Commonwealth v. Ewansik

520 A.2d 1189, 360 Pa. Super. 476, 1987 Pa. Super. LEXIS 7048
Superior Court of Pennsylvania·Decided February 2, 1987·No. 373·Published

Opinion

CIRILLO, President Judge:

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 issue1 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, [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.

[479] Townsend Trust, 349 Pa. 162, 168, 36 A.2d 438, 441 (1944) (per curiam); accord Commonwealth v. Acquaviva, 187 Pa.Super. 550, 145 A.2d 407, aff'g per curiam 14 Pa.D. & C.2d 285 (Lawrence County Ct. Quarter Sess.1958), appeal dismissed, (Pa. Jan. 13, 1959); see also Baker v. Aetna Casualty & Sur. Co., 309 Pa.Super. 81, 454 A.2d 1092 (1982), appeal denied, (Pa. Dec. 29,1983). The trial judge’s disagreement with a particular rule of law, or belief that a decision which is currently the law of Pennsylvania might be reversed, is no reason for disregarding a clearly controlling precedent.

The trial judge’s attempt to justify his decision by finding that Heck is “at variance” with Commonwealth v. Houtz, 496 Pa. 345, 437 A.2d 385 (1981), and Commonwealth v. Field, 490 Pa. 519, 417 A.2d 160 (1980), flies in the face of Heck’s determination that those Supreme Court cases did not decide the issue whether ordinary negligence was an unconstitutional standard of culpability in a vehicular homicide case. This Court in Heck carefully considered the holdings in Houtz and Field, see Heck, 341 Pa.Super. at 190-92, 491 A.2d at 215-16, and determined that, although those cases had settled that simple negligence was the level of culpability established by the vehicular homicide statute, they had not involved constitutional challenges to that level of culpability based on due process grounds. We specifically addressed the argument now adopted by the trial judge, and rejected it, finding that

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Commonwealth v. Ewansik, 520 A.2d 1189, 360 Pa. Super. 476, 1987 Pa. Super. LEXIS 7048 (Pa. Ct. App. 1987).

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Related

Commonwealth v. ACQUAVIVA
145 A.2d 407 (Superior Court of Pennsylvania, 1958)
Commonwealth v. Field
417 A.2d 160 (Supreme Court of Pennsylvania, 1980)
Commonwealth v. Houtz
437 A.2d 385 (Supreme Court of Pennsylvania, 1981)
Commonwealth v. Dell
447 A.2d 1021 (Supreme Court of Pennsylvania, 1982)
Commonwealth v. Heck
491 A.2d 212 (Supreme Court of Pennsylvania, 1985)
Jameson v. Pittsburgh
113 A.2d 454 (Supreme Court of Pennsylvania, 1955)
Commonwealth v. Koch
443 A.2d 1157 (Superior Court of Pennsylvania, 1982)
Baker v. Aetna Casualty & Surety Co.
454 A.2d 1092 (Superior Court of Pennsylvania, 1982)
Commonwealth v. King
444 A.2d 1294 (Superior Court of Pennsylvania, 1982)
Townsend Trust
36 A.2d 438 (Supreme Court of Pennsylvania, 1944)