J-S37011-17

                               2017 Pa Super 314



COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellee

                     v.

TINA MARIA MOYER

                          Appellant                  No. 1663 MDA 2016


          Appeal from the Judgment of Sentence Entered June 21, 2016
                 In the Court of Common Pleas of Adams County
                      Criminal Division at No: 0000782-2015


BEFORE: STABILE, J., MOULTON, J., and MUSMANNO, J.

OPINION BY STABILE, J.:                            FILED OCTOBER 02, 2017

      Appellant, Tina Marie Moyer, appeals from the June 21, 2016

judgment of sentence imposing an aggregate 36 to 108 months of

incarceration for homicide by vehicle (75 Pa.C.S.A. § 3732), recklessly

endangering another person (“REAP”) (18 Pa.C.S.A. § 2705), and driving

under the influence of a controlled substance (75 Pa.C.S.A. § 3802).       We

affirm.

      The trial court summarized the pertinent facts in its Pa.R.A.P. 1925(a)

opinion:

            Here, in [the] light most favorable to the Commonwealth
      as verdict winner, the evidence at trial showed the following:
      Appellant was driving her vehicle on Kindig Road, ran a stop sign
      at the intersection of Kindig Road and Route 97, and pulled out
      into oncoming traffic on a busy road with a speed limit of thirty-
      five (35) miles per hour. Appellant’s line of sight going in the
      southbound direction was completely obstructed by a building as
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       Appellant approached the stop sign. Rather than inch up past
       the stop sign to look for oncoming traffic, Appellant never
       stopped and proceeded into the intersection, traveling 12 miles
       per hour, pulling out directly in front of decedent’s northbound
       box truck. The box truck crashed into Appellant’s car, crossed
       the double yellow line, and then crashed into a tow truck driving
       southbound on Route 97.         The evidence also showed that
       Appellant was familiar with her route of travel, the placement of
       the stop sign, and the nature of the intersecting road.

Trial Court Opinion, 11/29/16, at 5.

       At the conclusion of Appellant’s trial, a jury found her guilty of

homicide by vehicle and REAP, but not guilty of homicide by vehicle while

driving under the influence (75 Pa.C.S.A. § 3735).      The trial court found

Appellant guilty of DUI and various summary traffic offenses. On June 21,

2016, the trial court sentenced Appellant to 27 to 84 months of incarceration

for homicide by vehicle, a consecutive 9 to 24 months for REAP, and a

concurrent 3 to six months for DUI.

       On June 23, 2016, two days after Appellant’s sentence, the United

States Supreme Court handed down its decision in Birchfield v. North

Dakota, 136 S. Ct. 2160 (2016), wherein the Court held that criminalization

of a suspect’s refusal to consent to a blood test violates the Fourth

Amendment to the United States Constitution.      Instantly, Appellant claims

that police provided her with Pennsylvania form DL-26,1 which states that

refusal to consent to a blood draw would result in enhanced criminal

____________________________________________


1
    Form DL-26 was revised after Birchfield.



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penalties. Following Birchfield, this Court has held that such penalties are

constitutionally invalid, and that consent obtained under threat of increased

penalties is constitutionally suspect.         Commonwealth v. Giron, 155 A.3d

655 (Pa. Super. 2017) (vacating a sentence that included increased criminal

penalties based on the defendant’s refusal to consent to a blood test);

Commonwealth v. Evans, 153 A.3d 323 (Pa. Super. 2016) (remanding for

evaluation of the validity of the defendant’s consent).            The precise

circumstances of Appellant’s consent were not the subject of a hearing and

therefore are not of record.         The blood draw revealed trace amounts of

Alprazolam and THC.2

       On July 1, 2016, Appellant filed a timely post-sentence motion arguing

that the Commonwealth produced insufficient evidence to support her

homicide by vehicle conviction. The motion did not address Birchfield. The

trial court denied Appellant’s motion on July 11, 2016. On July 13, 2016,

according to the certified docket, Appellant filed an untimely second post-

sentence motion, titled “Motion to Vacate Sentence,” asking the trial court to

vacate her DUI conviction under Birchfield. On August 10, 2016, the trial

court entered an order accepting Appellant’s July 13, 2016 motion as a nunc

pro tunc post-sentence motion. Because the trial court’s August 10, 2016

order fell within 30 days of its July 11, 2016 order denying Appellant’s
____________________________________________


2
  In Commonwealth v. Ennels, ___ A.3d ___ (Pa. Super. 2017) this Court
held that Birchfiled applies to alcohol and drug-related DUI investigations.



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original post-sentence motion, the trial court retained jurisdiction and the

appeal period was tolled. Commonwealth v. Dreves, 839 A.2d 1122 (Pa.

Super. 2003) (en banc).    The trial court denied Appellant’s nunc pro tunc

motion on September 7, 2016, concluding that she was not entitled to

retroactive application of Birchfield because she did not preserve a

challenge to the warrantless blood draw during trial.     Appellant filed this

timely appeal on October 6, 2016.

