Com. v. Peters, K. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
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: LAZARUS, J., MURRAY, J., and McCAFFERY, J.
DISSENTING MEMORANDUM BY MURRAY, J.: FILED FEBRUARY 24, 2023
Because I would conclude the Commonwealth established the malice
required to sustain Appellant’s convictions of third-degree murder and
aggravated assault,1 I respectfully dissent.
The Majority skillfully detailed the factual and procedural history. See
Maj. at 1-5. I additionally observe, before the jury retired to deliberate, the
trial court issued the following instruction on malice:
There’s no one definition of malice because it can involve so
many different circumstances and so many different factors…. []
I am going to give you three separate explanations[.] … Malice
is a shorthand way of referring to … particular mental states … of
a defendant [] that the law regards as being bad enough to make
the killing murder.
A killing is [committed] with malice if the defendant’s
actions show his wanton and willful disregard of an unjustified and
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1 See 18 Pa.C.S.A. §§ 2502(c) and 2702(a)(1).
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extremely high risk that his conduct would result in death or
serious bodily injury to another person. In this form of malice,
the Commonwealth need not prove that the defendant specifically
intended to kill anybody. The Commonwealth must prove,
however, that the defendant took action or engaged in conduct []
consciously; that is, knowingly[] disregarding the serious risk that
his conduct was creating[,] and that … his disregard of that risk
demonstrates an extreme indifference to the value of human life.
The second way malice is described is a wickedness of
disposition, hardness of heart, cruelty, recklessness of
consequences, a mind regardless of social duty that indicates an
unjustified disregard for the probability of death or great bodily
harm and an extreme indifference to the value of human life. …
… [T]he third way that the courts have defined malice is that
the defendant consciously disregarded … an unjustified and
extremely high risk that his actions might cause the death of
another person or … [cause] serious bodily injury to another
person.
N.T., 9/17/21, at 32-34 (some paragraph breaks omitted).2 The trial court’s
instruction on malice is consistent with Pennsylvania Standard Criminal Jury
Instructions. See Pa. SSJI (Crim) 15.2502C (third-degree murder); see also
Commonwealth v. Chmiel, 30 A.3d 1111, 1184 (Pa. 2011) (“The law
presumes that the jury will follow the instructions of the court.” (citation
omitted)).
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2 The trial court additionally instructed: “[I]n deciding, you may not rely on
evidence that [Appellant] became intoxicated of his own volition in order to
conclude that he was so intoxicated that he lacked the mental state required
for the crime to be committed.” N.T., 9/17/21, at 59; see also
Commonwealth v. Hutchinson, 25 A.3d 277, 312 (Pa. 2011) (“A defense
of … voluntary intoxication[] is an extremely limited defense available only to
those defendants who admit criminal liability but contest the degree of
culpability based upon an inability to formulate the specific intent to kill.”
(emphasis added)).
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During deliberations, the jury asked the trial court for clarification of the
“three definitions of malice[.]” N.T., 9/17/21, at 72. In response, the court
re-read the same definitions quoted above. Id. at 72-74.
I agree with the Majority that “our law is clear that the mere decision to
drive [while] intoxicated does not satisfy the malice requirement. If these
factors met the requirement of malice, then every DUI homicide would result
in a third-degree murder conviction.” Maj. at 13. As our Supreme Court in
Commonwealth v. Packer, 168 A.3d 161 (Pa. 2017) instructed, “an
impaired driver who causes the death of another does not typically act with
the requisite malice to support convictions of third-degree murder and
aggravated assault.” Id. at 166 (citing, inter alia, Commonwealth v. Kling,
731 A.2d 145, 148 (Pa. Super. 1999) (“motor vehicle crashes seldom give rise
to proof of the malice needed to sustain a conviction for third degree murder
or aggravated assault.”)). The Packer Court stated, “the decision to drive
while under the influence of alcohol and/or a controlled substance does not,
standing alone, constitute malice.” Id. at 170 (emphasis added); see also
id. (“the mens rea generally associated with the decision to drive under the
influence is ordinary recklessness and does not constitute malice.”).
