Com. v. Sanders, K. ( 2020 )


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  • J-A27021-18
    
    2020 Pa. Super. 20
    COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                          :
    :
    :
    KATRINA A. SANDERS                       :
    :
    Appellant             :   No. 3562 EDA 2017
    Appeal from the Judgment of Sentence July 17, 2017
    In the Court of Common Pleas of Montgomery County Criminal Division
    at No(s): CP-46-CR-0003929-2016
    BEFORE: BOWES, J., STABILE, J., and McLAUGHLIN, J.
    CONCURRING OPINION BY BOWES, J.:                   FILED FEBRUARY 3, 2020
    I join in the majority writing of my esteemed colleague, and agree that
    Appellant’s conviction for homicide by vehicle should be reversed, but upon
    slightly different reasoning.
    To recap, homicide by vehicle is established by evidence that the
    defendant recklessly caused the death of another person through a violation
    of any law applicable to operation or use of a vehicle. 75 Pa.C.S. § 3732(a).
    The term “recklessly” as a degree of criminal culpability is defined 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. § 302(b)(3).
    J-A27021-18
    Viewing these two statutes together, it is clear that to establish the mens
    rea necessary to support Appellant’s conviction, the Commonwealth was
    required to prove that Appellant disregarded a substantial and unjustifiable
    risk that she would cause the death of a person by grossly deviating from the
    conduct that a reasonable person would have observed in Appellant’s
    situation.
    The majority suggests that the risk that Appellant failed to ascertain was
    actually seeing the victim himself.      See Majority Opinion at 11 n.2, 14.
    Undeniably, Appellant was unaware of the presence of the victim before she
    turned left. However, the evidence did establish that Appellant was aware
    that the blind spot created by the side mirror on her vehicle posed a risk that
    she could hit an unseen pedestrian while during left.        I believe that the
    question is not whether Appellant actually saw the victim, but whether the
    Commonwealth offered legally sufficient evidence to prove beyond a
    reasonable doubt that Appellant’s actions amounted to a gross deviation from
    the conduct that a reasonable person would have observed in the face of the
    general risk created by the mirror. In my view, they did not.
    This conclusion is based on my consideration of the nature and the intent
    of Appellant’s conduct and the circumstances known to her. Appellant was
    stopped. She neglected to observe the intersection during the forty-five
    seconds that she waited at the red light. Prior to beginning to move forward
    to make a left-hand turn, she waited 2.33 seconds and scanned the roadway
    -2-
    J-A27021-18
    to her left, right, and straight ahead. She proceeded slowly through her turn,
    at a mere eight miles per hour, continuing to watch the road ahead of her.
    Nonetheless, the victim remained in Appellant’s blind spot, and she stuck him,
    tragically causing his death. No one contends that Appellant actually saw the
    victim prior to striking him, that she pulled out into the intersection
    immediately without observing her surroundings, that she was speeding as
    she rounded the corner, or other conduct that has been deemed sufficient to
    demonstrate more than negligence. See, e.g., Commonwealth v. Moyer,
    
    171 A.3d 849
    , 854 (Pa.Super. 2017) (holding evidence was legally sufficient
    to establish recklessness where defendant who had an obstructed view turned
    into thirty-five-mile-per-hour traffic at twelve miles per hour on a busy road
    without stopping at a stop sign); Commonwealth v. Matroni, 
    923 A.2d 444
    ,
    448-49 (Pa.Super. 2007) (holding evidence of cumulative conduct of
    speeding, tailgating, and erratically changing lanes was sufficient to establish
    recklessness).
    My view of the evidence leads me to conclude that, considering the
    totality of the circumstances, including Appellant’s review of the paperwork
    while stopped, the position of the bus over the stop line, the initiation of the
    left-hand turn after waiting only 2.33 seconds, and the papers held in her left
    hand while turning, the evidence was sufficient to find that Appellant’s
    behavior was a deviation from the standard of conduct of a reasonable person.
    However, it was not sufficient to constitute a gross deviation giving rise to
    -3-
    J-A27021-18
    the inference that Appellant acted with disregard of a substantial and
    unjustifiable risk that she would cause the death of a person. As the majority
    aptly states, “[t]he circumstances of this case do not suggest the level of
    brazenness or hard-heartedness characteristic of acts of recklessness” under
    § 302(b)(3).1 Majority Opinion at 13. Accord Commonwealth v. Karner,
    
    193 A.3d 986
    , 992-93 (Pa.Super. 2018) (affirming dismissal of homicide-by-
    vehicle charges upon holding, as a matter of law, that evidence that the
    defendant was driving eight to twelve miles over the speed limit and collided
    ____________________________________________
    1 The dissent suggests that, in concluding that the Commonwealth’s evidence
    was insufficient to establish the mens rea element of homicide by vehicle, I
    have violated this Court’s standard of review by reweighing the evidence. On
    the contrary, I fully accept the fact-finder’s determinations and the weight it
    accorded the Commonwealth’s evidence. Nonetheless, it is this Court’s
    responsibility to consider and determine whether the evidence behind those
    factual determinations, viewed in the light most favorable to the
    Commonwealth, is sufficient as a matter of law to establish each element of
    the crime at issue. See, e.g., Commonwealth v. Mikitiuk, 
    213 A.3d 290
    ,
    300 (Pa.Super. 2019) (“Whether the evidence was sufficient to sustain the
    charge presents a question of law.”). Legal questions are subject to de novo
    plenary review. See id.
    My application of our standard of review in this case is consistent with this
    Court’s analysis of the mens rea elements of various crimes in similar appeals.
    See, e.g., Commonwealth v. MacArthur, 
    629 A.2d 166
    , 168-69 (Pa.Super.
    1993) (reversing third-degree murder conviction upon concluding that the
    defendant’s conduct failed to rise to the level of malice under the
    circumstances of the case). Indeed, the dissent’s position appears to be
    inconsistent with this Court’s recent sufficiency review in Commonwealth v.
    Hoffmann, 
    198 A.3d 1112
    , 1119-20 (Pa.Super. 2018) (McLaughlin, J.)
    (applying sufficiency standard of review in affirming trial court’s grant of
    judgment of acquittal after a jury convicted the defendant of third-degree
    murder and aggravated assault; as a matter of law, evidence of the
    defendant’s conduct amounted only to gross negligence, not a conscious
    disregard of an extremely high risk that her actions would result in death).
    -4-
    J-A27021-18
    with car that turned off the roadway more slowly than the defendant expected
    constituted negligence rather than recklessness or gross negligence).
    I therefore concur.
    Judge Stabile concurs in the result.
    -5-
    

Document Info

Docket Number: 3562 EDA 2017

Filed Date: 2/3/2020

Precedential Status: Precedential

Modified Date: 2/3/2020