NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P

Transcription

1 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P COMMONWEALTH OF PENNSYLVANIA Appellant IN THE SUPERIOR COURT OF PENNSYLVANIA v. MICHAEL PAUL WILLIAMS JR. Appellee No WDA 2012 Appeal from the Order June 15, 2012 In the Court of Common Pleas of Fayette County Criminal Division at No(s): CP-26-CR BEFORE: SHOGAN, J., OTT, J., and STRASSBURGER, J. * MEMORANDUM BY OTT, J.: FILED OCTOBER 1, 2013 The Commonwealth of Pennsylvania appeals from the June 15, 2012 order, entered in the Court of Common Pleas of Fayette County, that granted the omnibus pretrial motion of Michael Paul Williams, Jr., in the nature of a petition for writ of habeas corpus, and dismissed the two remaining charges 1 against Williams, namely, homicide by vehicle, and driving vehicle at safe speed. 2 The Commonwealth contends the court erred: * Retired Senior Judge assigned to the Superior Court. 1 The trial court, in an earlier ruling, had dismissed all counts related to driving under the influence. See Order, 11/23/ Pa.C.S. 3732(a), 3361, respectively.

2 by concluding that criminal negligence or recklessness cannot be proven by a violation of [75 Pa.C.S. ] 3362 standing alone (10 mph over the limit) and/or that [Williams s] excess speed was the direct cause of the victim s death; that even though [Williams] was speeding, he was doing so in a routine manner; [and] by finding that the Commonwealth s evidence proving [Williams] violated the Motor Vehicle [C]ode provision and/or his exceeding the speed limit was not the direct cause of the victim s death[.] Commonwealth s Brief at 1. 3 Based upon the following, we affirm. The trial court has aptly summarized the procedural history and facts relevant to this appeal: Before the Court again is the Omnibus Pretrial Motion (OPT) of Defendant, Michael Paul Williams [hereinafter Williams ], in the nature of (1) a Petition for Writ of Habeas Corpus and Motion to Dismiss for Lack of Probable Cause, (2) Suppression of Evidence, and (3) a Motion to Quash Informations. A partial hearing was held on September 22, 2011, regarding some of the matters set forth above, which resulted in the suppression of the invalid search warrant used to obtain blood test results and the dismissal of all alcohol related counts. 3 The Commonwealth also claims that the trial court erred by finding no support in the Commonwealth s contention that [Williams] did not enter the intersection when the light was red; [and] by ignoring the testimony of the other driver of the vehicle that the light was red when [Williams] entered the intersection. Commonwealth Brief at 1. We note that the trial court, in its Pa.R.A.P. 1925(a) opinion, pointed out that the Commonwealth stipulated on the record that the court should assume that Williams had a green light. (Tr. 3/28/12, p. 7). Trial Court Opinion, 10/19/2012, at 4 (underlining in original). We further note the Commonwealth advances no argument regarding the traffic signal in its brief. Therefore, these claims of trial court error have been waived. See Bolick v. Commonwealth, A.3d, [2013 PA Super 135] (Pa. Super. June 4, 2013) (finding waiver where appellant failed to present an argument in support of issue raised on appeal)

3 The balance of the testimony was heard on March 28, 2012, with the principal focus on the Petition for Writ of Habeas Corpus. At that time, the Commonwealth stipulated to the withdrawal of the charges of Careless Driving and Reckless Driving, Counts 7 and 8 respectively. The Commonwealth presented the testimony of Sergeant Joseph P. D Andrea, a highly qualified and experienced accident reconstruction expert with the Pennsylvania State Police, with respect to the remaining charges driving at a speed greater than would permit [the driver] to bring the vehicle to a stop within the assured clear distance ahead under 3361 of the Motor Vehicle Code (MVC), Count 6; and homicide by vehicle under 3732(a) of the MVC, Count 3. **** As set forth in this Court s previous Opinion: The record indicates that on March 5, 2009, just before 6 a.m., a vehicular accident occurred at an intersection near the Laurel Mall on Route 119 in Fayette County. The vehicle labeled Unit 1, a Jeep Cherokee, attempted to make a left-hand turn into the Laurel Mall from the southbound turning lane when it was struck on the passenger side mid-section by Unit 2, a Buick Century, which was traveling in the north-bound lanes. (See Criminal Complaint Affidavit of Probable Cause.) Unit 1 rolled over onto the passenger side as a result of the impact. Passenger Leslie Dawn Martray was partially ejected from the vehicle and suffered fatal injuries. She was pronounced dead at the scene of the accident. Unit 1 s driver, Nicole Lynn Martray, also suffered injuries. Unit 2 s driver, Williams, suffered serious injuries and was transported to UPMC Presbyterian Hospital by medical helicopter. Id. Additional findings of fact drawn from the evidence at both hearings that are necessary to the instant decision include the following: 1. There were no adverse conditions of weather, visibility, traffic or terrain

