J-S16037-24
2024 PA Super 205
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
BRIAN M. BLACK : No. 1601 EDA 2023
Appeal from the Order Entered May 11, 2023
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): MC-51-CR-0017788-2022
BEFORE: STABILE, J., LANE, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED SEPTEMBER 11, 2024
The Commonwealth of Pennsylvania appeals from the order entered by
the Court of Common Pleas of Philadelphia County which denied its petition to
refile charges of aggravated assault by vehicle while driving under the
influence (DUI) and aggravated assault by vehicle against Appellee Brian M.
Black. We reverse the trial court’s order and remand for trial.
Appellee was initially charged with aggravated assault by vehicle while
DUI, aggravated assault by vehicle, DUI (general impairment), recklessly
endangering another person (REAP), and reckless driving. These charges
were filed in connection with an October 11, 2022 motor vehicle accident in
which Appellee drove into two parked vehicles and caused extensive injuries
to the victim, Johanna Gonzalez (“the victim”).
____________________________________________
* Former Justice specially assigned to the Superior Court.
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At the January 6, 2023 preliminary hearing held in the Philadelphia
Municipal Court, the Commonwealth presented the testimony of one of the
Philadelphia police officers that responded to the accident. The prosecution
presented photo exhibits of the accident scene and the parties stipulated that
Appellee’s blood test results showed he had a blood alcohol concentration
(BAC) of .138 and 30 nanograms of cannabinoids in his system, both of which
were above the legal limit. However, the municipal court judge dismissed all
charges based on a lack of evidence.
The Commonwealth then filed a motion in the Court of Common Pleas
to refile the charges. On May 11, 2023, the trial court held a hearing at which
the prosecution presented the notes of testimony from the preliminary
hearing, the accident scene photos, and the parties’ stipulation to Appellee’s
blood test results. Notes of Testimony (N.T.), 5/11/23, at 18-19.
In addition, the Commonwealth presented the testimony of the victim
and her boyfriend, Juan Bennett. The victim indicated that on the day in
question, at approximately 11:35 p.m., she was standing behind Bennett’s car
that was parked in front of their residence located at 3341 North Kensington
Road in Philadelphia. N.T. at 5. North Kensington Road has two lanes of
opposing traffic and bicycle lanes that separate the traffic lanes from the
shoulder of the road where vehicles are parallel parked near the curb. Exhibit
C-1, C-2.
At that time, Appellee drove his vehicle into Bennett’s parked car,
propelling it forward and pinning the victim between Bennett’s car and the
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vehicle parked behind it. N.T. at 6. The victim testified that she sustained
injuries to her femur, ankles, and ribs, such that she requires the use of a
wheelchair, attends physical therapy, sees a psychiatrist, and has been unable
to work. N.T. at 6-7. The accident also caused mental and emotional trauma
to the victim and her son, who was six years old at that time and witnessed
the accident. N.T. at 7.
Bennett testified that at the time of the accident, he was on the sidewalk
and the victim was getting something out of the trunk of his vehicle. N.T. at
9-13. Bennett claimed that Appellee’s vehicle crossed the opposing lane of
traffic on Kensington Avenue and hit his truck which was parked on the other
side of the street. N.T. at 15. Bennett indicated that there was no traffic at
that time and there were no other cars on the road beside the vehicles parked
on the side of the street. N.T. at 14-15.
Bennett indicated that he rushed over to Appellee’s car after the impact
as Appellee appeared to be asleep at the wheel and had not removed his foot
from the gas pedal even after the vehicle had crashed. N.T. at 11. Bennett
attempted to wake Appellee up, but Appellee did not respond. N.T. at 11, A
crowd gathered around Appellee’s vehicle and an unidentified individual
removed Appellee’s foot from the gas pedal. N.T. at 11.
When Appellee eventually awoke or regained consciousness, he was
combative and disoriented as he accused Bennett of hitting his car and asked
“Why y’all’s car in the middle of the street?” N.T. at 11. Despite Bennett’s
efforts to try to explain that Appellee had caused the accident, Appellee kept
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asking to talk to the police. N.T. at 11-12. Bennett remained with Appellee
until the police arrived.
