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Commonwealth of Pennsylvania v. Roland A. Spotti


April 12, 2013


Appeal from the Judgment of Sentence Entered March 16, 2011 in the Court of Common Pleas of Allegheny County Criminal Division, at No(s): CP-02-CR-0010771-2009

The opinion of the court was delivered by: Bender, J.




Roland Spotti (Appellant) appeals from an aggregate sentence of 2 - 4 years' incarceration following his convictions for four counts of aggravated assault by vehicle while driving under the influence of alcohol (AA-DUI), 75 Pa.C.S. § 3735.1, and related offenses.*fn2 We affirm in part and vacate in part.

This matter arises from an accident that occurred on April 16, 2008, on State Route 376 East, a four-lane highway near Robinson Township, Allegheny County. At 9:30 p.m. that evening, emergency services received multiple reports that Appellant's vehicle was driving erratically. One witness, Elise Blackwell, was advised by emergency services to follow Appellant with her hazard lights flashing in order to assist law enforcement in identifying the Appellant's vehicle. Blackwell complied, but remained several vehicles behind Appellant's. Meanwhile, Steven Chung also contacted emergency services, and he began following directly behind Appellant's vehicle.

Responding State Trooper Thomas W. Armour was able to locate Appellant's vehicle once he observed Blackwell's hazard lights. He pursued Appellant's vehicle in the left lane with his siren and lights activated, but he was still a few vehicles behind Appellant's. Trooper Armour observed Appellant's vehicle repeatedly swerve into the right lane of traffic.

Once Trooper Armour arrived, Chung merged his vehicle into the right lane. Immediately thereafter, Appellant's vehicle swerved into the right lane and braked suddenly, leading Chung to veer right again in order to avoid colliding with Appellant's vehicle. Chung then collided with a van parked on the side of the road, and the van struck a tow truck that was there to assist the disabled vehicle. Richard Benchoff and Eric Hamilton were severely injured as they were changing a tire on the van when the accident occurred. Chung and his passenger, his sister Susan Chung, were also injured.

Appellant, who claimed to be unaware that the accident had occurred, drove on until Trooper Armour subsequently pulled him over. Appellant was transported to Ohio Valley hospital where his blood was drawn. The blood was tested by the Allegheny County Crime Lab, which determined that Appellant's blood alcohol content (BAC) was 0.203, significantly above the legal limit for adults.

At the time of the incident, Appellant was two months shy of his eighteenth birthday and, thus, this case was initially brought before the Family Division, Juvenile Section, of the Court of Common Pleas of Allegheny County. However, the Commonwealth filed to transfer the proceedings from juvenile to adult court, and a hearing on the matter was held on July 16, 2009. Following that hearing, the court granted the Commonwealth's motion and certified Appellant's case to the Criminal Division.

The matter proceeded to a jury trial and, on December 6, 2010, Appellant was convicted of the aforementioned charges. He was later sentenced to an aggregate term of 2 - 4 years' incarceration. Appellant filed timely post-sentence motions that were denied by the trial court on March 28, 2011.

Appellant filed a timely notice of appeal with this Court, and then filed a timely concise statement in compliance with Pa.R.A.P. 1925. On September 16, 2011, the trial court filed its Pa.R.A.P. 1925(b) opinion.

Appellant now presents the following issues on appeal:

I. Whether the Juvenile Court erred in transferring the case to Criminal Court by failing to properly follow the statutory provisions and errantly determining reasonable grounds to believe that the public interest is served by the transfer of the case for criminal prosecution?

II. Whether the lower court erred in denying [Appellant's]

motion for judgment of acquittal regarding the four [AA- DUI] counts based on the intervening reckless acts of Mr. Chung?

III. Whether the Commonwealth failed to prove as a matter of law that the injuries to Steven Chung and Susan Chung constituted serious[] bodily injury which is necessary for [AA-DUI]?

IV. Whether the destruction of the video tape of [Appellant's] driving on the night in question constituted a violation of the United States Supreme Court decision of Brady v. Maryland?

Appellant's Brief at 3.

Adult Certification

We first consider whether the juvenile court erred by certifying this case to be tried in criminal court. Our standard of review is as follows:

[T]he "ultimate decision of whether to certify a minor to stand trial as an adult is within the sole discretion of a juvenile court." An appellate court may not disturb a certification ruling unless the juvenile court committed an abuse of discretion. The existence of facts in the record that would support a contrary result does not demonstrate an abuse of discretion. Rather, "the court rendering the adult certification decision must have misapplied the law, exercised unreasonable judgment, or based its decision on ill will, bias, or prejudice."

Commonwealth v. In re E.F., 995 A.2d 326, 329 (Pa. 2010) (internal footnotes and citations omitted).

