J-A19036-21
2021 PA Super 198
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : JORGE FRETTS : No. 62 EDA 2021
Appeal from the Order Entered December 3, 2020 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0002763-2019
BEFORE: DUBOW, J., MURRAY, J., and COLINS, J.*
OPINION BY COLINS, J.: FILED OCTOBER 4, 2021
The Commonwealth appeals from an order entered in the Court of
Common Pleas of Philadelphia County (trial court) granting the pretrial motion
of defendant Jorge Fretts (Fretts) to quash a charge of homicide by vehicle.
For the reasons set forth below, we affirm.
This case arises out of a fatal collision between a garbage truck and a
bicyclist that occurred on November 28, 2017 at the intersection of Spruce
Street and 11th Street in Philadelphia when the garbage truck was making a
right turn and the bicyclist was traveling straight. The intersection where the
accident occurred is regulated by a traffic light and both the garbage truck
and the bicyclist were proceeding into the intersection when the light was
green. Commonwealth Ex. 2; Commonwealth Ex. 3. The garbage truck was
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* Retired Senior Judge assigned to the Superior Court. J-A19036-21
not at the intersection when the light turned green; it was behind a car that
was stopped at the intersection waiting for the light to change.
Commonwealth Ex. 2; Commonwealth Ex. 3. Fretts was driving the garbage
truck and remained at the scene after the accident. N.T. Preliminary Hearing
at 14-15. The police at the scene did not issue any traffic citations. Id. at
19. On February 26, 2019, the Commonwealth charged Fretts with homicide
by vehicle, involuntary manslaughter, and reckless endangerment.1
A preliminary hearing was held on April 17, 2019, at which the
Commonwealth presented testimony by a police officer who came to the scene
after the accident, the medical examiner’s report showing that the accident
caused the bicyclist’s death, a photograph of the block of Spruce Street on
which the garbage truck and bicyclist traveled before reaching the intersection
where the accident occurred, and two video recordings, one, marked as
Commonwealth Ex. 2, from a camera on 11th Street pointed south toward the
intersection and the other, marked as Commonwealth Ex. 3, from the garbage
truck.
The video from the 11th Street camera shows that the bicyclist was next
to the passenger side door of the garbage truck when the accident happened
and that, because of the height of the garbage truck, she was below the
1 75 Pa.C.S. § 3732(a), 18 Pa.C.S. § 2504(a), and 18 Pa.C.S. § 2705, respectively.
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passenger side window. Commonwealth Ex. 2. This video does not show any
flashing turn signal on the garbage truck. Id.
The video from the garbage truck includes video of the inside of the
garbage truck cab, a view of the street on the left side of the garbage truck,
and a recording of the truck’s speed. Commonwealth Ex. 3. The video of the
interior of the garbage truck cab shows Fretts looking to the right before and
while making his turn. Id. The bicyclist is not visible in this video when the
truck reaches the intersection and Fretts makes the turn. Id. The video of
the interior of the garbage truck shows Fretts looking at some papers when
the truck is stopped, but he is looking at the road and not the papers as the
truck moves toward the intersection and before and while he makes the turn.
Id. The video also shows that Fretts had an earbud in his right ear, but that
his left ear was not obstructed, and that he was driving the truck with one
hand on the steering wheel. Id.
The video of the street on the left side of the garbage truck does not
show what was to the right of the garbage truck and does not show the
bicyclist at all. Commonwealth Ex. 3. The recording of the garbage truck’s
speed shows that the truck was traveling approximately 5 miles per hour
before and during the turn. Id.
The photograph of Spruce Street shows that it has a bicycle lane on the
right-hand side and that there is a sign that reads “BEGIN RIGHT TURN LANE”
and “YIELD TO BIKES.” Commonwealth Ex. 4. The police officer testified
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that this sign is approximately 125 feet before the 11th Street intersection.
N.T. Preliminary Hearing at 8, 10-11. The police officer testified that the
garbage truck was in the proper lane for making its right turn, but that it
appeared from the 11th Street video that its turn signal was not on. Id. at
13, 20.
The Commonwealth marked the two videos as exhibits at the
preliminary hearing and played them, but did not have them admitted in
evidence. N.T. Preliminary Hearing at 5-6, 12-16. At the end of the
preliminary hearing, the municipal court judge ruled that the Commonwealth
had presented a prima facie case as to the three charges of homicide by
vehicle, involuntary manslaughter, and reckless endangerment. Id. at 43-44.
