Opinion
2591 EDA 2021
02-24-2023
COMMONWEALTH OF PENNSYLVANIA v. KEVIN R. PETERS Appellant
Joseph D. Seletyn, Esq.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered October 15, 2021 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0003901-2020.
Joseph D. Seletyn, Esq.
BEFORE: LAZARUS, J., MURRAY, J., and McCAFFERY, J.
MEMORANDUM
LAZARUS, J.:
Kevin R. Peters appeals from the judgment of sentence, entered in the Court of Common Pleas of Bucks County, following his convictions of two counts each of third-degree murder, aggravated assault - serious bodily injury, recklessly endangering another person, homicide by vehicle while driving under the influence (DUI), aggravated assault by vehicle while DUI, homicide by vehicle, and aggravated assault by vehicle. The trial court separately found Peters guilty of DUI - general impairment, DUI - high rate of alcohol, and summary offenses of driving within single lane, following too closely, driving vehicle at safe speed, and reckless driving (collectively, "non-jury offenses"). Peters challenges the sufficiency of the evidence with respect to the third-degree murder and aggravated assault convictions. In particular he argues the Commonwealth did not prove malice. After careful review, we affirm in part, reverse in part, and vacate Peters' convictions of third-degree murder and aggravated assault - serious bodily injury.
Id. at § 2702(a)(1).
Id. at § 2705.
Id. at § 3735.1(a).
Id. at § 3732(a).
Id. at § 3732.1(a).
Id. at § 3802(a)(1).
Id. at § 3802(b).
Id. at § 3309(1).
Id. at § 3310(a).
Id. at § 3361.
Id. at § 3736(a).
The trial court summarized the factual history as follows:
Shortly after midnight on Friday, December 6, 2019, Nicholas Hafto called 911 police emergency and reported that he was driving on Interstate 95 (I-95) North, and that "there is a white Mazda SUV, swerving, almost sideswiped me, he came flying right by me." At trial, [] Hafto further explained that the SUV erratically changed speeds, back and forth from fast to slow. He stated that the SUV made an abrupt exit off I-95 at the Route 29 New Jersey
exit, noting that while exiting, the operator of the SUV slammed on his brakes.
Another motorist, Scott Emrick, also called 911. He reported that he was also traveling on I-95 and observed a white Mazda SUV "swerving left and right." He also reported erratic acceleration, deceleration, and a sharp exit off I-95 and noted that the vehicle's headlights were not on.
Surveillance cameras captured images of the SUV as it exited I-95 into New Jersey. Approximately one minute later, the vehicle reentered the highway and proceeded south.
At approximately 1:00 a.m., Edmonde Sestini, Jr., a driver working for Clarion Ambulance, was driving south on I-95 at a speed between 50 and 60 miles per hour [(mph)] when a white Mazda SUV passed him at a high rate of speed. [] Sestini testified that the SUV "came flying past me on the left-hand side." Approximately half a minute later, and approximately [one-]half[ ]mile further down I-95, [] Sestini came upon the SUV stopped behind a second vehicle[,] which was facing north in the southbound lane of traffic and completely engulfed in flames. One man had already been able to get out of [the burning] vehicle, [and] another man was trying to get out. [] Sestini and his partner removed [Peters] from behind the wheel of the [white Mazda] SUV, and due to complaints of hip pain, placed him on the ground and dragged him away from the fire.
The collision occurred near the Ford Road overpass in Bristol Township, Bucks County. At approximately 1:05 a.m., the State Police were dispatched. Upon arrival at the scene, police found a van fully engulfed in flames and a 2016 Mazda CX-5 SUV, bearing PA registration KFY-1783, with heavy front-end damage. . . . [Peters] was transported from the scene to Jefferson Torresdale Hospital in Northeast Philadelphia.
Two men involved in the collision, . . . Juan Tavarez, and his son, Charlys Tavarez Santelises, were able to extricate themselves from the burning vehicle and make their way to Jefferson Torresdale Hospital. The bodies of [Tavarez's other son, Juan Jose Tavarez Santelises] and Claribel Dominguez were removed from the rear seat of the van. Later that same day, forensic pathologist Dr. Ian Hood autopsied the bodies and determined to a reasonable
degree of medical certainty that thermal burns caused the death of both individuals.
The survivors, [] Tavarez and [] Santelises, suffered permanent injuries and testified at length to the extent of their injuries and the treatment they received.
* * *
Subsequent investigation into the cause of the collision revealed that the occupants of the van were driving on I-95 south returning from working an 11-hour shift at a New Jersey package[-]sorting plant. [] Tavarez, the driver of the van, drove at a speed of between 50 and 55 [mph] as a precautionary measure due to a slight whistling sound in the van. Because of their reduced speed, . . . Tavarez[] activated his emergency flashers and moved into the right lane of traffic. The first indication that he had of what was about to occur was what [] Tavarez described to be like a bomb going off, immediately followed by an engulfing fire.