The Juvenile Act permits the transfer of a juvenile case to adult criminal court if there is a "prima facie case that the child committed the delinquent act alleged, the delinquent act would be considered a felony if committed by an adult, and if there are reasonable grounds to believe that the public interest would be served by the transfer of the case for criminal prosecution." Id. (citing 42 Pa.C.S. § 6355(a)(4)(i)-(iii)). When a court considers whether the public interest is served by the transfer, the Juvenile Act requires that the court consider the following factors:

(A) the impact of the offense on the victim or victims;

(B) the impact of the offense on the community;

(C) the threat to the safety of the public or any individual posed by the child;

(D) the nature and circumstances of the offense allegedly committed by the child;

(E) the degree of the child's culpability;

(F) the adequacy and duration of dispositional alternatives available under this chapter and in the adult criminal justice system; and

(G) whether the child is amenable to treatment, supervision or rehabilitation as a juvenile by considering the following factors:

(I) age;

(II) mental capacity; (III) maturity;

(IV) the degree of criminal sophistication exhibited by the child;

(V) previous records, if any;

(VI) the nature and extent of any prior delinquent history, including the success or failure of any previous attempts by the juvenile court to rehabilitate the child;

(VII) whether the child can be rehabilitated prior to the expiration of the juvenile court jurisdiction;

(VIII) probation or institutional reports, if any; (IX) any other relevant factors...

42 Pa.C.S. §6355(a)(4)(iii).

"[T]he Juvenile Act places the burden of proof upon the Commonwealth to establish, by a preponderance of the evidence, that the public interest is served by the transfer of the case ... and that a child is not amenable to treatment, supervision, or rehabilitation as a juvenile." In re E.F., 995 A.2d at 330.

At the certification hearing, Trooper Armour testified regarding the nature and circumstances of the threat to safety posed by Appellant's intoxicated, erratic driving on April 16, 2008. N.T., 7/16/2009, at 3 - 16. Victims Benchoff and Hamilton and their wives testified as to the impact of the incident on their lives, including the severe physical, emotional, and financial consequences arising from their injuries. Id. at 29 - 32, 33 - 39, 52 - 59, and 59 - 63. Candise Kovalchuk, Appellant's probation officer, testified as to Appellant's lengthy involvement with the juvenile court system, which began when Appellant was 13 years old.*fn3 Id. at 41 - 48. The Commonwealth presented argument that Appellant's drunken driving posed a serious risk to the public. Id. at 71. They also argued that, due to Appellant's age, the adequacy and duration of available dispositional alternatives in the juvenile system were limited. Id. at 71 - 72.

Following the certification hearing, the juvenile court made the following statement on the record:

Your actions speak louder than your words, they really do. When you continue to drink - when, first of all, you are not even of legal age to do so - it just shows that person doesn't get it.

We are talking about a stone cold problem here, aren't we? This is not something I can deal with in two years. [Appellant] is obviously an alcoholic. There is no doubt in my mind.

Like [the district attorney] stated, when you have crippled two people and you can't quit drinking, you've got yourself a problem that is going to be with you the rest of your life. I'm sorry, I can't supervise you for the rest of your life. I can't do it. I have until he is 21. Not to mention the factors of public safety and impact on the victims.

I will note for the record that at the time this offense happened he was two months shy of being 18. I mean, he was making adult decisions. As far as I'm concerned, putting a drink to your lips is an adult decision, so I think you should be treated like an adult. They certainly are better capable of addressing what are going to be, as far as I am concerned, lifetime issues.

So based on the stipulation to the prima facie case, as well as the records stated, records admitted, evidence admitted, I am going to grant the Commonwealth's motion, and I am going to certify the case to the adult criminal division.

Id. at 74, 76.

The juvenile court then issued an order making the following findings:

1. The Commonwealth has established a prima facie case for [the aforementioned charges].

2. The Commonwealth has established, by a preponderance of the evidence, that the public interest is served by the transfer of the case to criminal proceedings.

3. The Commonwealth has established, by a preponderance of the evidence, that the juvenile is not amenable to treatment, supervision[,] or rehabilitation as a juvenile.

4. The minor has failed to establish, by a preponderance of the evidence, that retaining the case in [the juvenile division] serves the public interest.

5. The minor has failed to establish, by a preponderance of the evidence, that he is amenable to treatment, supervision[,] or rehabilitation as a juvenile.

Certification Order - Transfer to Criminal Proceedings, 7/16/2009.

Appellant contends that the juvenile court abused its discretion when it failed to properly apply the factors set forth in 42 Pa.C.S. §6355(a)(4)(iii). Appellant argues the court abused its discretion in two respects: first, that the court failed to consider certain required factors under the statute*fn4 and, second, that the court misapplied the factors that it did consider.*fn5 Appellant's Brief at 14, 16. Additionally, Appellant insists that even if the juvenile court "properly followed the statutory rubric[,]" its decision to transfer was still an abuse of discretion because it was "unreasonable ... given the facts of this case." Id. at 17. We disagree.

Although the Juvenile Act requires that a decertification court consider all of the amenability factors, it is silent as to the weight that should be assessed to each factor. See

Commonwealth v. Jackson, 555 Pa. 37, 45, 722 A.2d 1030, 1033 (1999). The ultimate decision of whether to certify a minor to stand trial as an adult is within the sole discretion of a decertification court. See id., 555 Pa. at 45, 722 A.2d at 1034. A decertification court must consider all the facts set forth in § 6355 of the Juvenile Act, but it need not address, seriatim, the applicability and importance of each factor and fact in reaching its final determination. See id. Commonwealth v. Ruffin, 10 A.3d 336, 339 (Pa. Super. 2010).

