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filed: February 2, 1987.


Appeal from the Judgment of Sentence February 27, 1986 in the Court of Common Pleas of Allegheny County, Criminal division at No. CC 8411123.


Stanley W. Greenfield, Pittsburgh, for appellant.

Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.

Cirillo, President Judge, and Rowley and Popovich, JJ. Popovich, J., concurs in result.

Author: Cirillo

[ 360 Pa. Super. Page 477]

This is an appeal from the judgment of sentence entered by the Court of Common Pleas of Allegheny County. Following a trial by jury, appellant was convicted of homicide by vehicle, 75 Pa.C.S. § 3732. Post-trial motions were denied, and appellant was sentenced to eleven and one-half to twenty-three months' imprisonment, and probation for three years following parole. We reverse and remand for a new trial.

The first issue*fn1 appellant presents for our consideration is whether the trial court erred in refusing to instruct the jury in accordance with this Court's decision in Commonwealth v. Heck, 341 Pa. Super. 183, 491 A.2d 212 (1985), appeal granted, 509 Pa. 535, 505 A.2d 251 (1986). The trial court, in refusing appellant's points for charge based upon Heck, stated: "I don't particularly like the [vehicular homicide] law, but I am convinced that the Appellate Courts are not going to strike this law down, and I just don't think that Heck is ultimately going to hold water. So I'm not going to follow it in charging the jury."

In Heck, a unanimous panel of this Court held that a conviction for vehicular homicide based upon a defendant's ordinary negligence in violating a traffic law, where the violation was neither knowing nor criminally negligent,

[ 360 Pa. Super. Page 478]

    violates the due process clause of our Constitution. Therefore, in order to convict someone of vehicular homicide, the Commonwealth must prove that the defendant acted in a criminally negligent fashion. We defined criminal negligence as:

     criminal negligence involves a gross deviation from reasonable care such that it would be shocking to allow the actor's lack of awareness to excuse his actions in the circumstances. The criminally negligent act has been done so heedlessly, so indifferently, and so grossly contrary to common experience that it becomes intolerable to reasoning minds that the actor did not perceive the risk of harm created by his conduct. In such cases the law presumes wantonness even though the circumstances do not allow proof beyond a reasonable doubt of the actor's subjective awareness of wrongdoing. "Criminal negligence" is a breach of duty so flagrant in the circumstances that we may safely indulge the legal fiction that it was committed with actual intent to injure; it is far from mere ordinary negligence or inadvertence; it is "great" negligence incompatible with a proper regard for human life.

Heck, 341 Pa. Super. at 209-10, 491 A.2d at 225 (citations omitted).

On the basis of our holding in Heck, the trial court was required to charge the jury on the applicable standard of care, criminal negligence. However, because of the judge's disagreement with the Heck decision, and because he felt that the case would eventually be reversed, he refused to so charge the jury. This is clearly error.

It has long been the law of this Commonwealth that: a lower court has no right to ignore the latest decision of the Superior Court of this Commonwealth on an issue which has been squarely decided. Until that decision should be over-ruled by the Superior Court itself or over-ruled by the Supreme Court, it is still the law of this Commonwealth, regardless of the decisions of any other court in the country, including the Federal courts.

[ 360 Pa. Super. Page 479]

    at bar. The constitutionality of premising liability for vehicular homicide on ordinary negligence was not raised in either Field or Koch, which leads us to conclude that the question remains open. See Jameson v. Pittsburgh, 381 Pa. 366, 113 A.2d 454 (1955) (portions of statute previously construed by Supreme Court could be found unconstitutional where constitutional issue neither raised nor passed upon in prior case). Our conclusion is the same one reached by our eminent President Judge (then Judge) Spaeth, who in his concurring opinion in Koch, supra, opined that the Field decision had not decided nor precluded a due process challenge to liability for vehicular homicide based on ordinary negligence. See also [ Commonwealth v. Dell, 301 Pa. Super. 387, 447 A.2d 1021 (1982)] (opining that Field 's determination of causation element of vehicular homicide did not preclude later challenge to that element) (dictum). Thus we proceed to the merits of the substantive due process issue.

Heck, 341 Pa. Superior Ct. at 196-97, 491 A.2d at 219.

On the merits, we found that liability for vehicular homicide based on mere negligence violated a defendant's right to due process of law under the law of the land clause of the Pennsylvania Constitution, art. 1, § 9. Having thus interpreted the law of Pennsylvania, this Court is not subject to the second-guessing of the courts of common pleas as to whether our analysis of the Supreme Court's opinions was correct. Unless and until the Heck Court's interpretation of the state constitution is reversed or overruled by a state court competent to do so, the courts of common pleas are obligated to apply our ruling as the law of the state.

Therefore, we find that the trial court erred in failing to charge the jury in accordance with the controlling law of Commonwealth v. Heck. Consequently, we must remand for a new trial with the direction that the trial court follow the dictates of Heck.

Reversed and remanded for a new trial. Jurisdiction is relinquished.


Reversed and remanded for a new trial. Jurisdiction is relinquished.

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