[Peters] had spent the evening at an open bar social event before proceeding to two separate bars. The open bar event was held in a private room at Ruth's Chris Steak House in Philadelphia and ran from 5:00 p.m. through 8:00 p.m. During these hours[, Peters] was drinking vodka. He and his co-workers then moved to the [Ruth's Chris Steak House] public bar where [Peters] consumed bourbon. Co-worker Jacquelyn Smith testified that she had offered [Peters] a ride home shortly after 10:00 p.m., but he declined, instead [] asking to be taken to another bar, the "Rogue's Gallery," with one of his co-workers. The other co-workers used private transport services. A receipt from the Rogue's Gallery indicated three drinks were ordered in total: one "Love City Lager" and two "Neshaminy 2X IPAs." [Peters] testified that he consumed two of these drinks. The bill was paid at 12:18 a.m. Shortly thereafter, a video from the parking garage of [Peters'] workplace showed that he was unable to operate the automated payment machine. [Peters] physically lifted the gate to leave the garage[, causing damage to the gate]. Once he left the garage, surveillance cameras captured images of [Peters] driving through a stop sign. Video surveillance footage from the Scudder-Falls Bridge area as it crosses [from] Pennsylvania into New Jersey shows [Peters] changing lanes and exiting the highway without using turn signals.
On December 6, 2019, at 1:45 a.m., an employee of Jefferson Torresdale Hospital drew a blood sample from [Peters]. Police seized a serum plasma sample from [the blood previously drawn on December 6, 2019] pursuant to a search warrant executed on December 18, 2019. That sample was later submitted to National Medical Services for analysis. The alcohol content of the serum plasma was determined to be 183 milligrams per deciliter. The plasma alcohol concentration was then converted into whole blood alcohol concentration [(BAC)]. [Peters] had a [BAC] of .151 percent. Toxicologist Donna Papsun offered her expert opinion that an individual with a BAC of .151 percent is incapable of safe driving.
Corporal Brianne Glad, an accident reconstruction expert, testified that she downloaded information from the event date recorder, or "black box," from [Peters'] vehicle. That information established [Peters] was traveling at a speed of 113 [mph] five seconds prior to the collision with the victims' van. . . . Half a second prior to the collision, [Peters] was traveling at 115 [mph]. [Peters] did not apply [his vehicle's] brakes until [] four-tenths of a second before impact. [Peters testified that immediately before the collision, he momentarily took his eyes off the road, and reached over to retrieve his cell phone, located in a backpack on the front passenger seat.]Trial Court Opinion, 3/4/22, at 1-3, 5-6 (citations omitted).
In May 2020, the Commonwealth charged Peters with the aforementioned offenses. On September 13, 2021, Peters proceeded to a jury trial. The jury subsequently convicted Peters of the aforementioned crimes, and the trial court convicted him of the non-jury offenses. On October 15, 2021, the trial court imposed an aggregate sentence of 19½ to 39 years of imprisonment. Ten days later, Peters filed a motion for reconsideration of sentence, which the trial court denied on November 9, 2021. Peters filed a timely notice of appeal. Both Peters and the trial court have complied with Pa.R.A.P. 1925.
Peters now raises a single question for our review:
Was the evidence insufficient as a matter of law to sustain the verdicts for [t]hird[-d]egree [m]urder and [a]ggravated [a]ssault [- c]ausing [s]erious [b]odily [i]njury where the prosecution['s] proof showed that [Peters], intoxicated, caused a tragic accident resulting in deaths and injuries but did not establish the requisite mens rea of malice?
Brief for Appellant, at 5.
Peters' sole contention on appeal is that the Commonwealth presented insufficient evidence to prove he acted with malice in the vehicle accident that caused the deaths of Juan Jose Tavarez Santelises and Claribel Dominguez, as well as the serious injuries of Juan Tavarez and Charlys Tavarez Santelises. See id. at 17-26. Peters argues that, under Pennsylvania law, merely driving while intoxicated does not sustain a finding of malice. Id. at 18-20. Peters contends that he, while driving at high speeds, attempted to apply the brakes prior to the accident and attempted to swerve out of the way of the minivan. Id. at 20-26. Peters asserts that, just prior to the accident, he was seen operating his vehicle at speeds both higher and lower than the posted speed limit, passing vehicles in the left lane, exiting a highway at a safe speed, and operating his vehicle within a single lane of travel. Id. Additionally, Peters argues that no one, prior to the accident, informed Peters that he was too drunk to drive. Id. at 20. Peters further argues that he has no history of drunk driving, or being too intoxicated to drive, that none of the videos depicts any signs of visible impairment, and that he was not belligerent after the crash and did not attempt to the flee the scene. Id. In total, Peters asserts that these factors preclude a finding of malice under Pennsylvania case law. Id. at 20-26. We are constrained to agree.
When examining a challenge to the sufficiency of the evidence, we adhere to the following standard of review:
The standard we apply in reviewing the sufficiency of the evidence is whether[,] viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying [the above] test, we may not [re-]weigh the evidence and substitute our judgment for [that of] the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that[,] as a matter of law[,] no probability of fact may be drawn from the combined circumstances. The
Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the [trier] of fact[,] while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part[,] or none of the evidence.Commonwealth v. Smith, 97 A.3d 782, 790 (Pa. Super. 2014) (citation omitted).
The Crimes Code defines aggravated assault - serious bodily injury as "when a person attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly[,] or recklessly under circumstances manifesting an extreme indifference to the value of human life." 18 Pa.C.S.A. § 2702(a)(1).
