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2021 PA Super 163
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
KATRINA A. SANDERS
Appellant No. 3562 EDA 2017
Appeal from the Judgment of Sentence entered July 17, 2017
In the Court of Common Pleas of Montgomery County
Criminal Division at No: CP-46-CR-0003929-2016
BEFORE: PANELLA, P.J., BENDER, P.J.E., LAZARUS, J., STABILE, J.,
DUBOW, J., NICHOLS, J., MURRAY, J., McLAUGHLIN, J., and KING,
J.
OPINION BY STABILE, J.: FILED AUGUST 16, 2021
Appellant, Katrina A. Sanders, appeals from her judgment of sentence
of five years’ probation for homicide by vehicle, careless driving, careless
driving—unintentional death, failure to yield the right-of-way, and improper
turning movement.1 While driving a bus in the scope of her employment with
Southeastern Pennsylvania Transportation Authority (“SEPTA”), Appellant
struck and killed a 93-year-old pedestrian as he crossed the street. We hold
that the evidence is insufficient to sustain Appellant’s conviction for homicide
by vehicle because the evidence does not support a finding of recklessness or
gross negligence. Accordingly, we reverse Appellant’s conviction for homicide
by vehicle and remand for resentencing on all remaining convictions.
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1 75 Pa.C.S.A. §§ 3732, 3714(a), 3714(b), 3112, and 3334, respectively.
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The trial court recounted the evidence as follows:
On April 2, 2016, Officer Floriendo of the Cheltenham Police
Department responded to the report of a fatal accident at the
intersection of Glenside Avenue and Limekiln Pike in Cheltenham,
Montgomery County. Upon arriving at the scene, the officer
observed the ninety-three year old victim underneath []a SEPTA
bus. Another motorist, who was behind the SEPTA bus in the
westbound lane of Glenside Avenue at the time of the accident,
testified that as the bus began to make a left-hand turn onto
Limekiln Pike, she observed an elderly man begin to cross Limekiln
Pike from west to east. The man put his hand up, and then
vanished from her sight. She testified that the bus was making a
slow, methodical turn. While she was stopped at the light, prior
to the bus moving, she did not see the man standing on the
corner.
Officer Joseph Morrisey, Jr., was in charge of the investigation and
of the crash scene. Morrisey also testified as an expert in crash
reconstruction. On the day of the accident, he observed the victim
under the SEPTA bus. He testified that in the area of the crash,
Limekiln Pike runs north and sou[th], and Glenside Avenue runs
east and west. The intersection of these roads is controlled by a
traffic signal and there are four designated, marked crosswalks.
He was present for the autopsy of the victim, which indicated that
the 93 year old man died of multiple injuries to the trunk and
related fractures. Morrisey was present for a mechanical
inspection of the bus, which revealed no defects or issues that
could have contributed to the crash. As a result of his
investigation, Officer Morrisey determined that speed, roadway
conditions, weather, or obstructed vision were not contributing
factors in the crash.
Officer Morrisey reviewed the Rules Manual for the Surface
Transportation and Bus Division from SEPTA, as well and
surveillance video taken from inside of the bus. The surveillance
video, which depicts the driver’s view looking out the front
windshield of the bus as well as a view of the driver taken from
behind, shows [Appellant] picking up and looking at papers as she
is stopped at the light. As a result of this distraction, she stopped
over the white stop line, in the crosswalk. As a result, Officer
Morrisey opined, she may not have been able to see the victim on
the diagonal corner waiting to cross. The video shows that
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[Appellant] had an unobstructed view of the intersection for 45
seconds, at which time the victim is visible in the video. During
those 45 seconds, [Appellant] was preoccupied with the papers in
her hand and did not scan the intersection for pedestrians or other
traffic hazards. At the time she begins the turn, there are no other
vehicles or pedestrians in the intersection. Before beginning her
turn, [Appellant] hesitated approximately 2.33 seconds, in
contravention of SEPTA’s policy requiring drivers to wait a full four
seconds before entering an intersection. Additionally, she turns
the wheel with one hand instead of two, while still holding the
route paperwork. The victim was in the crosswalk for
approximately 6.75 seconds before being struck and made it
approximately 32 feet across the intersection. Officer Morrisey
was able to determine this by examining the tire marks and body
slide marks leading to the bus’s final stop which indicated that
[Appellant] applied the brakes after she struck the victim. The
pedestrian had the right of way. Officer Morrisey testified that in
his expert opinion, [Appellant] operated her bus in a reckless,
careless and negligent manner, which caused the crash.
