J-A10015-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                v.                             :
                                               :
    DANIEL DAVID GAUGHAN                       :
                                               :
                       Appellee                :      No. 2463 EDA 2017

                      Appeal from the Order June 30, 2017
                In the Court of Common Pleas of Monroe County
              Criminal Division at No(s): CP-45-CR-0002489-2016


BEFORE:      GANTMAN, P.J., McLAUGHLIN, J., and RANSOM*, J.

MEMORANDUM BY GANTMAN, P.J.:                              FILED JULY 03, 2018

       Appellant, the Commonwealth of Pennsylvania, appeals from the order

entered in the Monroe County Court of Common Pleas, which granted in part

the petition for a writ of habeas corpus, filed on behalf of Appellee, Daniel

David Gaughan, and dismissed all the counts with a mens rea of recklessness

or gross negligence,1 arising from a multiple motor vehicle accident, for failure

to present a prima facie case on those counts.2 We affirm.

       The trial court opinion sets forth the relevant facts of this case as

____________________________________________


1 See Commonwealth v. Huggins, 575 Pa. 395, 836 A.2d 862 (2003)
(stating generally that mens rea of recklessness and gross negligence in
criminal context are fundamentally equivalent).

2 Pursuant to Pa.R.A.P. 311(d), the Commonwealth has certified in its notice
of appeal that the trial court’s order substantially handicapped or terminated
the prosecution of the Commonwealth’s case against Appellee. Accordingly,
this appeal is properly before us for review.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A10015-18


follows:

           As a result of a fatal automobile accident in which two
           persons were killed and three others injured, [Appellee] was
           arrested and charged with two counts of Homicide by
           Vehicle, 75 Pa.C.S.A. § 3732; two counts of Involuntary
           Manslaughter, 18 Pa.C.S.A. § 250[4](a); four counts of
           Aggravated Assault by Vehicle 75 Pa.C.S.A. § 3732.1 (A),
           five counts of Recklessly Endangering Another Person
           (“REAP”), 18 Pa.C.S.A. § 2705; and several traffic offenses
           including Reckless Driving, 75 Pa.C.S.A. § 3736(a), Careless
           Driving, 75 Pa.C.S.A. § 3714(a); Traffic Control Signals, 75
           Pa.C.S.A. § 3112(A)(3)(i); Following too Closely, 75
           Pa.C.S.A. § 3310(A); and Driving at a Safe Speed, 75
           Pa.C.S.A. § 3361.        [Appellee] waived his right to a
           preliminary hearing and the charges were bound to court.
           Subsequently, [Appellee] filed an omnibus motion which
           included a petition for habeas corpus relief seeking dismissal
           of all charges.

           At [the] hearing on [Appellee]'s motion, the Commonwealth
           presented the testimony of Stroud Area Regional Police
           Department officer Kenneth Palmer, who qualified as an
           expert in accident reconstruction, and submitted several
           exhibits, including Officer Palmer’s accident reconstruction
           report, his certifications, and an autopsy report and death
           certificate for the decedents. [Appellee] did not present
           evidence. The record was left open for the Commonwealth
           to submit medical evidence regarding the victims referenced
           in Counts 5 and 6. No additional evidence was submitted.
           Both parties asked for and were granted leave to file briefs.
           [Appellee] submitted a brief; the Commonwealth did not.

           Based on the record presented by the parties, the relevant
           facts, summarized in light of the applicable standards, are
           as follows:

              On October 13, 2014, at approximately 9:43 a.m.,
              [Appellee] was driving a Volvo tractor trailer, without
              cargo, south on State Route 209 in Stroud Township,
              Monroe County toward the intersection of Route 209
              and Schafers Schoolhouse Road. At that time, there
              were no adverse road, weather, or lighting conditions,
              the roadway was dry, and it was daylight.

                                       -2-
J-A10015-18



          Route 209 is a four lane road, with two southbound
          and two northbound lanes of travel.           At the
          intersection, there is additionally a left turn lane.
          Traveling south, site distance to the intersection is
          extensive and unobstructed.

          The intersection is controlled by a traffic signal. As
          [Appellee] approached, the signal was red. When a
          Honda Civic travelling south in front of [Appellee]
          slowed for the red light, [Appellee]’s tractor trailer
          rear-ended the car. The Civic was spun off the road
          and then back into the southbound travel lane where
          it was again struck by [Appellee]’s tractor trailer. The
          tractor trailer continued through the intersection and
          collided with a pickup. Tragically, the two backseat
          passengers in the Civic were killed, and the driver and
          passenger were injured. The driver of the pickup was
          also injured.