The Crimes Code defines third-degree murder as "[a]ll other kinds of murder" other than first and second-degree murder and classifies it as "a felony of the first degree." 18 Pa.C.S.A. § 2502(c). To sustain a conviction of third-degree murder, the Commonwealth must prove that the defendant killed another person with malice. Commonwealth v. Hardy, 918 A.2d 766, 774 (Pa. Super. 2007). "Third[-]degree murder occurs when a person commits a killing [that] is neither intentional nor committed during the perpetration of a felony, but contains the requisite malice." Commonwealth v. Truong, 36 A.3d 592, 597 (Pa. Super. 2012) (en banc) (citation omitted). Malice is a legal term, which encompasses "not only a particular ill-will, but every case where there is a 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." Commonwealth v. Packer, 168 A.3d 161, 168 (Pa. 2017) (citation omitted). A fact-finder may find malice not only in an intentional killing, "but also in an unintentional homicide where the perpetrator consciously disregarded an unjustified and extremely high risk that his actions might cause death or serious bodily injury." Commonwealth v. Ludwig, 874 A.2d 623, 632 (Pa. 2005) (quotation and citation omitted).
The malice requirements for aggravated assault and third-degree murder are the same. Packer, 168 A.3d at 168. The malice required to sustain a third-degree murder or an aggravated assault conviction exists "where the accused acts in gross deviation from the standard of reasonable care, failing to perceive that such actions might create a substantial and unjustifiable risk of death or serious bodily injury." Commonwealth v. Mercado, 649 A.2d 946, 955 (Pa. Super. 1994) (citation omitted). "In view of this heightened mens rea, motor vehicle crashes seldom give rise to proof of the malice needed to sustain a conviction for third[-]degree murder[.]" Commonwealth v. Kling, 731 A.2d 145, 148 (Pa. Super. 1999). "However, in some circumstances, the malice requirement has been met, and this [C]ourt has not hesitated to uphold an aggravated assault or a third[-]degree murder charge depending on the particular facts of a motor vehicle crash." Commonwealth v. Riggs, 68 A.3d 780, 785 (Pa. Super. 2012).
In the context of a DUI, the decision to drive while under the influence of alcohol and/or a controlled substance does not, standing alone, constitute malice. Commonwealth v. O'Hanlon, 653 A.2d 616, 618 (Pa. 1995). This type of crime "requires a higher degree of culpability, i.e., that which considers and then disregards the threat necessarily posed to human life by the offending conduct," and entails "an element of deliberation or conscious disregard of danger[.]" Id. "For th[is] degree of recklessness . . . to occur, the offensive act must be performed under circumstances [that] almost assure that injury or death will ensue." Id. (emphasis added). "The recklessness must, therefore, be such that life threatening injury is essentially certain to occur." Id. (emphasis added). "This state of mind is, accordingly, equivalent to that which seeks to cause injury." Id. This mens rea requirement is met only in circumstances where "the defendant could reasonably anticipate that serious bodily injury or death would be the likely and logical consequence of his actions . . . [but that] consequence was ignored." Packer, 168 A.3d at 170-71 (reaffirming distinction between ordinary recklessness and malice).
Pennsylvania courts have frequently had occasion to address the concept of "malice" as applied in the context of motor vehicle accidents. Our Supreme Court previously announced the requisite degree of malice and recklessness, described above, in O'Hanlon, supra and Commonwealth v. Comer, 716 A.2d 593 (Pa. 1998), and recently reaffirmed in Packer, supra. In Packer, our Supreme Court addressed this "notice," or "warning," requirement of malice with respect to motor vehicle accidents, noting:
Packer huffed DFE [difluoroethane] immediately prior to and while operating a vehicle on a public highway. She knew, from the clearly marked label and the bittering agent added to the Dust-Off, that this product was not intended to be ingested. She further knew, from her numerous prior experiences with huffing, that the effects of DFE on her were immediate, debilitating[,] and persisted for ten to fifteen minutes following inhalation. Moreover, she knew that huffing had caused her to lose consciousness on other occasions in the past.
With all of this knowledge of DFE and the immediate and overwhelming effects it had on her, she nonetheless made the conscious and informed decision to huff four or five bursts of DFE, inhaling the chemical for a total of fourteen to twenty-four seconds within a five-minute timespan. She inhaled immediately before driving on a public roadway and again while temporarily stopped a red light. Precisely what had previously occurred after huffing
happened to her again on the night in question-after inhaling her final bursts of DFE at the red light and proceeding to drive her vehicle on the public highway, she lost consciousness. Predictably, without control of her vehicle, she killed [the victim].
Viewing the evidence, as we must, in the light most favorable to the Commonwealth, her awareness of the particular dangers her conduct posed is further demonstrated by her behavior before and after the accident. The record reflects that after huffing in the Walmart parking lot, but before driving, she paused to ask [her fiancé] how much he trusted her. . . . [I]mmediately following the accident (after she regained consciousness), she lied about what happened, asked about the detectability of DFE in her bloodstream, and repeatedly asked if she was going to jail.
This is not a typical case of ordinary recklessness that arises when someone chooses to drive while intoxicated. Packer consciously disregarded an unjustified and extremely high risk that her chosen course of action might cause a death or serious bodily injury. Because of Packer's history of losing consciousness after huffing and her knowledge of the immediacy of the effects of huffing on her, she "could reasonably anticipate that serious bodily injury or death would be the likely and logical consequence of [her] actions . . . [but] the consequence was ignored.Packer, 168 A.3d at 171 (emphasis added) (citations omitted).
