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filed: January 25, 1980.


No. 1805 October Term 1978, No. 1950 October Term 1978, Appeal from the Order of the Court of Common Pleas of Montgomery County of May 31, 1978 sustaining the demurrer to No. 3575 - 77.


Wallace A. Murray, Norristown, for appellant at No. 1950 and appellee at No. 1805.

Ronald Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee at No. 1950 and appellant at No. 1805.

Cercone, President Judge, and Price, Spaeth, Hester, Wieand, Cavanaugh and Hoffman, JJ.*fn* Spaeth, J., files a concurring opinion in which Hoffman, J., joins. Wieand, J., files a dissenting opinion in which Price and Hester, JJ., join.

Author: Cercone

[ 276 Pa. Super. Page 285]

The Commonwealth brings the instant appeal from the trial court's order granting of appellee's demurrer to the charge of homicide by vehicle, Motor Vehicle Code, 75 Pa.C.S. § 3732 (1977).*fn1 Ms. Barone filed a cross-appeal challenging an earlier order of court dismissing various of her earlier petitions and motions attacking the constitutionality of this statute. Albeit for different reasons, the majority of this Court agree that the order of the trial court discharging appellant should be affirmed.

Section 3732 of the Motor Vehicle Code provides:

Any person who unintentionally 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 is guilty of homicide by vehicle, a misdemeanor of the first degree, when the violation is the cause of death.

The Commonwealth argues and the Dissent agrees that the words of this provision are precise and unambiguous. From this the Commonwealth further reasons that this statute unequivocally evidences a legislative intent to impose the severe penal sanctions of up to five years imprisonment*fn2 and a possible fine, on drivers who, no matter how unintentionally, cause a death while operating a vehicle in violation of any statewide or municipal rule regulating operation or use of an auto. In our opinion, the above language is not susceptible to such a "plain meaning" approach. After having examined the legislative history of this enactment, we would hold that the legislature intended to select culpable negligence as defined in the Crimes Code, 18 Pa.C.S. § 302(b)(4) (1973), as its touchstone for punishment.

[ 276 Pa. Super. Page 286]


Constitutional Challenges to Section 3732

On this cross-appeal from the lower court's refusal to hold section 3732 unconstitutional, the appellee, Ms. Barone, advances three contentions. Ms. Barone urges that section 3732 runs afoul of the Due Process Clause of the United States Constitution inasmuch as it is vague and overbroad, omits to require as an essential element of the offense some degree of "fault" or mens rea, and denies the accused the right to have all charges disposed of at the magistrates level. This latter invalidity is said to stem from the procedure made applicable to a section 3732 prosecution under our Supreme Court's decision in Commonwealth v. Campana.*fn3 For the reasons which follow, we need only concern ourselves with the latter constitutional challenge.


In evaluating Ms. Barone's assertions, we are initially guided by certain well settled principles of appellate review of constitutional questions. Thus, it is beyond cavil that this court will not sua sponte raise constitutional questions which have not been framed by the parties. E. g., Wiegand v. Wiegand, 226 Pa. Super. 278, 310 A.2d 426, rev'd 461 Pa. 482, 337 A.2d 256 (1975). Nor should we address constitutional issues unnecessarily*fn4 or when not properly presented and preserved in the lower court for our appellate review.*fn5

[ 276 Pa. Super. Page 287]

Presently, application of these principles compels the conclusion that only one constitutional question has been properly preserved for our review.

On September 14, 1977, Ms. Barone was accorded a preliminary arraignment which was followed by a preliminary hearing on September 28, 1977. Subsequently, on October 17, 1977, Ms. Barone filed both a motion to quash the complaint on non-constitutional grounds and a separate petition seeking a declaration of the unconstitutionality of section 3732. The motion to quash omitted all reference to the alleged unconstitutionality of section 3732. The petition alleged only a deprivation of due process by virtue of the procedure mandated by Commonwealth v. Campana. The alternative constitutional attacks on the two theories of vagueness and overbreadth and lack of mens rea were not filed until January 10, 1978, and April 24, 1978, respectively. During the period between these latter two petitions, the Honorable Robert W. Tredinnick on April 7, 1978, dismissed Ms. Barone's constitutional forays. Presumably, this order only addressed the alleged denial of procedural due process and the vagueness and overbreadth contentions.

To complicate matters, in its answer to Ms. Barone's petition of April 24, 1978, the Commonwealth maintained that Ms. Barone had waived any grounds for relief bottomed upon the unconstitutionality of the statute which had not been raised in the original petition. See Record at 23a. Later, at oral argument on this petition, the Commonwealth reasserted its objection. See Record at 38a and 39a. The lower court apparently agreed with the Commonwealth's analysis and refused to address the merits of the last petition. See Record at 40a.

