J. S71011/15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :     IN THE SUPERIOR COURT OF
                                       :           PENNSYLVANIA
                    v.                 :
                                       :
SHONTELLE HARVEY,                      :         No. 2092 WDA 2014
                                       :
                         Appellant     :


            Appeal from the Judgment of Sentence, August 5, 2014,
              in the Court of Common Pleas of Allegheny County
               Criminal Division at No. CP-02-CR-0012853-2013


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND OTT, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED MARCH 09, 2016

        Shontelle Harvey appeals from the judgment of sentence entered

August 5, 2015, following his conviction in a bench trial of one count of

homicide by vehicle while driving under the influence (“DUI”)1; one count of

homicide by vehicle2; one count of accidents involving death or personal

injury3; one count of involuntary manslaughter 4; one count of DUI highest

rate of alcohol (BAC .16+) first offense5; two counts of DUI, general



1
    75 Pa.C.S.A. § 3735(a).
2
    75 Pa.C.S.A. § 3732(a).
3
    75 Pa.C.S.A. § 3742(a).
4
    18 Pa.C.S.A. § 2504(a).
5
    75 Pa.C.S.A. 3802(c).
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impairment, incapable of driving safely first offense6; one count of reckless

driving7; one count of driving at safe speed8; and one count of improper

pass on right9. We affirm.

        The trial court summarized the facts and procedural history as follows:

                    August 18th is [appellant’s] birthday. On that
             day in 2013, he was celebrating the 41st anniversary
             of his birth. It will be one he never forgets. He
             killed someone that day.

                   On May 12, 2014, [appellant] waived his right
             to a jury trial and proceeded with a bench trial. The
             Commonwealth presented testimonial evidence from
             10 people. The defense presented 2 witnesses[,]
             including testimony from [appellant]. The Court,
             after engaging counsel in a spirited debate about
             how the facts match up with the law, found
             [appellant] guilty.[Footnote 1]      His bond was
             revoked and sentencing was scheduled for August 5,
             2014.

                   [Footnote 1]     The guilt determination
                   included the 3 summary offenses
                   (reckless driving, driving at safe speed
                   and improper pass on right), 3 counts of
                   driving under the influence, involuntary
                   manslaughter,      accident     involving
                   death/personal injury, homicide by
                   vehicle and homicide by vehicle while
                   DUI.

                  At sentencing, neither party had any additions
             or corrections to the pre-sentence investigation

6
    75 Pa.C.S.A. § 3802(a)(1).
7
    75 Pa.C.S.A. § 3736(a).
8
    75 Pa.C.S.A. § 3361.
9
    75 Pa.C.S.A. § 3304(a)(1).


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          report. [Appellant’s] presentation included words
          from his godmother, Karrin Herring.               The
          government countered with testimony from Eleanor
          Lee, the aunt of the deceased. The Court also heard
          from both counsel and [appellant].        The Court
          imposed the applicable mandatory minimum
          sentences: 3 to 6 years on the homicide by vehicle
          while under the influence and a concurrent 1 year for
          leaving the scene. Probation of 10 years is to follow
          incarceration.

                 Post-sentence motions were not filed nor was a
          direct appeal taken from the August 5th sentencing
          order. On September 25th, the Court received a
          letter from [appellant]. He asked for a lawyer to
          prepare a post-conviction petition. The request was
          granted. Counsel was able to negotiate with the
          prosecutor’s office and allow for [appellant’s] direct
          appeal rights to be reinstated.           The Court
          memorialized that agreement with a December 17,
          2014 order. A few days later, a timely Notice of
          Appeal was filed. A 1925(b) order was generated
          and counsel complied by filing a Statement of Errors
          Complained of on Appeal on February 25, 2015.

                [Appellant’s] attack is on the sufficiency of the
          evidence. Statement of Errors (“SOE”). ¶ 8(A) and
          (B), (Feb. 5, 2015).[Footnote 2] The particulars of
          his arguments will be better understood after this
          rendition of the facts.

                [Footnote 2]      The absence of post-
                sentence motions does not preclude the
                sufficiency arguments [from] being
                advanced. Pa.R.Crim.P. 606(A)(7) (“A
                defendant may challenge the sufficiency
                of the evidence to sustain a conviction
                . . . in one or more of the following
                ways:     . . . (7) a challenge to the
                sufficiency of the evidence made on
                appeal.[”]).