Our review of the record indicates that the Commonwealth presented ample evidence to support the juvenile court's decision to certify the case to the criminal division. Although we acknowledge that the juvenile court failed to explicitly address certain factors enumerated in 42 Pa.C.S.

§6355(a)(4)(iii) at the hearing, that failure does not automatically render the decision an abuse of discretion, particularly when the record contains adequate facts to support the judgment. See Jackson, 722 A.2d at 1034 ("The presumption in this Commonwealth remains that if a court has facts in its possession, it will apply them[,]" and "[w]hen evaluating the propriety of a certification decision, absent evidence to the contrary, a reviewing court must presume that the juvenile court carefully considered the entire record."). We hold, therefore, that the juvenile court did not fail to address required factors under the statute.

In its opinion, the juvenile court stated that the public interest was served by the transfer of Appellant's case to criminal court because of 1) the severity of the impact on the victims; 2) the "fear, concern[,] and inconvenience of the motorists exposed to the scene of this gruesome accident[;]" 3) Appellant's repeated history of DUIs where accidents resulted; and 4) the limited dispositional alternatives available in the juvenile court, as Appellant was already 19 years old at the time of the hearing. Juvenile Court Opinion, 12/15/2011, at 5 - 9.

Appellant complains that the juvenile court engaged in an ad hoc analysis, and that the court's statements during the hearing itself indicated that it had not considered the public interest. However, all of the factors cited in the opinion derive from evidence produced at the hearing, and those factors are precisely what the statute requires the juvenile court to consider when determining if certification is in the public interest. See 42 Pa.C.S. §6355(a)(4)(iii) ("In determining whether the public interest can be served, the court shall consider the following factors:"). Thus, although we agree that the juvenile court misstated the law when it opined that it only had to consider Appellant's amenability to treatment, the court did hear sufficient evidence supporting a finding that certification was in the public interest. Furthermore, the juvenile court specifically stated in the certification order that it had determined that the Commonwealth had established, by a preponderance of the evidence, that the public interest was served by the transfer. Accordingly, we hold that the juvenile court did not misapply the factors set forth in §6355(a)(4)(iii).

We also disagree with Appellant's contention that the juvenile court exercised unreasonable judgment in reaching the conclusion that transfer to criminal proceedings was appropriate. Appellant complains that the juvenile court conflated the issues of impact on the community and the impact on the victims. He also argues that "the fact that individuals may have been inconvenienced by the accident on the road may have a small impact on the community; however, that alone should not weigh significantly in a Court's mind when it determined whether to transfer a case to criminal court." Appellant's Brief at 19. However, the impact on the community is not completely unconnected to the impact on specific victims. The logic of Appellant's argument falters when one considers its implications. Does a murder have a negligible impact on a community simply because there was only one victim?

Regardless of the absurd consequence of Appellant's argument, the statute provides that both factors are relevant. Appellant's interpretation would necessarily prioritize the impact on the community when considering whether a transfer is in the public interest, whereas the statute itself sets forth no hierarchy of factors, a scheme allowing the juvenile court to consider the propriety of certification based upon the particular facts presented by each individual case. In this case, the juvenile court expressly found the impact on the victims to be the predominant factor, but also considered Appellant's prior juvenile record and his lack of amenability to treatment, in addition to the impact on the community. There was nothing manifestly unreasonable about that determination, even if another jurist might have weighed the same factors differently. To constitute an abuse of discretion, "the court rendering the adult certification decision must have misapplied the law, exercised unreasonable judgment, or based its decision on ill will, bias, or prejudice." In re E.F., 995 A.2d at 329.

Appellant then offers circumstances that would weigh against transfer, including the fact that Appellant did not intend to inflict the injuries that resulted, that his alcohol abuse limited both his level of maturity and mental capacity, and that the crimes lacked any degree of sophistication. He also argues that there was no basis for the court to conclude that 2 years was an insufficient amount of time for the juvenile system to successfully provide for his treatment and rehabilitation. Even if we were to accept these assertions at face value, Appellant would not be entitled to relief. "The existence of facts in the record that would support a contrary result does not demonstrate an abuse of discretion." Id. Accordingly, we conclude that Appellant has failed to demonstrate that the juvenile court abused its discretion in transferring Appellant's case to criminal court.

Sufficiency of Causation

We next consider Appellant's claim that the trial court erred in denying his motion for judgment of acquittal directed at the AA-DUI charges. Because the AA-DUI statute specifically requires that a defendant cause serious bodily injury to another person as an element of the offense, Appellant contends that his convictions for AA-DUI must be overturned because Steven Chung's actions were a sufficiently independent cause of the accident that resulted in a break in the chain of legal causation. Because we conclude that Appellant's actions were not the direct cause of the injuries to the victims in this case, we agree that the evidence was not sufficient to convict Appellant of the AA-DUI counts.

