J-E03004-23
2024 PA Super 171
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEVIN R. PETERS :
:
Appellant : No. 2591 EDA 2021
Appeal from the Judgment of Sentence Entered October 15, 2021
In the Court of Common Pleas of Bucks County
Criminal Division at CP-09-CR-0003901-2020
BEFORE: PANELLA, P.J., LAZARUS, J., STABILE, J., DUBOW, J.,
KUNSELMAN, J., NICHOLS, J., MURRAY, J., McLAUGHLIN, J., and
KING, J.
OPINION BY MURRAY, J.: FILED AUGUST 7, 2024
Kevin R. Peters (Appellant) appeals from the judgment of sentence
imposed after a jury convicted him of two counts each of third-degree murder,
aggravated assault – serious bodily injury (aggravated assault), 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.1 The trial court separately convicted
Appellant of DUI – general impairment, DUI – high rate of alcohol, and the
summary offenses of driving within single lane, following too closely, driving
vehicle at safe speed, and reckless driving (collectively, the non-jury
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1 18 Pa.C.S.A. §§ 2502(c), 2702(a)(1), 2705; 75 Pa.C.S.A. §§ 3735(a)(1)(i),
3735.1(a), 3732(a), 3732.1(a).
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offenses).2 Appellant challenges the sufficiency of the evidence supporting
the jury’s finding of malice, the mens rea required for his convictions of third-
degree murder and aggravated assault. After careful consideration, we
conclude the Commonwealth established the high degree of recklessness
required for a finding of malice, and therefore, we affirm.
The trial court detailed the underlying facts:
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, Mr. 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 [I-95] 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 when a white Mazda SUV
passed him at a high rate of speed. Mr. Sestini testified that the
SUV “came flying past me on the left-hand side.” Approximately
half a minute later, and approximately [a] half-mile further down
I-95, Mr. Sestini came upon the SUV stopped behind a second
vehicle[,] which was facing north in the southbound lane of traffic
and was completely engulfed in flames. One man had already
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2 75 Pa.C.S.A. §§ 3802(a)(1), 3802(b), 3309(1), 3310(a), 3361, 3736(a).
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been able to get out of [the burning] vehicle, [and] another man
was trying to get out. Mr. Sestini and his partner removed
[Appellant] from behind the wheel of the SUV, and, due to
[Appellant’s] 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
[Pennsylvania] State Police [(PSP)] were dispatched. Upon arrival
at the scene, police found a van fully engulfed in flames and a
2016 Mazda CX-5 SUV … with heavy front-end damage. …
[Appellant] was transported from the scene to Jefferson
Torresdale Hospital in Northeast Philadelphia.
Two men involved in the collision, … Juan Tavarez
[(Tavarez)], and his son, Charlys Tavarez Santelises
[(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 miles per hour 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 Mr. Tavarez described
to be like a bomb going off, immediately followed by an engulfing
fire.
Trial Court Opinion, 3/4/22, at 1-3, 5 (citations to record omitted).
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The trial court further summarized the evidence of Appellant’s activities
prior to the collision:
[Appellant] 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[, Appellant] was drinking vodka. He and his co-workers then moved to the public bar[ at Ruth’s Chris,] where
[Appellant] consumed bourbon. Co-worker Jaquelyn Smith
testified she had offered [Appellant] 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.”
[Appellant] 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 [Appellant’s] workplace showed that he was
unable to operate the automated payment machine. [Appellant]
physically lifted the gate to leave the garage[, damaging it]. Once
he left the garage, surveillance cameras captured images of
[Appellant] driving through a stop sign. Video surveillance
footage from the Scudder-Falls Bridge area … shows [Appellant]
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
[Appellant]. Police seized a serum plasma sample from
[Appellant] pursuant to a search warrant executed on December
18, 2019. That sample was later submitted to National Medical
Services for analysis. … [Appellant] had a whole blood alcohol
concentration (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.3
[PSP] Corporal Brianne Glad, an accident reconstruction
expert, testified that she downloaded information from the event
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3 Toxicologist Papsun further testified that an individual with a BAC of .151%
would have delayed reaction time, delayed perception, and impaired
judgment. N.T., 9/15/21, at 149-51.