          Officer Palmer responded to the scene, conducted an
          investigation, and prepared a report. Officer Palmer’s
          investigation revealed that the collision occurred as
          summarized above. In addition, there were no pre-
          impact skid marks. A review of the tractor trailer’s
          Electronic Control Module, or “black box,” revealed
          that [Appellee] did not brake until one-quarter to one-
          half of a second before impact and that prior to
          impact, [Appellee] was travelling 53 miles per hour,
          two miles less than the posted speed limit. Inspection
          of the Civic and pickup revealed that there were no
          mechanical failures relating to either vehicle that
          contributed to the accident. Similarly, inspection of
          the tractor trailer did not reveal any mechanical
          failures that caused or contributed to the accident,
          although the airbrakes could not properly be checked
          because the brake lines could not be activated.

          On completion of his investigation, Officer Palmer
          issued a report that included six conclusions regarding
          the incident. He testified about his conclusions during
          the hearing. The first conclusion is that environmental
          and roadway factors did not contribute to the collision.
          The second and third conclusions determined the Civic

                                   -3-
J-A10015-18


          and pickup did not have any pre-collision defects that
          contributed to the collision. The fourth conclusion has
          three subparts: a) one-half of a second before impact
          the tractor trailer was moving at 53 MPH with no
          braking; b) one-quarter of a second before impact the
          tractor trailer was moving at 53 MPH with the service
          brake applied; and c) at first impact, the tractor trailer
          was moving at 43 MPH with the service brake applied.
          The fifth and sixth conclusions state that the two
          decedents died as a result of blunt force trauma
          sustained in the collision, that the three other victims
          were…injured as a result of the collision, and that the
          collision occurred because [Appellee] “failed to react
          to approaching traffic conditions.”

          Neither alcohol nor controlled substances played a
          part in the tragedy. An evaluation of [Appellee]’s cell
          phone to determine whether he had been using it at
          the time of the accident was inconclusive.          No
          evidence was presented as to observations or
          statements of eye witnesses, if any, the manner in
          which [Appellee] was driving before the accident, his
          prior activities, his physical, mental or emotional
          condition, how long he had been driving that day or
          that week, or his driver’s log book.

       After hearing the evidence and reviewing [Appellee]’s brief
       and the applicable law, we issued the challenged order
       which, as noted, dismissed all offenses that carry a mens
       rea of recklessness. We did not dismiss the remaining
       summary traffic offenses because the Commonwealth had
       unquestionably established a prima facie case of those
       charges.

          1. [Appellee’s] Motion for Habeas Corpus Relief is
          GRANTED in part and DENIED in part. The motion
          is GRANTED as to the counts 1 through 13 and 18,
          all of which charge crimes that require a mens rea of
          recklessness. The motion is DENIED as to counts 14
          through 17, all of which charge crimes that do not
          require a mens rea of recklessness….

          In broad summary, the Commonwealth failed to
          demonstrate in the evidence on record that

                                    -4-
J-A10015-18


            [Appellee’s] failure to recognize the traffic ahead of
            him arose from any affirmative conduct, as opposed
            to inadvertence or inattentiveness.         While the
            evidence presented to the [c]ourt was sufficient to
            demonstrate carelessness or negligence, it did not
            present a basis to conclude [Appellee] was engaging
            in any conduct that would elevate his culpability to a
            conscious disregard of a substantial risk to reach the
            requisite level of recklessness. In this regard, the
            Commonwealth did not file a brief to discuss the
            element of mens rea or point to facts which, under the
            law, established a prima facie case of recklessness.

         (Order, dated June 30, 2017, ¶1). [Appellee] has not
         challenged our denial of his motion as to the summary traffic
         offenses. The Commonwealth filed this appeal.

(Trial Court Opinion, filed September 11, 2017, at 2-5) (internal footnotes and

citations omitted). The trial court did ordered the Commonwealth on July 31,

2017, to file a concise statement of errors complained of on appeal, per

Pa.R.A.P. 1925(b). The Commonwealth timely complied on August 11, 2017.