According to the Majority, the Packer Court “addressed [a] ‘notice,’ or
‘warning,’ requirement of malice with respect to motor vehicle accidents[.]”
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Maj. at 10 (emphasis added).3 In support, the Majority cites Packer’s
holding:
Because of Packer’s history of losing consciousness after huffing
and her knowledge of the immediacy of the effects of huffing on
her, she “could reasonably anticipate that serious bodily injury or
death would be the likely and logical consequence of [her] actions
… [but] the consequence was ignored.[”]
Id. at 11 (quoting Packer, 168 A.3d at 171 (emphasis and citations omitted)).
The Majority concludes, “the facts of this case reveal that the Commonwealth
failed to present sufficient evidence of the ‘warning’ requirement of malice
necessary for third-degree murder and aggravated assault in the DUI
context.” Id. at 13.
Contrary to the Majority, I would not hold that Packer (or its progeny)
created a “warning requirement.” Rather, Packer’s holding reflects the
unique facts in that case. See, e.g., Packer, 168 A.3d at 163 (“Based on
Packer’s history of losing consciousness after huffing [] and her knowledge of
the immediacy and intensity of the effect, we conclude that her conduct
constituted the high degree of recklessness required for a finding of malice.”),
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3 The Majority states this purported notice/warning requirement was also
addressed in “Commonwealth v. Urbanski, 627 A.2d 789, 793 (Pa. Super.
1993) (concluding appellant’s wife’s repeated reminders of the danger of
drunk driving and repeated requests he let her drive instead, conveyed a
sufficient warning for malice).” Maj. at 14. The Urbanski Court held “a
finding of malice is supported where an accused drives recklessly immediately
prior to the accident and ignores the request of another to stop driving.”
Urbanski, 627 A.2d at 793 (citing Commonwealth v. Pigg, 571 A.2d 438,
442 (Pa. Super. 1990)).
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and id. at 171 (“There is a significant difference between deciding to drive
while intoxicated and deciding to drive with knowledge that there is a strong
likelihood of becoming unconscious.”). In my view, the presence or absence
of a warning to an intoxicated driver is merely one factor to consider in the
totality of the circumstances. As this Court has explained, “[m]alice may be
inferred by considering the totality of the circumstances.” Commonwealth
v. Dunphy, 20 A.3d 1215, 1219 (Pa. Super. 2011); Commonwealth v.
Windslowe, 158 A.3d 698, 709 (Pa. Super. 2017) (same).
What Packer did require was conduct “virtually guaranteeing some
manner of accident will occur through the intentional doing of an uncalled-for
act in callous disregard of its likely harmful effects on others.” Packer, 168
A.3d at 171 (citations omitted). Our Supreme Court explained:
for the purpose of third-degree murder or aggravated assault, our
courts have consistently held that malice is present under
circumstances where a defendant did not have an intent to kill,
but nevertheless displayed a conscious disregard for “an
unjustified and extremely high risk that his actions might cause
death or serious bodily harm.”
Packer, 168 A.3d at 168 (citations and quotations omitted).
We have expounded upon the high degree of recklessness required for
a finding of malice in the DUI context in Commonwealth v. McHale, 858
A.2d 1209 (Pa. Super. 2004):
[R]eckless conduct will not support a finding of malice unless the
conduct in question poses a very high likelihood that death or
injury will result. For when such a considerable risk of injury or
death has been created and then callously disregarded, the actor
demonstrates that he essentially cares not whether he maims or
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kills another, and when a person consciously creates such a high
likelihood that injury or death will ensue, or continues his actions
after realizing he has created such a risk, he exhibits the
“wickedness of disposition, hardness of heart and cruelty” that is
the hallmark of malice.
