Com. v. Crosby, L. ( 2023 )

J-A17008-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LIAM CROSBY :
:
Appellant : No. 2681 EDA 2022
Appeal from the Judgment of Sentence Entered September 15, 2022
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-SA-0000446-2022
BEFORE: KING, J., SULLIVAN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED AUGUST 22, 2023
Liam Crosby (Crosby) appeals from the judgment of sentence imposed
after his bench conviction of careless driving involving unintentional death1 in
the Court of Common Pleas of Montgomery County (trial court). He argues
that the evidence was insufficient to establish that he acted carelessly. We
affirm.
The factual and procedural background of this matter is not in significant
dispute.
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* Retired Senior Judge assigned to the Superior Court.
1 75 Pa.C.S. § 3714.
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I.
The case commenced in the trial court when Crosby appealed his
magisterial district court summary conviction. At the September 15, 2022 de
novo summary appeal, the parties provided the court with the following
stipulated facts.
A.
At the time of the subject September 7, 2021 incident, Crosby had been
employed as a mechanic/service technician at the Nissan dealership located
at 265 Lancaster Avenue, Lower Merion Township, Montgomery County,
Pennsylvania for seven months. That day, in the early afternoon, Crosby was
driving a customer’s blue 2018 Nissan Armada performing a standard road
test. He was in the parking lot of the Nissan dealership, which abutted
Lancaster Avenue, a busy four-lane road, waiting to make a right-hand turn.
When he did so, he struck Susan K. Simpson (d.o.b. 6/15/32) (“the victim”)
as she was crossing in front of the vehicle on the sidewalk. The victim died
as a result of non-survivable head and neck injuries. (See Trial Court Opinion,
3/14/23, at 2); (Stipulations of Fact, 9/15/22, at ¶¶ 1, 6-9).
When police arrived at the scene, Crosby told them that he was turning
right out of the dealership parking lot onto Lancaster Avenue and was stopped
for ten seconds before turning due to oncoming traffic. He said that he was
familiar with the area, saw people walking on the sidewalk every day and
would travel his road-test route ten to fifteen times a day. He told the police
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that he looked left and right to see traffic clear up and then made a right-hand
turn onto Lancaster Avenue, got into the left lane and noticed a person in the
roadway in his left side mirror. He pulled over, stopped the vehicle and ran
back to where the victim was lying in the street. He reported that he never
saw the victim prior to the crash and did not make any evasive maneuvers.
(See Trial Ct. Op., at 2-3); (Stipulations, at ¶¶ 10-16).
Officer Charles Farrell is qualified in the field of crash reconstruction and
examination, including but not limited to pedestrian crash reconstruction. At
the time of the crash the roadway was dry, there was no inclement weather
and it was cloudy with a temperature of approximately 80 degrees. (See Trial
Ct. Op., at 3); (Stipulations, at ¶¶ 17-18).
The parties stipulated that if called to testify, the following individuals
would testify to the following facts. Salimah Williams would state that she
was in the Nissan dealership parking lot at around 11:07 a.m. on September
7, 2021, directly behind the blue SUV being driven by Crosby and did not
observe a turn signal. Ms. Williams would testify that she saw the victim
walking on the sidewalk approaching the blue SUV, at which point she lost
sight of her. She saw the blue SUV turn right and she saw the victim lying on
the ground. When the blue SUV immediately pulled over and stopped, Crosby
ran back to where the victim was lying. Melanie Camp would state that she
was travelling in the eastbound left lane of Lancaster Avenue approaching the
Nissan dealership on her left when she saw an SUV make a right-hand turn
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onto Lancaster Avenue. When the vehicle turned right, she saw the victim go
to the ground “hard” and that she did not move. Cedric White would testify
that he was the owner of the blue 2018 Nissan Armada that was being serviced
for an oil change by the Nissan dealership on September 7, 2021. He would
state that he did not observe fresh damage to the SUV after the incident, and
that on the date of the incident, everything was in working order with no
mechanical defects or issues that affected visibility, steering, braking or
accelerating. Officer Michael Sullivan would state that he performed a road
test on the blue 2018 Nissan Armada and there were no issues with the
braking or steering of the vehicle. Finally, Aghyad Antonios, the general
manager of the Nissan dealership, would state that he has worked for the
dealership for several years and is aware of constant pedestrian traffic on the
sidewalk in front of the dealership, with pedestrians frequently walking in front
of vehicles leaving the parking lot onto Lancaster Avenue. (See Trial Ct. Op.,
at 3-4); (Stipulations, at ¶¶ 20-23, 25).
