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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
J-A30036-15


      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.



                                            -3-
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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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J-A30036-15


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-
J-A30036-15


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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