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          The Facts

                A bar in Ambridge, Pennsylvania was the
          gathering place for 3 friends – Consetta Menta, Tiana
          Freeman and Akeliah Truss. Their gathering included
          some drinking. They didn’t want their fun to stop.
          They wanted to go elsewhere. Ms. Truss called her
          friend, Mr. C., for a ride.

                Mr. C. did not want to go all the way from
          Pittsburgh to Ambridge by himself.        He asked
          Christine Connor to join him. She went along even
          though she saw Mr. C. have a drink and fall down
          the steps. According to Ms. Conner – Mr. C. was not
          intoxicated.  Outside the Dollar General store in
          Ambridge, the 3 young women piled into the
          backseat of Mr. C.’s car. They headed south on state
          route 65 towards Pittsburgh.[Footnote 3]       They
          would never reach their destination.

                [Footnote 3] Route 65 runs parallel with
                the Ohio River.

                 Soon after Mr. C. began his delivery service,
          he and Tiana got in[to] a verbal argument. Most
          likely cause – money. Who was going to pay for the
          ride? The girls or the person whose party they were
          heading to. The verbal sparring did not stop. It
          continued and got so bad that Mr. C. stopped his car
          alongside state route 65. He wasn’t totally off the
          side of the road. He got out of the driver’s seat,
          opened the rear d[r]iver’s door and hit Tiana in the
          arm/shoulder area. This interaction was highlighted
          by Mr. C. calling her a “bitch” followed by a
          command to get out of the car and an attempt to
          pull her out of the car. Tiana remained in the car
          thanks to her seat mate holding her in. The situation
          appeared to have passed when Mr. C. slammed the
          rear, driver’s side door shut. That sound paled in
          comparison to what happened next.

                I didn’t see it but heard it. And, I felt it. That
          is the collective view of those from the backseat. A
          big boom. A smack. The car shook. Where is


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          Mr. C.? The girls got out of the car and walked to
          the front. There was Mr. C. over by the guardrail.
          Laying on the ground. He was not moving. Mr. C.,
          identified as Charles Britt, was dead. He died from
          blunt force trauma to the head, neck, trunk, pelvis
          and extremities as a result of being hit by a motor
          vehicle.

                August 18th was an ordinary start to the day
          for Sarah Tignanelli and Chareese Huff.          Sarah
          picked up Chareese and they began their journey to
          work at the Greater Pittsburgh International
          [A]irport. They, too, were heading south on state
          route 65. Sarah was driving. Chareese was in the
          front passenger seat. About 5 miles north of the
          Sewickley bridge, Sarah noticed a car off on the side
          of the road and someone in the vicinity of the
          driver’s side doors. This person is about an arm’s
          length away from the car and in the traffic lane. He
          was not in the middle of the lane. He was closer to
          the car but still in the lane of travel. Sarah was in
          the left lane going a bit over the speed limit 45 miles
          per hour. She noticed a white SUV begin to overtake
          her car while traveling in the right lane. Just as they
          are both passing Mr. C.’s[] stopped car, Sarah heard
          a loud noise. Immediately, she realized someone
          was hit. She stopped a bit down the road. The
          white SUV did not. Sarah and Chareese came back
          to the scene. The gentleman on the ground was not
          moving.

                 Sewickley police officer, Gregory Mayo, was on
          the force a little over a year on August 18, 2013.
          His police cruiser was stationed at the Sewickley
          Bridge. He was watching traffic on state route 65,
          which is also known as Ohio River Boulevard.
          Around 3 a.m., his curiosity is spiked when he hears
          tires screech. The sound comes from a white SUV
          heading south towards Pittsburgh. He also notices
          the front right fender area has some serious
          damage. The white SUV slows down. Mayo pulls out
          and begins to follow that vehicle. It makes a few
          turns and parks. Officer Mayo sees a gentleman get
          out of the car. Mayo approaches while still in his car.