Finally, the parties stipulated that the victim’s pants, videos from the
Nissan dealership, photos and Google images were admissible. (See Trial Ct.
Op., at 2, 4); (Stipulations, at ¶¶ 3-5, 24).
B.
At trial, the Commonwealth admitted the following evidence: three
surveillance videos that contained footage of the incident; the policemen’s’
post-accident body cams with audio that showed the victim and the vehicle
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and contained an interview with Crosby; photographs of the vehicle and
scene; and excerpts certified by the Pennsylvania Department of
Transportation (PennDOT) from its Pennsylvania driver’s manual describing a
driver’s duties upon turning from a stop at an intersection. Officer Farrell, the
lead investigator in the case, was the only live witness at trial and was
qualified as an expert witness in crash reconstruction. The trial court found
that Officer Farrell’s testimony was credible.
Officer Farrell testified that he is a 21-year veteran of the Lower Merion
Township Police Department. He arrived on the scene of the incident within
minutes of the crash and observed the vehicle Crosby had been driving parked
on the street where he had left it and the victim lying where she had fallen.
The officer narrated the video footage from the dealership’s surveillant
camera, which showed Crosby getting into the SUV and starting it, with the
lights and brakes functioning normally. The video showed the vehicle driven
by Ms. Williams pulling behind the SUV where Crosby had stopped while
waiting to turn onto Lancaster Avenue. (See N.T. Summary Appeal, 9/22/15,
at 5-8, 9-11).
Officer Farrell stated that it was common for pedestrians to come and
go in both directions on the subject sidewalk. The surveillance video exhibited
the victim walking into the picture from the right when the SUV Crosby was
driving was facing the street, and another pedestrian coming from the left on
the same sidewalk. He described the video’s depiction of the victim making
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her way toward the SUV from the right, crossing in front of it on the sidewalk,
and the blue SUV pulling out and turning right onto Lancaster Avenue after
waiting for a gray SUV to pass, striking the victim from the front. (See id. at
10-12).
Officer Farrell testified that approximately 21 seconds elapsed between
Crosby’s stopping at the intersection and his turning onto Lancaster Avenue.
Id. at 13:5-12. About six seconds after the gray SUV passed and Crosby
pulled out, the next car travelling in the same direction arrived at the
intersection of the street and parking lot. Id. at 12:20-13:4. According to
Officer Farrell’s measurements, the victim was five feet and three inches tall,
and was 11 inches taller than the hood of the Nissan Armada driven by Crosby
so that her head and shoulders would have been visible to a driver. Id. at
13:13-23. The prosecution introduced into evidence the victim’s pants and
Officer Farrell identified a tire mark on the bottom left pant leg consistent with
the video evidence. (See id. at 12-14 & Exhibit 3).
Officer Farrell described the digital footage from one officer’s body cam
which showed the victim lying on the sidewalk. Another officer’s body cam
footage contained an interview with Crosby in which he stated, “[t]hat he was
only looking to the left the entire time.” (Id. at 18). This video also showed
that the passenger’s side window of the vehicle Crosby had been driving was
down. (See id. at 15-19 & Exhibits 2B, 2C).
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Officer Farrell next identified a series of photographs taken of the vehicle
at the time of the crash. Id. at 19-20 & Ex. 4A- I. The pictures showed that
the vehicle’s passenger’s side window was down, the driver’s side window was
up and that there were no obstructions to the windshield or any of the SUV’s
controls. Id. at 20-22 & Ex. 4A-E. Officer Farrell testified that since Crosby
was approximately six feet tall, the photos showed nothing that would have
interfered with his ability to operate the vehicle or see over its hood. Id. at
21. Other photos showed clear lines of sight for both the victim and Crosby,
with clear paths of unobstructed roadway and sidewalk. (See id. at 19-23 &
Exhibits 4A-I).
According to a certified excerpt from the official state driver’s manual
read by Officer Farrell, “Drivers must yield to pedestrians when they are ...
walking on a sidewalk crossing a driveway or alley ....” (Id. at 23-24; Pa.