***
Additionally, when one driving a vehicle creates a circumstance
which virtually assures that injury or death will result, the driver
often will be driving in such a fashion as to create a substantial
risk that he will also be injured or killed. Consequently, unless the
driver has essentially a “death wish,” or steamrolls through a
crowd of pedestrians, it would seem unlikely that the recklessness
would rise to the level sufficient to find malice.
Id. at 1213-14 (footnotes omitted).
Further, in Kling, supra, this Court held that “a conviction based on
malice is appropriate where evidence demonstrates the element of sustained
recklessness by a driver in the face of an obvious risk of harm to his
victims.” Kling, 731 A.2d at 149 (emphasis in original); see also id.(emphasizing that motor vehicles “still outdistance firearms as the most
dangerous instrumentality in the hands of irresponsible persons in our society
today.”). We defined sustained recklessness as a pattern supported by the
facts and circumstances of a case which exhibits
the sustained, purposeful recklessness necessary to prove a
knowing and conscious disregard that death or serious bodily
injury was reasonably certain to occur. Indeed, these
circumstances are facts which allow a [fact-finder] to [determine]
the [defendant] had time and reason to calculate and reflect upon
a deadly condition taking place, such that recklessness and malice
exist.
Id. at 150 (quotation marks omitted).
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Upon review of the record, I would conclude the Commonwealth
established Appellant’s “sustained, purposeful recklessness” and “knowing
and conscious disregard that death or serious bodily injury was reasonably
certain to occur.” See id. The evidence showed Appellant knew he would be
attending a holiday party, and was aware of alternate means of transportation
and overnight accommodations. See N.T., 9/15/21, at 83, 85, 89. Appellant
regularly took the train to Philadelphia. See N.T., 9/16/21, at 49, 86. On the
night of the party, a co-worker offered him a ride home, while other co-
workers used private transport services. See N.T., 9/14/21, at 114-15; N.T.,
9/16/21, at 85. This evidence, alone, would not establish malice.
However, the evidence also showed the intoxicated Appellant could not
operate the payment machine in the parking garage, and damaged the garage
gate when he manually lifted the gate to exit. See N.T., 9/15/21, at 182-83,
185, 191-93; N.T., 9/16/21, at 75-76. Appellant’s difficulty in the parking
garage should have alerted him that he was too intoxicated to drive safely,
but he was not deterred. After Appellant began driving, there were numerous
indications which should have alerted him that continuing to drive while
impaired posed an extremely high and unjustifiable risk to others. Indeed,
Appellant committed numerous traffic violations, driving at an excessive
speed, twice missing his exit on I-95, and nearly colliding with two other
motorists prior to the fatal crash, prompting both motorists to call 911 to
report Appellant’s hazardous driving. See N.T., 9/13/21, at 138-41, 151;
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N.T., 9/14/21, at 7, 10; N.T., 9/15/21, at 90. Immediately prior to the
collision, Appellant admittedly took his eyes off the road while driving
115 mph (nearly double the posted speed limit), in an attempt to
retrieve his phone from the floor of the car. See N.T., 9/16/21, at 81-82, 91.
In other words, Appellant maliciously exhibited sustained recklessness prior
to the fatal crash, despite an obvious risk of harm to others. Kling, 731 A.2d
at 149 (“a conviction based on malice is appropriate where evidence
demonstrates the element of sustained recklessness by a driver in the face
of an obvious risk of harm to his victims.” (emphasis omitted)); see also
McHale, 858 A.2d at 1214 (an intoxicated driver’s reckless driving can “rise
to the level sufficient to find malice” where the driver has essentially a ‘death
wish’”). As the Commonwealth explained, “This is not an instance where the
driving under the influence of alcohol ‘standing alone’ constitutes malice.
Rather, it is Appellant’s repeated and continued decisions over a sustained
period of time that when combined constitute the requisite malice.”
Commonwealth Brief at 33; see also id. at 46 (“Appellant had repeated
opportunities to stop and reflect upon his choices.”).