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          Mayo engages him in conversation. Mayo learns he
          is staying there, he panicked back there at the red
          light, which is why the brakes were hit so hard, and
          the front end damage was done a few weeks ago.
          Mayo pulls off. He notices the man go toward a
          house different than the one he previously
          suggested.      Mayo loops around the block and
          returns.    He sees the man walking down the
          driveway heading towards the white SUV. The man
          stops and walks back up the driveway.

                 Mayo’s suspicions are now on high alert. He
          waits. Soon his radio informs him of an accident.
          The culprit was a white SUV with front end damage
          to the passenger side front. Mayo approach’s [sic]
          the parked vehicle. This time on foot. He sees some
          red substance on the car near the damaged area. It
          looked like blood. When another officer arrives, the
          previously encountered man comes out of the woods
          and says – I did it. I did it. I didn’t mean it. I didn’t
          see him. Officer Mayo placed him in the back seat of
          a police car. Before doing so, Mayo noticed slurred
          speech, red/glassy eyes and he was fumbling with
          his wallet when a fellow officer asked for
          identification. Officer Mayo was of the opinion that
          [appellant] was not fit to drive a car.[Footnote 4]
          [Appellant] was taken to a local hospital for a blood
          draw. [Appellant’s] blood was taken at 3:43 a.m.
          His blood alcohol content was .16.

                [Footnote 4] This opinion was repeated
                by Officer Ian Ging who came to where
                the white SUV was parked at the request
                of Officer Mayo.

                 About 7 hours later, [appellant] is in a room at
          headquarters for the county police. He is advised of
          his rights. He signs the waiver form. He speaks
          with Det. Lori McKeel. [Appellant] talked about his
          drinking history and his travels southbound on Rt. 65
          earlier that day.[Footnote 5] Around 1 a.m.[,] he
          was at a bar and had 4 beers. He left there and
          went to a party, stayed for maybe an hour. He had
          2 maybe 3 beers there. He was driving south on


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            route 65. He noticed traffic was all moving over in to
            [sic] the left lane.      [Appellant] saw someone
            standing in the road in the right lane and felt he had
            enough room to continue his travel in the right lane
            and miss the person. [Appellant] thought he hit the
            stopped car or the person. He didn’t stop because
            he was on probation. He just kept going until he got
            into Sewickley. A friend, with no last name and no
            known address, supposedly lived there. He saw the
            marked police cars by his parked car and knew he
            had done something wrong.

                  [Footnote 5]    [Appellant’s] statement
                  was not only orally recounted by the
                  detective[,] but also a tape recording
                  was played.

Trial court opinion, 1/13/15 at 1-5.

      Appellant raises the following issues for our review:

            I.    WAS THE EVIDENCE INSUFFICIENT AS A
                  MATTER OF LAW TO SUPPORT [APPELLANT’S]
                  CONVICTIONS FOR HOMICIDE BY VEHICLE
                  WHILE DRIVING UNDER THE INFLUENCE,
                  HOMICIDE BY VEHICLE, AND INVOLUNTARY
                  MANSLAUGHTER,       BECAUSE       THE
                  COMMONWEALTH FAILED TO PROVE BEYOND
                  A REASONABLE DOUBT THAT [APPELLANT’S]
                  INTOXICATION AND VIOLATION OF TRAFFIC
                  REGULATIONS   WERE   A   DIRECT   AND
                  SUBSTANTIAL CAUSE OF THE VICTIM’S
                  DEATH?

            II.   WAS THE EVIDENCE INSUFFICIENT AS A
                  MATTER OF LAW TO SUPPORT [APPELLANT’S]
                  CONVICTIONS FOR HOMICIDE BY VEHICLE
                  WHILE DRIVING UNDER THE INFLUENCE,
                  HOMICIDE BY VEHICLE, AND INVOLUNTARY
                  MANSLAUGHTER,        BECAUSE      THE
                  COMMONWEALTH FAILED TO PROVE BEYOND
                  A REASONABLE DOUBT THAT [APPELLANT]
                  ACTED WITH THE REQUIRED RECKLESSNESS
                  OR GROSS NEGLIGENCE?


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Appellant’s brief at 6.

            Our standard of review for a challenge to the
            sufficiency of the evidence is well settled. We must
            view all the evidence in the light most favorable to
            the verdict winner, giving that party the benefit of all
            reasonable inferences to be drawn therefrom.
            Additionally, it is not the role of an appellate court to
            weigh the evidence or to substitute our judgment for
            that of the fact-finder.