4 2. The intersection where the collision occurred is controlled by traffic lights. The Martray vehicle made use of a dedicated turn lane that was controlled by a separate traffic light before turning left into the Laurel Mall. 3. Sergeant Joseph P. D Andrea testified that, at the time of the collision, the signal for the southbound left turn lane should have been black, according to the program installed by the Pennsylvania Department of Transportation, with the lights in the two southbound through lanes flashing yellow. 4. The Commonwealth was unable to produce any competent testimony to establish that the Martray Jeep had a green light or green arrow. It must be assumed it was either a flashing red light, or a steady red light, or altogether black as testified to by Sergeant D Andrea. 5. The view from the southbound turn lane would have allowed the driver to see William[s] s car approaching without limitation. 6. For purposes of this criminal case only, therefore (because the Commonwealth must prove the defendant guilty beyond a reasonable doubt) the factfinder must presume that Williams had the right-of-way in the northbound lanes at the time of the collision. 7. Further, for purposes of this case only, and for the same reason, the factfinder must also presume that the recentlylicensed youthful driver of Unit #1 turned left immediately in front of Williams s car without yielding the right-of-way as required by law. 8. Sergeant D Andrea testified that his reconstruction established that Williams s vehicle was traveling at least 55 miles per hour, and that the posted speed limit in that area was 45 miles per hour, which is a violation of 3362 of the MVC. However, Williams was not charged under 3362, and that alleged violation was not included in the criminal complaint as a predicate Vehicle Code violation for the homicide by vehicle charge

5 9. On cross-examination, Sergeant D Andrea acknowledged that 55 miles per hour was a common speed for traffic in that area at the time of day that the collision occurred, and that citations for such speeding were frequently issued in that location. 10. Sergeant D Andrea opined that the speed Williams s vehicle was traveling was a contributing factor in causing the collision because that is what put his vehicle in the precise position it was in at the time of the collision. He testified that if the defendant was traveling at 45 miles per hour, the collision may not have happened. However, Sergeant D Andrea was unable to state to a reasonable degree of scientific certainty, or to any degree of probability at all, that the collision would not have occurred but for the excess speed of [Williams s] vehicle. 11. Sergeant D Andrea also concluded that William[s] s excess speed did increase the impact of the collision, and that the excess speed may have contributed to the death of Mrs. Martray for that reason. Neither Sergeant D Andrea, nor any other witness, was able to conclude to a reasonable degree of scientific certainty, or to any degree of probability at all, however, that Mrs. Martray s death would not have occurred but for the excess speed of William[s] s vehicle. Trial Court Opinion, 6/15/2012, at 1 5. Regarding the charges against Williams, 75 Pa.C.S ( Driving vehicle at a safe speed ) and 3732(a) ( Homicide by vehicle ), the court determined that the Commonwealth could not establish a violation of Section 3361, because (1) Williams did not have adverse conditions of weather, visibility, traffic or terrain, (2) Williams did not strike a stationary object or a vehicle moving forward in his own lane, and (3) [i]t must be presumed [Williams] had the legal right-of-way, and that the vehicle [Williams] struck unexpectedly violated the law and proceeded into the intersection against - 5 -