[Appellant] testified at trial. She testified that she had been
driving for SEPTA for approximately 18 years. She had experience
driving an articulating bus off and on for nine years. The day of
the crash, she was shuttling passengers between Regional Rail
stations. This was her first time on that route. At the end of her
route, all passengers disembarked at Glenside station and she was
required to travel down Glenside Avenue and make a left onto
Limekiln Pike to get back on the route and return the bus to
Midvale station. The designated route was outlined in the
paperwork she can be seen reading in the surveillance video. She
testified that when she reached the intersection, she looked at the
corner and didn’t see anyone so she began to read the instructions
for the route. If she did not follow the designated route, she would
be considered off-route, which could lead to termination. When
the light turned green, she looked left, forward and right before
moving to make sure there was no oncoming traffic. She did not
see the victim at any point prior to moving. At the time of impact,
she was travelling approximately 8 miles per hour. She testified
that as a professional driver, especially of a tandem bus, there is
a significant risk of hitting another vehicle or a pedestrian, causing
damage or injury.
Following a bench trial, [Appellant] was convicted of Homicide by
Vehicle, Careless Driving, Careless Driving—Unintentional Death,
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Improper Movement and Failure to Signal. The Court found her
not guilty of Improper Left Turn and Reckless Driving.
Trial Court Opinion, 5/29/18, at 1-5 (citations and footnotes omitted). On
July 7, 2017, the trial court sentenced Appellant to five years’ probation.
Following sentencing, Appellant filed timely post-sentence motions, which the
trial court denied. Appellant filed a timely notice of appeal, and both Appellant
and the trial court complied with Pa.R.A.P. 1925. On February 3, 2020, over
one dissent, a three-judge panel of this Court reversed Appellant’s judgment
of sentence for homicide by vehicle and remanded for resentencing on all
other counts. The Commonwealth petitioned for en banc consideration by this
Court. On April 1, 2020, we granted the petition.
Appellant raises the following three claims in this appeal.
1. The defendant [Appellant] was found not guilty of the
predicate offense of reckless driving, and therefore, could
not be found guilty of homicide by vehicle.
2. The evidence was insufficient to convict the defendant
[Appellant] of homicide by vehicle.
3. The court committed error in allowing the
Commonwealth’s crash reconstruction expert to testify
that defendant [Appellant] operated her bus in a reckless
manner.
Appellant’s Brief at 4-5.
Upon review, we conclude once again that the evidence was insufficient
to convict Appellant of homicide by vehicle, and that we do not need to address
Appellant’s other issues.
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In reviewing the sufficiency of the evidence, we must determine whether
the evidence admitted at trial and all reasonable inferences drawn therefrom,
viewed in the light most favorable to the Commonwealth as verdict winner,
were sufficient to prove every element of the offense beyond a reasonable
doubt. Commonwealth v. Diamond, 83 A.3d 119, 126 (Pa. 2013). “[T]he
facts and circumstances established by the Commonwealth need not preclude
every possibility of innocence.” Commonwealth v. Colon-Plaza,
136 A.3d
521, 525–26 (Pa. Super. 2016). It is within the province of the fact-finder to
determine the weight to be accorded to each witness’s testimony and to
believe all, part, or none of the evidence. Commonwealth v. Tejada,
107
A.3d 788, 792–93 (Pa. Super. 2015). The Commonwealth may sustain its
burden of proving every element of the crime by means of wholly
circumstantial evidence. Commonwealth v. Crosley,
180 A.3d 761, 767
(Pa. Super. 2018). As an appellate court, we may not re-weigh the evidence
and substitute our judgment for that of the fact-finder. Commonwealth v.
