her path. The evidence here was sufficient to establish

her conscious disregard of a substantial and unjustifiable risk, i.e., criminal

recklessness. See Commonwealth v. Moyer, 171 A.3d 849, 854 (Pa.Super.

2017) (concluding evidence supported homicide by vehicle conviction

premised on failure to stop at stop sign, where defendant only slowed to 12

miles per hour for two seconds prior to impact, stop sign preceded a busy

cross street, building obscured view of one lane of cross traffic, and defendant

was familiar with the intersection and had driven through it many times).

      I respectfully submit that both the Majority Opinion and the Concurring

Opinion   improperly    reweigh   the    evidence   in   concluding   otherwise.

Respectfully, in my view, the approaches my colleagues espouse violate our

standard of review. When considering a sufficiency challenge, what we may

not do is re-weigh the evidence and substitute our judgment for that of the

fact-finder. Commonwealth v. Rogal, 120 A.3d 994, 1001 (Pa.Super. 2015).

Rather, if the Commonwealth has presented evidence of each element of the

crime, the evidence is sufficient unless it is “so weak and inconclusive that as

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a matter of law no probability of fact may be drawn from the combined

circumstances.” Commonwealth v. Bradley, 69 A.3d 253, 255 (Pa.Super.

2013).

      While the Majority acknowledges our standard of review, respectfully, in

my view, it fails to abide by it, as does the Concurring Opinion. Neither of my

colleagues concludes that the evidence was “so weak and inconclusive that as

a matter of law no probability of fact may be drawn from the combined

circumstances.” In my view, each fails to view the evidence in the light most

favorable to the Commonwealth, as verdict winner, and instead improperly

evaluates the evidence and assigns it the importance it deems proper.

      In violation of the standard of review, the Majority reviews the evidence

and assigns it the significance the Majority finds appropriate, to conclude that

“[i]t is simply out of proportion to classify” Sanders’ waiting 2.33 seconds,

instead of the full four seconds, as recklessness or gross negligence. Majority

Opinion at 11. Rather, in the Majority’s opinion, Sanders’ failing in this regard

only amounted to a “relatively minor infraction.” Similarly, the Concurring

Opinion examines Sanders’ actions and decides that although her conduct was

“a deviation from the standard of conduct of a reasonable person,” it did not

rise to the level of a “gross deviation.” Concurring Opinion at 2, 3. The

Concurring Opinion bases that view on its appraisal of Sanders’ conduct – her

“review of the paperwork while stopped, the position of the bus over the stop

line, the initiation of the left-hand turn after waiting only 2.33 seconds, and

the papers held in her left hand while turning….” Id. at 3.

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      Respectfully, such assessments are inherently subjective judgments and

no proper part of a sufficiency review. The subjectivity of my colleagues’ view

is evident in their agreement that “[t]he circumstances of this case do not

suggest the level of brazenness or hard-heartedness characteristic of acts of

recklessness.” Majority Opinion at 13; Concurring Opinion at 4. Neither the

Majority Opinion nor the Concurring Opinion cite any authority for the

proposition that criminal recklessness requires a finding of “brazenness” or

“hard-heartedness,” and I am aware of none. Respectfully, such descriptors

are more at home in the classic definition of malice, which Pennsylvania courts

have often termed as “a wickedness of disposition, hardness of heart, cruelty,

recklessness of consequences, and a mind regardless of social duty....”

Commonwealth v. Reilly, 549 A.2d 503, 510 (Pa. 1988) (quoting

Commonwealth v. Drum, 58 Pa. 9, 15 (1868)). They have not appeared

heretofore in a definition of criminal recklessness, and I thus believe my

colleagues are employing an incorrect substantive standard. See Moyer, 171

A.3d at 853-54 (explaining that malice standard does not apply to homicide

by vehicle).

      Moreover, I cannot say that I, as an appellate judge, know better than

the fact-finder the significance of, for example, the driver of a tandem bus

waiting and looking for pedestrians for only 2.33 seconds, instead of four

seconds. Nor is it for me, as an appellate judge, to decide whether doing so

amounts to a gross or ordinary deviation from the standard of conduct.

Rather, when confronted on appeal with a sufficiency challenge, we ask

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whether there was evidence beyond a reasonable doubt to support the fact-

finder’s determination that the evidence met every element of the crime

charged. See Bradley, 69 A.3d at 255.

      With respect, the Majority’s conclusion that Sanders “simply did not see

the victim at any point prior to moving” the bus demonstrates the Majority’s

error. Majority Opinion at 10. Respectfully, the issue is why Sanders failed to

see the victim in time. Here, the prosecution put evidence before the trial

court that Sanders did not see him until it was too late because she violated

safety rules that she admitted she not only knew existed, but also was aware

served to prevent just the sort of tragedy that occurred here. It is not for this

Court to review the evidence and decide for ourselves if Sanders “simply” and

faultlessly “did not see the victim,” or to decide whether, on balance, the

verdict was “out of proportion” to the evidence. Id. at 10, 11. Instead, as long

as the prosecution presented evidence of every element of the crime, we

affirm unless the evidence was too insubstantial to support any finding of fact.