On July 17, 2019, Fretts filed a pretrial Motion to Quash Return of
Transcript and/or Petition for Habeas Corpus (motion to quash) asserting that
the Commonwealth failed to make out a prima facie case at the preliminary
hearing and seeking dismissal of all of the charges. On August 14, 2019, the
trial court held a hearing on the motion to quash at which the Commonwealth
presented no additional evidence and did not show the videos or provide them
to the trial court. N.T., 8/14/19, at 5-16. At the end of this hearing, the trial
court granted the motion to quash and dismissed all the charges. Id. at 16-
17. The Commonwealth filed a notice of appeal on August 22, 2019, and
subsequently submitted the two videos to the trial court on August 30, 2019.
Trial Court Opinion, 10/2/19, at 1-2. On August 14, 2020, this Court reversed
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the order dismissing the charges and remanded the case for the trial court to
hold a new hearing on the motion to quash that included consideration of the
videos. Commonwealth v. Fretts, 2443 EDA 2019, slip op. at 7-8 (Pa.
Super. August 14, 2020) (unpublished memorandum).
On December 2, 2020, the trial court held a hearing on the motion to
quash at which both videos were played and admitted in evidence. N.T.,
12/2/20, at 5-16. On December 3, 2020, the trial court, after considering this
evidence, entered an order granting the motion to quash as to the charge of
homicide by vehicle on the ground that the Commonwealth’s evidence was
insufficient to show that Fretts acted recklessly. Trial Court Order, 12/3/20 at
2; Trial Court Opinion, 2/16/21, at 4-7. The trial court did not dismiss the
other two charges. Trial Court Order, 12/3/20 at 2.
On December 16, 2020, the Commonwealth timely filed this appeal from
the dismissal of the homicide by vehicle charge.2 The Commonwealth in its
2 The Commonwealth in its notice of appeal erroneously stated that the appeal
was from “the order of the Honorable Lillian Ransom entered in this matter December 3, 2019.” 12/16/2020 Notice of Appeal. On May 12, 2021, this Court issued a rule to show cause why the appeal should not be dismissed because no order had been entered on the docket on December 3, 2019. The Commonwealth responded that the appeal is from the order of December 3, 2020 and that “2019” was a typographical error. The Court discharged the rule to show cause and referred the issue to the merits panel. 6/10/21 Order. There is no dispute that the December 3, 2019 date is a typographical error and that the appeal is from the December 3, 2020 order. Such a typographical error may be corrected and does not require dismissal of the appeal. Commonwealth v. Mysnyk, 527 A.2d 1055, 1056 n.2 (Pa. Super. 1987); Commonwealth v. Hewlett, No. 164 EDA 2020, slip op. at 3 & n.4 (Pa. (Footnote Continued Next Page)
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notice of appeal certified that “this order terminates or substantially handicaps
the prosecution.” 12/16/2020 Notice of Appeal. This Court therefore has
jurisdiction over this interlocutory appeal under Pa.R.A.P. 311(d).
The Commonwealth raises the following single issue for our review:
Did the lower court err in ruling that the evidence was insufficient to establish a prima facie case that defendant committed homicide by vehicle, where the evidence showed that defendant failed to yield the right-of-way to the victim-cyclist, interfered with her straight procession across the intersection, and failed to signal his turn, all of which violated the motor vehicle code and caused the victim’s death?
Commonwealth’s Brief at 5.3 We conclude that the Commonwealth’s evidence
was insufficient to establish recklessness, which is an essential element of the
offense homicide by vehicle, and therefore affirm the trial court.
Fretts’ motion to quash challenged whether the evidence presented by
the Commonwealth was sufficient to establish a prima facie case with respect
to the crime of homicide by vehicle and the other charges. Commonwealth
Super. Dec. 23, 2020) (unpublished memorandum). The caption has been corrected to state that the appeal is from “the Order Entered December 3, 2020.” 3 Fretts in his brief requested that this Court quash the appeal for incompleteness of the record because the certified record transmitted to this Court did not contain the two video exhibits. That deficiency in the record has been cured. On April 28, 2021, the Commonwealth filed an application in this Court to supplement the record and this Court, on July 19, 2021, entered an order directing the court of common pleas to certify and transmit a supplemental record containing the two video exhibits. On July 29, 2021, the court of common pleas transmitted a flash drive with the two video exhibits to this Court. The request to quash the appeal for incompleteness of the record is therefore denied.