Commonwealth v. Alford, 880 A.2d 666, 669-670 (Pa.Super. 2005),

appeal denied, 890 A.2d 1055 (Pa. 2005), quoting Commonwealth v.

Gruff, 822 A.2d 773, 775 (Pa.Super. 2003), appeal denied, 863 A.2d 1143

(Pa. 2004) (citations omitted).

      The motor vehicles code defines homicide by vehicle while DUI as:

            (a)    Offense defined.--

                   Any person who unintentionally causes the
                   death of another person as the result of a
                   violation of section 3802 (relating to driving
                   under the influence of alcohol or controlled
                   substance) and who is convicted of violating
                   section 3802 is guilty of a felony of the second
                   degree when the violation is the cause of death
                   and the sentencing court shall order the person
                   to serve a minimum term of imprisonment of
                   not less than three years.

75 Pa.C.S.A. § 3735(a).

      The motor vehicle code defines homicide by vehicle as:

            (a)    Offense. –

                   Any person who recklessly or with gross
                   negligence causes the death of another person
                   while engaged in the violation of any law of


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                     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 the 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 involuntary manslaughter as:

               (a)   General rule.--

                     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. § 2504(a).

      Appellant first claims that the “[victim’s] wrongful actions superseded

[appellant’s] such that a conviction cannot be sustained.” (Appellant’s brief

at 21.) Stated differently, appellant contends that the victim’s death “would

not have occurred at all without [the victim’s] reckless or negligent acts”

(Id. at 24.)

      In Commonwealth v. Spotti, 94 A.3d 367 (Pa.Super. 2014), we

recently re-examined criminal causation and superceding and intervening

causes, as follows:

               [T]he following definitions are germane to our
               analysis:




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          (a)   General rule.--Conduct is the cause of a
                result when:

                (1)   it is an antecedent but for
                      which the result in question
                      would not have occurred;
                      and

                (2)   the relationship between the
                      conduct and result satisfies
                      any      additional   causal
                      requirements imposed by this
                      title or by the law defining
                      the offense.

          ***

          (c)   Divergence between probable and
                actual result.--When recklessly or
                negligently causing a particular result is
                an element of an offense, the element is
                not established if the actual result is not
                within the risk of which the actor is
                aware or, in the case of negligence, of
                which he should be aware unless:

                (1)   the actual result differs from
                      the probable result only in
                      the respect that a different
                      person or different property
                      is injured or affected or that
                      the probable injury or harm
                      would    have    been     more
                      serious or more extensive
                      than that caused; or

                (2)   the actual result involves the
                      same kind of injury or harm
                      as the probable result and is
                      not too remote or accidental
                      in its occurrence to have a
                      bearing on the liability of the
                      actor or on the gravity of his
                      offense.


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          18 Pa.C.S. § 303(a); (c).

          In [Commonwealth v.] Nunn, [947 A.2d 756
          (Pa.Super. 2008),] we reiterated:

               To establish criminal causation, the
               Commonwealth must prove that the
               defendant’s conduct was so directly and
               substantially linked to the actual result
               as to give rise to the imposition of
               criminal liability.  Commonwealth v.
               Long, 425 Pa.Super. 170, 624 A.2d 200,
               203-204 (1993), appeal denied, 535 Pa.
               645, 633 A.2d 150 (1993) (citing
               Commonwealth v. Rementer, 410
               Pa.Super. 9, 598 A.2d 1300, 1304
               (1991), appeal denied, 533 Pa. 599,
               617 A.2d 1273 (1992)).

               In Rementer, we set forth a two-part
               test for determining criminal causation.
               First, the defendant’s conduct must be
               an antecedent, but for which the result in
               question would not have occurred.
               Rementer,       598    A.2d    at   1305;
               18 Pa.C.S.A. § 303(a)(1).       A victim’s
               death cannot be entirely attributable to
               other factors; rather, there must exist a
               “causal connection between the conduct
               and the result of conduct; and causal
               connection requires something more
               than mere coincidence as to time and
               place.” Rementer, 598 A.2d at 1305,
               n. 3    (quoting   LaFave    and    Scott,
               Substantive Criminal Law, Vol. 1,
               Ch. 3., at 391-392 (1986)). Second, the
               results of the defendant’s actions cannot
               be     so   extraordinarily  remote     or
               attenuated that it would be unfair to hold
               the defendant criminally responsible.
               Rementer, 598 A.2d at 1305.