In Comer, the defendant drove after drinking and ingesting "muscle relaxers." See Comer, 716 A.2d at 595. The defendant was observed, just prior to the crash, scraping his right tire against the curb, traveling in excess of the speed limit, veering off the road, and crashing through a bus stand and into a brick wall. Id. He struck two pedestrians in the process, killing one and seriously injuring the other. Id.
Our Supreme Court concluded that the evidence in Comer did not support a finding of malice. Notably, the Court determined that after examining the defendant's behavior before and after the accident, there was no evidence "that he was aware of his reckless conduct" or that he "considered, then disregarded, the threat to the life of the victim." Id. at 596-97.
Instantly, the trial court concluded that the Commonwealth had presented sufficient evidence of malice. See Trial Court Opinion, 3/4/22, at 10-12. The trial court relied on a series of decisions made by Peters and found that he had exhibited a "conscious disregard for the safety of others." Id. at 10. In particular, the trial court faulted Peters for failing to take the train home; failing to stay at a hotel; failing to take an Uber, Lyft, or taxi; failing to accept a ride offered by a co-worker; deciding to drive after he was unable to operate the parking garage gate; failing to use turn signals; alternating his speeds from fast to slow; passing other vehicles too closely; and taking his eyes off the road to look for his phone. Id. at 11.
The Commonwealth, in its brief, argues the same points as relied upon by the trial court. See Commonwealth's Brief, at 27-57. The Commonwealth further contends that Peters' actions were malicious, cruel, and demonstrated a lack of care for others' safety. Id.
After reviewing the record, we conclude that the Commonwealth failed to present sufficient evidence of the required malice to sustain Peters' convictions of aggravated assault and third-degree murder. First, malice requires that the recklessness exhibited must be essentially certain to cause the death or serious bodily injury. See O'Hanlon, supra; Packer, supra. It is insufficient to prove that someone's bad decisions could have or may have or likely would result in death or serious bodily injury. O'Hanlon, supra; Packer, supra. The trial court's opinion omits mention of this essential requirement, and the Commonwealth appears to ignore it as well, encouraging this Court to view the facts in a light inappropriately favorable to itself. See Trial Court Opinion, 3/4/22, at 1-12; Commonwealth's Brief, at 29, 30, 50.
The Commonwealth also suggests that the proper analysis of malice is whether Peters' actions "might" create a risk of death or serious bodily injury and that Peters should have "reasonably anticipate[d]" that death or serious bodily injury would "likely" result." See id. at 29, 30, 50. This interpretation of the law is incorrect and represents a significantly lesser burden than Pennsylvania courts have routinely required for decades. See Packer, supra; O'Hanlon, supra.
Second, Peters' decisions to drive his vehicle instead of taking a train or taxi, and to use a highway rather than a local road, are of no moment. See Trial Court Opinion, 3/4/22, at 10-11. Indeed, our law is clear that the mere decision to drive intoxicated does not satisfy the malice requirement. If these factors met the requirement of malice, then every DUI homicide would result in a third-degree murder conviction. We emphasize, again, that merely driving drunk does not meet the heightened mens rea requirement outlined in O'Hanlon and Comer, and reaffirmed in Packer.
Third, the facts of this case reveal that the Commonwealth failed to present sufficient evidence of the "warning" requirement of malice necessary for third-degree murder and aggravated assault in the DUI context. Peters' inability to operate the parking garage kiosks is not a "warning" contemplated by our case law. See Commonwealth v. Urbanski, 627 A.2d 789, 793 (Pa. Super. 1993) (concluding appellant's wife's repeated reminders of the danger of drunk driving and repeated requests he let her drive instead, conveyed a sufficient warning for malice). Additionally, the record is equally silent on whether Peters had a history of drunk driving. See Packer, supra (defendant's personal knowledge that inhaling DFE caused defendant to black out previously while driving plus asking if fiancé "trusted her," exhibited conscious disregard for almost certain death or serious bodily injury). Moreover, the Commonwealth's urging that the malice requirement is satisfied because "every adult" knows the dangers of alcohol is similarly unavailing. Indeed, as we stated and emphasize above, merely driving while intoxicated does not create the requisite malice for third-degree murder or aggravated assault serious bodily injury. See Packer, supra; Comer, supra.
Additionally, the Commonwealth's argument that two drivers called 9-1-1 to report Peters' driving is of no moment. Neither of those phone calls communicated the warning to Peters himself, and neither of the driver's testified that they warned Peters by flashing their headlights or utilizing their horns. Indeed, Hafto, the first 9-1-1 caller, testified that he observed Peters' vehicle pass him at a high rate of speed. N.T. Jury Trial Day 1, 9/13/21, at 139-40. In response, Hafto stayed behind the Mazda and gave it a wide birth. Id. Hafto testified that as he followed the Mazda, it drove both over and under the posted speed limit of 65 miles per hour. Id. at 152-53. Hafto drove in such a way that kept the Mazda in front of him at all times. Id. at 151-53 (Hafto testifying that he would decrease speed to avoid passing Mazda). Emrick, the second 9-1-1 caller, initially testified that the Mazda was driving erratically and, in the 9-1-1 phone call recording, stated that the driver's vehicle lights were off. See N.T. Jury Trial Day 2, 9/14/21, at 7-8; id. at 13 (Commonwealth Exhibits 3 and 4, Emrick's 9-1-1 call, admitted into evidence). However, Emrick also testified that the Mazda exited the highway safely. Id. at 10. These phone calls certainly portrayed Peters' driving as, no doubt, negligent, careless, and reckless at times. Nevertheless, we emphasize that neither of these drivers attempted to communicate to Peters, via horns or headlight flashing, that he was driving erratically. See N.T. Jury Trial Day 1, 9/13/21, at 138-55 (Hafto's testimony); N.T. Jury Trial Day 2, 9/14/21, at 5-26 (Emrick's testimony).