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data recorder, or “black box,” from [Appellant’s] vehicle. That
information established [Appellant] was traveling at a speed of
113 miles per hour [(mph)4] five seconds prior to the collision with
the victims’ van. … Half a second prior to the collision[,
Appellant] was traveling at 115 miles per hour. [Corporal
Glad testified Appellant] did not apply [his vehicle’s] brakes until,
at most, four-tenths of a second before impact.
Id. at 5-6 (emphasis and footnote added; citations to record omitted).
Appellant testified at trial and admitted to consuming multiple alcoholic
beverages over several hours. See N.T., 9/16/21, at 72, 85-86. Appellant
stated that he nevertheless “felt fine to drive.” Id. at 78. Immediately prior
to the collision, Appellant testified, he attempted to retrieve his cell phone to
utilize its GPS function, despite driving over 100 mph. Id. at 81; see also
id. at 80-81 (Appellant stating he was lost and had missed his intended exit
on I-95). Appellant conceded he (1) unbuckled his seatbelt; (2) took his eyes
off of the road; (3) reached over to a backpack located on the passenger’s
side floorboard; and (4) grabbed his phone from inside the backpack. Id. at
81, 91; see also id. at 91 (Appellant stating on cross-examination he
“thought it would be okay to reach down for a moment.”). The collision ensued
immediately thereafter. Id. at 81-82.
After the close of evidence, the trial court issued its charge to the jury.
The court instructed as follows with respect to malice:
____________________________________________
4 It is undisputed that (1) the posted speed limit was 55 mph; and (2) there
were no weather, mechanical, or roadway conditions that caused or
contributed to the collision.
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There’s no one definition of malice because it can involve so
many different circumstances and so many different factors….
And 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 (formatting modified).5
The trial court additionally instructed: “[I]n deciding, you may not rely
on evidence that [Appellant] became intoxicated of his own volition in order
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5 The trial court’s charge is consistent with the 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)).
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to conclude that he was so intoxicated that he lacked the mental state required
for the crime to be committed.” Id. 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.”).
During deliberations, the jury asked the trial court for clarification with
respect to the “three definitions of malice[.]” N.T., 9/17/21, at 72. The trial
court then re-issued the same definitions detailed above. Id. at 72-74.
The jury found Appellant guilty of the aforementioned offenses,
including third-degree murder and aggravated assault. The trial court
convicted Appellant of the non-jury offenses. On October 15, 2021, the trial
court sentenced Appellant to an aggregate 19½ - 39 years in prison.
Appellant filed a motion for reconsideration of sentence, which the trial
court denied on November 9, 2021. This timely appeal followed. Appellant
and the trial court have complied with Pa.R.A.P. 1925.
Appellant presents the following issue:
Was the evidence insufficient as a matter of law to sustain the
verdicts for Third Degree Murder and Aggravated Assault Causing
Serious Bodily Injury where the prosecution proof showed that
Appellant, intoxicated, caused a tragic accident resulting in deaths
and injuries but did not establish the requisite mens rea of malice?
Appellant’s Brief at 5.
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Appellant challenges the sufficiency of the evidence. This claim
“presents a question of law, for which our standard of review is de novo and
our scope of review is plenary.” Commonwealth v. Packer, 168 A.3d 161,
166 (Pa. 2017).
[O]ur standard of review of sufficiency claims requires that we
evaluate the record in the light most favorable to the verdict
winner[,] giving the prosecution the benefit of all reasonable
inferences to be drawn from the evidence. Evidence will be
deemed sufficient to support the verdict when it establishes each
material element of the crime charged and the commission thereof
by the accused, beyond a reasonable doubt.
Commonwealth v. Sebolka, 205 A.3d 329, 336-37 (Pa. Super. 2010)
(citation omitted).
In applying the above test, we may not 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.
Commonwealth v. Dunphy, 20 A.3d 1215, 1219 (Pa. Super. 2011) (citation
omitted).
Appellant claims the Commonwealth failed to present sufficient evidence
to support a finding of malice, which is necessary to sustain his convictions of
third-degree murder and aggravated assault. See Appellant’s Brief at 18-27.
Appellant emphasizes the Pennsylvania Supreme Court has stated, “the
decision to drive while under the influence of alcohol and/or a controlled
substance does not, standing alone, constitute malice.” Id. at 19 (emphasis
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added) (quoting Packer, 168 A.3d at 170). According to Appellant, “[i]t is
only when additional factors not present here are proved that malice can be
found.” Id. at 24 (citations omitted). Appellant avers his convictions
contradict established precedent, which we discuss further below. Id. at 18
(Appellant claiming, “every precedential decision from the Pennsylvania
Supreme Court and this Court confirm the insufficiency of the evidence as to
malice”); see also id. at 27 (Appellant alleging the trial court, in its Pa.R.A.P.