Dep’t of Transp., Bureau of Driver Licensing, Pennsylvania Driver’s Manual 48-
49 (2021). When moving into and through an intersection to turn right, a
driver must “Look left, straight ahead, right[] and then left again to make sure
there is no traffic coming. Allow a gap of about eight (8) seconds between
you and any vehicle approaching from the left.” (N.T., at 24); (Trial Exhibit S
at 49).
Officer Farrell testified that Crosby’s stipulated statement to police that
he was only stopped for ten second before turning “was inconsistent with the
evidence because the video clearly shows it was longer than ten seconds.”
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(N.T., at 25); (see also Stipulations at ¶ 10). The officer testified that the
stipulation that Crosby told police that he looked in both directions before
turning right “was inconsistent with the evidence based on the officer’s body
cam video capturing Crosby saying he only looked left.” (N.T. at 25); (see
also Stipulations, at ¶ 13). Although Stipulation 14 represented that “Crosby
stated to police that when he turned right he got into the left lane [and]
noticed the person in the roadway in his left side mirror,” the officer found this
statement inconsistent with his review because “[t]he manner in which he
pulled out of the driveway he exited almost into the left lane, it would have
been virtually impossible to see anybody struck in his driver’s side mirror.”
(N.T., at 26); (Stipulations, at ¶ 14). Finally, Officer Farrell testified that
Crosby did not follow the driver’s manual’s directive with regards to looking in
both directions and giving an eight second cushion when making a turn into
traffic because “there was only six seconds between the other vehicle that
came into view after he exited.” (N.T., at 26).
“Based on [his] training, knowledge[,] and experience and [his]
qualifications as an expert in the field of crash reconstruction,” Officer Farrell
opined that the victim’s death “was [due to the] careless driving … of Mr.
Crosby.” (Id. at 26-27). The prosecutor completed direct examination of the
officer by asking, “[T]o be clear, was this by failing to yield to a pedestrian on
the sidewalk?” (Id. at 27). The officer and expert witness concluded, “It
was.” (Id.).
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After cross-examining the officer, Crosby rested and proceeded directly
to argument. Defense counsel argued that the evidence was insufficient
because, although the Commonwealth had established ordinary negligence
and Crosby’s absence of care, “[t]he mens rea requirement applicable to
Section 3714, careless disregard, implies less than willful or wanton conduct,
but more than ordinary negligence or the mere absence of care under the
circumstances.” (Id. at 31). Although he conceded that Crosby is liable to
the victim’s estate for her death because he had a duty to see the victim and
“missed her,” he maintained that this was only ordinary negligence. (Id. at
34). The Commonwealth responded that it took the victim approximately 20
seconds to walk from where she was first seen on the video until she was in
front of the SUV, with her shoulders and head clearly visible above the hood,
and the fact that Crosby only looked left before turning into traffic despite
being aware that pedestrians use the sidewalk in front of the dealership was
careless driving that resulted in the victim’s death. (See id. at 36). After
taking a brief recess, the trial court returned, used the clock on its phone to
demonstrate how long 21 seconds was between the time the victim was seen
on the sidewalk and the SUV Crosby was driving struck her, and concluded
that:
[Crosby]’s statement that he never looked [right],
considering the amount of time that he had ... to look right, had
he looked right, he would have seen her. And the fact that he did
not look right is more than just ordinary negligence, especially
when you are in a high[-]traffic area with sidewalks in front of the
dealership.
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So after I did my own — in front of you as l did see how long
[twenty-one] seconds [was], I do find [Crosby] was careless and
I find on behalf of the Commonwealth.
(Id. at 43-44).
The court convicted Crosby of careless driving involving unintentional
death, imposing a mandatory fine of $500 and costs. Crosby timely filed a
notice of appeal and a concise statement of errors complained of on appeal.
See Pa.R.A.P. 1925(b).
Crosby raises one issue for our review: “Whether the trial court
committed reversible error when it concluded that the evidence presented by
the Commonwealth was sufficient to sustain a conviction for Careless
Driving[.]”2 (Crosby’s Brief, at 3).