[ 276 Pa. Super. Page 288]

Pennsylvania Rule of Criminal Procedure 304 (eff. version January 1, 1965)*fn6 provides in relevant part:

"(a) All pre-trial applications for relief shall be in writing and presented under the name and style of application.

(e) All grounds for the relief demanded shall be stated in the application and failure to state a ground shall constitute a waiver thereof.

In principle, this Rule initially allows the filing of separate applications for relief, that is, a motion to quash and a petition to declare unconstitutional,*fn7 but it does not grant an accused a license to omit grounds of attack which are essentially related to and encompassed within the subject matter of the initial applications. See Commonwealth v. Coades, 260 Pa. Super. 327, 330, 394 A.2d 575, 577 (1978). The first petition contesting the constitutionality of section 3732 omitted any reference to "vagueness" or lack of a mens rea. Ms. Barone's counsel, who had represented her since the preliminary arraignment, offered no explanation to the courts below as to why these other alleged constitutional deficiencies were not contained in the first petition. Moreover, he failed to argue in response to the Commonwealth's answer that he was unaware of these other facial grounds of constitutional invalidity at the time the first application was filed. The dictates of Rule 304 are clear. We have held that it does not permit an accused to sit back and take chances on one ground for relief and afterwards willy nilly advance other similar grounds, hoping to get a favorable disposition at some indeterminate point in the pre-trial future. Coades, 260 Pa. Super. at 330, 394 A.2d at 577. This tactic cannot be tolerated within the concept of orderly administration of criminal justice in trial and appellate courts. Thus, we would hold that an unexcused failure to

[ 276 Pa. Super. Page 289]

    raise the alternative constitutional theories in the original petitions amounted to "a waiver thereof." Pa.R.Crim.P. 304.


Thus, Ms. Barone's sole constitutional argument rests on her claim she was denied due process of law because "she was not afforded the opportunity to have all charges quickly disposed of at the magistrates level." More specifically, Ms. Barone boldly asserts, with no citation of authority, that where, as here, a summary offense is an essential element of the charged indictable offense, an accused is absolutely entitled to a finding of guilty or not guilty on the summary offense. Insofar as the Dissenting opinion finds this hypothesis to be devoid of merit, we agree.*fn8


Turning to the merits of the Commonwealth's appeal from the lower tribunal's granting of Ms. Barone's demurrer,*fn9 the questions presented seek an answer to what are the material elements of a section 3732 offense, and what, if

[ 276 Pa. Super. Page 290]

    any, degree of culpability must accompany the elements. The Dissent would rule that the minimum culpability requirements of the Crimes Code, 18 Pa.C.S. § 302(a) (1973) are not applicable to any of the essential elements of a section 3732 offense as "a legislative purpose to impose absolute liability [for any death resulting from violation of any traffic law] plainly appears." Crimes Code, 18 Pa.C.S. § 305(a)(2) (1973). As we are unable to find the same clarity in the words employed, we cannot agree with Dissent's treatment and disposition of this question.

Logically, in adjudging whether the culpability requirements of section 302(a) are applicable to any of the material elements of a section 3732 offense, analysis should commence with section 305 which generally governs the scope of section 302(a). Section 305 provides in pertinent part:

"(a) The requirements of culpability prescribed by . . . Section 302 of this title . . . do not apply to:

(2) offenses defined by statutes other than this title, insofar as a legislative purpose to impose absolute liability for such offenses or with respect to any material element thereof plainly appears.

This section of the Crimes Code is essentially identical to the parallel provision of the Model Penal Code, § 205(1)(b) (1962). The Comments to this proviso expressly observe "[t]hat this section makes a frontal attack on absolute or strict liability in penal law, whenever the offense carries a possibility of sentence of imprisonment." Model Penal Code, § 2.05, Comment 1 (Tent. Draft No. 4, 1955) (emphasis added). Implementation of this strong common law tradition against strict penal responsibility*fn10 is found in the Code's commandment that legislation should not be found to impose strict liability unless a legislative intent to do so

[ 276 Pa. Super. Page 291]

"plainly appears." With this in mind, our Court should not liberally apply this "plainly appears" test, but rather should carefully scrutinize the legislature's use of any settled terms which have heretofore been commonly associated with "fault."