1925(a) opinion, “cited to no decisional law that governs facts such as these”).
Appellant further argues,
“Recklessness,” by its nature, requires a “conscious” disregard of
a substantial risk. 18 Pa.C.S. § 302. Because our Supreme Court
has made clear that knowing one is drunk and then choosing to
drive is not sufficient to establish this mens rea, see [] Packer,
supra, there had to be something more that gave the driver[,]
here, Appellant[,] the awareness “notice” that driving while
inebriated that death was “essentially certain to occur.”
Appellant’s Reply Brief at 9-10 (brackets omitted); see also Appellant’s Brief
at 25 (claiming the notice or “‘warning’ could come from the defendant’s own
past, from the words of others, or from the circumstances of a particular case
– it just had to be more than driving while intoxicated” alone).
The Commonwealth counters the evidence, viewed in the light most
favorable to it as the verdict-winner, was sufficient for the jury to find
Appellant acted with the mens rea necessary to sustain his convictions of
third-degree murder and aggravated assault. Commonwealth Brief at 23, 30.
The Commonwealth explains it
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is not contending that drinking and driving “standing alone”
constitutes malice, because the caselaw clearly demonstrates
otherwise. Rather, it is the overwhelming and rampant instances
of sustained recklessness[,] coupled with [Appellant’s] drinking
and ignoring the risks to the victims[,] that combined to
demonstrate malice.
Id. at 31-32.
The Commonwealth further claims Appellant improperly “repeatedly
attempts to impute [a] ‘notice’ or ‘warning’ requirement” to establish the mens
rea necessary for both offenses. Id. at 49; see also id. at 46 (asserting “any
sort of creation of a … requirement on third parties to take affirmative and
overt actions to stop a defendant to establish the requisite malice is irrational
and against established caselaw.” (citations omitted)). According to the
Commonwealth, “Appellant had repeated opportunities to stop and reflect
upon his choices.” Id. at 45.
We begin by considering Packer, where the appellant, shortly before a
fatal vehicle crash, repeatedly “huffed” (i.e., inhaled) aerosol dust cleaner,
which caused her to become unconscious and lose control of her car. Packer,
168 A.3d at 163-64. Importantly, the appellant had a “history of losing
consciousness after huffing and [] knowledge of the immediacy of the effects
of huffing on her….”
Id. at 171; see also
id. (stating appellant “knew, from
her numerous prior experiences with huffing, that the effects … on her were
immediate, debilitating and persisted for ten to fifteen minutes following
inhalation.”). A jury convicted the appellant of third-degree murder and
aggravated assault, among other offenses.
Id. at 165.
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The appellant appealed her judgment of sentence, challenging, in
relevant part, the sufficiency of the evidence to support a finding of malice to
sustain her convictions of third-degree murder and aggravated assault. Id.
at 165-66. This Court affirmed.
Id. at 166 (citing Commonwealth v.
Packer,
146 A.3d 1281, 1285 (Pa. Super. 2016)). The appellant petitioned
for allowance of appeal, which the Pennsylvania Supreme Court granted. Id.
at 166.
Before addressing the appellant’s sufficiency challenge, the Packer
Court observed that “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 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.”)); see also Packer,
168 A.3d at 170 (“the
mens rea generally associated with the decision to drive under the influence
is ordinary recklessness and does not constitute malice.”). However, the
Packer Court recognized that “each case must be analyzed on its own
facts against the standard established by this Court.”
Id. at 167-68
(emphasis added).
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Packer discussed the requisite mens rea to sustain convictions of third-
degree murder and aggravated assault:6
[O]ur 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.
Id. at 168 (citations and quotation marks omitted); see also
id. at 172
(stating the “standard for malice … requires recklessness of consequences and
the conscious disregard for an unjustified and extremely high risk that a
chosen course of conduct might cause a death or serious personal injury.”).