As to Peters' claim that there was no evidence that drivers of other cars were trying to stop him from driving, the Commonwealth states "there is no evidence that there weren't any actions of others trying to stop. Throughout the entirety of his driving that night there may have been instances of cars trying to get his attention to stop or slow down." Commonwealth's Brief, at 47 (emphasis added). We have found no support for this claim anywhere in the record. While we can understand the difficulty in uncovering evidence in cases such as this, we caution the Commonwealth that we cannot engage in such speculation. If other drivers existed who warned Peters, it was the Commonwealth's burden to find them and bring that evidence to the jury.
Emrick's 9-1-1 call was divided into two exhibits because, during Emrick's phone call, he and Peters crossed over the state line into New Jersey and his call was transferred to New Jersey's 9-1-1 service. See id. at 11-12.
Furthermore, the Commonwealth argues that the offer of a ride home by Peters' co-worker, Jacquelyn Smith, should have warned Peters that he was unable to drive. Commonwealth's Brief, at 9, 45-46. We are unpersuaded by this contention. Smith testified that she offered a ride to every co-worker at the party. N.T. Jury Trial Day 2, 9/14/21, at 114-15. Smith also testified that, while she arrived late to the work party, she too was drinking alcohol. Id. at 108-13 (Smith testifying between her arrival at 6:30 p.m. and her departure at 10:00 p.m., everyone ordered at least three drinks). Additionally, even though Smith offered Peters a ride, she did not caution Peters that he had consumed too much alcohol or warn him not to drive. Id. at 114-16 (Smith testifying she offered Peters a ride because they both lived in Bucks County and she did not offer to drop him off at train station or any other alternative). Under these facts, we cannot conclude that Smith's actions warned Peters of his inability to drive. See Urbanski, supra; Commonwealth v. Pigg, 571 A.2d 438, 442 (Pa. Super. 1990) (finding of malice supported where defendant, operating 18-wheeler, drove other drivers off road and ignored requests of fellow driver to stop driving).
Next, throughout its brief, the Commonwealth argues that because Peters' vehicle lights were off, he was consciously disregarding a known risk to other drivers. See Commonwealth Brief, at 42, 53-55. This contention does not change the outcome of this case. It is clear, from our review of the record, that Peters was never alerted to any issues with his lights. After the accident, Trooper Robert Ace investigated Peters' Mazda and concluded that the headlight switch was in the "on" position, and that the damage from the accident prevented an accurate assessment of whether the brake lights were operable. See N.T. Jury Trial Day 3, 9/15/21, at 22-28. Before the accident, while both Hafto and Emrick testified that at various points it appeared as though Peters' headlights were off, neither warned Peters. See N.T. Jury Trial Day 1, 9/13/21, at 138-55; N.T. Jury Trial Day 2, 9/14/21, at 5-26. Additionally, in every video the Commonwealth presented of Peters' driving, his headlights were on and lit. See N.T. Jury Trial Day 3, 9/15/21, at 182-88, 196-97 (Trooper Brandon Corby, testifying regarding contents of videos recovered); Commonwealth Exhibits 43 and 44 (surveillance videos from parking garage, depicting Mazda's headlights on); Commonwealth Exhibit 42 (security video from exterior of parking garage, depicting Mazda's headlights on, but brakes lights off); Commonwealth Exhibit 48 (Philadelphia street surveillance video depicting Mazda's headlights on, but brake lights off); Commonwealth Exhibits 49 and 50 (Philadelphia street surveillance stills depicting Mazda's headlights on, but brake lights off); see also N.T. Jury Trial Day 3, 9/15/21, at 197-200 (Trooper Corby testifying regarding Scudder-Falls Bridge videos); Commonwealth Exhibit 52 (Scudder-Falls Bridge video depicting Mazda's headlights on, but brake lights off). At best, this evidence demonstrates that Peters believed his brake lights and headlights were operable, and on, at least some of the time leading up to the accident. However, this evidence does not demonstrate Peters' awareness or conscious disregard of the failing brake lights. Accordingly, the Commonwealth's arguments regarding the brake lights does not support Peters' conviction for third-degree murder or aggravated assault - serious bodily injury.
Finally, Corporal Glad, the Commonwealth's accident reconstruction expert, testified that Peters did apply his brakes before the collision. See N.T. Jury Trial Day 3, 9/15/21, at 40-123 (Commonwealth expert testifying regarding speed of vehicles and "black box" recordings). Corporal Glad testified that the Mazda's "black box" recorded speeds in excess of 100 miles per hour just prior to the crash. Id. at 90-1 (Mazda approached speed of 115 miles per hour approximately one second before impact). Approximately four-tenths of a second prior to the crash, the Mazda's black box also recorded "weight" being released from the accelerator pedal and "weight" being applied to the brake pedal. Id. at 91-92. Corporal Glad explained that this data indicates that the brakes were applied prior to the crash. Id. Thus, it is clear from the evidence that Peters applied the brakes, albeit quite literally at the last second. See Commonwealth v. Dellavecchia, 725 A.2d 186, 189 (Pa. Super. 1998) (en banc) (Commonwealth presented insufficient evidence of mens rea element of recklessness for aggravated assault where defendant drove at excessive speeds, wove in and out of congested city traffic, had BAC of .194%, but applied brakes prior to accident "in an effort to avoid impact").