A motion for judgment of acquittal challenges the sufficiency of the evidence to sustain a conviction on a particular charge, and is granted only in cases in which the Commonwealth has failed to carry its burden regarding that charge. Commonwealth v. Foster, 33 A.3d 632, 634-35 (Pa. Super. 2011).

A claim challenging the sufficiency of the evidence is a question of law. Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. Where the evidence offered to support the verdict is in contradiction to the physical facts, in contravention to human experience and the laws of nature, then the evidence is insufficient as a matter of law. When reviewing a sufficiency claim the court is required to view the evidence in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (citations omitted).

The statute at issue defines the offense of AA-DUI as follows: Any person who negligently causes serious bodily injury to another person as the result of a violation of section 3802 (relating to driving under influence of alcohol or controlled substance) and who is convicted of violating section 3802 commits a felony of the second degree when the violation is the cause of the injury. 75 Pa.C.S. § 3735.1.

In its 1925(a) opinion, the trial court relies upon Commonwealth v. Nicotra, 625 A.2d 1259 (Pa. Super. 1993), and Commonwealth v. Shoup, 620 A.2d 15 (Pa. Super. 1993), in reaching the conclusion that causation was sufficiently proven in this case. The trial court found that:

The evidence was sufficient to find that Defendant was a direct and substantial factor in causing the accident. Appellant drove under the influence of alcohol, at a high rate of speed and quickly changed lanes, breaking hard with little or no notice or regard for other vehicles on the road. He drove Mr. Chung off the road, thus causing the accident which led to serious injuries to four individuals. Whether or not Mr. Chung's driving was a factor in the accident, a jury could reasonably find that Appellant's actions were a direct and substantial factor in the accident.

Trial Court Opinion (TCO), 9/16/11, at 5.

The heart of Appellant's argument is that his vehicle did not collide with either of the victims' vehicles and thus his conduct cannot constitute a direct cause of the victims' injuries. Conceptualized in a slightly different fashion, he argues that Chung's conduct constituted a sufficiently independent intervening cause of the accident that broke any chain of causation reaching back to Appellant's conduct. Appellant argues that his case is factually analogous to that of Commonwealth v. Moyer, 648 A.2d 42 (Pa. Super. 1994).

The Commonwealth contends that "the fact that his vehicle did not actually strike the victims does not translate into [A]ppellant's innocence or insufficient evidence to sustain his convictions[,]" and that his "conduct was neither so remote nor attenuated in relation to the victim's injuries in this case as to excuse his culpability[.]" Commonwealth's Brief, at 24. Contrary to the Appellant's position, the Commonwealth asserts that Moyer supports the imposition of criminal liability in this case, and further argues that this Court previously held that a "fact finder can reasonably find a person's intoxication to be the cause of unsafe driving leading to bodily injury." Id. at 31 (quoting Commonwealth v. Sullivan, 864 A.2d 1246, 1250 (Pa. Super. 2004) (citing Commonwealth v. Ketterer, 725 A.2d 801, 803-04 (Pa. Super. 1999))).

The Preliminary Provisions of the Criminal Code provide that:

(a) General rule.--Conduct is the cause of a result when:

(1) it is an antecedent but for which the result in question would not have occurred; and

(2) the relationship between the conduct and result satisfies any additional causal requirements imposed by this title or by the law defining the offense.

18 Pa.C.S. § 303.

The terms of § 303(a)(1) express the tort standard of "proximate cause" or "but for" test for causation. 18 Pa.C.S. § 303 (official comment).

Nevertheless, the courts of this Commonwealth have consistently held that a stricter standard applies when causation of a particular result is an element of a criminal offense. See Commonwealth v. Root, 170 A.2d 310, 311 (Pa. 1961). Criminal causation requires a "more direct causal connection" than tort causation. Id. at 314; See also Commonwealth v. Rementer, 598 A.2d 1300, 1304 (Pa. Super. 1991). Thus, "[i]n order to impose criminal liability, causation must be direct and substantial." Rementer, 598 A.2d at 1304. Still, not every circumstance beyond a defendant's control will relieve him of criminal responsibility. "Thus, '[a] defendant cannot escape the natural consequences of his act merely because of foreseeable complications.'" Nicotra, 625 A.2d at 1264 (quoting Commonwealth v. Paquette, 301 A.2d 837, 839 (Pa. 1973)). "So long as the defendant's conduct started the chain of causation which led to the [proscribed result], criminal responsibility ... may properly be found." Id. (citing Commonwealth v. Hicks, 353 A.2d 803, 805 (Pa. 1976). Heretofore, however, the courts of this Commonwealth have never recognized criminal liability to attach for AA-DUI where the criminal negligence of the defendant is alleged to have caused another to be involved in a collision that resulted in serious bodily injury.

