No. 1626 Philadelphia, 1980, Appeal from Judgment of Sentence in the Court of Common Pleas, Criminal Division, of Lancaster County, at No. 1018 of 1979.
James H. Thomas, Lancaster, for appellant.
Edward F. Browne, Jr., Assistant District Attorney, Lancaster, for Commonwealth, appellee.
Cercone, President Judge, and Spaeth, Hester, Wickersham, Brosky, Johnson, Popovich, DiSalle and Shertz, JJ. Spaeth and Brosky, JJ., file concurring opinions. Cercone, President Judge, files a concurring and dissenting opinion. Popovich, J., files a dissenting opinion. Johnson, J., files a dissenting statement. DiSalle and Shertz, JJ., did not participate in the consideration of this case.
[ 297 Pa. Super. Page 351]
On September 19, 1979, appellant, Jay C. Koch, III., was found guilty by a jury of homicide by vehicle.*fn1 Appellant's post-verdict motions were denied and appellant was sentenced to a two-year term of probation and fined $750.00 plus costs. This appeal followed.
The facts in the instant case may be summarized as follows. On February 4, 1979, at approximately 7:55 p. m., appellant was driving his 1966 Volkswagen from his parents'
[ 297 Pa. Super. Page 352]
home in Kirkwood to his dormitory room at Millersville State College. Appellant was traveling west on Long Lane when he collided with a 1974 Volkswagen at the intersection of Long Lane and New Danville Pike. The 1974 Volkswagen was driven by Diane C. Holton, and Michael L. McClune was a passenger. They were traveling south on the New Danville Pike at the time of the collision. Diane Holton died as a result of injuries sustained in the accident.
The intersection of Long Lane and New Danville Pike was controlled by stop signs for Long Lane, but there were no stop signs for New Danville Pike. Appellant testified at trial that he stopped at the stop sign on Long Lane, looked both ways, and observing no oncoming cars, entered the intersection at which time the accident occurred.
Section 3732 of the Vehicle Code (75 Pa.C.S.) defines the crime of homicide by vehicle as follows:
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.
Appellant first argues on appeal that section 3732 as applied to appellant constitutes a denial of due process, because it is a strict liability criminal statute under which a conviction allows substantial penalties, including up to five years in prison, and inflicts grave damage to the reputation of one so convicted.*fn2 We disagree.
We rely on a recent decision of our supreme court in Commonwealth v. Field, 490 Pa. 519, 417 A.2d 160 (1980)
[ 297 Pa. Super. Page 353]
(opinion by Roberts, J.). In Field, a cameraman for KDKA-TV, Pittsburgh was standing on a sidewalk filming the picketing and other strike-related activities of employees of the Atlantic Richfield Oil Company (ARCO) when he was struck by an ARCO tractor-trailer. The cameraman was fatally injured and the driver of the tractor-trailer was held on the charges of homicide by vehicle, 75 Pa.C.S. § 3732, and driving on the sidewalk, 75 Pa.C.S. § 3703. The lower court granted a pre-trial motion by the defendant to dismiss the information against him on the ground that section 3732 of the Vehicle Code is unconstitutionally vague. The Commonwealth took an appeal.
There were two issues on appeal before the supreme court in Field : 1) Whether section 3732 is unconstitutionally vague and 2) in view of their decision in Commonwealth v. Koczwara, 397 Pa. 575, 155 A.2d 825 (1959), cert. denied, 363 U.S. 848, 80 S.Ct. 1624, 4 L.Ed.2d 1731 (1960), whether section 3732 violates due process by imposing criminal liability without fault.*fn3 The supreme court rejected the vagueness challenge citing Commonwealth v. Burt, 490 Pa. 173, 415 A.2d 89 (1980). The court also rejected the due process challenge holding that section 3732 requires the Commonwealth to prove that the victim's death was caused by the culpable conduct of the accused.
Here, however, unlike in Koczwara, there is no effort to impose a prison term in the absence of culpable conduct. As the Attorney General recognizes, section 3732 requires the Commonwealth to prove that appellee [defendant] has deviated from the standard of care established by section 3703, the underlying Vehicle Code provision allegedly violated here [driving on the sidewalk] . . . . Consistent with the culpability requirement, section 3703 leaves for determination at trial whether appellee knew, or should have
[ 297 Pa. Super. Page 354]
known, he engaged in the conduct claimed to be in violation of that section. Thus, for example, it remains to be decided if a reasonable driver could, in view of the congestion at the terminal exit, know where the sidewalk was or, indeed, if a sidewalk existed. Section 3732 also requires the Commonwealth to prove that appellee's alleged violation of section 3703 caused the victim's death. As the Attorney General points out, at the very least, death must be a "probable consequence" of appellee's culpable conduct. See 18 Pa.C.S. § 303(d).
Id. 490 Pa. at 524-525, 417 A.2d at 163 (footnotes omitted).