At the conclusion of the hearing, the trial court granted the
Commonwealth’s request to reinstate the charges of DUI, reckless driving,
and REAP, but denied the Commonwealth’s motion to reinstate the charges of
aggravated assault by vehicle while DUI and aggravated assault by vehicle.
The Commonwealth filed a timely appeal, certifying that the trial court’s
order substantially handicaps and/or effectively terminates prosecution of
Appellee on the specified charges.1,2 The Commonwealth complied with the
trial court’s direction to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b).
The Commonwealth presents the following issues for our review:
____________________________________________
1 The Commonwealth indicated in its notice of appeal that the trial court’s
order denying its request to reinstate the relevant charges was “presently
unavailable.” Pennsylvania Rule of Appellate Procedure 301 (“Requisites of
an Appealable Order”) provides that generally “no order of a court shall be
appealable until it has been entered upon the appropriate docket in the trial
court.” Pa.R.A.P. 301(a)(1). Rule 301 also specifically requires that “[e]very
order shall be set forth on a separate document.” Pa.R.A.P. 301(b).
As a result, we remanded this case with directions for the trial court to
ensure that the certified record was complete with a copy of the order denying
the Commonwealth’s request to refile the applicable charges. The trial court
submitted a supplemental certified record to comply with this Court’s order.
2 This challenge to the trial court’s order denying the prosecution’s request to
refile the relevant charges is an interlocutory appeal as of right pursuant to
Pa.R.A.P. 311(d). See also Commonwealth v. Free, 902 A.2d 565 n.1
(Pa.Super. 2006) (citing Commonwealth v. Karetny,
880 A.2d 505, 513
(Pa. 2005) (concluding that “the Commonwealth is entitled to appeal from an
order quashing some, but not all, of the charges filed against a criminal
defendant”).
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Did the lower court err in ruling that the evidence was
insufficient to establish a prima facie case that [Appellee]
committed aggravated assault by vehicle while DUI and
aggravated assault by vehicle, where the evidence showed that
[Appellee], while above the legal limit for alcohol and under the
influence of marijuana, drove his car into the opposite lane of
traffic and hit a parked car, and then kept his foot on the gas
pedal following the crash, all of which caused the victim’s
multiple, serious injuries?
Commonwealth’s Brief, at 3.
Our standard of review is as follows:
“In reviewing a trial court's order granting a defendant's petition
for writ of habeas corpus, we must generally consider whether the
record supports the trial court's findings, and whether the
inferences and legal conclusions drawn from those findings are
free from error.” Commonwealth v. Hilliard, 172 A.3d 5, 10
(Pa.Super. 2017) (internal citations and quotation marks
omitted). Further, “the evidentiary sufficiency, or lack thereof, of
the Commonwealth's prima facie case for a charged crime is a
question of law,” and the appellate court's review is plenary.
Commonwealth v. Karetny, 583 Pa. 514, 528,
880 A.2d 505,
513 (2005).
Commonwealth v. Little,
305 A.3d 38, 43–44 (Pa.Super. 2023).
Our courts have held that:
[t]he basic principles of law with respect to the purpose of a
preliminary hearing are well established. The preliminary hearing
is not a trial. The principal function of a preliminary hearing is to
protect an individual's right against an unlawful arrest and
detention. ... At this hearing the Commonwealth bears the burden
of establishing at least a prima facie case that a crime has been
committed and that the accused is probably the one who
committed it.
Commonwealth v. Perez, 249 A.3d 1092, 1102 (Pa. 2021) (quoting
Commonwealth v. McBride,
595 A.2d 589, 591 (Pa. 1991) (citation
omitted) (emphasis in original)).
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The Commonwealth establishes a prima facie case when it
produces evidence that, if accepted as true, would warrant the
trial judge to allow the case to go to a jury. [T]he Commonwealth
need not prove the elements of the crime beyond a reasonable
doubt; rather, the prima facie standard requires evidence of the
existence of each and every element of the crime charged.