The above approach, however, is not novel to Pennsylvania appellate courts. Our courts, as the Dissent correctly points out, have customarily adhered to the following principles of statutory construction 1) When the legislature employs language which is plain and unambiguous, there is no longer justification to resort to the rules of statutory construction;*fn11 2) In deciding whether a word or phrase is plain and unambiguous within the meaning of the above principle, an appellate court is to construe the word or phrase in accordance with its common and approved usage and;*fn12 3) If our legislature has utilized a word or phrase which is centuries old in our common law jurisprudence, we must interpret it consistently with its heritage in our legal traditions.*fn13

I begin with the words that are used to delineate the offense in this case. E. g., In re North Am. Rayon Corp., 383 Pa. 428, 430, 119 A.2d 205, 207 (1956). See Commonwealth ex rel. Cerminara v. Cerminara, 239 Pa. Super. 111, 115-117, 362 A.2d 1011, 1014-15 (1976). The critical word in the title is "homicide." In this Commonwealth, our court has uniformly interpreted enactments which carry this solemn title as requiring that the voluntary act which caused

[ 276 Pa. Super. Page 292]

    the death be done with some degree of fault, that is, intentionally, knowingly, recklessly, or more recently negligently. The legislature has further provided that the "homicide" which is punishable is that which is caused "unintentionally" while operating a motor vehicle. Taken in context, "unintentional"*fn14 plainly means only that the conduct causing the death was not done purposely or with design.*fn15 It neither plainly negatives the above understanding of the term "homicide" nor does it modify the phrase "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" in such an unambiguous manner as to preclude a judgment that the violation must still be "negligent." Viewed from this perspective, the above words and phrases could be read as either evidencing a legislative purpose to impose strict criminal responsibility or to fix accountability only for negligent violations. In our opinion, the plain meaning analysis of both the Dissent and Judge Spaeth's Concurring Opinion have obscured a simple fact. In civil law, the dual purpose for employing criminal statutory violations as standards is both to compensate the innocent victim and to deter the actor from repeating the harm causing act or omission.*fn16 The criminal statute which serves as the index, however, does not share this compensation function, but rather is customarily drafted to protect the public at large from the conduct it prohibits. Underlying the criminal statute is the notion that punishment is necessary in order to reform or teach the accused not to repeat the offense and to deter others from imitating him. With regard to this particular

[ 276 Pa. Super. Page 293]

    statute, if the ultimate goal is to protect the public from imprudent driver conduct, then what purpose is to be served by punishing an operator who may have acted reasonably and prudently under the circumstances. To demonstrate, failing to adhere to the left-right-left rule when merging into traffic involves more risk to others; however, in a civil action a jury of the defendant's peers may find that it was not unreasonable to omit to observe this rule when the defendant is rushing an injured person to a hospital. To hold, as the Dissent does, that this same defendant may be criminally punished without reference to his state of mind simply does not make sense. If, with reference to the accused's evaluation of and perception of the operative factors, his conduct conforms to what is socially acceptable under the same or similar circumstances, how does this mark him as one who needs to suffer punishment?*fn17 Does this statute envision punishing such an operator or separating him from his family and the remainder of society for five years? Does it seek to reduce traffic fatalities by deterring operators from exercising such care in the future? We surmise that it does not. Accordingly, we must reject the Dissent's plain meaning analysis and move to the Statutory Construction Act, 1 Pa.C.S. § 1501 et seq. (Supp.1978-79), for further guidance in answering the question sub judice.


Where, as here, we determine that the words or phrases of an act are equivocal or ambiguous, legislative intention may be ascertained by examining the circumstances which surrounded enactment, the harm sought to be regulated and prevented, the object sought to be obtained, the consequences of any particular construction, and the germane legislative history. 1 Pa.C.S. § 1921(c)(1)-(7) (Supp.1978-79). E. g., Casey v. Pa. State Univ., 463 Pa. 606, 345 A.2d 695 (1975); Pa. Labor Relations Bd. v. State College Area School Dist., 461 Pa. 494, 337 A.2d 262 (1975); Commonwealth ex rel. Reed v. Maroney, 194 Pa. Super. 514,

[ 276 Pa. Super. Page 294168]

A.2d 800, cert. denied, 368 U.S. 907, 82 S.Ct. 187, 7 L.Ed.2d 100 (1961).

Circumstances Surrounding Enactment*fn18

In 1966 Congress passed the Highway Safety Act of 1966, 23 U.S.C. § 401 et seq. (1970). This act authorized the United States Secretary of Transportation to adopt standards for all state highway safety programs. Pursuant to this mandate, the Secretary promulgated a standard on "Codes and Laws." This standard required all states to conduct comparative traffic law studies which would eventually be used to yield state legislation providing for uniform rules of the road within each state and the nation. Variations in state law were to be detected by comparing the states' current laws with the specimen provisions contained in the then effective version of the Uniform Vehicle Code § 11-101 et seq. (rev. ed. 1962).*fn19 See 33 Fed.Reg. 16,562 (1968). The states' progress in embracing this standard was to be monitored by the United States Department of Transportation.