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2 It is well-settled that:
Our standard of review from an appeal of a summary conviction
heard de novo by the trial court is limited to a determination of
whether an error of law has been committed and whether the
findings of fact are supported by competent evidence. The
adjudication of the trial court will not be disturbed on appeal
absent a manifest abuse of discretion.
Commonwealth v. Reigel, 75 A.3d 1284, 1286-87 (Pa. Super. 2013)
(citation omitted). “Evidence is sufficient if it establishes each material
element of the crime charged and the commission thereof by the accused,
beyond a reasonable doubt.” Commonwealth v. Coniker, 290 A.3d 725,
733 (Pa. Super. 2023) (citation omitted). “A reviewing court views all the
evidence from trial in the light most favorable to the Commonwealth as verdict
winner, including the benefit of all reasonable inferences drawn from the
evidence.” Id. (citation omitted).
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II.
Crosby argues that his conviction for careless driving resulting in
unintentional death was not supported by sufficient evidence where it
demonstrated that his actions demonstrated ordinary negligence.3
We are guided by the following legal principles.
A.
“Any person who drives a vehicle in careless disregard for the safety of
persons or property is guilty of careless driving, a summary offense.” 75
Pa.C.S. § 3714(a). The Vehicle Code does not define what careless driving is,
but instead describes what it is not. In other words, “[t]he mens rea
requirement applicable to § 3714, careless disregard, implies less than willful
or wanton conduct[4] but more than ordinary negligence or the mere absence
of care under the circumstances.” Gezovich, 7 A.3d at 301 (citations and
internal quotation marks omitted).
A person acts negligently pursuant to Section 302(a) of the Crimes Code
if he:
… should be aware of a substantial and unjustifiable risk that the
material element exists or will result from his conduct. The risk
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3 Crosby does not dispute that he caused the victim’s death.
4 Reckless driving, which has not been alleged here, requires a driver to drive
in “willful or wanton disregard for the safety of persons or property.” 75
Pa.C.S. § 3736. The primary difference between mens rea requirements for
reckless driving and careless driving is that reckless driving is conscious
disregard versus careless disregard for safety of persons or property. See
Commonwealth v. Bullick, 830 A.2d 998, 1002 (Pa. 2003).
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must be of such a nature and degree that the actor’s failure to
perceive it, considering the nature and intent of his conduct and
the circumstances known to him, involves a gross deviation from
the standard of care that a reasonable person would observe in
the actor’s situation.
18 Pa.C.S. § 302(b)(4).
B.
Crosby maintains that “[w]hen the argument is framed, in the light most
favorable to the government, [he] did not look to his right sufficiently to see
the victim, in violation of the Pennsylvania Driver’s manual[,]” which is
“textbook negligence.” (Crosby’s Brief, at 12). In concluding that the
Commonwealth’s evidence was sufficient, the trial court relied in large part on
Commonwealth v. Sanders, 259 A.3d 524 (Pa. Super. 2021). (See Trial
Ct. Op., at 32-38).
In Commonwealth v. Sanders, a bus driver was on a new route when
she stopped at a red light to check paperwork to confirm the correct way to
go. When the light turned green, she turned left into an intersection and
inadvertently ran over and killed an elderly man who had been waiting at the
corner and began to cross the street in the crosswalk when the light changed.
We concluded the evidence was sufficient to support a conviction for careless
driving where:
Appellant had an unobstructed view of the intersection for at least
45 seconds before beginning to turn her vehicle. Nevertheless,
she failed to notice the victim before commencing her left turn
into the crosswalk because she was preoccupied with reading
paperwork while stopped when the traffic light was red. By
striking and killing the victim, she drove her vehicle in careless
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disregard for the victim’s safety and, in so doing, unintentionally
caused the victim’s death.
Sanders, 259 A.3d at 530.
The trial court relied on Sanders for its decision, explaining:
Crosby looked only left for the entire period of twenty-one seconds
during which he had stopped the vehicle he was driving at the
parking lot’s intersection with the street, and never looked right
or straight ahead to see the elderly pedestrian who had made her
way on the sidewalk directly in front of the vehicle. [Crosby] knew
from driving the same route numerous times over a seven-month
period that people were constantly using the sidewalk during the
hours he worked at the auto shop. Yet Crosby abruptly moved
(the prosecutor said “jumped on the gas” (N.T., at 37)) into the
intersection at the first break in the vehicular traffic he was
intently watching to his left (which the investigating officer
testified lasted only six seconds and not the eight seconds the
PennDOT driver’s manual requires for a safe turn into traffic (see
id. at 26) without once bothering to look right or to the front of
his car and consequently failing to notice the victim walking on
the sidewalk, and striking and killing her as a result, in the officer’s
opinion, of “careless driving.” (Id. at 26).