Moreover, the weight and credibility of the evidence are not
factors at this stage, and the Commonwealth need only
demonstrate sufficient probable cause to believe the person
charged has committed the offense. Inferences reasonably drawn
from the evidence of record which would support a verdict of guilty
are to be given effect, and the evidence must be read in the light
most favorable to the Commonwealth's case.
Little, 305 A.3d at 45 (quoting Commonwealth v. Marti,
779 A.2d 1177,
1180 (Pa.Super. 2001) (internal citations and quotation marks omitted)). “A
judge at a preliminary hearing is not required, nor is he authorized to
determine the guilt or innocence of an accused; his sole function is to
determine whether probable cause exists to require an accused to stand trial
on the charges contained in the complaint.” Perez, 249 A.3d at 1102.
First, the Commonwealth claims the trial court erred in denying its
request to refile the charge of aggravated assault by vehicle while DUI when
the prosecution had presented a prima facie case of Appellee’s guilt.3
Specifically, the Commonwealth asserts that the trial court incorrectly
determined that the prosecution failed to present evidence that Appellee acted
with the required mens rea of criminal negligence and that the accident was
caused by Appellee’s consumption of alcohol or marijuana.
____________________________________________
3 Defense counsel, the Defender Association of Philadelphia, did not present
any argument in its brief, to challenge the Commonwealth’s assertion that the
dismissal of the aggravated assault by vehicle while DUI charge was improper.
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The Motor Vehicle Code relevantly provides as follows:
§ 3735.1. Aggravated assault by vehicle while driving
under the influence
(a) Offense defined.—Any person who negligently causes serious
bodily injury to another person as the result of a violation of
section 3802 (relating to driving under the influence of alcohol or
controlled substance) and who is convicted of violating section
3802 commits a felony of the second degree when the violation is
the cause of the injury.
75 Pa.C.S.A. § 3735.1(a) (bold in original).
Thus, in order to sustain a conviction for aggravated assault by vehicle
while DUI, the Commonwealth must show that the defendant negligently
caused serious bodily injury to another individual as result of a DUI related
offense. 75 Pa.C.S.A. § 3735.1(a). The Crimes Code defines negligence as a
mens rea exhibited “when [a person] should be aware of a substantial and
unjustifiable risk ... [that is] of such a nature and degree that the actor's
failure to perceive it ... involves a gross deviation from the standard of care
that a reasonable person would observe in that actor's situation.” 18
Pa.C.S.A. § 302(b)(4) (emphasis added).
In this case, the trial court concluded that there was “no evidence that
[Appellee] caused the accident through a gross deviation from a standard of
care.” Trial Court Opinion (T.C.O.), date at 6. The trial court reasoned that:
[n]either [the victim] nor Bennet[t] saw the manner in which
Black operated his motor vehicle before the impact. Bennet[t]
first became aware of the accident when he heard the collision
with the first car. There was no evidence as to the manner of
Black’s operation of the motor vehicle prior to the collision such
as driving at a high rate of speed, swerving into the opposite lane
or disregarding stop signs, red lights or other indicia of erratic
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driving. The evidence that was presented when viewed in a light
most favorable to the Commonwealth, indicated that [Appellee]
crossed into the opposite lane of travel, striking parked vehicles,
and that he was “asleep” or unconscious after the collisions. This
court cannot speculate as to the cause of the accident or that the
consumption of alcohol or cannabis caused [Appellee’s]
unconsciousness. It is equally likely that the collision caused his
unconsciousness. The Commonwealth failed to present evidence
that [Appellee’s] consumption of alcohol or the presence of
cannabinoids was the cause of the accident and [the victim’s]
injuries.
T.C.O. at 6-7.
First, we do not agree with the trial court’s determination that no one
witnessed Appellee driving erratically. Bennett testified several times that he
observed Appellee’s vehicle cross into the opposing lane and hit the parked
cars. The trial court placed emphasis on the fact that on cross-examination,
when defense counsel asked Bennett if his back was turned to oncoming
traffic, Bennett said “yeah.” N.T. at 13. However, the following exchange
occurred when Bennett was asked to clarify if he saw the accident happen:
[Trial court:] Sir, did you actually see [Appellee] operating the
vehicle?