The initial report was published in January of 1973. The report revealed that Pennsylvania's traffic laws were among the most outdated and non-uniform in the United States. Employing the provisions of the U.V.C. as the norm, the study ranked Pennsylvania 49 out of 51 jurisdictions. See United States Department of Transportation, National Committee on Uniform Traffic Laws and Ordinances, Contemporary Overview of Traffic Law Uniformity in the United States 9 (1973). Alarmed by the consequences of failing to comply with the standard,*fn20 the Pennsylvania Department of Justice secured a Federal Highway-Safety Grant to finance research on a proposed revision of the Motor Vehicle Code.

[ 276 Pa. Super. Page 295]

    to be efficacious and just under [ILLEGIBLE WORD]his provision, it must be predicated upon the accused's awareness of the factors which made his conduct criminal. Thus, conviction, punishment, and sentence may well provide inadvertent violators with an additional incentive to take more care in both evaluating the risks they consciously create and those which they unreasonably fail to perceive. In either case, however, the assumption which underlies the punishment is that the actor ignored the operative factors in creating a risk of harm to others. Confronted with imprisonment, the violator may indeed think twice prior to speeding through a densely populated neighborhood. On the other hand, to suggest as the Dissent does that our legislature intentionally chose to disregard the social utility of the driver's conduct is to impute to the legislature a harshness and shortsightedness which we cannot. While there is always some risk associated with driving an auto, we do not think that the legislature in its collective wisdom intended to abrogate the possibility of a finding that the risk taken was reasonable under the particular circumstances.

Other Statutes*fn24

Nor do the supposed shortcomings of our involuntary manslaughter statute alone justify a determination that the vehicular homicide proviso was intended to create strict criminal responsibility. This Court has recently ruled that the convenience of investigation and prosecution is not the polestar in ascertaining what the essential elements of an offense are or what degree of culpability must accompany them. E. g., Commonwealth v. Hughes, 268 Pa. Super. 536, 408 A.2d 1132; Commonwealth v. Sojourner, 268 Pa. Super. 488, 408 A.2d 1108 (1979). We concede that the history of this proviso confirms a legislative judgment that a distinct offense was needed due to the reluctance of juries to convict for involuntary manslaughter in fatal traffic accident cases, see Morris & Packel, supra, at 186; however, we dispute that this history supports the further proposition that as a result of this difficulty the legislature threw in the proverbial

[ 276 Pa. Super. Page 297]

    towel and deemed it essential to punish every violator no matter how reasonable his conduct. Faced with this difficulty, we reason that the legislature intended to adopt an intermediate response.

It is true that under the present involuntary manslaughter statute a negligent operator completely escapes any criminal punishment unless the violation which precipitated death was perpetrated "in a reckless or grossly negligent manner." Crimes Code, 18 Pa.C.S. § 2504 (1973).*fn25 We suggest that the legislature intended to fill this void not by punishing every death causing violation, but rather only intended to reach those violations in which there has been a "gross deviation" from the required standard of care. See Crimes Code, 18 Pa.C.S. § 302(b)(4) (1973).*fn26 To hold otherwise is to completely confuse and obscure the distinctions between legality, justification, excuse, and culpability in the law of vehicular homicide. In passing this statute, we do not discern that the legislature abandoned its heretofore sensitive approach to the law of homicide generally. We read the subject provision as merely supplementing the already existing law as relates to deaths caused by Motor Vehicle Code violations. Thus, this provision being within this general conceptual framework, it continues to recognize that Motor Vehicle Code violations may involve differing species of culpability. For example, it is more aggravating to cause a death through an intentional violation rather than reckless, and worse to bring it about through reckless violation than

[ 276 Pa. Super. Page 298]

    negligent violation. In the past, Pennsylvania law punished the former two, it did not punish the latter. The latter until now has been an innocent homicide. E. g., Commonwealth v. Busler, 445 Pa. 359, 361, 284 A.2d 783, 784 (1971); Commonwealth v. Trainor, 252 Pa. Super. 332, 337, 381 A.2d 944, 947 (1977). Accordingly, as the Dissent concedes there was a need for a new offense governing deaths resulting from negligent violations of the rules of the road. This is that measure and we would so hold.*fn27