The Court elaborated,
[i]n the DUI context, this Court has held that the decision to drive
while under the influence of alcohol and/or a controlled substance
does not, standing alone, constitute malice. … O’Hanlon, 653
A.2d at 618. We observed that neither “ordinary negligence” nor
“mere recklessness” is sufficient to satisfy the mens rea of
aggravated assault. Id. at 617-18. Instead, we found that the
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. at 618.
For the degree of recklessness contained in the
aggravated assault statute to occur, the offensive act must
be performed under circumstances which almost assure
that injury or death will ensue. The recklessness must,
therefore, be such that life threatening injury is
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6 “There is no distinction between the malice essential to third degree murder
and that necessary for aggravated assault.” Kling, 731 A.2d at 147; see also
Commonwealth v. O’Hanlon,
653 A.2d 616, 618 (Pa. 1995) (aggravated
assault is the functional equivalent of a murder in which, for some reason,
death fails to occur).
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essentially certain to occur. This state of mind is, accordingly,
equivalent to that which seeks to cause injury. Id.
The O’Hanlon Court found that the requisite mens rea is
only met 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] the consequence
was ignored.” Id.
Packer,
168 A.3d at 170 (emphasis added; formatting modified).
The Packer Court held the totality of the evidence was sufficient to
sustain the appellant’s convictions, where she huffed “both immediately prior
to and while operating a vehicle on a public highway”; knew from warning
labels that “this product was not intended to be ingested”; and had a known
history of becoming unconscious from huffing. Id. at 171. The Supreme
Court stated,
This is not a typical case of ordinary recklessness that arises when
someone chooses to drive while intoxicated. See O’Hanlon, 653
A.2d at 618…. [Appellant] consciously disregarded an
unjustified and extremely high risk that her chosen course
of conduct might cause a death or serious bodily injury.
See id. Because of [appellant’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.
Packer,
168 A.3d at 171 (emphasis added; some citations omitted; some
citations modified); see also
id. at 172 (“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.”).
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In Kling, this Court rejected the appellant’s sufficiency challenge to his
third-degree murder and aggravated assault convictions. Kling, 731 A.2d at
150. While the appellant was not intoxicated, we held he maliciously exhibited
sustained recklessness prior to a fatal car crash, despite an obvious risk of
harm to others, while “racing” another driver at a high rate of speed on a
dangerous mountain road.
Id. The Kling Court stated:
Appellant was deliberately racing his high-powered car at speeds
of 75-80 m.p.h. on a two and one-half mile stretch of a curvy
mountain road. He was familiar with this road, having traveled it
two to three times per week for over a year prior to the crash. He
passed five cautionary signs warning him to slow down around the
treacherous curves. In spite of these warnings, appellant
proceeded at high rates of speed and, cutting the curves in order
to negotiate the turns, he nearly hit [a motorist] driving in the
opposite lane of travel. Without a doubt, the aggregate of these
circumstances plainly warned appellant his conduct was nearly
certain to result in a serious or fatal disaster. Nevertheless, he
consciously disregarded this awareness and continued his race for
eight-tenths of a mile after running [a motorist] off the road.
Illegally passing two pick-up trucks, sustaining his reckless and
malicious conduct, appellant sped into a dangerous double blind
curve[,] where he smashed into the victims.
Id. (emphasis added).
The Kling Court observed that motor vehicles “still outdistance firearms
as the most dangerous instrumentality in the hands of irresponsible persons
in our society today.” Id. Importantly, we held, “a conviction based on malice
is appropriate where evidence demonstrates the element of sustained
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recklessness7 by a driver in the face of an obvious risk of harm to his
victims.” Id. at 149 (footnote added; emphasis in original).
In Dunphy, the appellant 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. This Court rejected the appellant’s sufficiency
challenge to his third-degree murder conviction, and upheld the jury’s finding
that he acted with the requisite malice.
Id. at 1219-20. We stated, “[m]alice
may be inferred by considering the totality of the circumstances.”
Id.
at 1219 (emphasis added) (citing Commonwealth v. Thomas,
656 A.2d
514, 516 (Pa. Super. 1995)). The Dunphy Court held malice existed under
the totality of the circumstances, 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”;
• “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”;
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7 Kling defined “sustained recklessness” as a pattern supported by the facts
and circumstances of the 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 [factfinder] to find the
[accused] had time and reason to calculate and reflect upon a
deadly condition taking place, such that recklessness and malice
exist.
Kling, 731 A.2d at 150 (quotation marks omitted).