[Bennett:] Yeah. Her [sic] was behind the wheel and his foot was
still on the pedal, and my girlfriend was pinned between two cars.
[Trial court:] And how far away were you when you saw this?
[Bennett:] How far? I was, like, maybe from here to where the
DA is.
[Trial court to defense counsel:] Any other questions based on
that?
[Defense counsel:] Yes, Your Honor. When you first became
aware of the accident, it was because you heard the noise; is that
correct?
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[Bennett:] (nodding)
[Defense counsel:] Answer audibly, please.
[Bennett:] Yes.
[Defense counsel:] And then at that point, you turned to observe
who --
[Bennett:] No. I’m standing right there and I could see
everything. All I seen was him coming down, boom, boom, boom.
First I checked on my girlfriend. She looked like she was dead.
That was scary. Then I went all around, and my truck --
[Trial court:] Sir, just answer the question. Did you actually see
[Appellee] driving prior to the impact with your girlfriend[?]
[Bennett:] I seen him hit my truck, yes.
N.T. at 16 (emphasis added). As the trial court was required to view the
evidence in the light most favorable to the Commonwealth, the trial court
should have accepted Bennett’s testimony that he did witness Appellee’s
driving before the impact.
Second, we disagree with the trial court’s finding that the
Commonwealth failed to present a prima facie case that Appellee was
criminally negligent. While the trial court noted that the evidence did not
clearly show whether Appellee was asleep before the accident or whether the
collision caused his unconsciousness, we do not find this distinction to be
controlling.
To the extent that the evidence shows that Appellee was conscious at
the time of impact, this Court has found that driving a vehicle on the wrong
side of the roadway is sufficient to permit an inference of criminal negligence.
Commonwealth v. Eichelberger, 528 A.2d 230, 232 (Pa.Super. 1987). In
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Eichelberger, this Court found that there was sufficient evidence to show the
defendant acted with negligence when his vehicle crossed the center line of
the roadway and collided with oncoming vehicles. Id. This Court noted that
the factfinder was free to consider the defendant’s alcohol consumption and
lack of sleep in determining whether he was guilty of criminal negligence.
Id.
To the extent that the evidence shows Appellee was asleep or
unconscious at the time of impact, we acknowledge that our courts have
“deemed the act of falling asleep at the wheel alone to be enough to raise a
jury question of negligence in the tort arena.” Commonwealth v. Huggins,
836 A.2d 862, 869 (Pa. 2003) (citing Bernosky v. Greff,
38 A.2d 35, 36 (Pa.
1944)). The facts of this case require this Court to determine whether the
Commonwealth presented a prima facie case that Appellant acted with
“criminal negligence,” which is “a heightened deviation from the standard of
care applicable when civil tort liability is at issue.” Huggins,
836 A.2d at 867.
In doing so, we find the Supreme Court’s decision in Huggins to be
instructive. The Huggins Court observed that:
A motor vehicle can be a dangerous instrumentality. Driving is a
correspondingly heavily regulated privilege, both as to licensure
and the rules of the road, the regulation being a necessary
concomitant of the dangers to self and others inherent in driving.
The danger increases with the speed at which a vehicle is
operated, since speed both reduces reaction times and heightens
the consequences of any collision. The danger also may increase
if other safety measures are ignored-whether those measures
involve vehicle maintenance, internal safety features such as
seating capacity or restraints, or the rules of the road. No driver
can get behind the wheel without an acute awareness of the
“responsible post of duty,” he is assuming.
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Losing consciousness at the wheel differs in kind from the acts of
momentary inadvertence or inattention that often occasion car
accidents and are commonly encompassed in the term
“negligence” in the tort arena. A momentary lapse leaves the
driver unprepared for the unexpected or extraordinary. A loss of
consciousness, on the other hand, leaves one totally unprepared
even for the ordinary requirements for safe driving. Drivers have
an unflagging duty either to remain vigilant and awake or to
immediately desist from driving.
Id. at 869.
The Supreme Court also recognized that it is “common knowledge that
sleep is preceded by some internal warning.” Huggins, 836 A.2d at 869.
In a normal human being sleep does not come without warning.