      The Commonwealth raises the following issue on appeal:

         DID   THE   COMMONWEALTH    PRESENT  SUFFICIENT
         EVIDENCE OF RECKLESSNESS OR GROSS NEGLIGENCE TO
         SUSTAIN THE NECESSARY PRIMA FACIE BURDEN AT A
         HABEAS CORPUS PROCEEDING WITH REGARD TO THE
         CHARGES OF HOMICIDE BY VEHICLE, AGGRAVATED
         ASSAULT BY VEHICLE, INVOLUNTARY MANSLAUGHTER,
         RECKLESSLY ENDANGERING ANOTHER PERSON, AND
         RECKLESS DRIVING?

(Commonwealth’s Brief at 3).

      The Commonwealth argues Appellee drove his tractor-trailer on a major

roadway, at an unsafe speed of 53 mph, failed to apply his brakes until a

quarter of a second before striking the first vehicle twice, failed to stop at a


                                     -5-
J-A10015-18


red light, and struck a second vehicle. The roadway is straight and flat for

approximately a half-mile, with an unobstructed view of the red traffic signal

and of warning lights indicating the presence of a red traffic signal.     The

Commonwealth submits this circumstantial evidence established a prima facie

case as to recklessness or gross negligence, for counts one through thirteen

and count eighteen. The Commonwealth concludes this Court should reverse

the order dismissing the charges at issue and reinstate them. We disagree.

      We emphasize that a pre-trial habeas decision is not subject to an abuse

of discretion standard. Commonwealth v. Karetny, 583 Pa. 514, 880 A.2d

505 (2005). A pre-trial habeas decision on the Commonwealth’s prima facie

case for a charged crime is a question of law subject to plenary review.

Commonwealth v. Dantzler, 135 A.3d 1109, 1112 (Pa.Super. 2016) (en

banc) (citing Karetny, supra).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Jonathan Mark,

we conclude the Commonwealth’s issue merits no relief.         The trial court

opinion fully discusses and properly disposes of the question presented. (See

Trial Court Opinion at pages 6-13) (finding: record shows Commonwealth

failed to demonstrate accident occurred from any affirmative conduct of

Appellee, as opposed to his inattentiveness; Commonwealth presented

evidence sufficient to demonstrate negligence, but it did not present any basis

to conclude Appellee engaged in conduct to elevate his culpability to conscious


                                     -6-
J-A10015-18


disregard of substantial risk to reach requisite mens rea of recklessness;

Commonwealth’s case is that fatal accident occurred because Appellee simply

did not appreciate slowing traffic before him in his travel lane, which absent

more, is insufficient to carry charges requiring mens rea of recklessness;

Commonwealth failed to create jury question involving Appellee’s activities,

state of mind, health, physical condition, or fitness to drive; Commonwealth’s

evidence perhaps established negligence or carelessness or momentary

inattentiveness but not enough to raise permissible inference of recklessness;

despite tragic nature of this case, record does not support mens rea for

contested charges). We agree.

      Further, we reject the Commonwealth’s reliance on Commonwealth v.

Grimes, 842 A.2d 432 (Pa.Super. 2004) and Commonwealth v. Seibert,

799 A.2d 54 (Pa.Super. 2002), as those cases are both procedurally and

substantively inapposite. Here, the Commonwealth is appealing from a pre-

trial habeas corpus decision. The cases the Commonwealth cites involved the

defendants’ appeals following jury verdicts. Moreover, the facts of the Grimes

and Seibert cases included additional relevant factors which established the

mens rea of recklessness. For example, in Grimes, the evidence showed the

defendant had weaved all over the roadway and repeatedly swerved into

oncoming traffic an estimated ten to twenty times, failed to apply his brakes,

and made no attempt to avoid hitting the victim’s car.       In Seibert, the

evidence showed the defendant drove into oncoming traffic and struck a


                                    -7-
J-A10015-18


tractor-trailer head-on. Here, the record is devoid of similar additional factors

to support the inference of recklessness. Any suggestion that a motor vehicle

code violation, without more, is a form of “recklessness per se” is contrary to

case law.      See Commonwealth v. Bullick, 830 A.2d 988, 1003-04

(Pa.Super. 2003) (stating: “What is material is actual reckless driving or

conduct…for it is this conduct which creates the peril in question”).

Accordingly, we affirm on the basis of the trial court’s opinion.

      Order affirmed.