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• Appellant admitted “that although he saw pedestrians in front
of him, he speeded up to make the [red traffic] light”; and
• Appellant’s flight after striking a pedestrian.
Id. at 1219-20 (some capitalization altered).
Finally, in Commonwealth v. Urbanski, 627 A.2d 789, 793 (Pa. Super.
1993), this Court found the Commonwealth presented sufficient evidence to
support the jury’s finding of malice for a third-degree murder conviction,
where the intoxicated appellant drove and struck an oncoming vehicle,
causing the death of the appellant’s passenger.
Id. at 791, 793-94. The
appellant drove after consuming large amounts of alcohol; appellant ignored
his passenger’s repeated pleas to stop driving erratically; and there were no
weather or road conditions to explain the accident.
Id. at 793-94. We held
that the appellant, under the totality of the circumstances, “was or should
have been aware of the danger that could result from driving so fast
and so recklessly, especially after having had so much to drink.”
Id.
at 794 (emphasis added).
Instantly, the trial court found the totality of the evidence established
the requisite malice to sustain Appellant’s third-degree murder and
aggravated assault convictions:
Upon review of the record in this matter, this [c]ourt finds
the evidence to be sufficient to support the jury’s finding of malice.
The evidence established that [Appellant], a Bucks County
resident, attended an open bar holiday party in Philadelphia after
work the evening before the collision. Rather than taking the
train, which was his habit when traveling back and forth from
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work, [Appellant] chose to drive into Philadelphia. N.T., 9/16/21,
at 49-51, 57-58, 83-84. He stayed at the party for approximately
three hours, where he consumed vodka. Rather than proceeding
home, he went to the public bar[,] where he remained for another
two hours, this time drinking bourbon. Shortly after 10:00 p.m.,
approximately five hours after consuming his first drink, he
rejected an offer of a ride home, instead choosing to go to yet
another bar where he continued to drink. He stopped consuming
alcohol sometime shortly before 12:18 a.m., approximately seven
hours after he began to drink. Despite the availability of hotels
and other transportation options, and knowing that he was
substantially impaired, he chose to drive home. That decision
remained unaltered even though he could not manage to get out
of the [parking] garage without forcing his way out.
[Appellant’s] decision-making continued to
demonstrate a conscious disregard for the safety of others.
… On I-95, while intoxicated, he traveled without
headlights, at high rates of speed, [and] alternated his
speed from fast to slow. He did not use his turn signals and
continuously changed lanes and passed other vehicles too
closely, all of which created such a dangerous situation that two
drivers felt compelled to take evasive action and call 911. N.T.,
9/13/21, at 138-40, 151, 153; N.T. 9/14/21, at 7, 9. At the time
[Appellant] rear-ended the victims’ vehicle, he was driving
at a speed of 115 mph. By his admission, [Appellant] did
not have his eyes on the highway[,] since he was reaching
down into a backpack on the passenger floor to retrieve his
phone…. N.T., 9/16/21, at 81-82, 91. As a result, he did not
apply his brakes until less than half a second before impact.
After drinking continuously for at least six hours,
[Appellant’s] decision to drive at extreme speeds while weaving
through traffic on a high-speed interstate highway “is not a typical
case of ordinary recklessness that arises when someone chooses
to drive while intoxicated.” [] Packer, 168 A.3d at 171. To
continue to drive in that fashion after nearly sideswiping two other
vehicles who were forced to take evasive action demonstrates “a
conscious disregard for ‘an unjustified and extremely high risk that
[Appellant’s] actions might cause death or serious bodily harm.’”
Id. at 168. Under all these circumstances, [Appellant’s]
decision to attempt to retrieve his phone …, drawing his
attention from the roadway for such a long time that he did
not perceive a clearly visible vehicle in front of him and
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failed to apply his brakes until less than half of a second
before the collision, “brought about a situation so
unnecessarily dangerous to human life” it all but
“assure[d] that injury or death [would] ensue.” Id. at 170.
Therefore, there is sufficient evidence to support the jury’s finding
of malice.
Trial Court Opinion, 3/4/22, at 10-12 (emphasis added).
Our review confirms the trial court’s foregoing reasoning is supported
by the record and the law. See id. This case is factually distinct from Packer,
wherein the appellant was intoxicated from huffing and had a history of
becoming unconscious from huffing. See, e.g., Packer,
168 A.3d at 171-72
(“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.”). Nevertheless, like Packer, we conclude “[t]his is
not a typical case of ordinary recklessness that arises when someone chooses
to drive while intoxicated.”
