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.

CONCURRING OPINION BY BOWES, J.:                   FILED FEBRUARY 3, 2020

      I join in the majority writing of my esteemed colleague, and agree that

Appellant’s conviction for homicide by vehicle should be reversed, but upon

slightly different reasoning.

      To recap, homicide by vehicle is established by evidence that the

defendant recklessly caused the death of another person through a violation

of any law applicable to operation or use of a vehicle. 75 Pa.C.S. § 3732(a).

The term “recklessly” as a degree of criminal culpability 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.

18 Pa.C.S. § 302(b)(3).
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      Viewing these two statutes together, it is clear that to establish the mens

rea necessary to support Appellant’s conviction, the Commonwealth was

required to prove that Appellant disregarded a substantial and unjustifiable

risk that she would cause the death of a person by grossly deviating from the

conduct that a reasonable person would have observed in Appellant’s

situation.

      The majority suggests that the risk that Appellant failed to ascertain was

actually seeing the victim himself.      See Majority Opinion at 11 n.2, 14.

Undeniably, Appellant was unaware of the presence of the victim before she

turned left. However, the evidence did establish that Appellant was aware

that the blind spot created by the side mirror on her vehicle posed a risk that

she could hit an unseen pedestrian while during left.        I believe that the

question is not whether Appellant actually saw the victim, but whether the

Commonwealth offered legally sufficient evidence to prove beyond a

reasonable doubt that Appellant’s actions amounted to a gross deviation from

the conduct that a reasonable person would have observed in the face of the

general risk created by the mirror. In my view, they did not.

      This conclusion is based on my consideration of the nature and the intent

of Appellant’s conduct and the circumstances known to her. Appellant was

stopped. She neglected to observe the intersection during the forty-five

seconds that she waited at the red light. Prior to beginning to move forward

to make a left-hand turn, she waited 2.33 seconds and scanned the roadway


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to her left, right, and straight ahead. She proceeded slowly through her turn,

at a mere eight miles per hour, continuing to watch the road ahead of her.

Nonetheless, the victim remained in Appellant’s blind spot, and she stuck him,

tragically causing his death. No one contends that Appellant actually saw the

victim prior to striking him, that she pulled out into the intersection

immediately without observing her surroundings, that she was speeding as

she rounded the corner, or other conduct that has been deemed sufficient to

demonstrate more than negligence. See, e.g., Commonwealth v. Moyer,

171 A.3d 849, 854 (Pa.Super. 2017) (holding evidence was legally sufficient

to establish recklessness where defendant who had an obstructed view turned

into thirty-five-mile-per-hour traffic at twelve miles per hour on a busy road

without stopping at a stop sign); Commonwealth v. Matroni, 923 A.2d 444,

448-49 (Pa.Super. 2007) (holding evidence of cumulative conduct of

speeding, tailgating, and erratically changing lanes was sufficient to establish

recklessness).

      My view of the evidence leads me to conclude that, considering the

totality of the circumstances, including Appellant’s 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, the evidence was sufficient to find that Appellant’s

behavior was a deviation from the standard of conduct of a reasonable person.

However, it was not sufficient to constitute a gross deviation giving rise to


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J-A27021-18


the inference that Appellant acted with disregard of a substantial and

unjustifiable risk that she would cause the death of a person. As the majority

aptly states, “[t]he circumstances of this case do not suggest the level of

brazenness or hard-heartedness characteristic of acts of recklessness” under

§ 302(b)(3).1 Majority Opinion at 13. Accord Commonwealth v. Karner,

193 A.3d 986, 992-93 (Pa.Super. 2018) (affirming dismissal of homicide-by-

vehicle charges upon holding, as a matter of law, that evidence that the

defendant was driving eight to twelve miles over the speed limit and collided


____________________________________________


1 The dissent suggests that, in concluding that the Commonwealth’s evidence
was insufficient to establish the mens rea element of homicide by vehicle, I
have violated this Court’s standard of review by reweighing the evidence. On
the contrary, I fully accept the fact-finder’s determinations and the weight it
accorded the Commonwealth’s evidence. Nonetheless, it is this Court’s
responsibility to consider and determine whether the evidence behind those
factual determinations, viewed in the light most favorable to the
Commonwealth, is sufficient as a matter of law to establish each element of
the crime at issue. See, e.g., Commonwealth v. Mikitiuk, 213 A.3d 290,
300 (Pa.Super. 2019) (“Whether the evidence was sufficient to sustain the
charge presents a question of law.”). Legal questions are subject to de novo
plenary review. See id.

  My application of our standard of review in this case is consistent with this
Court’s analysis of the mens rea elements of various crimes in similar appeals.
See, e.g., Commonwealth v. MacArthur, 629 A.2d 166, 168-69 (Pa.Super.
1993) (reversing third-degree murder conviction upon concluding that the
defendant’s conduct failed to rise to the level of malice under the
circumstances of the case). Indeed, the dissent’s position appears to be
inconsistent with this Court’s recent sufficiency review in Commonwealth v.
Hoffmann, 198 A.3d 1112, 1119-20 (Pa.Super. 2018) (McLaughlin, J.)
(applying sufficiency standard of review in affirming trial court’s grant of
judgment of acquittal after a jury convicted the defendant of third-degree
murder and aggravated assault; as a matter of law, evidence of the
defendant’s conduct amounted only to gross negligence, not a conscious
disregard of an extremely high risk that her actions would result in death).

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with car that turned off the roadway more slowly than the defendant expected

constituted negligence rather than recklessness or gross negligence).

     I therefore concur.

     Judge Stabile concurs in the result.




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