Rogal,
120 A.3d 994, 1001 (Pa. Super. 2015).
The Vehicle Code defines homicide by vehicle as follows:
Any person who recklessly or with gross negligence causes the
death of another person while engaged in the violation of any law
of this Commonwealth or municipal ordinance applying to the
operation or use of a vehicle or to the regulation of traffic except
section 3802 (relating to driving under influence of alcohol or
controlled substance) is guilty of homicide by vehicle, a felony of
the third degree, when the violation is the cause of death.
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75 Pa.C.S.A. § 3732(a). To prove this offense, the Commonwealth must prove
beyond a reasonable doubt that (1) the defendant violated a Pennsylvania
statute (except the DUI statute2) or municipal ordinance relating to operation
or use of a vehicle or regulation of traffic, (2) the violation caused the victim’s
death, and (3) the defendant’s conduct was either reckless or grossly
negligent.
The evidence, viewed in the light most favorable to the Commonwealth,
satisfies the first element, violation of a provision of the Vehicle Code.
Appellant violated multiple Vehicle Code provisions, including failure to yield
the right of way (75 Pa.C.S.A. § 3112), improper turning movement (75
Pa.C.S.A. § 3334) and two subsections of the careless driving statute (75
Pa.C.S.A. § 3714).
Section 3112, relating to traffic-control signals, provides in relevant
part:
Vehicular traffic facing a green arrow signal, shown alone or in
combination with another indication, may enter the intersection
only to make the movement indicated by the arrow, or such other
movement as is permitted by other indications shown at the same
time. Such vehicular traffic shall yield the right-of-way to
pedestrians lawfully within an adjacent crosswalk and to other
traffic lawfully using the intersection.
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2 Homicide by vehicle while the defendant is intoxicated is the subject of a
separate criminal statute, 75 Pa.C.S.A. § 3735 (Homicide by vehicle while
driving under influence).
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75 Pa.C.S.A. § 3112(a)(1)(ii). At the time of the collision, the victim was
crossing the street in a lawfully designated crosswalk. As Appellant made a
left-hand turn onto this street, she was required to yield the right-of-way to
the victim. She failed to do so, thus violating this provision.
The improper movement statute provides in relevant part: “Upon a
roadway no person shall turn a vehicle or move from one traffic lane to another
. . . unless and until the movement can be made with reasonable safety nor
without giving an appropriate signal in the manner provided in this section.”
75 Pa.C.S.A. § 3334(a). Appellant failed to turn her vehicle with reasonable
safety by making a left-hand turn without yielding to the victim in the adjacent
crosswalk, a violation of this statute.
The careless driving statute provides in relevant part:
(a) General rule.--Any person who drives a vehicle in careless
disregard for the safety of persons or property is guilty of careless
driving, a summary offense.
(b) Unintentional death.--If the person who violates this
section unintentionally causes the death of another person as a
result of the violation, the person shall, upon conviction, be
sentenced to pay a fine of $500.
75 Pa.C.S.A. § 3714. “The mens rea requirement applicable to Section 3714,
careless disregard, implies less than willful or wanton conduct but more than
ordinary negligence or the mere absence of care under the circumstances.”
Commonwealth v. Gezovich, 7 A.3d 300, 301 (Pa. Super. 2010) (internal
quotations and citations omitted).
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The evidence satisfies Section 3714(a) and (b). Appellant had an
unobstructed view of the intersection for at least 45 seconds before beginning
to turn her vehicle. Nevertheless, she failed to notice the victim before
commencing her left turn into the crosswalk because she was preoccupied
with reading paperwork while stopped when the traffic light was red. By
striking and killing the victim, she drove her vehicle in careless disregard for
the victim’s safety and, in so doing, unintentionally caused the victim’s death.
Appellant’s violation of multiple provisions of the Vehicle Code satisfies
the first element of homicide by vehicle.
The second element of homicide by vehicle requires proof that the
Vehicle Code violation caused the victim’s death. Causation occurs when the
Motor Vehicle Code violation is a direct and substantial factor in the victim’s
death, and the fatal result is not extraordinary or remote. Commonwealth
v. Rementer, 598 A.2d 1300, 1306 (Pa. Super. 1991). The evidence satisfies
this element because a direct and substantial nexus exists between Appellant’s
traffic violations and the fatal collision.