      Judge McLaughlin joins this memorandum.

       Judge Ransom did not participate in the consideration or decision of
this case.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/3/18




                                      -8-
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                                                                                                            Circulated 06/13/2018 02:52 PM




                     COURT OF COMMON PLEAS OF MONROE COUNTY
                           FORTY-THIRD JUDICIAL DISTRICT
                         COMMONWEALTH OF PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA                                    :

                                                                :        No. 2489 CRIMINAL 2016
        V.
                                                                :       Appeal Docket No. EDA 2017

DANIEL DAVID GAUGHAN

        Defendant



          OPINION IN SUPORT OF ORDER PURSUANT TO Pa. R.A.P. 19250)

                                                   Introduction

        On June 30, 2017, we issued an order granting in part Defendant's motion for

habeas corpus relief by dismissing all charges that carry                                      a       mens rea of recklessness.'

The order provided a broad summary of the reasons for our ruling and indicated that an

opinion would follow. Before the opinion was issued, the Commonwealth filed this

appeal. As a result, we issued an order directing the Commonwealth to file a statement

of errors complained of on appeal pursuant to Pa. R.A.P. 1925(b) and held off filing this

opinion so that we could at once state the reasons for our order and address issues

raised by the Commonwealth. The Commonwealth filed a Rule 1925(b) statement.2 We

now file this opinion in accordance with Pa.R.A.P. 1925(a) and our Order.



1 Defendant's habeas motion was part of an omnibus pretrial motion which included other requests for relief that


were resolved during the omnibus hearing and addressed in an earlier order dated February 27, 2017. Neither party
has challenged the rulings pertaining to Defendant's other requests for relief and those rulings are not at issue in this
appeal.

2 In its Rule 1925(b) Statement, the Commonwealth reserved the right to address additional issues because its
statement was filed before this opinion. We do not believe that a party may unilaterally reserve the right to file a
supplemental appeal statement. Nonetheless, fairness dictates that the Commonwealth be given the opportunity to
supplement its statement with new issues after it receives this opinion and has the opportunity to review our
reasoning. If such a request is timely filed, we will grant it.

                                                            1
                                                   aa_tapitituu m ouppuit   Ul %/MCI pUlbUt1114   tu   ra.n.rt.r.ivutat.pup




                                         Background

         As a result of a fatal automobile accident in which two persons were killed and

three others injured, Defendant was arrested and charged with two counts of Homicide

by Vehicle   ,   75 Pa.C.S.A. §3732; two counts of Involuntary Manslaughter, 18 Pa.C.S.A.

§ 2505(a);   four counts of Aggravated Assault by Vehicle 75 Pa.C.S.A. §3732.1(A), five

counts of Recklessly Endangering Another Person ("REAP"), 18 Pa.C.S.A. § 2705; and

several traffic offenses including Reckless Driving, 75 Pa.C.S.A. § 3736(a), Careless

Driving, 75 Pa.C.S.A. § 3714(a); Traffic Control Signals, 75 Pa.C.S. §3112(A)(3)(I);

Following too Closely, 75 Pa.C.S. §3310(A); and Driving at                  a   Safe Speed               ,   75 Pa.C.S.

§3361.     Defendant waived his right to a preliminary hearing and the charges were

bound to court.       Subsequently, Defendant filed an omnibus motion which included a

petition for habeas corpus relief seeking dismissal of all charges.

         At hearing on Defendant's motion, the Commonwealth presented the testimony

of Stroud Area Regional Police Department officer Kenneth Palmer, who qualified as an

expert in accident reconstruction, and submitted several exhibits, including Officer

Palmer's accident reconstruction report, his certifications, and an autopsy report and

death certificate for the decedents. Defendant did not present evidence. The record was

left open for the Commonwealth to submit medical evidence regarding the victims

referenced in Counts       5 and 6. No   additional evidence was submitted. Both parties

asked for and were granted leave to file briefs. (N.T., 2/27/2017, pp. 62-63; Order dated

2/27/2017). Defendant submitted a brief; the Commonwealth did not.

         Based on the record presented by the parties, the relevant facts, summarized in

light of the applicable standards, are as follows:



                                               2
                                              .2.)_Lipililuip ui OUppUIL   Ul   VIUGI pmsuam w ra.R.P1.r, utuktt).pu
                                                                                                          I




       On October 13, 2014, at approximately 9:43 a.m., Defendant was driving a Volvo

tractor trailer, without cargo, south on State Route 209              in Stroud          Township, Monroe

County toward the intersection of Route 209 and Schafers Schoolhouse Road. At that

time, there were no adverse road, weather, or lighting conditions, the roadway was dry,

and it was daylight.