6 the signal. Trial Court Opinion, supra, at 6. The trial court further concluded that since the Commonwealth s prima facie evidence did not support a violation of Section 3361, the Commonwealth could not satisfy the elements of the homicide by vehicle statute, Section 3732(a), by using Section See id. at 9. In addition, the trial court opined that even if the Commonwealth amended the information to charge Williams with homicide by vehicle as a result of exceeding the posted speed limit, in violation 75 Pa.C.S ( Maximum speed limits ), 4 evidence of driving ten miles over the speed limit would not constitute prima facie evidence of recklessness required by the homicide by vehicle statute. The trial court also found that the Commonwealth could not establish that Williams s excess speed was the direct cause of the victim s death. Id. at 10. The court granted the omnibus pretrial motion of Williams in the nature of a petition for writ of habeas corpus, and dismissed the charges of homicide by vehicle, and driving vehicle at safe speed. This appeal followed. 5 When considering whether a prima facie case has been made out, the Commonwealth must show sufficient probable cause that the defendant 4 Section 3362, provides, in relevant part, that no person shall drive at a speed in excess of the [posted] maximum [speed] limits[.] 75 Pa.C.S The Commonwealth timely complied with the order of the trial court to file a Pa.R.A.P. 1925(b) statement

7 committed the offense, and the evidence should be such that if presented at trial, and accepted as true, the judge would be warranted in allowing the case to go to the jury. Commonwealth v. Engle, 847 A.2d 88, 91 (Pa. Super. 2004) (citation omitted), appeal denied, 863 A.2d 1143 (Pa. 2004). When deciding whether a prima facie case is established, the evidence must be read in the light most favorable to the Commonwealth, and inferences reasonably drawn from the evidence of record that would support a verdict of guilty are to be given effect[.] Id. (citation omitted). The decision to grant or deny a petition for writ of habeas corpus will be reversed on appeal only for a manifest abuse of discretion. Id. at 90 (citation omitted). Here, the Commonwealth charged Williams with homicide by vehicle based upon violation of Section 3361 of the Vehicle Code. The homicide by vehicle statute provides, in relevant part: Any person who recklessly or with gross negligence causes the death of 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 guilty of homicide by vehicle, a felony of the third degree, when the violation is the cause of death. 75 Pa.C.S. 3732(a). Further, Section 3361, Driving vehicle at safe speed, provides: No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing, nor at a speed greater than will permit the driver to bring his vehicle to a stop within the assured clear distance ahead. Consistent with the - 7 -

8 foregoing, every person shall drive at a safe and appropriate speed when approaching and crossing an intersection or railroad grade crossing, when approaching and going around curve, when approaching a hill crest, when traveling upon any narrow or winding roadway and when special hazards exist with respect to pedestrians or other traffic or by reason of weather or highway conditions. 75 Pa.C.S To sustain a conviction for homicide by vehicle, the Commonwealth must prove Williams caused the death of [the victim] by acting recklessly or with gross negligence, while violating a law or municipal ordinance under the conditions set forth in the statute. Commonwealth v. Matroni, 923 A.2d 444, (Pa. Super. 2007) (citing 75 Pa.C.S. 3732(a)), appeal denied, 952 A.2d 675 (Pa. 2008). The Commonwealth first contends the court erred by concluding that criminal negligence or recklessness cannot be proven by a violation of [75 Pa.C.S. ] 3362 standing alone (10 mph over the limit) and/or that [Williams s] excess speed was the direct cause of the victim s death[.] 6 This question, however, is not properly before this Court. Here, the Commonwealth did not charge Williams with homicide by vehicle based upon a violation of Section 3362, nor did the Commonwealth amend the information to include such charge. The trial court s discussion of this issue is dicta. As there is no order dismissing a charge of homicide by vehicle based upon a violation of Section 3362, there is nothing for this Court to 6 Commonwealth s Brief at