In conclusion, the Commonwealth presented insufficient evidence to sustain the malice requirement of either third-degree murder or aggravated assault - serious bodily injury. Smith, supra. Even considering the totality of the circumstances, we are compelled to reverse these convictions. While the facts of this case are horrific and heartrending, they simply do not support a finding of malice. Accordingly, we vacate Peters' convictions of third-degree murder and aggravated assault-serious bodily injury, and remand for resentencing. See Commonwealth v. Williams, 997 A.2d 1205, 1210-11 (Pa. Super. 2010) ("[I]f a correction by this Court may upset the sentencing scheme envisioned by the trial court, the better practice is to remand [for resentencing].") (citation omitted).
Judgment of sentence vacated. Convictions for third-degree murder and aggravated assault-serious bodily injury reversed. Appellant discharged thereon. In all other respects, Appellant's convictions are affirmed. Case remanded for resentencing. Jurisdiction relinquished.
McCaffery, J., joins the Memorandum.
Murray, J., files a Dissenting Memorandum.
Judgment Entered.
DISSENTING MEMORANDUM
MURRAY, J.:
Because I would conclude the Commonwealth established the malice required to sustain Appellant's convictions of third-degree murder and aggravated assault, I respectfully dissent.
See 18 Pa.C.S.A. §§ 2502(c) and 2702(a)(1).
The Majority skillfully detailed the factual and procedural history. See Maj. at 1-5. I additionally observe, before the jury retired to deliberate, the trial court issued the following instruction on malice:
There's no one definition of malice because it can involve so many different circumstances and so many different factors…. [] I am going to give you three separate explanations[.] … Malice is a shorthand way of referring to … particular mental states … of a defendant [] that the law regards as being bad enough to make the killing murder.
A killing is [committed] with malice if the defendant's actions show his wanton and willful disregard of an unjustified and
extremely high risk that his conduct would result in death or serious bodily injury to another person. In this form of malice, the Commonwealth need not prove that the defendant specifically intended to kill anybody. The Commonwealth must prove, however, that the defendant took action or engaged in conduct [] consciously; that is, knowingly[] disregarding the serious risk that his conduct was creating[,] and that … his disregard of that risk demonstrates an extreme indifference to the value of human life.
The second way malice is described is a wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, a mind regardless of social duty that indicates an unjustified disregard for the probability of death or great bodily harm and an extreme indifference to the value of human life. …
… [T]he third way that the courts have defined malice is that the defendant consciously disregarded … an unjustified and extremely high risk that his actions might cause the death of another person or … [cause] serious bodily injury to another person.N.T., 9/17/21, at 32-34 (some paragraph breaks omitted). The trial court's instruction on malice is consistent with Pennsylvania Standard Criminal Jury Instructions. See Pa. SSJI (Crim) 15.2502C (third-degree murder); see also Commonwealth v. Chmiel, 30 A.3d 1111, 1184 (Pa. 2011) ("The law presumes that the jury will follow the instructions of the court." (citation omitted)).
The trial court additionally instructed: "[I]n deciding, you may not rely on evidence that [Appellant] became intoxicated of his own volition in order to conclude that he was so intoxicated that he lacked the mental state required for the crime to be committed." N.T., 9/17/21, at 59; see also Commonwealth v. Hutchinson, 25 A.3d 277, 312 (Pa. 2011) ("A defense of … voluntary intoxication[] is an extremely limited defense available only to those defendants who admit criminal liability but contest the degree of culpability based upon an inability to formulate the specific intent to kill." (emphasis added)).
During deliberations, the jury asked the trial court for clarification of the "three definitions of malice[.]" N.T., 9/17/21, at 72. In response, the court re-read the same definitions quoted above. Id. at 72-74.
I agree with the Majority that "our law is clear that the mere decision to drive [while] intoxicated does not satisfy the malice requirement. If these factors met the requirement of malice, then every DUI homicide would result in a third-degree murder conviction." Maj. at 13. As our Supreme Court in Commonwealth v. Packer, 168 A.3d 161 (Pa. 2017) instructed, "an impaired driver who causes the death of another does not typically act with the requisite malice to support convictions of third-degree murder and aggravated assault." Id. at 166 (citing, inter alia, Commonwealth v. Kling, 731 A.2d 145, 148 (Pa. Super. 1999) ("motor vehicle crashes seldom give rise to proof of the malice needed to sustain a conviction for third degree murder or aggravated assault.")). The Packer Court stated, "the decision to drive while under the influence of alcohol and/or a controlled substance does not, standing alone, constitute malice." Id. at 170 (emphasis added); see also id. ("the mens rea generally associated with the decision to drive under the influence is ordinary recklessness and does not constitute malice.").