       Route 209 is a four lane road, with two southbound and two northbound lanes of

travel. At the intersection, there is additionally a left turn lane. Traveling south, site

distance to the intersection is extensive and unobstructed.

       The intersection is controlled by a traffic signal. As Defendant approached, the

signal was red. When a Honda Civic travelling south in front of Defendant slowed for the

red light, Defendant's tractor trailer rear -ended the car. The Civic was spun off the road

and then back into the southbound travel lane where          it   was again struck by Defendant's

tractor trailer. The tractor trailer continued through the intersection and collided with                          a


pickup. Tragically, the two backseat passengers in the Civic were killed and the driver

and passenger were injured. The driver of the pickup was also injured. (N.T. 2/27/2017,

pp.39-42; Commonwealth's Exhibit 2, Accident Reconstruction Report, pp. 4-5 and 22;

Affidavit of Probable Cause).

       Officer Palmer responded to the scene, conducted an investigation, and

prepared   a   report.   (N.T., 2/27/2017, Commonwealth's Exhibit 2). Officer Palmer's

investigation revealed that the collision occurred as summarized above. In addition,

there were no pre -impact skid marks. A review of the tractor trailer's Electronic Control

Module, or "black box," revealed that Defendant did not brake until one -quarter to one-

half of a second before impact and that prior to impact, Defendant was travelling 53



                                             3
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miles per hour, two miles less than the posted speed limit. (N.T. 02/27/17, p. 53).

Inspection of the Civic and pickup revealed that there were no mechanical failures

relating to either vehicle that contributed to the accident. Similarly, inspection of the

tractor trailer did not reveal any mechanical failures that caused or contributed to the

accident, although the airbrakes could not properly be checked because the brake lines

could not be activated.3

        On completion of his investigation, Officer Palmer issued a report that included

six conclusions regarding the incident. He testified about his conclusions during the

hearing. The first conclusion is that environmental and roadway factors did not

contribute to the collision. The second and third conclusions determined the Civic and

pickup did not have any pre -collision defects that contributed to the collision. The fourth

conclusion has three subparts: a) one-half of                 a     second before impact the tractor trailer

was moving at 53 MPH with no braking; b) one-quarter of a second before impact the

tractor trailer was moving at 53 MPH with the service brake applied; and c) at first

impact, the tractor trailer was moving at 43 MPH with the service brake applied. The fifth

and sixth conclusions state that the two decedents died as a result of blunt force trauma

sustained in the collision, that the three other victims were in injured as a result of the

collision,   and that the collision occurred because Defendant "failed to react to

approaching traffic conditions." (N.T., 2/27/2017, pp. 34-43; Commonwealth's Exhibit 2,

p. 24   (unnumbered)).

         Neither alcohol nor controlled substances played                                             a    part in the tragedy. (N.T.

02/27/2017, p. 54). An evaluation of Defendant's cell phone to determine whether he


3The owner of the tractor trailer, or possibly its insurer, also performed an investigation. As of the date of the
omnibus hearing, the Commonwealth did not have the report. (NJ., 2/27/2-17, pp 5 and 64-65),

                                                        4
                                              0.)._.lq./1111U11 III   OUppUll   Ul   vrue,   pUlbtleIlL   LV   ran.n.r.   i   uzoka).pui




had been using it at the time of the accident was inconclusive. (Id.). No evidence was

presented as to observations or statements of eye witnesses, if any, the manner in

which Defendant was driving before the accident, his prior activities, his physical,

mental or e motional condition, how long he had been driving that day or that week, or

his driver's log book.

       After hearing the evidence and reviewing Defendant's brief and the applicable

law, we issued the challenged order which, as noted, dismissed all offenses that carry a

mens rea of recklessness. We did not dismiss the remaining summary traffic offenses

because the Commonwealth had unquestionably established a prima facie case of

those charges. The order stated, in relevant part, that:

                     1. Defendant's Motion for Habeas Corpus Relief is
              GRANTED in part and DENIED in part. The motion is
              GRANTED as to the counts 1 through 13 and 18, all of
              which charge crimes that require a mens rea of
              recklessness. The motion is DENIED as to counts 14
              through 17, all of which charge crimes that do not require a
              mens rea of recklessness....

