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.
[ 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 ...