Before sleep there is drowsiness and before drowsiness there is
usually great fatigue or at least a desire to sleep. Human affairs
would be in a precarious state if locomotive engineers, aviators,
chauffeurs, motormen and others in charge of machinery in
motion were liable to “fall asleep” at any time without first
becoming consciously aware of sleep's approach and taking
immediate steps to bring to a stop the mechanism under their
control or placing it in the hands of one who is completely awake
and alert. The Creator wisely provided that sleep does not come
upon human beings unannounced.
Id. at 869–70 (quoting Bernosky,
38 A.2d at 36).
Given the common knowledge of the mechanism of how a person falls
asleep, drivers are also equally aware that one is likely to fall asleep in a state
of exhaustion or while intoxicated with alcohol, a depressant with known
sedating effects that promote the onset of sleep. Thus, there is a reasonable
inference of criminal negligence when a driver, who is under the influence of
alcohol, falls asleep behind the wheel as such a driver should be aware of an
increased risk of a rapid sleep onset while intoxicated. The driver’s failure to
perceive the substantial and unjustifiable risk posed when he or she drives
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with an increased likelihood of falling asleep constitutes a gross deviation from
the standard of care that a reasonable person would observe in that actor's
situation. 18 Pa.C.S.A. § 302(b)(4).
In this case, Appellee chose to operate his vehicle while under the
influence of alcohol and drugs as the parties stipulated that Appellee’s blood
test results revealed a BAC of .138 and 30 nanograms of cannabinoids, both
of which were above the legal limit. There is evidence to allow the factfinder
to determine that Appellant drove erratically into the opposing lane of traffic,
hit two parked cars on the other side of the road, and never took his foot off
the gas pedal. There is also evidence to allow the factfinder to infer that
Appellee may have fallen asleep or lost consciousness before the accident.
Appellant chose to drive his vehicle in a state of intoxication, despite being
chargeable with knowledge of an increased likelihood of the sudden onset of
sleep due to his intoxication. At a minimum, the record demonstrates that
the Commonwealth presented a prima facie case that Appellee acted with
criminal negligence.4
Further, while the trial court determined that it could not speculate to
the cause of the accident, it was not required to do so. The undisputed
evidence would allow a factfinder to reasonably conclude that Appellee was
intoxicated to the point that either he fell asleep while driving or was so
____________________________________________
4 Moreover, as discussed infra in our analysis of the non-DUI aggravated
assault by vehicle charge, the evidence also supports an inference of
recklessness, which is a higher level of culpability than criminal negligence.
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impaired that he crossed into the opposing lane of traffic and hit parked cars
on the berm of the road without ever applying his brakes. In addition, there
was no evidence that any other driver contributed to the crash or that road or
weather conditions presented driving hazards.
We conclude that that the Commonwealth did present a prima facie case
that Appellee negligently caused the accident and the victim’s extensive
injuries as a result of his driving under the influence of alcohol or marijuana.5
As such, the trial court erred in denying the Commonwealth’s request to refile
the charge of aggravated assault by vehicle while DUI.
Similarly, the Commonwealth claims the trial court erred in refusing to
allow it to refile the charges of aggravated assault by vehicle when the
prosecution had properly presented a prima facie case of Appellee’s guilt on
this charge. Specifically, the Commonwealth asserts that the trial court
incorrectly determined that the prosecution failed to present evidence that
Appellee acted with the required mens rea of recklessness. The Motor Vehicle
Code relevantly provides as follows:
§ 3732.1. Aggravated assault by vehicle
(a) Offense. -- Any person who recklessly or with gross
negligence causes serious bodily injury to 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
____________________________________________
5 The trial court did not find that the Commonwealth failed to meet its burden
to show that Appellee caused the victim serious bodily injury.
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guilty of aggravated assault by vehicle, a felony of the third degree
when the violation is the cause of the injury.
75 Pa.C.S.A. § 3732.1(a).
The Crimes Code defines the culpability for recklessness as follows:
A person acts recklessly with respect to a material element of an
offense when he consciously disregards a substantial and
unjustifiable risk that the material element exists or will result
from his conduct. The risk must be of such a nature and degree
that, considering the nature and intent of the actor's conduct and
the circumstances known to him, its disregard involves a gross
deviation from the standard of conduct that a reasonable person
would observe in the actor's situation.