The third and final element of homicide by vehicle requires proof that
Appellant was either reckless or grossly negligent. We begin our analysis by
explaining that recklessness and gross negligence are equivalent states of
mind under the homicide by vehicle statute. This determination is consistent
with our Supreme Court’s construction of the involuntary manslaughter
statute, 18 Pa.C.S.A. § 2504, in Commonwealth v. Huggins, 836 A.2d 862
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(Pa. 2003), and with prior panel decisions of this Court interpreting the
homicide by vehicle statute.
The defendant in Huggins was charged with involuntary manslaughter
and other charges when he fell asleep at the wheel of his speeding fifteen-
passenger van, which was overloaded with twenty-one children and three
adults, leading to a collision on the highway and the deaths of two children.
The involuntary manslaughter statute requires proof that the defendant, “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
. . . causes the death of another person,” 18 Pa.C.S.A. § 2504(a), the same
dual mens rea elements included in the homicide by vehicle statute.
The trial court in Huggins granted the defendant’s request for habeas
corpus relief and dismissed the involuntary manslaughter charge. The
Commonwealth appealed to this Court, which affirmed, and the Supreme
Court granted the Commonwealth’s petition for allowance of appeal.
The Supreme Court rejected the defendant’s argument that “some
heightened form of recklessness” is required for the Commonwealth to prove
involuntary manslaughter. Id., 836 A.2d at 868. “The plain language of
Section 2504,” the Court said, “suggests no such heightened requirement.”
Id. Instead, the Crimes Code’s general definition of “reckless” in 18 Pa.C.S.A.
§ 302 applied to involuntary manslaughter. Id. The Court recited the general
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definition that 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.
Id. at 868-69 (citing 18 Pa.C.S.A. § 302(b)(3)).
Gross negligence, the Court continued, requires more than the general
definition of “negligence” in Section 302.3 “If the General Assembly had
intended for Section 302 negligence to be sufficient to establish the mens reas
necessary for involuntary manslaughter,” the Court reasoned, “it need not
have added the modifier ‘gross.’” Id. at 867. But while more than ordinary
negligence is required, gross negligence does not fall between ordinary
criminal negligence and recklessness. Id. at 867-68. Instead, “reckless” and
“grossly negligent” “defin[e] the equivalent state of mind for purposes of the
involuntary manslaughter statute.” Id. at 868. Although, as a theoretical
matter, it could be posited that gross negligence occupied some middle ground
____________________________________________
3 See 18 Pa.C.S.A. § 302(b)(4) (“[a] person acts negligently with respect to
a material element of an offense when he should be aware of 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 the actor’s failure
to perceive it, considering the nature and intent of his conduct and the
circumstances known to him, involves a gross deviation from the standard of
care that a reasonable person would observe in the actor’s situation”).
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between ordinary negligence and recklessness, there were “sound reasons”
for deeming gross negligence equivalent to recklessness:
First, the General Assembly did not separately define the concept
of gross negligence either in the involuntary manslaughter statute
itself or in the default provisions of the Crimes Code setting forth
general requirements of culpability. If we were to recognize the
theoretical distinction posed, there would be no statutory
guidance as to the contours of this additional basis for the
imposition of criminal liability. Given the requirement that penal
statutes be strictly construed, 1 Pa.C.S.[A.] § 1928(b)(1);
Commonwealth v. Tate, 572 Pa. 411,
816 A.2d 1097, 1098
(2003), this Court cannot devise an extra-statutory basis for
criminal liability. Furthermore, it is significant that although the
General Assembly employed a disjunctive here (reckless or
grossly negligent), it did not establish a different consequence
attending a finding of “grossly negligent involuntary
manslaughter” versus “reckless involuntary manslaughter.”
Rather, the offense is generally graded as a misdemeanor of the
first degree, with an enhancement to felony grading only if the
victim was under twelve years of age and was in the care, custody
or control of the defendant. 18 Pa.C.S.[A.] § 2504(b).
Id.
Like the involuntary manslaughter statute, the homicide by vehicle
statute, 75 Pa.C.S.A. § 3732(a), requires proof of recklessness or gross
negligence. Three-judge panels of this Court have held multiple times that
Huggins’ construction of recklessness and gross negligence under the
involuntary manslaughter statute applies with equal force to the homicide by
vehicle statute. See Commonwealth v. Grimes, 842 A.2d 432, 434 (Pa.