This Court has found the requisite malice for convictions of third-degree
murder and aggravated assault in similar circumstances. In Dunphy, supra,the defendant drove after consuming a large amount of alcohol and struck and
killed a pedestrian attempting to cross the street. Dunphy, 20 A.3d at 1216-
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17. We held malice existed “[c]onsidering the totality of the circumstances,”
id. at 1219, comprised of the following factors:
• “The intoxicated condition of appellant[] and the excessive
rate of speed he was traveling on a street where pedestrians
were present”;
• Appellant admitted “although he saw pedestrians in front of
him, he speeded up to make the [red traffic] light”;
• Appellant’s flight from the scene after striking the victim; and
• “The absence of any testimony that there was a physical or
climatic condition that would explain his failure to stop before
or after the accident.”
Id. at 1219-20 (some capitalization altered).4 In support, we cited, inter alia,
Commonwealth v. Taylor, 337 A.2d 545 (Pa. 1975) (plurality).
Summarizing Taylor’s holding, we explained:
[E]vidence was sufficient to demonstrate malice based on the
following factors: intoxicated condition of the driver; excessive
rate of speed; distance the victim’s body was propelled;
defendant’s awareness that children were present in the area; and
absence of any physical or climate condition that would contribute
to the accident or his failure to stop immediately after[.]
Dunphy, 20 A.3d at 1220.
Further, and following careful review, the cases upon which Appellant
relies are distinguishable. Appellant argues this case is governed by
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4 There was no evidence in Dunphy that prior to the collision, anyone
attempted to warn the defendant about his reckless driving. This further
undermines the Majority’s assertion of a “‘warning’ requirement of malice
necessary for third-degree murder and aggravated assault in the DUI
context.” Maj. at 13.
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Commonwealth v. Comer, 716 A.2d 593 (Pa. 1998) (superseded by statute
on other grounds), McHale, supra, and Commonwealth v. Dellavecchia,
725 A.2d 186 (Pa. Super. 1999) (en banc). See Appellant’s Brief at 21-23.
These cases are primarily distinguishable because in the instant case, the
crash in “did not ensue immediately after the driver became aware of his life-
threatening conduct.” Kling, 731 A.2d at 150 (distinguishing, inter alia,
Comer); cf. Comer, 716 A.2d at 595 (“immediately prior to the
accident[,]” appellant was driving “at a speed exceeding 45 m.p.h.” (the
posted speed limit), when his car went over a curb and struck pedestrians
(emphasis added)), and McHale, 858 A.2d at 1211 (intoxicated driver struck
pedestrians moments after starting his car and leaving parking spot).
Moreover, Appellant chose to excessively and recklessly exceed the speed
limit, at a rate drastically higher than that presented in Comer, McHale, and
Dellavecchia.
I acknowledge this is a close case. However, the totality of the evidence
with respect to malice is not “so weak and inconclusive that, as a matter of
law, no probability of fact can be drawn from the combined circumstances.”
Commonwealth v. Lake, 281 A.3d 341, 346 (Pa. Super. 2022) (emphasis
added). The trial court properly defined “malice” for the jury; the court even
repeated its instruction on malice when the jury requested clarification. See
N.T., 9/17/21, at 32-34 & 72-74, and id. at 62 (in response to jury’s question
about malice, trial court clarifying, at the request of Appellant’s counsel:
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“[The defense] has never argued … that [Appellant] was …
intoxicated to a point where he could not … recognize what the
dangers were … or what risks weren’t present at the time he was
driving.” (emphasis added)). Appellant was conscious of his impaired
condition and repeatedly disregarded the “extremely high risk that his actions
might cause death or serious bodily harm.” Packer, 168 A.3d at 168
(citations and quotations omitted).
Accordingly, I would affirm the jury’s convictions of third-degree murder
and aggravated assault under 18 Pa.C.S.A. §§ 2502(c) and 2702(a)(1).
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