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v. Wyatt, 203 A.3d 1115, 1117 (Pa. Super. 2019); Commonwealth v.
Dantzler, 135 A.3d 1109, 1112 (Pa. Super. 2016) (en banc).4 To establish a
prima facie case, the Commonwealth must produce evidence of every element
of the offense that would be sufficient, if presented at a trial and accepted as
true, for the judge to permit the case to be decided by a jury.
Commonwealth v. Montgomery, 234 A.3d 523, 533 (Pa. 2020);
Commonwealth v. Huggins, 836 A.2d 862, 866 (Pa. 2003);
Commonwealth v. Wroten, __ A.3d __, __, 2021 PA Super 124, at *10
(filed June 17, 2021). Whether the trial court erred in holding that the
Commonwealth failed to establish a prima facie case for the charge of
homicide by vehicle is a question of law subject to this Court’s plenary, de
novo review. Wyatt, 203 A.3d at 1117; Dantzler, 135 A.3d at 1112.
The homicide by vehicle statute provides:
Any person who recklessly or with gross negligence 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 except section 3802 (relating to driving under influence of alcohol or controlled substance) is guilty of homicide by vehicle, a felony of the third degree, when the violation is the cause of death.
4 After a preliminary hearing at which charges have been bound over for trial,
a defendant may challenge whether the Commonwealth’s evidence is sufficient to establish a prima facie case by filing a petition for habeas corpus in the common pleas court. Dantzler, at 1111-12. In Philadelphia County, this motion is referred to as a motion to quash. Commonwealth v. McBride, 595 A.2d 589, 590 n.2 (Pa. 1991); Dantzler, at 1111.
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75 Pa.C.S. § 3732(a). This offense thus has three elements: 1) that the
defendant violated a statute or ordinance relating to operation or use of a
vehicle or regulation of traffic other than the driving under the influence
statute; 2) that the violation caused the death of another person; and 3) that
the defendant’s conduct was reckless or grossly negligent. Commonwealth
v. Sanders, __ A.3d __, __, 2021 PA Super 163, at *6 (filed August 16, 2021)
(en banc); Commonwealth v. Matroni, 923 A.2d 444, 446-47 (Pa. Super.
2007).5
The state of mind of gross negligence under the homicide by vehicle
statute is the same as recklessness. Sanders, __ A.3d at __, slip op. at *12;
Wyatt, 203 A.3d at 1118; Matroni, 923 A.2d at 448. To establish a prima
facie case of homicide by vehicle, the Commonwealth was therefore required
to produce evidence that Fretts acted recklessly. Wyatt, 203 A.3d at 1118-
19.
The Crimes Code defines recklessness as follows:
A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and intent of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation.
5 Homicide by vehicle based on driving under the influence violations is covered by a separate criminal statute, 75 Pa.C.S. § 3735. Sanders, __ A.3d at __, slip op. at *6 n.2.
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18 Pa.C.S. § 302(b)(3). Recklessness requires proof that the defendant both
had actual knowledge of a substantial and unjustifiable risk and disregarded
that risk despite that knowledge. Sanders, __ A.3d at __, slip op. at *12-
*13; Commonwealth v. Sitler, 144 A.3d 156, 164 (Pa. Super. 2016) (en
banc).
Recklessness “implicates knowledge in two ways: (1) the actor must consciously (i.e., with knowledge) disregard a substantial and unjustifiable risk; and (2) the risk that the actor disregards is measured by the circumstances known to the actor.” “Conscious disregard” of a risk, in turn, “involves first becoming aware of the risk and then choosing to proceed in spite of the risk.”
Sanders, __ A.3d at __, slip op. at *12-*13 (citations omitted) (quoting
Sitler and Huggins).
Here, there was no evidence that Fretts knew that there was a bicyclist
beside the truck when he made the right turn, no evidence that he failed to
look before he made the turn, and no evidence that distracted driving caused
the accident. The video of the garbage truck cab shows that Fretts had his
eyes on the road as he drove and that he looked to the right before he made
the turn. Commonwealth Ex. 3.6 The Commonwealth at oral argument
6 While the Commonwealth is correct in its assertion that Fretts did not stand
up from the driver’s seat to get a better view of what was below the truck’s window until the accident happened, Commonwealth Ex. 3, the Commonwealth does not point to any statute or ordinance that requires drivers to stand up from their seat when looking to make a turn or any authority that would support the conclusion that a driver’s failure to stand up in a moving vehicle to get a better view is reckless conduct.