According to the Majority, the Packer Court "addressed [a] 'notice,' or 'warning,' requirement of malice with respect to motor vehicle accidents[.]" Maj. at 10 (emphasis added). In support, the Majority cites Packer's holding:
The Majority states this purported notice/warning requirement was also addressed in "Commonwealth v. Urbanski, 627 A.2d 789, 793 (Pa. Super. 1993) (concluding appellant's wife's repeated reminders of the danger of drunk driving and repeated requests he let her drive instead, conveyed a sufficient warning for malice)." Maj. at 14. The Urbanski Court held "a finding of malice is supported where an accused drives recklessly immediately prior to the accident and ignores the request of another to stop driving." Urbanski, 627 A.2d at 793 (citing Commonwealth v. Pigg, 571 A.2d 438, 442 (Pa. Super. 1990)).
Because of Packer's history of losing consciousness after huffing and her knowledge of the immediacy of the effects of huffing on her, she "could reasonably anticipate that serious bodily injury or death would be the likely and logical consequence of [her] actions … [but] the consequence was ignored.["]Id. at 11 (quoting Packer, 168 A.3d at 171 (emphasis and citations omitted)). The Majority concludes, "the facts of this case reveal that the Commonwealth failed to present sufficient evidence of the 'warning' requirement of malice necessary for third-degree murder and aggravated assault in the DUI context." Id. at 13.
Contrary to the Majority, I would not hold that Packer (or its progeny) created a "warning requirement." Rather, Packer's holding reflects the unique facts in that case. See, e.g., Packer, 168 A.3d at 163 ("Based on Packer's history of losing consciousness after huffing [] and her knowledge of the immediacy and intensity of the effect, we conclude that her conduct constituted the high degree of recklessness required for a finding of malice."), and id. at 171 ("There is a significant difference between deciding to drive while intoxicated and deciding to drive with knowledge that there is a strong likelihood of becoming unconscious."). In my view, the presence or absence of a warning to an intoxicated driver is merely one factor to consider in the totality of the circumstances. As this Court has explained, "[m]alice may be inferred by considering the totality of the circumstances." Commonwealth v. Dunphy, 20 A.3d 1215, 1219 (Pa. Super. 2011); Commonwealth v. Windslowe, 158 A.3d 698, 709 (Pa. Super. 2017) (same).
What Packer did require was conduct "virtually guaranteeing some manner of accident will occur through the intentional doing of an uncalled-for act in callous disregard of its likely harmful effects on others." Packer, 168 A.3d at 171 (citations omitted). Our Supreme Court explained:
for the purpose of third-degree murder or aggravated assault, our courts have consistently held that malice is present under circumstances where a defendant did not have an intent to kill, but nevertheless displayed a conscious disregard for "an unjustified and extremely high risk that his actions might cause death or serious bodily harm."Packer, 168 A.3d at 168 (citations and quotations omitted).
We have expounded upon the high degree of recklessness required for a finding of malice in the DUI context in Commonwealth v. McHale, 858 A.2d 1209 (Pa. Super. 2004):
[R]eckless conduct will not support a finding of malice unless the conduct in question poses a very high likelihood that death or injury will result. For when such a considerable risk of injury or death has been created and then callously disregarded, the actor demonstrates that he essentially cares not whether he maims or
kills another, and when a person consciously creates such a high likelihood that injury or death will ensue, or continues his actions after realizing he has created such a risk, he exhibits the "wickedness of disposition, hardness of heart and cruelty" that is the hallmark of malice.
* * *
Additionally, when one driving a vehicle creates a circumstance which virtually assures that injury or death will result, the driver often will be driving in such a fashion as to create a substantial risk that he will also be injured or killed. Consequently, unless the driver has essentially a "death wish," or steamrolls through a crowd of pedestrians, it would seem unlikely that the recklessness would rise to the level sufficient to find malice.Id. at 1213-14 (footnotes omitted).
Further, in Kling, supra, this Court held that "a conviction based on malice is appropriate where evidence demonstrates the element of sustained recklessness by a driver in the face of an obvious risk of harm to his victims." Kling, 731 A.2d at 149 (emphasis in original); see also id. (emphasizing that motor vehicles "still outdistance firearms as the most dangerous instrumentality in the hands of irresponsible persons in our society today."). We defined sustained recklessness as a pattern supported by the facts and circumstances of a case which exhibits
the sustained, purposeful recklessness necessary to prove a knowing and conscious disregard that death or serious bodily injury was reasonably certain to occur. Indeed, these circumstances are facts which allow a [fact-finder] to [determine] the [defendant] had time and reason to calculate and reflect upon a deadly condition taking place, such that recklessness and malice exist.Id. at 150 (quotation marks omitted).
Upon review of the record, I would conclude the Commonwealth established Appellant's "sustained, purposeful recklessness" and "knowing and conscious disregard that death or serious bodily injury was reasonably certain to occur." See id. The evidence showed Appellant knew he would be attending a holiday party, and was aware of alternate means of transportation and overnight accommodations. See N.T., 9/15/21, at 83, 85, 89. Appellant regularly took the train to Philadelphia. See N.T., 9/16/21, at 49, 86. On the night of the party, a co-worker offered him a ride home, while other co-workers used private transport services. See N.T., 9/14/21, at 114-15; N.T., 9/16/21, at 85. This evidence, alone, would not establish malice.