(Trial Ct. Op., at 36) (citation omitted; some formatting provided).
However, Crosby distinguishes Sanders, arguing that in that case, prior
to her making a turn and striking the pedestrian, the bus driver was focused
on an identifiable distraction (the papers), instead of the scene, whereas,
here, Crosby was not distracted by any external factor. We disagree.
In both cases, the driver focused on one specific thing before turning
into the street and striking the victim. Sanders focused on papers. Crosby
focused solely on the oncoming traffic to his left. In both cases, the driver
failed to pay attention to what sound driving and regard for human life
required: a pedestrian passing in front of the vehicle in a place he or she was
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legally entitled and would commonly be expected to be such that the driver
was legally required to yield. Crosby’s failure to do so was careless disregard
sufficient to support a conviction for careless driving.
C.
Moreover, we are not legally persuaded by the cases Crosby
distinguishes in support of his position. (See Crosby’s Brief, at 9-10).
First, Crosby distinguishes Commonwealth v. Abbazio, 276 A.3d 210(Pa. Super. filed Mar. 3, 2022) (unpublished memorandum), on the basis that
in that case, the appellant driver was going 35 miles per hour through the
intersection and operating a GPS device. (See Crosby’s Brief, at 9-10).
However, this is not persuasive where the Superior Court did not base its
decision on either of those facts and, in fact, its reasoning supports the
Commonwealth’s position. The Court stated:
Considering the fact that neither Appellant nor [the victim] was
speeding, and at the time of the accident, “[i]t was daylight, it
was clear, [and] there were no adverse conditions[,]” we conclude
the Commonwealth presented sufficient evidence to establish
Appellant acted in careless disregard for the safety of Schessler
when he initiated a left turn as the motorcyclist approached,
without sufficient time to avoid the collision.
Abbazio, 276 A.3d 210 at *6. Therefore, Crosby’s attempt to distinguish
Abbazio is not persuasive.
Next, Crosby distinguishes Commonwealth v. Ford, 141 A.3d 547 (Pa.
Super. 2016), appeal denied, 164 A.3d 483 (Pa. 2016), on the basis that this
Court found the evidence sufficient to support a careless driving conviction
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because the appellant was traveling at 52 miles per hour in a 25 mile per hour
zone and sped off from the ensuing traffic stop with the officer near his vehicle.
(See Crosby’s Brief, at 10). However, although the facts of Ford supporting
the conviction were different than those present here, this does not render
the facts in this case insufficient where there are myriad circumstances in
which an individual can be guilty of driving carelessly.
Finally, Crosby relies on Commonwealth v. Gilliland, 422 A.2d 206(Pa. Super. 1980). (See id.). However, Gilliland is inapposite to this matter
where the issue before the Court was “whether the appellant’s action was so
negligent as to approach the level of recklessness or gross negligence required
by statute for involuntary manslaughter, and whether his action constitutes
reckless endangerment of the decedent.” Gilliland, 422 A.2d at 207. Not
only were these legal issues not present in this case, but the facts are also
distinguishable where Gilliland involved a boating accident at 9:00 p.m., it
was getting dark and there was no evidence about which boat had the right
of way or about any other boating regulations. Conversely, here, it was a
clear afternoon, Crosby violated the Vehicle Code by failing to look both ways
and in front of him in the 21 seconds he waited before crossing what he knew
was a heavily travelled pedestrian sidewalk involves “a gross deviation from
the standard of care that a reasonable person would observe in the actor’s
situation.” 18 Pa.C.S. § 302(b)(4). Crosby’s reliance on Gilliland is not
legally persuasive.
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For all the foregoing reasons, we conclude that the trial court did not
commit an error of law or manifest abuse of discretion in convicting Crosby of
careless driving resulting in inadvertent death; there was sufficient evidence
to support the conviction.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/22/2023
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