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conceded that the bicyclist was in the truck’s blind spot and was not visible to
Fretts when he reached the intersection and made the right turn.
There was also no evidence of any erratic driving or speeding. The light
was green when Fretts made his turn, and the garbage truck was moving at
approximately 5 miles per hour. Commonwealth Ex. 3. The Commonwealth’s
witness at the preliminary hearing testified that Fretts was driving the truck
in the proper lane for making a right turn. N.T. Preliminary Hearing at 20.
The police officer testified at the preliminary hearing:
Q. … When that truck enters the intersection of 11th and Spruce, it’s already in the far right-hand lane. Correct?
A. It’s my opinion that he is in the right lane, yes. However, it is a large truck, so he’s not hugging the curb line like a vehicle would because he does need that extra space to make the right turn.
Q. But that’s a sensible, reasonable thing to do. Isn’t it?
MR. PATTON: Objection.
THE COURT: Overruled. I’ll allow it. He’s AID [Accident Investigation District]. Overruled.
THE WITNESS: Yes.
Id.
Given these facts, it is clear under this Court’s en banc Sanders decision
that the Commonwealth’s evidence was insufficient to permit a finding of
recklessness. In Sanders, a bus driver making a left turn struck and killed a
93-year-old pedestrian who was properly crossing the street in a crosswalk.
__ A.3d at __, slip op. at *1-*3. This Court vacated the bus driver’s homicide
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by vehicle conviction on the ground that the evidence was insufficient to
permit a finding of recklessness where the bus driver made the turn on a green
light traveling at 8 miles an hour and looked before turning and there was no
evidence that the bus driver could see the pedestrian when she looked to her
left. Id. __ A.3d at __, slip op. at *13-*20. The Court, moreover, held that
the bus driver’s conduct could not be found to be reckless, even though the
pedestrian was visible for 45 seconds while the bus was stopped for a red light
at the intersection and the driver could have seen him if she had looked while
waiting for the light to turn green, rather than looking at work papers, and
even though she violated several work rules, including steering the bus with
one hand and failing to wait a full 4 seconds before making a left turn. Id. __
A.3d at __, slip op. at *8, *13-*20.
Indeed, the absence of knowledge and disregard of risk is far clearer in
this case than in Sanders. There is no evidence that Fretts would have been
aware that a bicyclist was beside the truck if he had not looked at papers while
stopped and no evidence that he violated any work rule. Contrary to the
Commonwealth’s contention, the garbage truck video does not show the
bicyclist while Fretts is looking at papers. Rather, the video shows a bicyclist
passing the truck’s passenger side window while the truck is moving before it
reaches the intersection and Fretts is looking at the road ahead in the direction
in which he is driving, and this bicyclist is visible on the video for only
approximately one second. Commonwealth Ex. 3. Moreover, the video does
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not even show what Fretts could have seen, as the camera was on the
dashboard pointed at Fretts and his co-worker in the passenger seat and was
not positioned to show what was visible from the driver’s seat. Id. While
Sanders was an appeal from a verdict after trial rather than a ruling on
whether the Commonwealth had established a prima facie case, a prima facie
case requires evidence of every element of the offense that would be
sufficient, if presented at a trial and accepted as true, for the judge to permit
the case to be decided by the fact finder. Montgomery, 234 A.3d at 533;
Huggins, 836 A.2d at 866; Wroten, __ A.3d at __, slip op. at *10. The issue
decided in Sanders was thus the same the issue as here, whether the
evidence was sufficient to permit a fact finder to find the element of
recklessness.
The Commonwealth contends that it showed that Fretts violated three
sections of the Vehicle Code and that this number of violations is sufficient to
show recklessness. Commission of multiple Vehicle Code violations, however,
does not ipso facto show recklessness and proof of multiple violations, without
more, is not sufficient evidence of recklessness to establish a prima facie case
that the defendant committed the crime of homicide by vehicle.
Commonwealth v. Karner, 193 A.3d 986, 993 (Pa. Super. 2018). See also
Sanders, __ A.3d at __, slip op. at *6-*8, *13-*20 (evidence insufficient to
permit finding of recklessness even though bus driver committed three
violations of the Vehicle Code). Matroni, relied on by the Commonwealth, is
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not to the contrary. In Matroni, the Vehicle Code violations included
speeding, tailgating, and erratic lane changes, all of which involve conscious
decisions to engage in dangerous behavior. 923 A.2d at 448-49.