We are constrained by the decision in Commonwealth v. Field, supra, where the supreme court determined that section 3732 does not violate due process because it requires a showing of culpable conduct. Since the decision in Field, there have been various interpretations by this court as to what level of culpability is embraced by section 3732. Commonwealth v. Spurgeon, 285 Pa. Super. 563, 428 A.2d 189 (1981) (Section 3732 creates strict criminal liability without regard to any scienter element and does not require a showing of reckless or negligent culpability); Commonwealth v. Hartzell, 282 Pa. Super. 549, 423 A.2d 381 (1980) (Section 3732 does not require a showing of culpability as defined in 18 Pa.C.S. § 302 -- intentionally, knowingly, recklessly, or negligently);*fn4 and Commonwealth v. Nay, 281 Pa. Super. 226, 421 A.2d 1231 (1980) (Section 3732 requires a showing of culpably negligent conduct as defined by 18 Pa.C.S. § 302(b)(4). See also Commonwealth v. Lang, 285 Pa. Super. 34, 426 A.2d 691 (1981) and Commonwealth v. McIlwain School Bus Lines, 283 Pa. Super. 1, 423 A.2d 413 (1980) (Both cases cite Commonwealth v. Nay, supra).*fn5
[ 297 Pa. Super. Page 355]
We conclude from the supreme court's decision in Field that the culpable conduct required by section 3732 is a showing that the defendant "has deviated from the standard of care established by" the underlying Vehicle Code provision allegedly violated by him. Id. 490 Pa. at 524, 417 A.2d at 163. In Field, the underlying offense was driving on a sidewalk, 75 Pa.C.S. § 3703, while in the instant case, it was failure to yield at a stop sign, 75 Pa.C.S. § 3323. As stated in Field, in order to establish the underlying offense the Commonwealth must show that the defendant "knew, or should have known, he engaged in the conduct claimed to be in violation of that section." Id., 490 Pa. at 525, 417 A.2d at 163. In effect, our supreme court has saved section 3732 from the due process challenge of criminal liability without fault by a bootstrap analysis, namely, the culpability required for the underlying offense also defines the culpability required for homicide by vehicle.
The supreme court also stated in Field that the Commonwealth must prove that the defendant's violation of the underlying Vehicle Code provision caused the victim's death. In defining this causal relationship between the violation and the death, the supreme court adopted a strict liability approach. The victim's death must, at the very least, be a "probable consequence" of the defendant's violation. See 18 Pa.C.S. § 303(d).*fn6
[ 297 Pa. Super. Page 356]
We summarize below the elements of the crime of homicide by vehicle, 75 Pa.C.S. § 3732, as set forth in Field :
1) Defendant deviated from the standard of care established by the underlying Vehicle Code provision [or municipal ordinance].
a) Defendant knew, or should have known, he engaged in the conduct claimed to be in violation of the underlying Vehicle Code provision [or municipal ordinance].
b) The death was, at the very least, a probable consequence of the defendant's violation of the underlying Vehicle Code provision [or municipal ordinance].
According to Field, the requirement that the defendant knew, or should have known, that he was violating the underlying Vehicle Code provision establishes some kind of culpability on his part. We must, therefore, conclude that section 3732 is not a strict liability criminal statute nor is it violative of due process. Commonwealth v. Field, supra 490 Pa. at 525-526, 417 A.2d at 164 (Flaherty, J., concurring).
The culpability required by section 3732 does not fall into one of the categories defined in 18 Pa.C.S. § 302 (intentionally, knowingly, recklessly, or negligently). It is lesser than criminal negligence, 18 Pa.C.S. § 302(b)(4), which involves a gross deviation from the standard of care that a reasonable person would observe in the actor's situation. Proof of criminal negligence or recklessness, 18 Pa.C.S. § 302(b)(3), is required in order to convict a defendant of involuntary manslaughter, 18 Pa.C.S. § 2504. As the supreme court stated in a footnote in Field :
In our view it was the legislative judgment in enacting section 3732 to expand the scope of criminal liability for violations of the Vehicle Code causing death. Compare 18 Pa.C.S. § 2504; Commonwealth v. Busler, supra note 3
[ 297 Pa. Super. Page 357]
[445 Pa. 359, 284 A.2d 783 (1971)]; Commonwealth v. Clowser, 212 Pa. Super. 208, 239 A.2d 870 (1968).
Id. 490 Pa. at 525 n.4, 417 A.2d at 163 n.4.
In Commonwealth v. Houtz, 496 Pa. 344, 437 A.2d 385 (1981) (Opinion by Roberts, J.), our supreme Court recently commented on the above quotation from Field and explained further the relationship between the crimes of homicide by vehicle and involuntary manslaughter.
This legislative 'expansion' was accomplished not by the elimination of any of the elements of the crime of involuntary manslaughter, but by a relaxation of the degree of proof of two existing elements: culpable conduct and causation. The crime of involuntary manslaughter, as charged here, requires proof that the actor engaged in the Vehicle Code violation in a 'reckless or grossly negligent manner,' and that the death was caused 'as a direct result.' 18 Pa.C.S. § 2504. See Commonwealth v. Clowser, 212 Pa. Super. 208, 239 A.2d 870 (1968). By contrast, under the crime of homicide by vehicle, it must be shown only that the actor 'knew, or should have known,' that he engaged in the conduct claimed to be in violation of the Vehicle Code, and that, at the very least, death was a 'probable consequence' of the conduct. Commonwealth v. Field, 490 Pa. at 525, 417 A.2d at 163. These relaxed degrees of culpable conduct and causation set forth in the crime of homicide by vehicle are necessarily established by proof of the more stringent counterparts contained in the crime of involuntary manslaughter.
In view of our holding today, our previous decisions are overruled to the extent that section 3732 of the Vehicle Code was defined as a strict criminal liability statute without regard to any scienter element or as an offense involving criminal ...