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decided: May 30, 1980.


No. 61 March Term, 1979, Appeal from the Order of the Court of Common Pleas of the 37th Judicial District of Pennsylvania, Warren County Branch, Criminal Division at No. 449 of 1978, entered March 19, 1979, Homicide by Vehicle.


Richard A. Hernan, Jr., Dist. Atty., William F. Morgan, James C. Blackman, Asst. Dist. Attys., Warren, for appellant.

John R. Gavin, Oil City, for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ.

Author: Roberts

[ 490 Pa. Page 174]


Under section 3732 of the Vehicle Code,

"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."

[ 490 Pa. Page 17575]

Pa.C.S. § 3732. On this pre-trial appeal, the Commonwealth seeks reversal of an order of the Court of Common Pleas of Warren County holding section 3732 unconstitutionally vague. We agree with the Commonwealth that the court of common pleas erred in so holding and remand with instructions.*fn1

On the evening of August 22, 1978, appellee Michael Burt and a few other people were at a campsite near Titusville, Pennsylvania. Two friends of appellee, Joseph Miller and Carrie O'Connor, asked appellee to take them for a ride in his new "Datsun 240Z." Appellee agreed and the three left the campsite in the vehicle, appellee driving, Miller sitting in the passenger seat, and O'Connor sitting in the cargo area. Appellee drove the vehicle on a dirt road for a few hundred yards. He then turned onto a macadam road, which he drove on for about one mile. Upon reaching the point where the macadam road ended and another dirt road began, appellee turned his car around and began to return on the macadam road.

As he returned, appellee came upon a right-hand curve in the road. As appellee started to negotiate the curve, Miller cautioned appellee to slow down. The right front tire of the car, however, tipped the berm. This in turn threw the vehicle across to the left and off the road. The car travelled approximately 180 feet from the roadway, hit a large tree, travelled another forty-five feet, and hit a barbed-wire fence. The vehicle then flipped end over end a couple of times, coming to rest upside down. Neither appellee nor Miller was seriously injured. O'Connor, however, who had been thrown out of the vehicle, was killed.

Appellee told investigating State Trooper John Herzog that he "was coming down the road, hit the gravel and lost

[ 490 Pa. Page 176]

    control. . . ." Miller allegedly told Herzog that at the time of the accident appellee was travelling at an excessive speed. Herzog filed a complaint charging appellee with the summary offenses of failure to drive on the right side of the roadway and reckless driving, 75 Pa.C.S. §§ 3301 & 3714, and the first-degree misdemeanor offense of homicide by vehicle, 75 Pa.C.S. § 3732.*fn2 As to the homicide by vehicle charge, the subsequent information specified that appellee did

[ 490 Pa. Page 177]

"recklessly cause the death of Carrie O'Connor while engaged in the violation of the vehicle code of the Commonwealth of Pennsylvania, to-wit, reckless driving and failure to drive on the right side of the highway, and that said violations were the cause of the death of the victim."

After a preliminary hearing, appellee was bound over on all three charges.

Appellee then made a pre-trial motion to dismiss the charge of homicide by vehicle on the ground of vagueness. After argument, the court granted the motion. The court agreed with appellee that section 3732 both leaves a vehicle operator without reasonable notice of what acts are prohibited and permits arbitrary and discriminatory enforcement. The court also concluded section 3732 imposes "absolute liability" and thus appellee is not "protected from being caught in the . . . net by the necessity of having a specific intent to commit the unlawful act." Papachristou v. City of Jacksonville, 405 U.S. 156, 163, 92 S.Ct. 839, 843, 31 L.Ed.2d 110 (1972).*fn3 This appeal followed.*fn4

It is a fundamental principle of due process that "a criminal statute 'that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is

[ 490 Pa. Page 178]

    forbidden by the statute,' United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954), or is so indefinite that 'it encourages arbitrary and erratic arrests and convictions,' Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110 (1972), is void for vagueness. See generally Grayned v. City of Rockford, 408 U.S. 104, 108-109, 92 S.Ct. 2294, 2298-2299, 33 L.Ed.2d 222 (1972)."

Colautti v. Franklin, 439 U.S. 379, 390, 99 S.Ct. 675, 683, 58 L.Ed.2d 596 (1979). At the same time, however,

"'The fact that [the legislature] might without difficulty have chosen "clear and more precise language" equally capable of achieving the end which it sought does not mean that the statute which is in fact drafted is unconstitutionally vague.' United States v. Powell, 423 U.S. 87, 94, 96 S.Ct. 316, 320, 46 L.Ed.2d 228, 235 (1975). Rather, the requirements of due process are satisfied if the statute in question contains reasonable standards to guide the prospective conduct."

Commonwealth v. Heinbaugh, 467 Pa. 1, 6, 354 A.2d 244, 246 (1976). Here it is clear that section 3732 contains entirely reasonable standards.*fn5 With unmistakable clarity, section 3732 defines "homicide by vehicle" as a death caused by any person's conduct violating law or municipal ordinance applying to vehicles or traffic regulation. This section does not employ "ambiguous" words, "archaic classifications," or words with "numerous and varied" meanings. Compare Colautti v. Franklin, supra ("viability" determination requirement of statute regulating physicians' performance of abortions void), Papachristou v. City of Jacksonville, supra ("vagrancy" ordinance drafted in terms of archaic English poor laws invalid), and Lanzetta v. State of New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939) (voiding statute making it crime to be member of "gang"). Accordingly, any

[ 490 Pa. Page 179]

    vagueness challenge must be rejected. See United States ex rel. Almeida v. Rundle, 383 F.2d 421, 426 (3d Cir. 1967) (upholding former felony-murder statute).

Order of the court of common pleas reversed, count charging homicide by vehicle reinstated and case remanded for further appropriate proceedings.

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