18 Pa.C.S.A. § 302(b)(3) (emphasis added). Our courts have clarified that
the “concept of gross negligence is encompassed within the concept of
recklessness as set forth in Section 302(b)(3).” Commonwealth v. Karner,
193 A.3d 986, 992 (Pa.Super. 2018) (citing Huggins,
836 A.2d at 868 (Pa.
2003) (generally indicating that “grossly negligent” is equivalent state of mind
to “recklessness”)).
To the extent that the evidence shows that Appellant was awake when
he caused the accident, this Court has held that driving in the opposite lane
of traffic may sufficiently establish the mens rea of recklessness. In
Commonwealth v. Smoker, 203 A.2d 358, 360 (Pa.Super. 1964), this Court
determined that the jury was justified in inferring that the defendant acted
recklessly when he drove on the wrong side of the road without any visible
reason or compulsion to do so and caused a deadly head-on collision. This
Court noted that “[n]othing appeared in the evidence to show that he was
forced off the road, that he was faced with a sudden emergency or that any
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other fact existed which might have relieved him of responsibility.” Id. See
also Commonwealth v. Setsodi,
450 A.2d 29, 32 (Pa.Super. 1982) (finding
that defendant’s failure to observe approaching vehicles in opposing lane of
traffic before making a left turn into a private driveway may have constituted
recklessness or criminal negligence in supporting a prima facie case of
involuntary manslaughter).
We also note that a defendant’s failure to apply the brakes of his vehicle
or to attempt to avoid an accident is an additional factor to support an
inference of recklessness. This Court has concluded that “a motorist's conduct
is more egregious if he does not apply his brakes or attempt to slow down
before a collision than if he attempts to stop.” Commonwealth v. Miller,
955 A.2d 419, 423 (Pa.Super. 2008) (citing Commonwealth v.
Dellavecchia,
725 A.2d 186, 189 (Pa.Super. 1998)).
We acknowledge the trial court relied on this Court’s precedent in
Karner which suggests that the commission of a summary offense under the
Vehicle Code alone does not, by itself, establish the mens rea of recklessness.
Karner, 193 A.3d at 993. However, we agree with the Commonwealth that
the factual circumstances in Karner can be distinguished from the instant
case.
In Karner, this Court concluded that the trial court did not err in finding
the Commonwealth failed to present a prima facie case of evidence of Karner’s
recklessness or gross negligence to support charges of non-DUI homicide by
vehicle and non-DUI aggravated assault by vehicle. The arresting officer
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suspected Karner was under the influence of Xanax at the time he ran into the
back of a vehicle containing two victims, one of which sustained severe injuries
and the other died. This Court noted that the victims’ vehicle was traveling
at a substantially reduced speed of nearly 20 miles per hour below the speed
limit, which also could have contributed to the collision. This Court noted that
while Karner was traveling 8-12 miles per hour over the speed limit, this speed
limit violation in that area was not reckless or grossly negligent.
In comparison, in this case, the prosecution presented evidence that
Appellee had committed more than just a simple traffic violation. It is
undisputed that before the crash, Appellee drove across the opposing lane of
traffic where there were no cars coming toward him and collided with two
parked cars while Appellee’s gas pedal was fully engaged. The record contains
no evidence of any circumstances that Appellee had any reason or compulsion
to leave his lane of traffic.
Further, as noted above, even assuming that Appellee fell asleep before
the accident occurred, such conduct can also be probative of recklessness.
“[B]y continuing to drive after receiving the warning signs of sleep, a person
does indeed consciously disregard a substantial risk of death on our highways.
The risk of death posed by a sleeping driver of an automobile is obvious. It is
a risk that any driver must appreciate before getting behind the wheel or
continuing to drive.” Huggins, 836 A.2d at 870.
