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decided: December 28, 1987.


Appeal from the Judgment of the Superior Court of Pennsylvania, No. 1457 Philadelphia 1983, Reversing the Order of the Court of Common Pleas of Lancaster County, Pennsylvania, Entered on May 9, 1983, on No. 1574 of 1982. Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Hutchinson, Former J., did not participate in the decision of this case. McDermott, J., filed a dissenting opinion.

Author: Zappala

[ 517 Pa. Page 193]


While driving to work on the morning of July 26, 1982, Appellee James Heck was involved in an accident with a motorcyclist, Dennis Ginder. Traveling northbound on Route 141 in Lancaster County, Heck approached the intersection with Union Schoolhouse Lane. He proceeded to make the gradual left-hand turn onto the lane and entered the intersection. The motorcycle, which had been traveling southbound on Route 141, struck the right front fender of Heck's automobile. The impact caused the motorcycle to bounce backwards about eighteen feet, throwing Ginder through the air. Ginder died as a result of the injuries which he sustained in the accident.

Following his prosecution and conviction for homicide by vehicle, Heck was sentenced to serve a one-year probation and to pay a fine of $1,000. On appeal, the Superior Court concluded that the evidence was sufficient to support the

[ 517 Pa. Page 194]

    conviction, but reversed the judgment of sentence, reasoning that the conviction deprived Heck of due process of law by imposing criminal liability upon a showing of ordinary negligence, 341 Pa. Super. 183, 491 A.2d 212. The Commonwealth's petition for allowance of appeal was granted. Although we reject the Superior Court's analysis of the due process issue in this case, we affirm its order reversing the judgment and discharging Heck.

The homicide by vehicle statute in effect at the time of the accident provided:

Any person who unintentionally causes the death of another person while engaged in the violation of any law of the 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. 3732, Act of June 17, 1976, P.L. 162, No. 81, § 1, eff. July 1, 1977.*fn1 The violation underlying the charge of vehicular homicide was of 75 Pa.C.S. § 3322, which states,

The driver of a vehicle intending to turn left within an intersection or into an alley, private road or driveway shall yield the right-of-way to any vehicle approaching from the opposite direction which is so close as to constitute a hazard.

Concluding that the evidence was sufficient to establish that Heck should have known he was violating § 3322, but that it was insufficient to establish any degree of culpability higher than ordinary negligence, the Superior Court framed the issue as whether due process of law permits a conviction for vehicular homicide based upon a defendant's ordinary negligence in violating a traffic law. It held that where a violation is neither knowing nor criminally negligent such conviction offends the due process clause of our

[ 517 Pa. Page 195]

    state constitution, Article 1, § 9.*fn2 The Court emphasized that its holding did not address the issue of the constitutionality of vehicular homicide prosecutions premised upon evidence of conscious wrongdoing or gross deviation from reasonable conduct.

The Appellee's challenge to the constitutionality of the vehicular homicide statute is not unprecedented. Both this Court and the Superior Court have wrestled with varied claims of violations of the due process and equal protection clauses since the inception of the statute. The Superior Court purports to distinguish the instant case from prior applicable decisions upholding the constitutionality of the statute on the basis that the decisions are not dispositive of the issue of whether substantive due process is violated by a conviction resting on evidence of ordinary negligence. While we believe this observation of the Superior Court arises more from a dissatisfaction with precedent than from a strict reading of this Court's analysis in prior decisions, nevertheless, we agree that this dissatisfaction has merit. We perceive the problem to be one of judicial interpretation, however, and not of legislative enactment.

In Commonwealth v. Barone, 276 Pa. Super. 282, 419 A.2d 457 (1980), the Commonwealth appealed from the trial court's order granting the appellee's demurrer to the charge of vehicular homicide under 75 Pa.C.S. § 3732.*fn3 The Superior Court addressed the issues of what the material elements of a § 3732 offense are and the degree of culpability, if any, which must accompany the elements. A majority of the court agreed that the trial court's order discharging the appellee should be affirmed, but for different reasons.

[ 517 Pa. Page 196]

Of the four members of the panel who affirmed the trial court's decision, divisiveness of opinion arose regarding the degree of culpability necessary to sustain a conviction. President Judge Cercone and Judge Cavanaugh reasoned that the legislature did not intend to impose absolute liability under § 3732 for any death resulting from a traffic violation and would hold that the minimum culpability requirements defined in the Crimes Code, 18 Pa.C.S. § 302, applied. Review of the evidence lead them to conclude that the Commonwealth had failed to prove beyond a reasonable doubt that the appellee's ...

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