Super. 2004) (citing Huggins) (“[e]xtant case law makes clear gross
negligence is not the equivalent of criminal negligence as defined in
18 Pa.C.S.A. § 302(b)(4) but rather the concept of gross negligence is
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encompassed within the concept of recklessness as set forth in Section
302(b)(3)”); see also Commonwealth v. Bostian, 232 A.3d 898, 909-10
(Pa. Super. 2020); Commonwealth v. Matroni,
923 A.2d 444, 448 (Pa.
Super. 2007).
In accordance with these authorities, we agree that recklessness and
gross negligence are equivalent under the homicide by vehicle statute. Our
rationale for this decision is similar to the Supreme Court’s analysis of the
involuntary manslaughter statute in Huggins. First, the legislature does not
prescribe a different penalty for “grossly negligent homicide by vehicle” than
for “reckless homicide by vehicle.” In both instances, the offense constitutes
a third-degree felony. In addition, the legislature does not define gross
negligence in the homicide by vehicle statute or in 18 Pa.C.S.A. § 302, the
default provision of the Crimes Code that defines general standards of
culpability. Thus, no statutory guidance exists for defining gross negligence
differently from recklessness.
Since recklessness and gross negligence are equivalent, our task then
is to apply well-settled principles of recklessness to the evidence.
Recklessness “implicates knowledge in two ways: (1) the actor must
consciously (i.e., with knowledge) disregard a substantial and unjustifiable
risk; and (2) the risk that the actor disregards is measured by the
circumstances known to the actor.” Commonwealth v. Sittler, 144 A.3d
156, 164 (Pa. Super. 2016). “Conscious disregard” of a risk, in turn, “involves
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first becoming aware of the risk and then choosing to proceed in spite of the
risk.” Commonwealth v. Huggins, 836 A.2d 862, 865 (Pa. 2003); see also
Commonwealth v. Vogelsong,
90 A.3d 717, 719 (Pa. Super. 2014)
(recklessness requires conscious action or inaction that creates substantial
risk of harm to others, whereas negligence suggests unconscious
inadvertence). In other words, to be guilty of reckless driving, a person must
be aware that there exists a substantial risk that injury will result from his
driving and yet continue to drive in such a manner, thus callously disregarding
the risk created by his own reckless driving. Commonwealth v. Bullick,
830
A.2d 998, 1003 (Pa. Super. 2003).
As these definitions make clear, homicide by vehicle does not apply to
most vehicle fatalities, tragic though they all are. To lose sight of this truth is
to risk blurring the lines of criminal liability based upon ordinary negligence
and recklessness.
Viewing the evidence admitted at trial and all reasonable inferences
drawn therefrom in the light most favorable to the Commonwealth, we hold
that the evidence fails to prove that Appellant acted recklessly. The evidence
simply does not support a finding that Appellant was conscious that her driving
created a substantial and unjustifiable risk of injury, but that she nonetheless
proceeded to drive in a reckless manner.
On the day of the fatal accident, Appellant was not driving her usual
route. Fearing she would be terminated if she went off-route, Appellant picked
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up and looked at papers to ascertain her designated route as she was stopped
at the traffic light. Her lack of attentiveness caused her to overshoot the stop
bar and come to rest in the crosswalk. Officer Morrissey, the investigating
officer and crash reconstruction expert, opined that by stopping over the white
stop line in the crosswalk, Appellant may not have been able to see the victim
on the diagonal corner waiting to cross. While Appellant claimed not to have
seen the victim until after she hit him, she had ample opportunity to observe
him while stopped for 45 seconds at the intersection. The bus’s surveillance
video demonstrates that the victim was visible on the opposite corner and no
other pedestrians or traffic would have obstructed Appellant’s view of the
victim. When the light turned green, SEPTA regulations required Appellant to
check for pedestrians and scan the intersection for four seconds before making
the left turn. She violated this regulation by turning after 2.33 seconds. While
turning, she violated another SEPTA regulation by not gripping the steering
wheel with both hands. She rested the palm of one hand on the wheel and
held the route paperwork in her other hand. The victim was in the crosswalk
for approximately 6.75 seconds and was approximately 32 feet across the
intersection when he was struck. The bus was moving at approximately eight
miles per hour at impact. Officer Morrissey testified that no mechanical
defects or failures caused the collision. He also excluded speed, weather,
roadway conditions, glare and obstruction of vision as possible contributors to
the crash. The victim was legally within the crosswalk and remained clearly
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visible as Appellant made the turn. Appellant testified that when the light
turned green, she looked left, forward, and right before moving, to make sure
there was no oncoming traffic. She simply did not see the victim at any point
before moving.