                          broad summary, the Commonwealth failed to
                         In
              demonstrate in the evidence on record that Defendant's
              failure to recognize the traffic ahead of him arose from any
              affirmative conduct, as opposed to inadvertence or
              inattentiveness. While the evidence presented to the Court
              was sufficient to demonstrate carelessness or negligence, it
              did not present a basis to conclude the Defendant was
              engaging in any conduct that would elevate his culpability to
               a conscious disregard of a substantial risk to reach the
               requisite level of recklessness. In this regard, the
               Commonwealth did not file a brief to discuss the element of
              mens rea or point to facts which, under the law, established
               a prima fade case of recklessness.


(Order dated June 30, 2017, ¶1). Defendant has not challenged our denial of his motion

as to the summary traffic offenses. The Commonwealth filed this appeal.



                                              5
                                                   0..)_Vp1111V11   ui ouppuu   VI VIUCI pur buena tu   rd.n".r.iveoi,a).pui




                                         DISCUSSION

         In its Rule 1925(b) statement, the     Commonwealth provides                        a   broad summary of

the events leading up to the collision, reiterates Officer Palmer's conclusions, and

asserts that the evidenced presented was sufficient to establish a prima facie case of

the crimes charged. We disagree.

         Where a criminal defendant seeks pre-trial to challenge the prima facie

sufficiency of the Commonwealth's evidence, he may do so by filing                                a     writ of habeas

corpus with the Court of Common Pleas. Commonwealth                             v.       Carmody, 799 A.2d 143,

146 (Pa. Super. 2002), citing Commonwealth v. McBride, 595 A.2d 589, 590 n. 2 (Pa.

1995).    In   such instances, the habeas court acts in the capacity of a reviewing court to

assess whether sufficient evidence exists to require the defendant to be brought to trial.

Id. at 146-47. During the pre-trial stage of a criminal prosecution, it is not necessary for

the Commonwealth to prove a defendant's guilt beyond                       a    reasonable doubt.                Rather,

the burden is on the Commonwealth to put forth merely a prima facie case of                                               a


defendant's guilt. Commonwealth         v.   Huggins, 836 A.2d 862, 866 (Pa. 2003). Thus, a

petition for writ of habeas corpus is the proper means to test a pre-trial finding that the

Commonwealth possesses sufficient evidence to establish                              a    prima facie case that a

defendant committed the crimes with which he                    is    charged. See Commonwealth                           v.


Saunders, 746, 691 A.2d 946, 948 (Pa. Super. 1997); Commonwealth                                      v.   Rachau, 670

A.2d 731, 734 (Pa. Cmwlth. 1996); Commonwealth v. Kowalek, 647 A.2d 948, 949 (Pa.

Super. 1994).

         In    order to   satisfy its burden of establishing                    a        prima facie case,              the

Commonwealth need only produce legally competent evidence that demonstrates the



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                                               .ao_upluiluit w OUppUll   Ul   vwei   pillW.1011i   IL/   ra.rt.n.r.IUGukcii.pul




existence of each of the material elements of the crimes charged, and the existence of

facts connecting the accused to the crimes charged. Commonwealth                                    v.     Wojdak, 466

A.2d 991, 996 (Pa. 1983). The absence of evidence as to the existence of a material

element is therefore fatal. Commonwealth       v.   Ludwig, 874 A.2d 623, 632 (Pa. 2005),

citing Commonwealth   v.   Wojdak, 466 A.2d 991, 996-97 (Pa. 1983). The proof need only

be such that, if the evidence were presented at the trial court and accepted as true, the

judge would be warranted in allowing the case to go to the jury. Id. at 368, 466 A.2d at

996, quoting Commonwealth ex rel. Scolio v. Hess, 27 A. 2d 705, 707 (Pa. Super.

1942). Finally, "inferences 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." Huggins, 836 A.2d at 866.

      The issue presented      in   this matter is whether the Commonwealth made out a

prima facie case for the mens rea (recklessness) necessary to support the charges of

Homicide by Vehicle, Aggravated Assault by Vehicle, Involuntary Manslaughter, REAP,

and Reckless Driving (collectively the "Contested Charges"). For reasons stated in our

June 30, 2017 order, as amplified below, we found that it did not. Upon review prompted

by this appeal, we remain convinced that, on the record presented, our conclusion is

correct.