Id. at 171; see also
id. at 167-68 (stating that
“each case must be analyzed on its own facts”).
Moreover, upon careful review, we find 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. See Appellant’s Brief at 22-23; Appellant’s Reply
Brief at 6. The appellant in Comer drove while intoxicated (after consuming
alcohol8 and prescription muscle relaxers), and struck two people waiting for
____________________________________________
8 The appellant’s BAC was 0.33%. Comer,
716 A.2d at 595.
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a bus, killing one and seriously injuring the other. Comer, 716 A.2d at 595.
The appellant was driving at an excess speed (approximately 10-20 mph over
the speed limit), and his vehicle left the road after one of the tires struck a
curb.
Id. Additionally, “there was no [] evidence indicating that [a]ppellant
quickly applied his brakes,” nor any “obstruction on the roadway at the time
of the accident.”
Id. The Comer Court held that the evidence was insufficient
to prove the appellant acted with malice necessary to sustain his conviction of
aggravated assault,
id. at 596-97, finding that the “Commonwealth did not
establish that [a]ppellant possessed the state of mind equivalent to that which
seeks to cause injury.”
Id. at 596.
We find Comer distinguishable. As this Court stated in Kling:
Unlike Comer, the crash here did not ensue immediately after
the driver became aware of his life-threatening conduct. To the
contrary, [A]ppellant had adequate time to calculate and
reflect upon the consequences of his reckless conduct, thus
rendering the choice to continue it malicious.
Kling, 731 A.2d at 150 (emphasis added).
Appellant also relies on another distinguishable case, Commonwealth
v. McHale, 858 A.2d 1209 (Pa. Super. 2004). Appellant’s Brief at 24;
Appellant’s Reply Brief at 6-7. In McHale, the appellant drove his car after
consuming a significant amount of alcohol, despite lacking a driver’s license
and insurance coverage.
Id. at 1211. An off-duty police officer observed the
appellant get into his car and leave a parking spot; he “revved the engine and
then sped through the driveway adjacent to the bar prior to turning onto the
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road.”9 Id. Immediately thereafter, the officer watched appellant’s car
“come into contact with a car parked on the side of the road and then collide
with two people who had been standing near the car….”
Id. The appellant
“continued to drive away from the scene over [the officer’s] shouts to stop.”
Id. On appeal, this Court agreed with appellant that the evidence was
insufficient to establish the malice necessary to sustain his convictions of
aggravated assault, stating his “actions do not rise to the requisite level of
mens rea to show malice. [The appellant] was clearly negligent, but his
actions did not rise to the level of recklessness required to support a conviction
for aggravated assault.”
Id. at 1214.
Appellant also relies upon Commonwealth v. Dellavecchia, 725 A.2d
186 (Pa. Super. 1999) (en banc). Appellant’s Brief at 23; Appellant’s Reply
Brief at 7-8. There, the appellant, who had a BAC of .194%, drove his truck
in the parking lane of a highway, well in excess of the speed limit, and collided
with another vehicle, causing injuries to multiple people.
Id. at 187. On
appeal, the appellant challenged the sufficiency of the evidence supporting his
convictions for aggravated assault, claiming the mens rea element was
absent, as his conduct was not malicious.
Id. at 188. This Court agreed,
relying primarily upon
Comer, supra.Id. (“Pursuant to … Comer, we are
constrained to conclude that the evidence here is insufficient to establish the
____________________________________________
9 The posted speed limit of the relevant section of road was 35 mph; the
appellant was driving between 35 – 50 mph. McHale,
858 A.2d at 1211.
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mens rea element needed to sustain [a]ppellant’s convictions for aggravated
assault.”).
The Dellavecchia Court held,
[l]ike Comer, [a]ppellant drove at an excessive rate of speed over
congested city streets, weaving in and out of traffic, prior to the
crash. Also like the defendant in Comer, [a]ppellant was under
the influence of intoxicating substances, as he stipulated at trial
to the fact that he had a blood alcohol content of .194%. If
anything, the conduct in Comer was more egregious in that
Comer made no attempt to apply his brakes or reduce his speed
prior to striking the pedestrians. Comer, … 716 A.2d at
595. Appellant, however, did apply his brakes in an effort to avoid
impact.