One of the earliest uses of the "chain of causation" language used throughout the body of law cited by the parties and the trial court is Hicks.*fn6

In Hicks, the defendant was convicted of voluntary manslaughter after "hit[ting] [the victim] several times about the head and body with a stick and his fists." Id. at 804. The defense presented expert medical testimony suggesting that the victim died of cardiac arrest due to a combination of intoxication and pre-existing coronary disease, and not as a result of the assault; whereas the Commonwealth's medical expert testified that "the multiplicity of blows complicated a pre-existing heart condition causing death[,]" and that the calculation as to the time of death corresponded closely with the time attributed to the assault inflicted on the victim. Id. at 804 - 05. In justifying its conclusion that the evidence was sufficient to support legal causation, the Hicks court stated that:

An accused may not escape criminal liability on the ground that, prior to the criminal act, his victim was not in perfect health, or the blow he inflicted was not mortal, or the immediate cause of death. If his blow started the chain of causation which led to the death, he is guilty of homicide.

Id. at 805 (internal citations omitted).

Tort law permits liability when a civil defendant's actions are the proximate cause of the victim's injuries. It is axiomatic, however, that a criminal "defendant cannot be convicted unless his conduct, or conduct for which he is legally responsible, was such as to meet the requirements of criminal and not tort law." Commonwealth v. Stafford, 301 A.2d 600, 602 (Pa. 1973) (footnote omitted). For criminal liability to attach, "the act of the culprits must constitute a direct and substantial factor in causing the [injury to] the victim." Id. (emphasis added). This Court discussed the distinction in Rementer:

It is difficult to draw a bright line between causation in the criminal law and in the tort law. Certain principles can, however, be ascertained. In order to impose criminal liability, causation must be direct and substantial. Defendants should not be exposed to a loss of liberty based on the tort standard which only provides that the event giving rise to the injury is a substantial factor.

598 A.2d at 1304 (emphasis added). See also Root, 170 A.2d at 314 (holding the Superior Court's application of the tort principle of proximate causation to a charge of involuntary manslaughter was improper).*fn7 *fn8 Consequently, the mere presence of contributory negligence of other parties or events does not relieve a defendant of criminal liability, a principle that often arises, and perhaps is best illustrated, in the context of criminal homicide:

[I]f the wound inflicted by the accused is not itself mortal and a subsequent event is found to be the immediate cause of death, the accused does not escape legal liability if his act started an unbroken chain of causation leading to the death. The legal cause of death is thus sufficiently proven if the criminal behavior is shown to have been a direct and substantial factor in bringing about the death. Death must, of course, be the consequence of the felony, and not merely a coincidence.

Commonwealth v. Evans, 494 A.2d 383, 389 (Pa. Super. 1985) (emphasis added) (internal citations and quotation marks omitted).

In the first case relied upon by the trial court, Shoup, an intoxicated driver was observed failing to stop for three consecutive stop signs just before crashing into a parked dump truck that was blocking the alley on which the driver's vehicle was travelling. The driver's passenger sustained fatal injuries as a result of the collision. The driver, charged with homicide by vehicle, argued that the legal cause of the victim's death had been the illegal parking of the dump truck. We held that:

While the fact that the dump truck was parked in the alleyway undoubtedly contributed to the accident, it is abundantly clear that it was appellant's conduct which started an unbroken chain of causation leading to his wife's death. That another vehicle may have been parked in a hazardous manner was a foreseeable circumstance which did not relieve appellant from the natural consequences of his conduct.

Shoup, 620 A.2d at 19.

In the other case relied upon by the trial court, Nicotra, an intoxicated defendant was observed speeding and driving erratically before he broadsided a Chevy Nova that was completing a left turn at an intersection. As a result of the collision, the passenger in the Nova was fatally injured and its driver was permanently scarred. The defendant, charged with homicide by vehicle, conceded that he had been speeding while intoxicated, but argued that the Commonwealth's evidence failed to establish that the accident would not have occurred if he had not been intoxicated and/or speeding. This Court held that, although the defendant "traveled through the intersection with a green traffic light and did make an attempt to stop his vehicle[,]" such evidence did "not alter the fact that, by driving at excessive speeds and while intoxicated, his conduct started an unbroken chain of causation leading directly to the fatal accident." Nicotra, 625 A.2d at 1264.

In both Nicotra and Shoup, the defendants' vehicles collided with the victims' vehicles. It was implicit, therefore, that the defendants' actions were the direct cause of the victims' injuries. The issue at stake in those cases, unlike the claim asserted by Appellant in this case, was whether the Nicotra and Shoup defendants' intoxication was a substantial cause of the victims' injuries, or whether the circumstances of the accidents cast doubt on whether the defendants' intoxication was a substantial factor in causing the injuries. Both cases applied the 'chain of causation' formulation to establish that the defendants' conduct remained a substantial cause of the resultant injuries, even though other circumstances may have contributed to causing the accidents.

It is helpful to visualize the 'chain of causation' metaphor to understand what the Nicotra and Shoup decisions stand for. Thus, the first link in the proverbial chain of causation was that the intoxication was a direct and substantial factor in causing the reckless driving. The second link was the reckless driving was a direct and substantial cause of the victim's injuries. The directness of the second causal link was obvious in those cases, because the defendants' vehicles were actually involved in the collisions that occurred. The Nicotra and Shoup decisions did not address the distinction between direct and substantial causation in the second link in the chain, between the reckless driving and the injuries, because there was no dispute over the fact that the defendants' vehicles crashed into other vehicles. Thus, there was continuous, direct causal linkage between the intoxication and the victims' injuries in both cases.