       The Contested Charges are defined as follows:

       75 Pa.C.S.A. § 3732 - Homicide by Vehicle

       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



                                               7
                                                      QuppuiL   LII   viuei   pUlbLidlll        w<ukcu.pui




     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.A. § 3732.1   - Aggravated Assault by Vehicle
     Any person who recklessly or with gross negligence causes serious
     bodily injury to 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 aggravated assault by vehicle, a
     felony of the third degree when the violation is the cause of the
      injury.

      18 Pa.C.S.A. § 2504 - Involuntary Manslaughter

      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.A. § 2705 - Recklessly Endangering Another Person

      A person commits a misdemeanor of the second degree if he
      recklessly engages in conduct which places or may place another
      person in danger of death or serious bodily injury.

      75 Pa.C.S.A. § 3736(a)   -   Reckless Driving

      Any person who drives any vehicle in willful or wanton disregard for
      the safety of persons or property is guilty of reckless driving.

      Over the years, the elements of the Contested Charges, including the requisite

levels of culpability necessary to sustain the charges, have undergone changes. While

the elements and the language used to describe the required mens rea still differ

between the offenses, it is, at present, clear that all of the Contested Charges require

that the defendant act in a reckless manner as defined in 18 Pa.C.S.A Section

302(b)(3). See Huggins, supra (involuntary manslaughter); Commonwealth                     v.   Grimes,

842 A.2d 432, 434 (Pa. Super. 2004) (homicide by vehicle); Commonwealth                    v.   Bullock,



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830 A.2d 998, 1002 (Pa. Super. 2003) (willful and wanton level of culpability required for

conviction for reckless driving is interpreted identically to recklessness as defined in 18

Pa.C.S.A Section 302(b)(3)); Commonwealth            v.   Mastromatteo, 719 A.2d 1081, 1083-84

(Pa. Super. 1998) (REAP). In addition, the terms "gross negligence" and "reckless,"

used in both the Involuntary Manslaughter and Homicide by Vehicle provisions, have

been construed by our Supreme Court as defining the same state of mind. See

Huggins, supra; Commonwealth         v.   Comer, 716 A.2d 593 (Pa. 1998); Commonwealth                                  v.


Lobiondo, 462 A.2d 662, 665 (Pa. 1983).

        Section 302 of the Crimes Code defines recklessness 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.A. § 302(b)(3). Conscious disregard             of   a   risk requires that a defendant first

becomes aware of the risk and then chooses to proceed in spite of it. Huggins, 836 A.2d

at 865. To determine whether the Commonwealth presented prima fade evidence that

a   defendant has acted   in a   reckless manner, a court must look at all the circumstances

that reveal whether or not a defendant consciously disregarded a material element of

the relevant offense. (Id.). See also 18 Pa.C.S.A. § 302(b)(3).                            Simple negligence, or

even "criminal negligence" as defined in Section 302(b)(4) of the Crimes Code, is

insufficient to establish the requisite state of mind or level of culpability for the contested

charges. See Huggins, supra. Along the same lines, not every violation of the vehicle

code or careless act on the highway will render an operator criminally liable for deaths


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which may result.      See Commonwealth v. Heck, 491 A.2d 212 (Pa. Super. 1985);

Commonwealth     v.   Trainor, 381 A.2d 944, 946-47 (Pa. Super. 1977). Similarly, not every

violation of the vehicle code elevates a traffic offense to the category or recklessness.

See Comomnwealth        v.   Greenberg, 885 A.2d 1025, 1026 (Pa. Super. 2005) (by itself,

driving "too fast to negotiate a curve in the road or, alternatively, fail[ing] to sufficiently

reduce [one's] speed to negotiate that curve            does notftse to the level of recklessness

that is the hallmark of the offense of reckless driving").

       In sum,   the cited cases teach that an act of inattentiveness, carelessness, or

negligence, even criminal negligence in the statutory meaning of that term, is not

enough to establish recklessness. Instead, the defendant must be shown to have

consciously disregarded       a   known risk. The oft -cited case of Huggins, supra., illustrates

these principles.