      Appellant challenges the sufficiency of the evidence in support of her

homicide by vehicle conviction and the legality of her DUI conviction in light

of Birchfield. We will consider these issues in turn. The following standard

governs this Court’s review of a sufficiency of the evidence challenge:

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

Commonwealth v. Kane, 10 A.3d 327, 332 (Pa. Super. 2010), appeal

denied, 29 A.3d 796 (Pa. 2011).

      Section 3732 of the Motor Vehicle Code defines 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

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       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.A. § 3732(a).

       The Crimes Code defines criminal 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).          We have held that “[t]he concept of gross

negligence is encompassed within the concept of recklessness as set forth in

[§ 302(b)(3)].”3      Commonwealth v. Matroni, 923 A.2d 444, 448 (Pa.

Super. 2007).       In construing the definition of recklessness as applied to

§ 3732, we have upheld convictions where the defendant’s conduct

“evidenced a conscious disregard of the substantial and unjustified risk that

he would be involved in a traffic accident causing death.” Id. at 449; see

also Commonwealth v. Grimes, 842 A.2d 432, 435 (Pa. Super. 2004),

appeal denied, 864 A.2d 1203 (Pa. 2004).

____________________________________________


3
    Appellant argues that the trial court erroneously gave an instruction
defining gross negligence as a lesser form of culpability than recklessness.
Appellant’s Brief at 11-12. Appellant also acknowledges that this issue was
not preserved in the trial court. Id. We therefore will not consider it.



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     In Matroni, this Court upheld a conviction under § 3732 where the

defendant, after tailgating a pickup truck in the left southbound lane of the

Fruitville Pike in Lancaster County, abruptly changed lanes several times and

then slammed into a tractor trailer in the left southbound lane.   Matroni,

923 A.2d at 447. The tractor-trailer was forced into the northbound lanes,

where it struck an oncoming car, killing the driver.    Id. at 447-48.   We

reasoned that the defendant’s “speeding, tailgating, and erratically changing

lanes” was sufficient evidence of recklessness. Id. at 448. In Grimes, we

upheld the conviction where the defendant swerved into the oncoming lane

of traffic ten to twenty times and eventually struck the victim’s oncoming

car, killing him. Grimes, 842 A.2d at 433, 435.

     Appellant relies heavily on Commonwealth v. O’Hanlon, 653 A.2d

616 (Pa. 1995) and Commonwealth v. McHale, 858 A.2d 1209 (Pa. Super.

2004). According to Appellant, O’Hanlon provides the following examples

of felonious recklessness: a person who fires a gun into a crowd; a person

who drives his car into a crowd after having aimed it at an individual; or a

person who specifically drives at a pedestrian.”     Appellant’s Brief at 11

(citing O’Hanlon, 653 A.2d at 618).       The O’Hanlon Court does indeed

provide those examples. But in O’Hanlon, the defendant was challenging

the sufficiency of the evidence of the requisite mens rea for aggravated

assault, not homicide by vehicle. Id. at 616. As the Supreme Court noted,

the mens rea for aggravated assault is recklessness “under circumstances


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manifesting extreme indifference to the value of human life.”      Id. at 617

(quoting 18 Pa.C.S.A. § 2702(a)(1)).       Thus, “[t]he offensive act must be

performed under circumstances which almost assure that injury or death will

ensue.”     Id. at 618.    Because the O’Hanlon Court analyzed aggravated

assault, a first-degree felony with a different mens rea requirement than the

third-degree felony of homicide by vehicle, the analysis in O’Hanlon is

inapposite.

      Likewise,    in     McHale,   this    Court   considered   whether   the

Commonwealth produced sufficient evidence of aggravated assault where

the defendant, while intoxicated, drove his vehicle into two victims standing

near a parked car. The defendant fled the scene, was not licensed to drive,

and was uninsured.        McHale, 858 A.2d at 1210-11.    The victims suffered

severe injuries but survived.        Id. at 1211-12.       We explained that

recklessness manifesting extreme indifference to human life is malice. Id.

at 1212.    Malice, in turn, is “wickedness of disposition, hardness of heart,

cruelty, recklessness of consequences, and a mind regardless of social duty,

although a particular person may not be intended to be injured.”       Id. at

1213. We wrote that “motor vehicle crashes seldom give rise to proof of the

malice needed to sustain a conviction for third degree murder or aggravated

assault.”   Id. at 1214 (quoting Commonwealth v. Kling, 731 A.2d 145,

148 (Pa. Super. 1999), appeal denied, 745 A.2d 1219 (Pa. 1999)).           The

McHale Court concluded that the defendant’s intoxication and his failure to


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stop at the scene, while reprehensible, did not constitute malice.        Id. at

1216-18.

      The facts and holding in McHale are not pertinent to the instant

matter, as malice is not at issue.        Nonetheless, we find instructive the

McHale Court’s criticism of the Commonwealth’s apparent attempt to “blur

the lines of criminal liability based upon negligence, ordinary recklessness

and the form of recklessness encompassed in malice, that reflects ‘extreme

indifference to the value of human life’” in order to obtain convictions for

greater offenses Id. at 1218. Appellant, in her reliance on O’Hanlon and

McHale, uses the same line-blurring tactic in an attempt to escape liability

for a lesser offense than aggravated assault.