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               As to the first part of the test, the
               defendant’s conduct need not be the only
               cause of the victim’s death in order to
               establish     a      causal      connection.
               Rementer, 598 A.2d at 1305. “Criminal
               responsibility may be properly assessed
               against an individual whose conduct was
               a direct and substantial factor in
               producing the death even though other
               factors combined with that conduct to
               achieve the result.” Long, 624 A.2d at
               203 (citing Commonwealth v. Skufca,
               457 Pa. 124, 321 A.2d 889 (1974),
               appeal dismissed, 419 U.S. 1028, 95
               S.Ct. 510, 42 L.Ed.2d 304 (1974)). The
               second part of the test is satisfied when
               the victim’s death is the natural or
               foreseeable      consequence        of     the
               defendant’s     actions.       Id.     (citing
               Rementer and Commonwealth v.
               Paquette, 451 Pa. 250, 301 A.2d 837
               (1973)). “Where the fatal result was an
               unnatural or obscure consequence of the
               defendant’s     actions,    justice    would
               prevent us from allowing the result to
               have an impact upon a finding of the
               defendant’s guilt.” Id. at 204, 624 A.2d
               200 (citing Rementer, 598 A.2d at
               1306-1307).

          Nunn, 947 A.2d at 760.

          Recently, in Commonwealth v. Fabian, 60 A.3d
          146 (Pa.Super. 2013), we expressed:

               In seeking to define the requirement that
               a criminal defendant’s conduct be a
               direct factor in the death of another, the
               courts of this Commonwealth have held
               that ‘so long as the defendant’s conduct
               started the chain of causation which led
               to    the    victim’s   death,    criminal
               responsibility . . . may be properly
               found.’


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            Fabian, supra, at 152 citing Commonwealth v.
            McCloskey, 835 A.2d 801, 808 (Pa.Super.2003).

Spotti, 94 A.3d at 375-376.

      Here, although appellant concedes that he “may not have been making

the best of decisions that evening,” he nevertheless complains that, even

though he was driving drunk and struck and killed the victim, the victim was

the legal cause of his own death because he, too, had been drinking that

night and was standing next to his car when appellant struck him down.

(Appellant’s brief at 30.) The record, however, belies appellant’s contention.

      The record reflects that on August 18, 2013, at approximately

3:00 a.m., two eyewitnesses were carpooling to work. (Notes of testimony,

5/12/14 at 16, 31-32.)    The two travelled south on Route 65 in the left

passing lane at approximately 50 miles per hour, which was 5 miles over the

speed limit. (Id. at 16-19, 24, 32.) The passenger testified that she saw a

car parked on the side of the road in the south pull-off lane and that a man

stood outside of the car. (Id. at 17, 20-21.) She further testified that she

thought the man had a flat tire. (Id. at 25.) The driver testified that as she

approached from approximately 50 yards away, she had “no problem”

seeing the victim standing next to his car. (Id. at 37.) The driver and her

passenger both testified that they saw appellant’s white SUV pass them on

the right. (Id. at 20-21, 34-35.) The passenger estimated appellant to be

driving at a speed of 55 to 60 miles per hour, and the driver estimated his



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speed at 66 to 67 miles per hour.       (Id. at 21, 36).   As appellant passed

them on the right, both witnesses heard a loud noise and knew that

appellant’s SUV had struck the victim. (Id. at 19-21, 34-35.)

        Appellant testified to consuming quite a bit of alcohol that night, and

forensic evidence revealed that his BAC level registered at .160, which is

well over the legal limit. (Id. at 151, 117.) Appellant further testified that

as he drove in the right-hand lane on Route 65, he saw cars ahead of him

come to a dead stop and then drive around an “obstruction.” (Id. at 152-

153.)    He also testified that he saw a “black guy” standing in front of a

vehicle. (Id. at 153.) Nevertheless, appellant testified that he continued to

drive in the right lane and then hit what he believed to be a mirror on the

parked car. (Id. at 153-154.)