       In Huggins, the defendant was driving a 15 passenger van filled with 24

occupants, 21 of whom were unrestrained children. Some of the children were sitting on

the floor. While driving at least 23 miles per hour over the posted speed limit, the

defendant fell asleep, crossed the center line of the road, struck another vehicle, and

then rolled over. Tragically, two of the minors in the van died as a result of the accident.

Other occupants were injured. The defendant was charged with multiple counts of

Aggravated Assault, two counts of Involuntary Manslaughter, two counts of Homicide by

Vehicle, multiple counts of REAP, and various traffic offenses. This Court and the

Superior Court determined that the Commonwealth had failed to establish                             a   prima facie

case of the required mens rea           -   recklessness or gross negligence -- to sustain the

involuntary manslaughter charge. The focus to some extent in the lower courts was



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whether the act of falling asleep, which uncontestably constituted carelessness or

negligence, rose to the level of recklessness. On appeal, the Supreme Court reversed.

       The Supreme Court first reviewed and explained the law summarized above.

The Court reiterated that recklessness was required. The Court noted that falling asleep

while driving might be probative of recklessness, but declined to determine whether the

act_of falling asleep, by itself, raises a jury question_af_re_cklessness, The Court saw no

need to answer this question because there were other facts which, viewed together,

demonstrated the requisite conscious disregard of a known risk. Specifically, the

Supreme Court held that under the totality of the circumstances                          - falling asleep while
speeding with an overloaded van full of unrestrained children                     - the defendant's actions
constituted recklessness as defined in Section 302(b)(3) of the Crimes Code. See also

Commonwealth     v.   Pedota, 64 A.3d 634 (Pa. Super. 2013) (for Homicide by Vehicle and

Involuntary Manslaughter, a driver's falling asleep while operating                        a   tractor trailer on an

interstate constitutes recklessness, unless the driver can show that he was deprived of

both the warning signs of sleep and the opportunity to bring the vehicle to a stop before

the onset of sleep).

       In this case, as indicated in the order under appeal, the Commonwealth failed to

demonstrate in the evidence on record that Defendant's failure to recognize the traffic

ahead of him arose from any affirmative conduct, as opposed to inadvertence or

inattentiveness. While the evidence presented by the Commonwealth was without doubt

sufficient to demonstrate carelessness or negligence, it did not present                                a   basis to

conclude the Defendant was engaging in any conduct that would elevate his culpability

to a conscious disregard of a substantial risk so as to reach the requisite level of



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recklessness. In addition, the Commonwealth has to date not provided any legal

support for its position.

         The Commonwealth's entire case is that this fatal motor vehicle accident

occurred when, for factually unexplained reasons, Defendant failed to recognize the

slowing traffic in the travel lane in front of him and some traditional non -criminal causes

(i e_   weather, mechanical defects in the vehicles,_defe_ctsin_theroa_d, or obstructed

sight distance or visibility) have been ruled out. Under the law cited above, this is not

enough to sustain the charges that carry a mens rea of recklessness.

         In this regard, the Commonwealth did not present evidence of the type that has

traditionally been deemed sufficient to raise a jury question regarding recklessness.

Defendant was not intoxicated, by drugs or alcohol, at the time of the accident. He was

not speeding; in fact, evidence indicates that he was driving just under the speed limit.

There is no evidence of Defendant's activities, state of mind or health, or physical

condition prior to the accident, and there is not even a suggestion that he was not fit to

drive. Similarly, there is no evidence that Defendant was driving erratically, was

consistently inattentive on the road, or that he violated regulations regarding the number

of hours he drove on the day or during the week of the collision or the amount of rest he

was required to have. Further, there is no claim that Defendant, like the defendants in

Huggins and Pedota, fell asleep.

         Simply, the evidence established negligence, carelessness, and inattentiveness.

However, neither negligence nor the mere occurrence of an accident, even a fatal

accident, without more, is enough under the current law to establish or raise a

permissible inference of recklessness sufficient to support the Contested Charges.



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        In sum,   despite the tragic nature of this case, on the record presented we were

constrained to hold that the Commonwealth failed to establish the requisite mens rea for

the Contested Charges.


                                                                  BY TH          OURT,

DATE:       71111         -t -7-                                        AT       N   MARK,


                                                                                                 Clerk of Courts
Cc:     Superior Court of Pennsylvania
        Jonathan Mark, J.                                                               SEP      11'17 pm2:01
        District Attorney (CR)
        Public Defender (CB)




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