      Instantly, as set forth in the trial court’s opinion, Appellant drove at a

speed of 12 miles per hour past a stop sign onto a busy street with a

building obstructing her view of the cross traffic as she approached the

intersection.   The speed limit for the cross traffic was 35 miles per hour.

Appellant   was   familiar   with   the   intersection.   Appellant   repeatedly

characterizes her maneuver as a “rolling stop” and a mere vehicle code

violation that did not constitute criminal recklessness. Appellant also notes

that she did not commit multiple vehicle code violations, as did the

defendants in Matroni and Grimes.          She further argues that the victim’s

death was extremely unlikely given the nature of her conduct, and that




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death occurred because the victim was not wearing a seatbelt and because

he was ejected through the open passenger door of his box truck.

        While Appellant would have us dismiss her conduct as a mere rolling

stop, we conclude that the record supports the jury’s finding that Appellant

acted recklessly.   Appellant acknowledges that her vehicle slowed from 25

miles per hour to 12 miles per hour and remained at 12 miles per hour for

two seconds prior to impact. Moving at 12 miles per hour past a stop sign

evidences more than a simple failure to come to a complete stop.

Additionally, we must consider that the stop sign preceded a busy cross

street, and that a building obscured the view of one lane of cross traffic.

Next, we must consider that Appellant was not braking for the final two

seconds before impact, from which we can infer that Appellant did not

observe that the accident was imminent. Finally, we consider that Appellant

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

Thus, it can be can infered that she knew she was turning onto a busy street

and knew that a building partially obscured the view of cross traffic on one

side.    In light of all of this evidence, we conclude the Commonwealth

produced sufficient evidence that Appellant exhibited a “conscious disregard

of the substantial and unjustified risk that [s]he would be involved in a

traffic accident causing death.” Matroni, 923 A.2d at 449. As in Matroni,

Appellant crashed into a vehicle with sufficient impact to force it into the




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opposing traffic lane, where it crashed into an oncoming vehicle, resulting in

a fatality.

         We are willing to assume that the victim’s failure to wear a seatbelt

and his open passenger door significantly increased the possibility of his

tragic death in this instance. The evidence of the victim’s conduct, however,

does not alter our conclusion that Appellant, based on the evidence of her

own conduct, exhibited a conscious disregard of a substantial and unjustified

risk of a fatal accident.     Appellant’s sufficiency of the evidence argument

fails.

         Next, Appellant argues that the trial court erred in declining to vacate

her DUI conviction under Birchfield. As explained above, the United States

Supreme Court handed down Birchfield               two days after Appellant’s

sentence.      Appellant never challenged the warrantless blood draw during

trial, and did not raise any issue under Birchfield until her nunc pro tunc

post-sentence motion.       In Pennsylvania, it has long been the rule that

criminal defendants are not entitled to retroactive application of a new

constitutional rule unless they raise and preserve the issue during trial.

Commonwealth v. Newman, 99 A.3d 86, 90 (Pa. Super. 2014) (en banc),

appeal denied, 121 A.3d 496 (Pa. 2014).          The Newman Court relied on

Commonwealth v. Cabeza, 469 A.2d 146, 148 (Pa. 1983).                 There, the

Supreme Court wrote:

              [W]here an appellate decision overrules prior law and
         announces a new principle, unless the decision specifically

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      declares the ruling to be prospective only, the new rule is to be
      applied retroactively to cases where the issue in question is
      properly preserved at all stages of adjudication up to and
      including any direct appeal.

Id. (emphasis added).        Instantly, Appellant failed to challenge the

warrantless blood draw at any stage of the litigation prior to her nunc pro

tunc post-sentence motion.       Thus, she is not entitled to retroactive

application of Birchfield.

      Appellant argues that she should not have been required to anticipate

the United States Supreme Court’s Birchfield opinion. The same could be

said, however, in nearly every case in which a defendant is denied

retroactive application of a new constitutional principle. The rule permitting

retroactive application was created for the benefit of defendants who raised

and preserved the issue in question and in whose case the issue remained

pending while a higher court decided the issue in a similar case.         The

Cabeza Court explained:

            In both cases, a defense challenge to the ruling was raised
      during trial and the issue preserved and argued in post trial
      motions and on appeal. The only noteworthy difference between
      [Commonwealth v. Scott, 436 A.2d 607 (Pa. 1981),] and the
      appellee is that Scott was argued and decided first. The instant
      case may well have been the case which overruled prior law if
      Scott had not been decided while appellee’s appeal to the
      Superior Court was pending. The question of whether to apply
      an enlightened rule in favor of a discredited one should not be
      determined by the fortuity of who first has his case decided by
      an appellate court.

Id.




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      In contrast, Appellant’s case could not have been the case that

invalidated warrantless blood draws coerced by the threat of criminal

prosecution because Appellant never raised the issue.          Absent further

development of the law of retroactivity from the Pennsylvania Supreme

Court, Appellant is not entitled to rely on Birchfield. The trial court did not

err in refusing to vacate Appellant’s DUI sentence.

      Because we find no reversible error, we affirm the judgment of

sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/2/2017




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