See Bradley, 69 A.3d at 255.

      Tellingly, neither of my colleagues concludes that the evidence here was

“so weak and inconclusive that as a matter of law no probability of fact may

be drawn from the combined circumstances,” and I do not see how such a

conclusion would be supportable. SEPTA safety rules in evidence here require

the driver of a stopped bus “to follow the four-second rule that gives the

operator/employee an opportunity to scan the area in front of the bus before

moving.” Commonwealth Ex. 8. Sanders admitted on the stand that she knew

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not only of the rule, but also of its purpose of protecting against her not seeing

a pedestrian in the crosswalk, and thus hitting the pedestrian while turning

left. Yet she also admitted that she failed to follow the rule, when she was

executing a left turn. That was enough evidence to prove recklessness or gross

negligence.

      The Majority counters that “[e]very driver knows that there is a risk of

hitting a pedestrian while driving a vehicle and knows that she must look

carefully before turning into an intersection to reduce the risk of striking a

pedestrian, yet failure to follow these principles does not automatically

constitute homicide by vehicle.” Majority Opinion at 15. That response

demonstrates a fundamental misunderstanding of my position.

      Respectfully, it goes without saying that hitting and killing a pedestrian

in such commonplace circumstances as the Majority describes does not

automatically constitute homicide by vehicle. My difference with the Majority

relates to the specific evidence in this case. That evidence includes the expert

testimony that Sanders could have seen the victim if she had only looked into

the intersection during the 45 seconds she was stopped. It also includes

Sanders’ testimony about her awareness of the particular risk of striking

pedestrians while driving a tandem bus and of SEPTA safety rules intended to

mitigate that risk, and that she knowingly failed to abide by those rules.

      Judge Bowes in her Concurring Opinion responds that my “position

appears to be inconsistent with this Court’s recent sufficiency review in

Commonwealth v. Hoffman, 198 A.3d 1112, 1119-20 (Pa.Super. 2018)

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(McLaughlin, J.).” Concurring Opinion at 4 n.1. She claims that her analysis is

in line with cases such as Commonwealth v. MacArthur, 629 A.2d 166,

168-69 (Pa.Super. 1993). Respectfully, the Concurring Opinion appears to

misunderstand Hoffman and MacArthur. In both of those cases, we found

the evidence insufficient because there was a lack of evidence, not because

we thought the evidence was not weighty enough to warrant a conviction.

      For example, in Hoffman, the Commonwealth presented evidence that

the defendant had taken sleep-inducing medications, fell asleep on a couch,

and later rolled off the couch and onto an infant on the floor next to her,

suffocating the child. 198 A.3d 1119. We concluded that such evidence was

not enough to establish malice, and thus support convictions for third-degree

murder and aggravated assault. We explained that “the Commonwealth had

failed to provide evidence that, by taking the medication, [the defendant]

consciously disregarded an extremely high risk that her actions would result

in” the child’s death. Id. We likewise rebuffed the Commonwealth’s argument

that the jury could have found malice based on the defendant’s alleged delay

in seeking emergency help. We explained that there was “no evidence” of how

long the defendant knew the infant had stopped breathing before she called

911. Id. at 1120.

      We also turned aside in Hoffman a claim that inconsistencies in the

defendant’s various statements to police showed her consciousness of guilt,

as supporting a finding of malice. We pointed out that there was “no evidence”

of the crime for which she felt guilty or that she had “anything more than a

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general sense of responsibility for the infant’s death.” Id. We rejected the

additional claim that the jury could have found malice based on a finding of

intentional conduct. We explained that “[a]t no time” did the Commonwealth

present evidence that the defendant had acted intentionally, but rather had

presented evidence of only an unintentional accident. Id. at 1120.

      In MacArthur, there was similar lack of evidence of malice. There, the

defendant pushed a much larger man, who then flipped backwards over a

railing, fell down five steps, and landed on the back of his neck, resulting in

his death. 629 A.2d at 168. We cited a line of cases holding that a single blow,

without more, is insufficient to establish malice, and thus third-degree murder.

We then explained that there was “nothing in the record” in that case to

provide the necessary “more.” Id. at 169.

      This case is very different from Hoffman and MacArthur. In this case,

there was affirmative evidence that Sanders consciously disregarded a

substantial and unjustifiable risk. Sanders herself testified that she knew of

the marked risk of death to pedestrians while turning a tandem bus, and that

she was aware of safety rules that she admitted were designed to reduce that

risk. The risk of death to the pedestrian in such an accident is patent. Yet the

evidence nonetheless showed her disregarding that risk and disobeying the

safety rules. That is plain evidence of criminal recklessness, and is sufficient

to support a conviction for homicide by vehicle. I respectfully dissent.




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