In the instant case, however, the issue is not the directness of the link between the intoxication and the reckless driving. There was sufficient evidence of that connection provided at trial, where the Commonwealth's evidence demonstrated Appellant's intoxication at the time of the incident, that Appellant's driving was erratic and, therefore, that there was a permissible inference left for the jury to determine if the intoxication was the direct and substantial cause of the erratic driving. The problem in the causal chain is with the second link, because unlike what occurred in Nicotra and Shoup, Appellant's vehicle did not collide with any of the victims or their vehicles (nor were there any victims in Appellant's vehicle). Thus, Nicotra and Shoup are neither controlling nor factually analogous to the instant case.

Appellant's reliance on Moyer provides only marginally more guidance in this case. In Moyer, the defendant was operating a watercraft and the victim was on a jet ski. A third party, who was standing on the shore, swung a stick at the victim as he drove past. The victim lost control of his Jet Ski and veered into the path of defendant's craft. The defendant's boat collided with the Jet Ski, resulting in the death of the victim. The defendant was charged with involuntary manslaughter, homicide by watercraft while under the influence, operating a watercraft under the influence, and reckless and negligent operation of watercraft. Moyer, 648 A.2d at 43. The Moyer court reversed the convictions for involuntary manslaughter, homicide by watercraft while under the influence, and reckless and negligent operation of watercraft, reasoning:

Our review of the Commonwealth's case reveals that its theory of causation combines the unsupported allegation that appellant could have, but failed to, swerve, with the fact that he had been drinking earlier in the day. It then concludes that appellant failed to swerve due to diminished reflex time relating to his alcohol consumption. Furthermore, we have established that the Commonwealth has not proven that appellant drove in a reckless manner or that swerving was a possible maneuver under the circumstances. Together, these deficiencies in the

Commonwealth's case constitute a gap in the weave of causation with regard to establishing a prima facie case for appellant's preliminary hearing. There was no evidence that appellant operated his boat in an unsafe manner, and there was no evidence that appellant caused the accident.

Id. at 48.

Moyer is not directly analogous to the instant case because the intervening cause in Moyer was of a different nature than presented by the facts before us. The intervening or superseding cause in Moyer involved the intentional and hazardous conduct of a third party that rendered the defendant's collision with the victim substantially likely independent of the defendant's intoxication.

Here, there was sufficient evidence that Appellant's intoxication was a direct and substantial factor in causing his erratic driving (swerving and braking suddenly) and that the erratic driving was a substantial cause of Chung's change of course. However, the nature of that causation was indirect, unless the distinction between indirect and direct cause is to be rendered meaningless. If there is no distinction between indirect and direct cause, then the course of criminal causation jurisprudence in Pennsylvania has devolved back to the tort standard of proximate or substantial factor causation (that 'but for' Appellant's actions, the accident would not have occurred). See Whitner v. Von Hintz, 263 A.2d 889, 894 (Pa. 1970) ("[t]he Pennsylvania but for formulation ... says that there is liability if the harmful result would not have come about but for the negligent conduct. That is, if the conduct were the [c]ausa sine qua non of the result, there is responsibility, given close connection with the injury 'in the order of events[,]'" as long as the negligence is also "a substantial factor in bringing about the plaintiff's harm."). To preserve the distinction between criminal and tort causation principles, we cannot accept that a link in the chain of causation can be sustained by what is, essentially by definition, an indirect form of causation, even if the Appellant's conduct was a substantial factor in causing the resulting injuries.

Of note then is Commonwealth v. McCloskey, 835 A.2d 801 (Pa. Super. 2003), a case that the Commonwealth offers in support of the finding of causation in this instance. In McCloskey, the defendant permitted her minor daughters to have a keg party with forty other minors in her basement while she was present on the first floor. One of the partygoers drove away from the party, intoxicated, with three passengers. The driver sideswiped a vehicle and, while fleeing the scene of that initial accident, he flipped the vehicle, causing his passengers' deaths. A panel of this Court upheld three convictions for involuntary manslaughter over the defendant's argument that the Commonwealth failed to establish causation:

In seeking to define the requirement that a criminal defendant's conduct be a direct factor in the death of another, the courts of this Commonwealth have held that "so long as the defendant's conduct started the chain of causation which led to the victim's death, criminal responsibility for the crime of homicide may properly be found." Nicotra, supra, 625 A.2d at 1264

(collecting cases).

McCloskey, 835 A.2d at 808.

