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filed: April 4, 1985.




James H. Thomas, Lancaster, for appellant.

Joseph C. Madenspacher, Assistant District Attorney, Lancaster, for Commonwealth, appellee.

Cirillo, Olszewski and Montgomery, JJ.

Author: Cirillo

[ 341 Pa. Super. Page 188]

Appellant James Heck challenges the sufficiency of the evidence to support his conviction for a violation of the Pennsylvania vehicular homicide statute, 75 Pa.C.S. § 3732; he also argues on several grounds that the statute is unconstitutional. We find the evidence sufficient to support Heck's conviction, but reverse the judgment of sentence

[ 341 Pa. Super. Page 189]

    on the ground that the conviction unconstitutionally deprives Heck of due process of law by imposing criminal liability upon a showing of no more than ordinary negligence.

Heck was prosecuted for vehicular homicide based on an accident occurring on the morning of July 26, 1982. He was driving his car northbound on Route 141 in Lancaster County, a route he drove every working day. The sun was up and the weather clear and dry. Heck had to make a left-hand turn onto Union Schoolhouse Lane at its intersection with Route 141; the turn was gradual enough that he could negotiate it at a moderate speed. As he entered the intersection and started to turn left, his car collided with a motorcycle traveling southbound on Route 141. The motorcycle struck the front right fender of the car and bounced backward about eighteen feet. The motorcycle operator, Dennis Ginder, was hurled through the air and fell to the pavement about seventy feet south of the point of impact. Heck sustained a concussion and his car was totaled. Ginder, tragically, died as a result of the injuries he received.

The statute defining the offense of vehicular homicide provided:

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.

75 Pa.C.S.A. § 3732.

In this case the traffic violation Heck was committing at the time of the accident is that proscribed in 75 Pa.C.S. § 3322, "Vehicle turning left": "The driver of a vehicle intending to turn left within an intersection . . . shall yield the right-of-way to any vehicle approaching from the opposite direction which is so close as to constitute a hazard."

The troubling questions raised on this appeal center on the level of culpability necessary to prove vehicular homicide.

[ 341 Pa. Super. Page 190]

On its face the vehicular homicide statute does not prescribe any particular degree of fault or mens rea as an element of the crime. It imposes liability upon the happening of a certain set of circumstances, namely, a death caused by a person engaged in a traffic violation. The requirement that an underlying traffic violation be the cause of death does not necessarily supply any element of fault to the crime of vehicular homicide. For example, the traffic violation described in Section 3322 of the Vehicle Code does not inherently depend on culpable conduct. One may reasonably misjudge whether an approaching auto is so close as to constitute a hazard; Section 3322 does not expressly forgive such a miscalculation. See generally Mancke, Homicide by Vehicle in Pennsylvania: A Question of Meaning and Constitutionality, 85 Dick.L.Rev. 391 (1981) (on this latter proposition, see especially nn. 43-44 and accompanying text).

Thus, an early interpretation of the vehicular homicide law held that it created a strict liability offense. Commonwealth v. Barone, 276 Pa. Super. 282, 419 A.2d 457 (1980) (per two concurring and three dissenting judges).

However, in Commonwealth v. Field, 490 Pa. 519, 417 A.2d 160 (1980), our Supreme Court determined that the vehicular homicide statute does require a showing of culpable conduct and therefore does not create a strict liability offense. The Court defined the level of culpability required by the statute as a showing that the defendant "has deviated from the standard of care established by . . . the underlying Vehicle Code provision," id., 490 Pa. at 524, 417 A.2d at 163, and that he "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 160. In Field the underlying Vehicle Code violation was driving on a sidewalk, 75 Pa.C.S. § 3703. The Court held that at trial the Commonwealth would have to prove that a "reasonable driver could . . . know" that there was a sidewalk where the defendant was driving when his vehicle struck the victim. Field, supra, id.

[ 341 Pa. Super. Page 191]

Thus, the Supreme Court set up a "reasonable man" standard as the test of culpability for vehicular homicide to save the statute from the constitutional objection that it imposed liability without fault. Subsequent decisions have made it clear that the Field standard for judging vehicular homicide cases differs little if at all from the standard of reasonableness governing negligence claims in civil damage suits.

In Commonwealth v. Houtz, 496 Pa. 345, 437 A.2d 385 (1981), the Supreme Court distinguished the Commonwealth's burden of proof in a vehicular homicide case from its burden in an involuntary manslaughter prosecution. The Court held that the degree of culpability required to prove homicide by vehicle is less than that necessary to establish involuntary manslaughter, which involves a "reckless or grossly negligent" killing. 18 Pa.C.S. § 2504. See Commonwealth v. Lobiondo, 501 Pa. 599, 462 A.2d 662 (1983) (recklessness and gross negligence under the involuntary manslaughter statute construed as the same). The Crimes Code defines recklessness as a conscious disregard of a substantial and unjustifiable risk amounting to a "gross deviation" from a reasonable standard of conduct, 18 Pa.C.S. § 302(b)(3); the Supreme Court in Houtz found that the requirement in vehicular homicide that the driver "knew or should have known" of his culpable conduct is a "relaxation" of the standard of recklessness required to make out involuntary manslaughter. 496 Pa. at 348-49, 437 A.2d at 387.