In Huggins, our Supreme Court reversed the dismissal of a defendant’s
charge of involuntary manslaughter and found that the trial court erred in
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determining that the Commonwealth failed to establish a prima facie case of
recklessness. In that case, the defendant was driving a fifteen-passenger van
containing twenty-one children and three adults, none of whom were wearing
seatbelts. Id. at 863. The defendant was traveling approximately twenty-
two m.p.h. over the speed limit when he admittedly fell asleep at the wheel
and awoke just before the van collided with the back end of another vehicle,
causing his van to flip and come to rest on the passenger side.
Id. Two
children were killed in the accident and several others required medical care
for their injuries at a hospital.
Id.
The Supreme Court emphasized that it did not need to consider whether
the act of falling asleep while driving may alone constitute recklessness as
there were additional factors that revealed the defendant consciously
disregarded a serious risk which was a gross deviation from the standard of
care a reasonable person would observe under the circumstances. Id. at 870.
The Supreme Court noted that the defendant was responsible for driving a
van full of children which would cause a reasonable person to be “extra-
cautious.”
Id. In spite of these circumstances, the defendant did not act
cautiously in filling the van to overcapacity with children who were not secured
with safety belts, choosing to speed excessively, and allowing himself to fall
asleep.
Id. The Supreme Court concluded that “viewed in their totality, the
circumstances [] reveal[ed] a pattern of conscious disregard for circumstances
that placed the lives of these children in increasing danger.”
Id. at 871.
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In Commonwealth v. Pedota, 64 A.3d 634 (Pa.Super. 2013), this
Court affirmed the judgment of sentence of a defendant who was convicted of
involuntary manslaughter and homicide by vehicle in connection with the
deadly accident the defendant caused after he admittedly fell asleep while
driving a tractor-trailer. This Court determined that the defendant’s
“stipulation to having fallen asleep while driving an eighteen-wheel tractor-
trailer along busy Interstate 78 supplied evidence of the gross negligence or
recklessness required to convict in this case.”
Id. at 640. As a result, the
Supreme Court reasoned that it was the defendant’s burden to “rebut this
proof with evidence that the classic signs of sleep eluded him so as to deprive
him of the opportunity to stop his truck safely before sleep began.”
Id. This
Court in Pedota clarified that
so long as the evidence shows a driver fell asleep and caused
death amidst circumstances demonstrating a reckless disregard of
human life, these signs will be implied and the Commonwealth will
have met its burden of proof as a matter of law. The burden of
production then shifts to the defendant driver to appeal to the
finder of fact that he was deprived of both warning signs and an
opportunity to act on them.
Id. at 640–41.
In the instant case, the trial court never considered that the fact that
Appellee fell asleep while driving in an intoxicated state could have been
probative of recklessness. However, the Commonwealth presented evidence
of Appellee’s conduct that would sustain an inference of recklessness as a
factfinder could determine that Appellant had knowledge of an increased
likelihood of the sudden onset of sleep due to his intoxication and was on
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notice of the danger this conduct posed to nearby drivers and bystanders. The
warning that Appellee was likely to fall sleep due to his intoxication would
have given Appellee the opportunity to stop driving to prevent the potential
harm that could result from his conduct.
Appellee’s decision to drive, despite having notice that he would likely
fall asleep due to his intoxication, demonstrated a conscious disregard of the
danger of causing a collision, injury, and even death. Appellant’s disregard of
this danger resulted in extensive injuries to the victim, a bystander who was
unexpectedly and forcefully pinned between two vehicles from the impact of
the crash. We find that the Commonwealth met its burden to show that the
instant circumstances would allow a factfinder to determine that Appellee
disregarded a substantial and unjustifiable risk which constituted “a gross
deviation from the standard of conduct that a reasonable person would
observe in the actor's situation.” 18 Pa.C.S.A. § 302(b)(3). Accordingly, we
conclude that the Commonwealth presented a prima facie case of aggravated
assault by vehicle to allow the charge to go to trial.
For the foregoing reasons, we reverse the trial court’s order, reinstate
the charges of aggravated assault by vehicle while DUI and aggravated assault
by vehicle, and remand for further proceedings consistent with this decision.
Jurisdiction is relinquished.
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J-S16037-24
Date: 9/11/2024
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