As a matter of law, this evidence constitutes careless driving (less than
willful or wanton conduct but more than ordinary negligence) but not
recklessness (or gross negligence). Absent from this case is any evidence
that Appellant was consciously aware of a substantial and unjustifiable risk
created by her conduct that would cause injury to the victim. Appellant
stopped the bus at a red light, albeit past the stop bar, and remained
stationary for slightly over two seconds after the traffic light turned green
before proceeding into the intersection, too short a time under SEPTA
regulations, but not a conscious disregard of a substantial and unjustifiable
risk. The third element of homicide by vehicle is not satisfied.
Had Appellant’s bus barreled through the red light without stopping, that
would have been a conscious disregard of a substantial and unjustifiable risk,
the essence of recklessness. See Moyer, 171 A.3d at 854 (evidence
demonstrated conscious disregard of substantial and unjustified risk of fatal
accident in prosecution for homicide by vehicle, where defendant drove past
stop sign going twelve miles per hour, stop sign preceded busy street, building
obscured view of one lane of cross traffic, and defendant was familiar with
intersection, so she knew it was busy street with obscured view).
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Alternatively, had Appellant been speeding, tailgating, erratically changing
lanes, crossing double yellow lines, or racing another vehicle at the time of
the collision, we would readily find recklessness, as we have in prior decisions.
See Matroni, 923 A.2d at 448 (homicide by vehicle conviction affirmed where
defendant was speeding, tailgating and erratically changing lanes);
Commonwealth v. Grimes,
842 A.2d 432, 433 (Pa. Super. 2004) (defendant
crossed center line into victim’s lane and struck victim’s car);
Commonwealth v. Bowser,
624 A.2d 125, 129 (Pa. Super. 1993)
(defendant crossed double yellow lines); Commonwealth v. Jackson,
744
A.2d 271, 274 (Pa. Super. 1999) (high speed race with another vehicle).
Appellant’s misconduct was not nearly as egregious. In contrast, Appellant
stopped the bus at a red light for 45 seconds and then waited an additional
2.33 seconds after the light turned green. Her failure to wait the full four
seconds required under SEPTA regulations came nowhere close to the
shocking behavior in Moyer and the other decisions summarized above. While
it is true that Appellant did not step on her brakes until after the collision, this
was simply because she did not see the victim. At most, her conduct
constituted ordinary criminal negligence, not the conscious disregard of a
substantial risk required for recklessness. See Commonwealth v. Heck,
491 A.2d 212 (Pa. Super. 1985) (while both criminal negligence and
recklessness involve “gross” deviations from reasonable conduct, recklessness
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includes conscious disregard of risk whereas criminal negligence is
accompanied by lack of awareness of risk).
Our reasoning in Commonwealth v. Gilliland, 422 A.2d 206 (Pa.
Super. 1980), provides analogous support for today’s decision. The defendant
in Gilliland was convicted of involuntary manslaughter and recklessly
endangering another person as a result of a boating accident. The accident
occurred at night while the defendant and his family were boating on a lake.
Due to impending darkness, the defendant proceeded on the lake at
approximately 20 to 25 miles per hour. The decedent was in another boat
with his family and saw the defendant approaching from a substantial
distance. A few moments before impact, occupants on the decedent’s boat
screamed at the decedent to move his boat, but he did not blow his horn or
move out of the defendant’s path. Immediately before impact, both boats
veered in the same direction. The boats collided. The defendant stated that
he did not see the decedent’s boat in a sufficient amount of time to prevent
the collision. We held that this evidence did not rise to the level of
recklessness or gross negligence necessary to sustain the defendant’s
convictions.