Based on Field and Houtz, this Court in Commonwealth v. Koch, 297 Pa. Super. 350, 443 A.2d 1157 (1982) summarized the elements of the crime of vehicular homicide as follows:

1. The defendant deviated from the standard of care established by a traffic law or regulation;

2. The defendant knew or should have known he was engaged in the conduct violating the traffic law;

3. A death occurred;

[ 341 Pa. Super. Page 1924]

. The death was a probable consequence of the defendant's violation.

We explained further in Koch that the level of culpability embodied in the requirement that the defendant "knew or should have known" of his violation is lesser than "criminal negligence" as defined in the Crimes Code. Criminal negligence is present where the actor's failure to perceive a substantial and unjustifiable risk is 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). While both criminal negligence and recklessness involve "gross" deviations from reasonable conduct, recklessness includes conscious disregard of a risk whereas criminal negligence is accompanied by lack of awareness of a risk.

By defining a level of culpability for vehicular homicide below criminal negligence, the courts interpreting the statute have lessened the Commonwealth's usual burden in a criminal case to prove at least reckless conduct, see id. § 302(c), and have done away with any requirement that a "gross" deviation from reasonable conduct be shown. A mere deviation from reasonableness therefore suffices. Thus, where the defendant did not know he was committing the traffic violation which caused death, but judged by the standard of the reasonable driver he should have known, he may be found guilty of homicide by vehicle.

Of course, as the Field Court pointed out, because vehicular homicide is a crime the Commonwealth must prove its case beyond a reasonable doubt. However, all it must prove beyond a reasonable doubt is that the defendant was unaware when he should have been aware of committing the traffic violation which resulted in death (unless it can prove the higher threshold under Field of actual knowledge of the violation). A driver's failure to act with reasonable care or attention in the circumstances is nothing more than proof of his negligence as that term is used in the civil law. See 27 P.L.E. Negligence §§ 1, 3 (1960). Hence vehicular homicide is a crime predicated on "civil," "simple," or "ordinary" negligence; Spaeth, J., concurring in

[ 341 Pa. Super. Page 193]

    defendant failed to perceive approaching motorcycle while turning left into driveway); Commonwealth v. Hartzell, 282 Pa. Super. 549, 423 A.2d 381 (1980) (failure to yield right-of-way at stop sign); see also Commonwealth v. Koch, supra (same).

Although we find the evidence sufficient to uphold a finding that Heck should have known he was violating Section 3322 of the Vehicle Code (Vehicle turning left), we find it insufficient to establish any degree of culpability higher than ordinary negligence. Specifically, the evidence failed to prove that Heck knew when he began his turn that Ginder was so close as to constitute a hazard. Had this prong of the Field test for sufficiency been proven, it could be said that Heck proceeded in the face of a known illegal risk, and we could conclude that Ginder's death was the result of greater than ordinary negligence. However, Heck testified that he did not see Ginder until the moment before impact. Of course, the jury was free to disbelieve this testimony; but there was insufficient evidence aside from it to corroborate a theory of guilty knowledge. The intersection itself was on a high spot of ground and afforded the Corporal a vantage point from which to watch both vehicles approaching. Each vehicle entered a slight dip or "gully" immediately before the intersection. This configuration of the road would not have altogether prevented someone in Heck's position from seeing the motorcycle after it crested the hill. However, Corporal Studenroth saw no outward indication that the driver of the automobile in fact noticed the motorcycle; the car did not skid or slide before impact, nor did it speed up; it simply turned in front of the cycle. See Commonwealth v. Barone, supra (similar evidence relevant to negate mens rea).

Another officer who attempted to reconstruct the accident after the fact found skid marks at the scene which he linked to the Heck vehicle. We must view this evidence with caution because the trooper was unable to say with certainty that the skid marks came from Heck's car. Even if believed, the trooper's testimony viewed in light of the

[ 341 Pa. Super. Page 195]

    other credible evidence established at most that Heck perceived the motorcycle too late to conform his conduct to what he saw. See also Reed v. Hutchinson, 331 Pa. Super. 404, 480 A.2d 1096 (1984) (inadmissibility of non-eyewitness police officer's opinion as to cause of accident).

Moreover, we find the evidence insufficient to prove that Heck's failure to apprehend the hazard in time was a "gross" deviation from a reasonable standard of care. We perceive Barone, supra, to be controlling on this issue. In that case a motorcycle operator was killed when Barone waited "patiently" at a stop sign, then tried to cross the intersection after she "apparently either failed to look to her right or misjudged the distance and rate of speed of the oncoming traffic." 276 Pa. Super. at 299, 419 A.2d at 466-67 (lead opinion by then-President Judge Cercone). The Barone Court was in agreement that the evidence failed to prove conduct amounting to "gross" negligence or criminal negligence. (Barone was decided at a time when the culpability element of vehicular homicide remained unsettled).

We follow Barone in holding the evidence in this case insufficient to prove criminal negligence. All the evidence points unerringly to the single conclusion that Heck was at most ordinarily negligent in causing the ...

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