The only remaining question is whether the trial court properly sustained Ms. Barone's demurrer to the charge. In reviewing the propriety of this action, "the test to be applied . . . is whether the evidence of record and the inferences reasonably drawn therefrom would support a guilty verdict, and in making our determination we must read the evidence in the light most favorable to the Commonwealth." Commonwealth v. Trainor, 252 Pa. Super. 332, 334, 381 A.2d 944, 945 (1977) (quoting with approval from Commonwealth v. Bey, 221 Pa. Super. 405, 406, 292 A.2d 519, 520 (1976). Instantly, the focus of our inquiry is whether the Commonwealth's evidence was sufficient to prove beyond a reasonable doubt that Ms. Barone's conduct

[ 276 Pa. Super. Page 299]

    amounted to "a gross deviation from the standard of care that a reasonable person would observe in [her] situation." Crimes Code, 18 Pa.C.S. § 302(b)(4) (1973).

Thus viewed, the Commonwealth adduced the following. On September 14, 1977, Ms. Barone was on route to her place of employment in a two-door, brown Toyota. At approximately 8:00 a. m. she arrived at the intersection of Bethel Grant Road and Morris Road in Upper Gwynedd Township, Montgomery County. The weather was clear and the roadways dry. As she approached the intersection, she observed a stop sign and initially obeyed its command to come to a complete stop. As is often the case at a major thoroughfare during this time of day, traffic was heavy. She observed this traffic for approximately two to three minutes waiting for an opportunity to safely cross the intersection. Subsequently, Ms. Barone apparently either failed to look to her right or misjudged the distance and rate of speed of the oncoming traffic and proceeded into the intersection. While in the intersection her auto was struck by a motorcycle resulting in the motorcycle operator's death. Commonwealth witnesses also testified that prior to impact Ms. Barone neither sounded her horn nor did she apply her brakes in an effort to avoid the collision. We are persuaded that based upon the above the jury could not have properly found that Ms. Barone's actions amounted to "a gross deviation from the standard of care that a reasonable person would observe in [her] situation." We are convinced that no jury of reasonable men and women could have found a gross deviation from the applicable standard of care in light of the undisputed fact that Ms. Barone waited patiently at the stop sign for several minutes before proceeding into the intersection. Under these circumstances, such conduct could not have established a violation of section 3732.

Accordingly, we would affirm the lower court's determination that the above evidence was not sufficient to go to the jury.

Order affirmed and defendant discharged.

[ 276 Pa. Super. Page 300]

SPAETH, Judge, concurring:

It is clear from the evidence that the Commonwealth did not prove recklessness or gross negligence on the part of appellee. See Commonwealth v. Busler, 445 Pa. 359, 284 A.2d 783 (1971); Commonwealth v. Clowser, 212 Pa. Super. 208, 239 A.2d 870 (1968). Therefore, if the lower court was correct in construing the Act of June 17, 1976, P.L. 162, No. 81, § 1, 75 Pa.C.S. § 3732, as requiring proof of recklessness or gross negligence, the demurrer was properly sustained. See Commonwealth v. Greer, 232 Pa. Super. 448, 335 A.2d 770 (1975). If, however, the Commonwealth is correct in construing section 3732 as requiring nothing more than proof of a traffic violation causing death, then the evidence was sufficient to withstand the demurrer.*fn1

[ 276 Pa. Super. Page 301]

Appellee argues that section 3732 should be construed to require proof of recklessness or gross negligence, as the lower court construed it. In the alternative, she argues that if section 3732 is construed to create strict criminal liability,*fn2 it is unconstitutional.*fn3 The dissent has concluded that section 3732 should be construed to create strict criminal liability, and I agree (although I regard the issue as exceedingly close, and respect the President Judge's contrary conclusion). The dissent has also concluded, however, that as so construed, section 3732 is constitutional, and as to this, I disagree; in my opinion, section 3732 represents a violation of due process, perhaps not under the federal constitution, but certainly under our state constitution.*fn4

[ 276 Pa. Super. Page 302]


Statutes creating, or arguably creating, strict criminal liability have required the courts to engage in a distinctive analysis, not usual in the criminal law. Before examining the statute involved in the present case, therefore, it is important to review the cases, so that one may understand how this analysis has developed and what its distinctive features are. In conducting this review, it will be convenient to look first at the federal cases, and then at the cases decided by our Supreme Court and by this court.


The Federal Cases

"The existence of mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence." Dennis v. United States, 341 U.S. 494, 500, 71 S.Ct. 857, 862, 95 L.Ed. 1137 (1950). "The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil."*fn5 Morissette v. United States, 342 U.S. 246, 250, 72 S.Ct. 240, 243, 96 L.Ed. ...

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