Although the McCloskey court cites Nicotra for the proposition that the chain of causation test applies to the determination of whether conduct is a direct factor in causing death or injury, the Nicotra court never delineated between direct and substantial causation because, as discussed above, direct causation was clearly evident under the facts of that case, as has been true in most of this Court's prior decisions applying the chain of causation test. In Hicks, for example, the element of direct causation was fulfilled because the defendant had struck the victim, setting forth a chain of causation that ultimately led to the victim's death, even though the immediate cause of death was heart failure.*fn9

The McCloskey Court's adoption of the chain of causation test as the sole means to address both direct and substantial causation does appear to eviscerate the requirement of direct causation for criminal liability altogether. Nevertheless, there are several reasons why McCloskey is not controlling, the least of which being that it is simply not factually analogous to this case. More importantly, however, McCloskey is unique in that it may stand alone as an exception to the general rule of criminal causation, an exception that cannot be sustained based upon the fact pattern before us in this case. Children, as a class, are routinely afforded additional protections under the law, resulting in a myriad of special rules and exceptions that apply, not only to children and their parents and caregivers, but also in a much broader sense to the public's interactions and relationships with children. For instance, criminal laws often provide greater penalties where the exact same crime is inflicted on a child rather than an adult, and certain forms of conduct are criminalized only when the target/victim is a child. Although these additional protections are generally accomplished legislatively, courts have a long history of providing judicial exceptions and rules that effectively treat children differently under the law, often with constitutional justifications, such as the prohibition on certain forms of punishment being imposed on minors. See Roper v. Simmons, 543 U.S. 551 (2005) (holding that the Eighth Amendment forbids the imposition of the death penalty on minors), and Graham v. Florida, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (holding the Eighth Amendment forbids the imposition of mandatory life sentences on minors).

The special treatment of children is pervasive in Pennsylvania jurisprudence. It affects every area of the law, from the creation of special courts to try children, to different treatment under the rules of civil procedure. See generally 231 Pa. Code § 2027 (requiring that child litigants be represented by a guardian), 42 Pa.C.S. § 5985.1 (admissibility of hearsay statements made by children of a tender age). In civil practice, children are treated differently under the tort doctrine of attractive nuisance, on which the eminent Justice Holmes once instructively opined:

[T]he duty of one who invites another upon his land not to lead him into a trap is well settled, and while it is very plain that temptation is not invitation, it may be held that knowingly to establish and expose, unfenced, to children of an age when they follow a bait as mechanically as a fish, something that is certain to attract them, has the legal effect of an invitation to them although not to an adult.

United Zinc & Chem. Co. v. Britt, 258 U.S. 268, 275 (1922).

With these principles in mind, we conclude that McCloskey sets forth a limited exception to an otherwise strict requirement of direct causation because the law imposes greater responsibility on adults who negligently or intentionally permit children to engage in high risk behavior. In this case, however, no such interests are at stake when we consider whether Appellant should be held criminal liable under the AA-DUI statute.

In this case, the relationship between Appellant's erratic driving and Chung's reaction is inherently indirect. Because our Supreme Court has never deviated from the requirement of direct causation as set forth in Hicks and its progeny, we do not find McCloskey's specific formulation of the applicable standard controlling, particularly considering larger interests at stake that we discussed above.

Similarly, we conclude that Commonwealth v. Fabian, 2013 WL 139254 (Pa. Super. January 11, 2013), a decision reached after the briefs were filed in the instant case, does not compel that we affirm Appellant's AA-DUI convictions. In Fabian, a van driver for a special needs school reported problems with the brakes on the vehicle. Id. at 1. The defendant was a mechanic working for the company providing transportation services for the school. Id. After taking possession of the van, he submitted an inspection form indicating that he had thoroughly examined the vehicle's tires and brakes. Id. That same afternoon, the van was returned to the driver. Id. Soon after picking up several students, the van's brakes failed as it descended a steep hill. Id. Ultimately, the van collided with a tree as the driver attempted to slow the vehicle by taking it off the road into the grass, resulting in the death of one victim and severe injuries to the others. Id.

The defendant was charged with involuntary manslaughter, and he claimed on appeal that the Commonwealth had failed to establish that his negligence in repairing the vehicle was a direct and substantial factor in causing the death of the victim. Id. at 3. This Court affirmed the conviction, reasoning that the Commonwealth had offered sufficient evidence for the jury to conclude that the injuries had resulted from the defendant's failure to properly inspect and repair the van.*fn10 Id. at 6.

The directness of causation was not specifically raised by the defendant in Fabian as it was in the instant case. In Fabian, the defendant argued that it was not clear that the brake failure had caused the accident and, even if brake failure was the primary cause of the accident, that the evidence did not sufficiently demonstrate that the defendant could have prevented the failure. Id. at 4. Those claims involved whether the defendant's actions were a substantial cause of the accident rather than a direct cause. Although it is arguable that the defendant's failure to fix the brakes in Fabian was an indirect rather than a direct cause of the accident (if the brakes were intentionally or negligently disconnected), that specific issue was neither raised before nor addressed by the Fabian court. Furthermore, the facts of Fabian were markedly dissimilar to the instant case, and the broader policy implications regarding children that we discussed in reference to McCloskey were also implicated in Fabian, which further convinces us of Fabian's inapplicability to the instant case.