However, the evidence also showed the intoxicated Appellant could not operate the payment machine in the parking garage, and damaged the garage gate when he manually lifted the gate to exit. See N.T., 9/15/21, at 182-83, 185, 191-93; N.T., 9/16/21, at 75-76. Appellant's difficulty in the parking garage should have alerted him that he was too intoxicated to drive safely, but he was not deterred. After Appellant began driving, there were numerous indications which should have alerted him that continuing to drive while impaired posed an extremely high and unjustifiable risk to others. Indeed, Appellant committed numerous traffic violations, driving at an excessive speed, twice missing his exit on I-95, and nearly colliding with two other motorists prior to the fatal crash, prompting both motorists to call 911 to report Appellant's hazardous driving. See N.T., 9/13/21, at 138-41, 151; N.T., 9/14/21, at 7, 10; N.T., 9/15/21, at 90. Immediately prior to the collision, Appellant admittedly took his eyes off the road while driving 115 mph (nearly double the posted speed limit), in an attempt to retrieve his phone from the floor of the car. See N.T., 9/16/21, at 81-82, 91. In other words, Appellant maliciously exhibited sustained recklessness prior to the fatal crash, despite an obvious risk of harm to others. Kling, 731 A.2d at 149 ("a conviction based on malice is appropriate where evidence demonstrates the element of sustained recklessness by a driver in the face of an obvious risk of harm to his victims." (emphasis omitted)); see also McHale, 858 A.2d at 1214 (an intoxicated driver's reckless driving can "rise to the level sufficient to find malice" where the driver has essentially a 'death wish'"). As the Commonwealth explained, "This is not an instance where the driving under the influence of alcohol 'standing alone' constitutes malice. Rather, it is Appellant's repeated and continued decisions over a sustained period of time that when combined constitute the requisite malice." Commonwealth Brief at 33; see also id. at 46 ("Appellant had repeated opportunities to stop and reflect upon his choices.").
This Court has found the requisite malice for convictions of third-degree murder and aggravated assault in similar circumstances. In Dunphy, supra, the defendant drove after consuming a large amount of alcohol and struck and killed a pedestrian attempting to cross the street. Dunphy, 20 A.3d at 1216-17. We held malice existed "[c]onsidering the totality of the circumstances," id. at 1219, comprised of the following factors:
• "The intoxicated condition of appellant[] and the excessive rate of speed he was traveling on a street where pedestrians were present";
• Appellant admitted "although he saw pedestrians in front of him, he speeded up to make the [red traffic] light";
• Appellant's flight from the scene after striking the victim; and
• "The absence of any testimony that there was a physical or climatic condition that would explain his failure to stop before or after the accident."Id. at 1219-20 (some capitalization altered). In support, we cited, inter alia, Commonwealth v. Taylor, 337 A.2d 545 (Pa. 1975) (plurality). Summarizing Taylor's holding, we explained:
[E]vidence was sufficient to demonstrate malice based on the following factors: intoxicated condition of the driver; excessive rate of speed; distance the victim's body was propelled; defendant's awareness that children were present in the area; and absence of any physical or climate condition that would contribute to the accident or his failure to stop immediately after[.]Dunphy, 20 A.3d at 1220.
There was no evidence in Dunphy that prior to the collision, anyone attempted to warn the defendant about his reckless driving. This further undermines the Majority's assertion of a "'warning' requirement of malice necessary for third-degree murder and aggravated assault in the DUI context." Maj. at 13.
Further, and following careful review, the cases upon which Appellant relies are distinguishable. Appellant argues this case is governed by Commonwealth v. Comer, 716 A.2d 593 (Pa. 1998) (superseded by statute on other grounds), McHale, supra, and Commonwealth v. Dellavecchia, 725 A.2d 186 (Pa. Super. 1999) (en banc). See Appellant's Brief at 21-23. These cases are primarily distinguishable because in the instant case, the crash in "did not ensue immediately after the driver became aware of his life-threatening conduct." Kling, 731 A.2d at 150 (distinguishing, inter alia, Comer); cf. Comer, 716 A.2d at 595 ("immediately prior to the accident[,]" appellant was driving "at a speed exceeding 45 m.p.h." (the posted speed limit), when his car went over a curb and struck pedestrians (emphasis added)), and McHale, 858 A.2d at 1211 (intoxicated driver struck pedestrians moments after starting his car and leaving parking spot). Moreover, Appellant chose to excessively and recklessly exceed the speed limit, at a rate drastically higher than that presented in Comer, McHale, and Dellavecchia.
I acknowledge this is a close case. However, the totality of the evidence with respect to malice is not "so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances." Commonwealth v. Lake, 281 A.3d 341, 346 (Pa. Super. 2022) (emphasis added). The trial court properly defined "malice" for the jury; the court even repeated its instruction on malice when the jury requested clarification. See N.T., 9/17/21, at 32-34 & 72-74, and id. at 62 (in response to jury's question about malice, trial court clarifying, at the request of Appellant's counsel:
"[The defense] has never argued … that [Appellant] was … intoxicated to a point where he could not … recognize what the dangers were … or what risks weren't present at the time he was driving." (emphasis added)). Appellant was conscious of his impaired condition and repeatedly disregarded the "extremely high risk that his actions might cause death or serious bodily harm." Packer, 168 A.3d at 168(citations and quotations omitted).
Accordingly, I would affirm the jury's convictions of third-degree murder and aggravated assault under 18 Pa.C.S.A. §§ 2502(c) and 2702(a)(1).