9 review. Accordingly, the Commonwealth s argument is misplaced and warrants no relief. The Commonwealth further contends that the trial court erred by concluding that even though [Williams] was speeding, he was doing so in a routine manner; [and] by finding that the Commonwealth s evidence proving [Williams] violated the Motor Vehicle [C]ode provision and/or his exceeding the speed limit was not the direct cause of the victim s death[.] 7 As stated above, the Commonwealth charged Williams with homicide by vehicle based upon violation of 75 Pa.C.S. 3361, Driving vehicle at safe speed. The Commonwealth, in its brief, however, fails to contest the court s finding that the Commonwealth s prima facie evidence was insufficient to supply a violation of Section Since engaging in the violation of any law, is an element of 75 Pa.C.S. 3732(a), supra, and since the Commonwealth s argument does not address this element, the Commonwealth s challenge to the trial court s dismissal of the charges may be deemed subject to waiver. See Bolick v. Commonwealth, A.3d, [2013 PA Super 135] (Pa. Super. June 4, 2013) (finding waiver where appellant failed to present an argument in support of the issue raised on appeal). However, even assuming that the Commonwealth did present evidence that supplied the element of engag[ing] in the violation of 7 Id

10 [Section 3361], pursuant to 75 Pa.C.S. 3732(a), the evidence in this case falls short of supplying the mens rea element of recklessness required by the homicide by vehicle statute. The homicide by vehicle statute requires that a defendant act in a reckless manner as defined in 18 Pa.C.S. 302(b)(3). Commonwealth v. Grimes, 842 A.2d 432, 434 (Pa. Super. 2004), appeal denied, 864 A.2d 1203 (Pa. 2004). Section 302(b)(3) of the Crimes Code defines reckless conduct 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). 8 To determine whether the Commonwealth presented prima facie evidence that a defendant acted in a reckless manner, a court must look to all of the relevant circumstances to determine whether or not a defendant consciously disregarded a material element of the relevant offense. See Commonwealth v. Huggins, 836 A.2d 862, 869 (Pa. 2003), cert. denied, 541 U.S (2004). 8 With regard to the requirement of gross negligence set forth in the homicide by vehicle statute, 75 Pa.C.S. 3732(a), this Court has explained that the concept of gross negligence is encompassed within the concept of recklessness as set forth in Section 302(b)(3). Grimes, supra

11 In Huggins, the Commonwealth established a prima facie case of two counts of involuntary manslaughter where the evidence showed that the defendant allowed himself to fall asleep at the wheel of a 15-passenger van that was overloaded with 21 children and three adults, while he was driving 23 miles over the speed limit. The Huggins Court found that under the totality of the circumstances the defendant s actions constituted the recklessness as defined in Section 302(b) of the Crimes Code. See id. at In Commonwealth v. Carroll, 936 A.2d 1148 (Pa. Super. 2007), appeal denied, 947 A.2d 735 (Pa. 2008), the Commonwealth established a prima facie case of homicide by vehicle where the defendant was racing an automobile on a wet roadway near a turn warranting lower speeds, in violation of a number of Vehicle Code provisions. Here, the Commonwealth s prima facie evidence to support the requisite mens rea recklessness was that Williams was traveling through an intersection ten miles over the speed limit. As discussed above, the mens rea necessary to support the offense of homicide by vehicle is a requirement that Williams consciously disregarded the probability that his driving could cause substantial risk of harm to others on the roadway. 9 We 9 As noted by the trial court, the Commonwealth s own expert, Sergeant D Andrea testified on cross examination that 55 miles per hour [in the 45 miles per hour zone] was a common speed in that location for that time of day. Trial Court Opinion, 6/15/2012, at