The three violations that the Commonwealth claims that it showed here
are failure to yield to the bicyclist, 75 Pa.C.S. § 3323(c), interference with the
bicyclist’s straight procession through the intersection, 75 Pa.C.S. § 3331(e),
and failure to use a turn signal, 75 Pa.C.S. § 3334.7 None of these violations
are probative of any conscious knowledge of a substantial risk or conscious
decision to act notwithstanding the risk.
Failure to yield the right of way to a person that the driver does not see
despite looking and interference with such an unseen person’s proceeding
through an intersection do not show recklessness. Sanders, __ A.3d at __,
slip op. at *13-*18. To the extent that the Commonwealth claims that Fretts
violated Section 3323(c) of the Vehicle Code by not stopping or slowing down
before turning, that contention is without merit. The requirement in Section
3323(c) that a driver slow or stop a vehicle applies to intersections controlled
by a yield sign that gives a preferential right-of-way to other traffic and applies
7 The Commonwealth does not contend in this appeal that the earbud in Fretts’
right ear is a violation of the Vehicle Code, although it made such an argument at the preliminary hearing. N.T. Preliminary Hearing at 41. Even if it were asserted, such an argument would fail. The Vehicle Code provision prohibiting earbuds does not prohibit all single-ear earbuds, 75 Pa.C.S. § 3314(b), and the Commonwealth admits that it did not introduce evidence from which it could be determined that Fretts’ earbud violated the statute. Appellant’s Brief at 18 n.4.
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only to a “driver of a vehicle approaching a yield sign.” 75 Pa.C.S. § 3323(a),
(c). The intersection where the accident occurred was regulated by a traffic
light, not a stop sign or a yield sign, and the traffic light was green when Fretts
approached the intersection and made his turn. The only yield sign here, the
“YIELD TO BIKES” sign, was not at the intersection; it was 125 feet before the
intersection, at the point where drivers are directed to merge into the
rightmost lane if they are going to turn right. Commonwealth Ex. 4; N.T.
Preliminary Hearing at 8, 10-11, 21. There was no evidence that Fretts failed
to comply with that sign as he approached it. As discussed above, the police
officer testified at the preliminary hearing that the garbage truck was already
in the rightmost lane before it entered the intersection and made its right turn.
N.T. Preliminary Hearing at 20. There is no evidence that Fretts failed to
properly yield to bicyclists when he moved the truck into that lane. Id. at 21-
23.
The remaining Vehicle Code violation, failure to use a turn signal is an
omission, not an affirmative act that shows any conscious decision to take or
disregard a risk. Forgetting to use a turn signal or failing to notice that it
turned off when the vehicle straightens out after merging into another lane
thus shows only negligence, not recklessness. The lone case that the
Commonwealth cites concerning failure to use a turn signal, MacNeill v.
Makos, 77 A.2d 378 (Pa. 1951), does not suggest that mere failure to signal
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a turn shows reckless conduct. MacNeill was a civil negligence action and
does not discuss the issue of recklessness or conscious disregard of risk at all.
The other evidence that the Commonwealth contends shows
recklessness in this case is likewise insufficient to permit a finding of reckless
conduct. Steering a vehicle with one hand, even a very large vehicle, does
not show recklessness where there is no evidence that the driver was unable
to properly control the vehicle. Sanders, __ A.3d at __, slip op. at *18
(driving bus with one hand whiling turning, which was a violation of driver’s
employer’s work rule, “[a]t most … constituted negligence but not a conscious
disregard of a substantial and unjustifiable risk” where there was no loss of
control of the bus). Looking at paperwork while stopped for a red light, rather
than checking whether anything is in the way of an intended turn, does not
constitute reckless conduct where the driver in fact looks before making his
turn. Id. Indeed, unlike Sanders, there is no evidence here that looking at
paperwork played any role in the accident, as there is no evidence that the
bicyclist was visible at that time or that Fretts could have even checked the
intersection for bicyclists or pedestrians, since he was not at the intersection
when the light was red. The fact that Fretts had an earbud in one ear does
not show inattentiveness to the road or other vehicles and pedestrians, as the
video shows that his eyes were on the road and there is no evidence that any
communication was coming through the earbud that caused a distraction.