Although the appellant’s failure to observe the [decedent’s]
vehicle in sufficient time to avoid the collision is clearly a deviation
from the standard of reasonable care, it does not rise to the level
of gross negligence necessary to sustain a criminal conviction.
The appellant simply failed to see the boat which the decedent
was driving. There was no conscious realization of a
substantial risk which was subsequently disregarded, but
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rather a general lack of awareness of the situation on the
part of the appellant.
Id.,422 A.2d at 207 (emphasis added). The same holds true here. There is
no evidence that Appellant consciously was aware of a substantial risk that
she disregarded. She simply did not see the victim and only displayed a
general lack of awareness of the situation.
The Commonwealth contends that Appellant should have seen the victim
during the 45 seconds that the bus was stopped at the red light, but Appellant
failed to notice him because she was reading documents. It might be reckless
for a driver to read while her vehicle is in motion, but not here, when Appellant
was stopped at a red light. Moreover, Appellant was not reading for pleasure
but for a legitimate, work-related reason, specifically to determine whether
her bus was on the proper route. If the Commonwealth’s argument is taken
to its logical extreme, we would label any reading while stopped in traffic,
including checking one’s GPS, as reckless. We decline to take that step.
The Commonwealth further observes that when the bus moved,
Appellant violated SEPTA’s requirement to keep both hands on the wheel by
clutching the documents in one hand and resting the palm of her other hand
on the steering wheel. The evidence does not suggest, however, that turning
the steering wheel with one hand caused loss of control over the bus or the
accident itself. At most, this rule violation constituted negligence but not a
conscious disregard of a substantial and unjustifiable risk that led to the
victim’s death.
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We acknowledge that Appellant was fully aware that SEPTA’s safety
regulations required bus drivers to stop and look for a full four seconds before
making a left turn. Appellant’s knowledge of this rule, however, does not give
rise to criminal liability for homicide by vehicle. Every motor vehicle driver—
bus, truck, car and motorcycle—knows there is a risk of hitting a pedestrian
while driving a motor vehicle and knows she must look carefully before turning
into an intersection to reduce the risk of striking a pedestrian, yet failure to
follow these principles does not automatically constitute homicide by vehicle.
Our precedents make clear that this crime requires something more
egregious. Prosecuting drivers simply for violating a rule to stop and look for
a given period of time before turning would blur the line between negligent
failure to follow the rules of the road and the conscious disregard of risk
punished under criminal law as recklessness.
We also note that among the reasons given by the trial court for finding
Appellant guilty of homicide by vehicle was its conclusion that she grossly
deviated from the standard of care for a similarly situated bus driver. We
need not address the standard of care for a professional bus driver under the
facts of this case, since we have concluded there was no evidence Appellant
was consciously aware of a substantial and unjustifiable risk created by her
conduct that would have caused injury to the victim.
Singly or in combination under the totality of the circumstances, and
without minimizing the seriousness of Appellant’s actions, her errors do not
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satisfy the element of recklessness or gross negligence. We reach this
decision solely by evaluating the sufficiency of the evidence in a light most
favorable to the Commonwealth in relation to the homicide by vehicle statute
and relevant appellate decisions. We agree with the trial court’s verdict of
careless driving. At the same time, however, we recognize that the legislature
has erected a firm boundary between careless driving and the reckless or
grossly negligent conduct required for homicide by vehicle. Appellant did not
cross this line.
Because we reverse Appellant’s conviction for homicide by vehicle, we
remand for resentencing on all remaining convictions to give the trial court
the opportunity to restructure its entire sentencing scheme. Commonwealth
v. Goldhammer, 517 A.2d 1280, 1283–84 (Pa. 1986); Commonwealth v.
Williams,
871 A.2d 254, 266 (Pa. Super. 2005) (if trial court errs in its
sentence on one count in a multi-count case, all sentences for all counts will
be vacated so court can restructure its entire sentencing scheme).
Judgment of sentence on homicide by vehicle reversed. Case remanded
for resentencing on all remaining convictions. Jurisdiction relinquished.
President Judge Emeritus Bender, Judge Lazarus, Judge Dubow, Judge
Nichols, and Judge King join this Opinion.
Judge McLaughlin files a Dissenting Opinion in which President Judge
Panella and Judge Murray join.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/16/2021
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