12 recognize that there could be fact-specific situations where the risk would be or should be recognized, but this case is not one of those situations. On this record, and in light of Huggins and Carroll, we agree with the trial court that the Commonwealth s prima facie evidence cannot support a finding of recklessness. 10 Lastly, with regard to the element of causation required by the homicide by vehicle statute, the Commonwealth argues: In the case at hand, the speed limit on the road was forty five (45) miles per hour. [Williams s] vehicle was traveling at fifty-five (55) miles per hour. As explained by the Commonwealth s expert, [Williams s] speed contributed to the collision. 11 In Commonwealth v. Petroll, 696 A.2d 817 (Pa. Super. 1997), this Court explained: 10 Although the trial court s discussion of the homicide by vehicle statute s mens rea of recklessness was with regard to a violation of 75 Pa.C.S. 3362, whereas our discussion is with regard to a violation of 75 Pa.C.S. 3361, we agree with the trial court s reasoning that the Commonwealth s prima facie evidence does not support a finding of recklessness. In this regard, we note that this Court s decision in Commonwealth v. Johnson, 846 A.2d 161 (Pa. Super. 2004) which upheld the judgment of sentence of the defendant who was convicted of homicide by vehicle based upon a violation of Section 3361 involved evidence that the defendant was traveling at night at a high rate of speed on a roadway that was unlit and had a curved, ascending grade leading to the crest of a hill, and other drivers slowed their vehicles, and were able to avoid hitting the victim. Id. at 165. The facts of the present case distinguish it from Johnson. 11 Commonwealth s Brief at 4 5 (record citations omitted)

13 Causation will only be found if the defendant s Motor Vehicle Code violation was a direct and substantial factor in the death of the victim and the fatal result was not extraordinary or remote. Commonwealth v. Francis, 445 Pa.Super. 353, , 665 A.2d 821, 823 (1995); Commonwealth v. Nicotra, 425 Pa. Super. 600, , 625 A.2d 1259, (1993) (when the defendant s conduct starts the chain of causation leading to the victim's death, criminal responsibility for the crime of homicide may properly be found). Further, the Commonwealth must establish that the defendant s conduct was criminally negligent or reckless. Francis, 445 Pa.Super. at 358, 665 A.2d at 823 (citing Commonwealth v. Heck, 517 Pa. 192, 201, 535 A.2d 575, 580 (1987)). Petroll, 696 A.2d 817, 823 (Pa. Super. 1997). Here, the trial court opined: When causation is at issue in a criminal case, the criminal standard of causation is used, not the civil standard. Commonwealth v. Rementer, 598 A2d 1300 (Pa. Super. 1991). Criminal responsibility requires a more direct causal connection than does tort liability. In Rementer, the Superior Court defined a two-step analysis to find criminal causation: first that the death would not have occurred but-for the antecedent act of the defendant, and second, that the fatal result not be so extraordinary, remote or attenuated that it would be unfair to hold the defendant criminally responsible for it. Id. at The second step in the analysis requires a pure value judgment a nightmare for a factfinder or trial court judge. But, in accordance with the evidence recited above, the Commonwealth is unable to get past the first step. Sergeant D Andrea could not say that Mrs. Martray would have survived if Williams had been driving at or below the posted speed limit. The Commonwealth has not produced any evidence to show that the death would not have occurred but-for the speeding violation. Sergeant D Andrea could not say that the extra ten miles per hour is what caused the Jeep to roll over, and no

14 medical testimony linked Mrs. Martray s death to injuries from the rollover anyway. Would there have been a rollover if Williams was driving the legal speed? Did the injuries from the rollover cause her death? Those questions were not affirmatively answered by the Commonwealth s evidence. The most that Sergeant D Andrea could say was maybe or might have. As a result, the difficult second step of the Rementer analysis does not need to be considered. Under the standards applicable to criminal cases, the Commonwealth s evidence is insufficient to prove that William[s] s Vehicle Code violation caused the death of Mrs. Martray. Trial Court Opinion, supra, at Our review confirms the trial court s analysis. The Commonwealth s expert did not testify that he was able to conclude to a reasonable degree of professional certainty that Williams s speed of ten miles over the speed limit was the direct cause of the victim s death. See N.T., 3/28/2012, at Therefore, the Commonwealth s prima facie evidence is insufficient to supply the element of causation for the homicide by vehicle charge. In conclusion, having reviewed the argument presented by the Commonwealth, we discern no basis upon which to disturb the decision of the trial court to grant Williams s omnibus pretrial motion in the nature of a writ of habeas corpus, and dismiss the charges of homicide by vehicle, 75 Pa.C.S. 3732(a), and driving vehicle at safe speed, 75 Pa.C.S Accordingly, we affirm. Order affirmed

15 Judgment Entered. Deputy Prothonotary Date: 10/1/