There is also no evidence that any effect that the earbud might have had on
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Fretts’ ability to hear played any role in this accident, which was caused by
the fact that he did not see the bicyclist and not by failure to hear. The
Commonwealth’s contention that Fretts’ “fail[ure] to perceive whether any
pedestrians or cyclists were in his path” before turning shows recklessness,
Appellant’s Brief at 15, is invalid because recklessness depends on the driver’s
knowledge and, as the Commonwealth conceded at argument, Fretts could
not see the bicyclist. Sanders, __ A.3d at __, slip op. at *12-*18.
The cases cited by the Commonwealth likewise do not support any
conclusion that Fretts could be found to have acted recklessly. In
Commonwealth v. Setsodi, 450 A.2d 29 (Pa. Super. 1982), the driver made
a left turn in front of an approaching motorcycle traveling in the opposite
direction without looking ahead to see if there was any oncoming traffic and
there was evidence that the motorcycle with which she collided was clearly
visible and would have been seen by her if she had looked. Id. at 30-32.
Here, in contrast, Fretts looked to the right before his turn and there was no
evidence that the bicyclist was visible to him. In both Commonwealth v.
Moyer, 171 A.3d 849 (Pa. Super. 2017) and Commonwealth v. Jumper,
515 A.2d 540 (Pa. 1986), the driver ran through a traffic control device.
Moyer, 171 A.3d at 851, 854 (driver ran through a stop sign at 12 miles per
hour into 35-mile-per-hour cross-traffic); Jumper, 515 A.2d at 540-41 (driver
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ran a red light). In this case, Fretts had a green light when he drove into the
intersection and made his turn.8
The Commonwealth also argues that the trial court’s failure to dismiss
the charge of involuntary manslaughter is inconsistent with its dismissal of the
homicide by vehicle charge. The Commonwealth is correct that the mens rea
requirement of recklessness is the same for both offenses. Sanders, __ A.3d
at __, slip op. at *8-*12; Commonwealth v. Grimes, 842 A.2d 432, 434 n.5
(Pa. Super. 2004). That, however, does not support reversal of its dismissal
of the homicide by vehicle charge. The trial court did not make any finding
that there was evidence of recklessness in denying the motion to quash the
involuntary manslaughter charge. Moreover, what the trial court concluded
about the sufficiency of the evidence does not affect this appeal, as the Court’s
review of a decision on whether the Commonwealth has established a prima
facie case is plenary and de novo. Wyatt, 203 A.3d at 1117; Dantzler, 135
A.3d at 1112. As we have determined that the Commonwealth’s evidence is
8 The remaining cases on which the Commonwealth relies all involve affirmative acts of erratic driving that bear even less resemblance to this intersection accident. See Commonwealth v. Lamonda, 52 A.3d 365, 369 (Pa. Super. 2012) (en banc) (driver steered his vehicle out of its lane of travel into oncoming traffic); Matroni, 923 A.2d at 448-49 (speeding, tailgating, and erratic lane changes); Commonwealth v. Grimes, 842 A.2d 432, 435 (Pa. Super. 2004) (driver “weaved all over the roadway and repeatedly swerved into oncoming traffic an estimated ten to twenty times”); Commonwealth v. Francis, 665 A.2d 821, 823 (Pa. Super. 1995) (driver, while driving in the center lane of an interstate highway, put his vehicle in reverse and backed up).
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insufficient to permit a finding of recklessness here, the inconsistency in the
trial court’s decisions on the homicide by vehicle and involuntary
manslaughter charges shows only that the trial court erred in denying the
motion to quash the involuntary manslaughter charge, not that it erred in
granting the motion to quash the homicide by vehicle charge.
The accident and death of the bicyclist that occurred in this case were
unquestionably tragic. But not every tragedy is a crime, let alone a felony.
The legislature has erected a firm boundary between the reckless conduct
required for a charge of homicide by vehicle and mere negligence or careless
driving, even when the results are tragic. Sanders, __ A.3d at __, slip op. at
*20. Because the evidence put forth by the Commonwealth, taking all
inferences in the Commonwealth’s favor, is not sufficient to permit any finder
of fact to conclude that Fretts acted recklessly, the trial court properly
dismissed the charge of homicide by vehicle. Accordingly, we affirm the trial
court’s order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 10/4/2021
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