As an intermediate appellate court, we are bound to apply
the decisions of our Supreme Court absent a legally relevant
distinction. Because the facts of this case are substantially similar
to those presented in Comer, we conclude that the evidence was
insufficient to establish that [a]ppellant possessed a state of mind
equivalent to that which seeks to cause injury. We therefore
reverse [a]ppellant’s aggravated assault convictions.
Id. at 189 (citations to record and footnote omitted).
We conclude McHale and Dellavecchia, like Comer, are primarily
distinguishable from the instant case because “the crash here did not ensue
immediately after the driver became aware of his life-threatening conduct.”
Kling, 731 A.2d at 150 (distinguishing Comer). To the contrary, Appellant
had ample opportunity to reflect upon and cease his reckless conduct, yet he
persisted over a considerable period of time. See, e.g., Kling,
731 A.2d at
150 (“appellant had adequate time to calculate and reflect upon the
consequences of his reckless conduct, thus rendering the choice to continue it
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malicious.”). Moreover, Appellant was speeding at an excessive rate that was
drastically higher than the situation in Comer, McHale, and Dellavecchia.
The evidence showed that Appellant, after drinking to excess over
several hours, attempted to exit his parking garage, but could not operate the
garage’s payment machine. See N.T., 9/15/21, at 182-83, 191-93; N.T.,
9/16/21, at 73-74. Appellant then damaged the gate when he forcibly opened
it to exit. See N.T., 9/15/21, at 185; N.T., 9/16/21, at 76. Appellant’s
difficulties in exiting the garage certainly alerted him that he was too
intoxicated to drive safely. Yet he was not deterred.
After Appellant began driving, numerous instances alerted him that
continuing to drive, while significantly impaired, posed an extremely high and
unjustifiable risk to others. Indeed, Appellant violated numerous traffic laws,
drove recklessly for nearly an hour before the collision, and narrowly avoided
hitting two other motorists on I-95 (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. Appellant twice missed his
intended exit on I-95, despite having lived in the area for six years. See N.T.,
9/15/21, at 203-04; N.T., 9/16/21, at 47, 79-81, 89-90. Immediately before
the collision, the intoxicated Appellant admittedly took his eyes off the
road while driving over 100 mph, and reached over to the passenger-side
floorboard to retrieve his phone. See N.T., 9/16/21, at 81-82, 91.
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Under the totality of the circumstances, the evidence was sufficient to
demonstrate Appellant “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 omitted). Appellant’s extremely reckless
conduct, especially by continuing to speed excessively after two near
collisions, and taking his eyes off the road while significantly intoxicated,
“virtually guarantee[d] some manner of accident w[ould] occur through the
intentional doing of an uncalled-for act in callous disregard of its likely harmful
effects on others.”
Id. at 171 (citations omitted). Appellant maliciously
exhibited sustained recklessness over a considerable period of time
prior to the fatal crash, despite an obvious risk of harm to other motorists and
the general public. See 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 in original)).
We acknowledge this case presents a close call. Nevertheless, we
cannot conclude that the totality of the evidence with respect to malice “is so
weak and inconclusive that, as a matter of law, no probability of fact can be
drawn from the combined circumstances.” Dunphy, 20 A.3d at 1219. We
will not usurp the province of the jury. See Commonwealth v. Sanchez,
82
A.3d 943, 972 (Pa. 2013) (in reviewing a sufficiency challenge, we “may not
substitute our own judgment for the jury’s, as it is the fact-finder’s province
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to weigh the evidence, determine the credibility of witnesses, and believe all,
part, or none of the evidence submitted.”). Viewing the evidence, as we must,
in the light most favorable to the Commonwealth, we conclude the record
supports the jury’s finding that Appellant acted with the requisite malice to
sustain his convictions of third-degree murder and aggravated assault. See
Packer, 168 A.3d at 169-71; Kling,
731 A.2d at 149-50; Urbanski,
627 A.2d
at 793-94. Accordingly, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
P.J. Panella, Judge Nichols, and Judge King join the Opinion.
Judge Stabile joins the Opinion and files a Concurring Opinion in which
P.J. Panella, Judge Murray and Judge King join.
Judge Lazarus files a Dissenting Opinion in which Judge Dubow, Judge
Kunselman and Judge McLaughlin join.
Date: 8/07/2024
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