The body of criminal law provides numerous criminal sanctions for those individuals that create risks of injury or death independent of those statutes that require a causal nexus between the actions of the defendant and a victim's injuries. However, when a statute requires causation of a particular result, a defendant's actions must be both a direct and substantial factor in bringing about that result. See Stafford, 301 A.2d at 602, Evans, 494 A.2d at 389. The statute in question here requires proof of causation of the injury as an element of the offense. The uncontroverted evidence here established that Appellant did not collide with any of the victims or their vehicles. Although he is responsible for creating a high level of risk that such injuries could result spawned by the necessity of others' actions to avoid his erratic behavior, such a relationship in causation is inherently indirect. Accordingly, we conclude that the Commonwealth failed to produce sufficient evidence to sustain Appellant's convictions for AA-DUI.

Sufficiency of evidence of Serious Bodily Injury

Because of our disposition in this matter, it is unnecessary to address Appellant's third claim concerning whether there was sufficient evidence of serious bodily injury to victims Steven Chung and Susan Chung.

Brady Claim

Appellant's final claim concerns the purported destruction of material evidence by the Commonwealth in violation of his rights pursuant to Brady v. Maryland, 373 U.S. 83 (1963). Trooper Armour testified on cross- examination that his vehicle was fitted with an onboard camera which was recording at the time of the accident. N.T., 12/3-6/2010, at 74. He stated that after the accident he reviewed the video recording and determined that it did not depict the accident (which took place to the right of Trooper

Armour's vehicle and outside the field of vision of the camera) and that it was of poor quality due to the presence of other cars between his vehicle and Appellant's, as well as glare from oncoming headlights. Id. Due to its low evidentiary value and the presence of competent eyewitnesses, Trooper Armour did not preserve the recording as evidence and it was recorded over after 30 days. Id. at 76-77, 97. Although a juvenile petition was initiated, criminal charges were not filed by the time the recording was erased. Id. at 94.

We review a challenge to a trial court's ruling regarding alleged discovery violations under an abuse of discretion standard. Commonwealth v. Robinson, 834 A.2d 1160 (Pa. Super. 2003). Appellant claims the recording was materially exculpatory and should have been preserved.

Under Brady, the prosecution's failure to divulge exculpatory evidence is a violation of a defendant's Fourteenth Amendment due process rights. "[T]o establish a Brady violation, a defendant is required to demonstrate that exculpatory or impeaching evidence, favorable to the defense, was suppressed by the prosecution, to the prejudice of the defendant."

The burden of proof is on the defendant to demonstrate that the Commonwealth withheld or suppressed evidence. The United States Supreme Court has held, "[T]he prosecutor is not required to deliver his entire file to defense counsel, but only to disclose evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial." Similarly, this Court has limited the prosecution's disclosure duty such that it does not provide a general right of discovery to defendants. Moreover, we have held that the prosecution is not obligated to reveal evidence relating to fruitless leads followed by investigators.

"To satisfy the prejudice inquiry, the evidence suppressed must have been material to guilt or punishment." As noted by Appellant, materiality extends to evidence affecting the credibility of witnesses, rather than merely to purely exculpatory evidence. Moreover, we have held that the protection of Brady extends to the defendant's ability to investigate alternate defense theories and to formulate trial strategy. "[F]avorable evidence is material, and constitutional error results from its suppression by the government, if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different."

[T]he United States Supreme Court has held that "[t]he mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish 'materiality' in the constitutional sense."

Commonwealth v. Cam Ly, 980 A.2d 61, 75-76 (Pa. 2009) (internal citations omitted).

The trial court determined that Appellant's due process rights were not violated because "the material destroyed was neither exculpatory nor destroyed intentionally to avoid disclosures" and there was no evidence Trooper Armour acted in bad faith in failing to preserve the recording. TCO, 9/16/11, at 7.

We agree with the trial court's determination that the recording was not material to guilt or punishment. The only evidence of what appeared on the video was provided by Trooper Armour's testimony, and he testified that the recording did not show Appellant's vehicle nor the accident. Appellant claims that the video may have provided evidence regarding whether Chung was operating his vehicle in a dangerous manner. Such evidence, considering our disposition of the AA-DUI charges, cannot provide any further relief. Nevertheless, Appellant's assertion can never be verified because the recording does not exist and no evidence contradicts, or could otherwise be seen to impeach, Trooper Armour's testimony regarding the content of the recording. Thus, Appellant's claim that the recording may have depicted Chung engaging in unsafe driving is purely speculative. The "mere possibility" that the recording "might have" depicted events differently does not establish "materiality." See Cam Ly, 980 A.2d at 76 (citing

United States v. Agurs, 427 U.S. 97, 109-110 (1976)). Accordingly, we hold that Appellant's due process rights were not violated by Trooper Armour's failure to preserve the recording.

Judgment of sentenced AFFIRMED IN PART and VACATED IN PART. Case REMANDED to the trial court for resentencing consistent with this opinion.

Jurisdiction RELINQUISHED.

Judge Strassburger files a concurring and dissenting opinion.

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