        The Commonwealth also offered an expert who testified that alcohol

impairs judgment, adversely affects vision and reaction time, and also

affects divided attention skills necessary to safely operate a motor vehicle.

(Id. at 119-120.)

        Viewing the evidence adduced at trial in the light most favorable to the

Commonwealth and giving it the benefit of all reasonable inferences to be

drawn therefrom, the evidence was sufficient to prove beyond a reasonable

doubt that appellant’s conduct was a direct and substantial factor in causing

the victim’s death. By his own admission, appellant saw the victim standing

outside of a parked car. Appellant’s visibility of the victim was so clear that



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appellant was able to identify his race.           But despite seeing the victim and

seeing cars in front of him come to a dead stop and then go around an

“obstruction,” appellant decided to continue driving in the right-hand lane.

As such, the victim’s death was a foreseeable consequence of appellant’s

failure to take any measures to avoid striking the victim with his vehicle,

such as driving around victim, just as appellant saw all of the other drivers

do.   Therefore, appellant’s claim that the evidence was insufficient to

support his convictions of homicide by vehicle while DUI, homicide by

vehicle, and involuntary manslaughter because the Commonwealth failed to

prove criminal causation beyond a reasonable doubt lacks merit.

      Appellant next complains that the evidence was insufficient to convict

him of homicide by vehicle while DUI, homicide by vehicle, and involuntary

manslaughter because he acted with “simple ordinary negligence, not gross

negligence.” (Appellant’s brief at 33 (emphasis in original).)

      To   prove    homicide    by    vehicle      while   DUI,    the    evidence   must

demonstrate that the accused unintentionally caused the death of another

person as the result of DUI.      75 Pa.C.S.A. § 3735(a); Commonwealth v.

Cruz, 71 A.3d 998, 1006-1007 (Pa.Super. 2013).                    In order to convict a

person of that crime, the Commonwealth must prove that the driver acted

with criminal negligence. Commonwealth v. Samuels, 778 A.2d 638, 640

(Pa. 2001). Criminal negligence has been defined as “a gross deviation from

the   standard     of   care   that   a    reasonable      person        would   observe.”



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18 Pa.C.S.A. § 302(b)(4); Commonwealth v. Cheatham, 615 A.2d 803,

806 (Pa.Super. 1992), quoting Commonwealth v. Heck, 535 A.2d 575,

580 (Pa. 1978).

      Here, appellant advances no argument that the evidence was

insufficient to support a finding of criminal negligence and, instead, argues

solely that the level of culpability is gross negligence or recklessness and

that the    evidence   was insufficient   to   establish gross negligence   or

recklessness. Because appellant concedes that the evidence was sufficient

to establish the mens rea of criminal negligence and because the evidence

was sufficient to establish gross negligence/recklessness, as discussed

below, we find it unnecessary to address this claim further.

      To sustain a conviction of homicide by vehicle, the Commonwealth

must prove that the accused caused a death by acting recklessly or with

gross negligence while violating a law or municipal ordinance (with the

exception of DUI) under the conditions set forth in the statute. 75 Pa.C.S.A.

§ 3732(a); Commonwealth v. Pedota, 64 A.3d 634, 636 (Pa.Super.

2013).     Manslaughter requires a mental state of recklessness or gross

negligence.     Commonwealth v. Fabian, 60 A.3d 146, 151 (Pa.Super.

2013).

              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


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               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). The term “grossly negligent” is equivalent to the

term “reckless.”       Commonwealth v. Huggins, 836 A.2d 862, 868 (Pa.

2003).

      Here, viewing the evidence adduced at trial in the light most favorable

to the Commonwealth and giving it the benefit of all reasonable inferences

to be drawn therefrom, the evidence was sufficient to prove beyond a

reasonable doubt that appellant acted recklessly or with gross negligence.

Eyewitnesses testified that appellant was speeding and improperly passing

on the right.      Appellant testified that he saw cars driving around an

“obstruction”    and    that   he   saw    a   man   standing   by   a   parked   car.

Nevertheless, appellant decided against driving around the “obstruction” and

continued to drive in the right-hand lane. Therefore, appellant consciously

disregarded the unjustifiable risk of striking the man with his vehicle and

killing him.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/9/2016




                          - 18 -
