Commonwealth v. Kling

731 A.2d 145, 1999 Pa. Super. 110, 1999 Pa. Super. LEXIS 888
CourtSuperior Court of Pennsylvania
DecidedMay 7, 1999
StatusPublished
Cited by67 cases

This text of 731 A.2d 145 (Commonwealth v. Kling) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Kling, 731 A.2d 145, 1999 Pa. Super. 110, 1999 Pa. Super. LEXIS 888 (Pa. Ct. App. 1999).

Opinions

EAKIN, J.:

¶ 1 John J. Kling appeals from the judgment of sentence entered following his convictions for third degree murder, aggravated assault, recklessly endangering another person, and possession of marijuana. We affirm.

¶ 2 On August 28, 1996, appellant was driving his red Chrysler Conquest near McConnellsburg when he noticed a black Chevrolet Camaro in his rear view mirror. The Camaro, driven by Larry Seville, took off after appellant and both automobiles began racing up a curvy mountain road known as Scrub Ridge. At speeds in excess of 80 m.p.h., both vehicles reached the crest of Scrub Ridge, and with appellant in the lead, the improvident competitors began descending the mountain road.

¶3 The first downside mile from the top of Scrub Ridge is riddled with eight substantial curves and five cautionary speed signs. Nevertheless, appellant maintained his excessive speeds, pulling away from the Camaro and disappearing into the blind curves. Through the second of these curves, appellant was on the wrong side of the road and nearly hit Jean [147]*147Pepple traveling the opposite direction in her minivan. In spite of this near collision, appellant neither slowed down nor took action to mitigate the obvious danger from his racing.

¶ 4 Approaching the eighth major curve on the downslope, appellant swung into the no-passing zone and blew past two pickup trucks traveling in front of him. He then headed into the sharp double curve at nearly 70 m.p.h., crossed the center line again, and struck a vehicle driven by Helen Mellott. The collision, eight-tenths of a mile after appellant ran Ms. Pepple off the road, killed Ms. Mellott instantly and left her ten-year-old son with a ruptured artery to his liver.

¶ 5 On December 17, 1997, following a jury trial, appellant was found guilty of third degree murder, aggravated assault, recklessly endangering another person, and possession of marijuana.1 He was sentenced to prison for an aggregate term of twelve to thirty years. This appeal follows, wherein the following issues are raised:

I. Whether the evidence was sufficient to establish the element of malice required to sustain appellant’s convictions for third degree murder and aggravated assault?
II. Whether the trial court erred in denying appellant’s requested charges to the jury?
III. Whether the trial court erred in failing to allow appellant to present evidence of his own medical condition?

¶6 Appellant’s first issue challenges the sufficiency of the evidence for his convictions of third degree murder and aggravated assault. In reviewing the sufficiency of the evidence, our task is to determine whether the evidence and all reasonable inferences therefrom, viewed in the light most favorable to the verdict winner, was sufficient to enable the factfin-der to find every element of the crime charged beyond a reasonable doubt. Commonwealth v. Zambelli, 695 A.2d 848, 851 (Pa.Super.1997).

¶ 7 Third degree murder occurs when a person commits a killing which is neither intentional nor committed during the perpetration of a felony, but contains the requisite malice. 18 Pa.C.S. § 2502(c); Commonwealth v. Johnson, 719 A.2d 778, 785 (Pa.Super.1998). Aggravated assault arises when a person attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting an extreme indifference to the value of human life. 18 Pa.C.S. § 2702(a)(1). Malice is the crucial element in question here, as it is the component which distinctly characterizes both of these offenses. See Commonwealth v. Fierst, 428 Pa.Super. 282, 620 A.2d 1196, 1203 (1993) (malice must be present to sustain a conviction for both third degree murder and aggravated assault).

¶ 8 There is no distinction between the malice essential to third degree murder and that necessary for aggravated assault. See Commonwealth v. Hickson, 402 Pa.Super. 53, 586 A.2d 393 (1990), appeal denied, 527 Pa. 663, 593 A.2d 838 (1991) (malice is a constituent element of both third degree murder and aggravated assault; jury’s finding of not guilty for third degree murder, i.e., a malicious act, precludes a second trial for aggravated assault); see also Commonwealth v. O’Hanlon, 539 Pa. 478, 653 A.2d 616, 618 (1995) (aggravated assault is the functional equivalent of a murder in which, for some reason, death fails to occur). As such, the mens rea of malice respective to each of these offenses may be discussed concurrently.

¶ 9 Malice exists where there is a “wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social [148]*148duty, although a particular person may not be intended to be injured.” Commonwealth v. Pigg, 391 Pa.Super. 418, 571 A.2d 438, 441 (1990), appeal denied, 525 Pa. 644, 581 A.2d 571 (1990) (quoting Commonwealth v. Drum, 58 Pa. 9, 15 (1868)). Where malice is based on a reckless disregard of consequences, it is not sufficient to show mere recklessness; rather, it must be shown the defendant consciously disregarded an unjustified and extremely high risk that his actions might cause death or serious bodily injury. See Commonwealth v. Scales, 437 Pa.Super. 14, 648 A.2d 1205, 1207 (1994), appeal denied, 540 Pa. 640, 659 A.2d 559 (1995) (regarding third degree murder). A defendant must display a conscious disregard for almost certain death or injury such that it is tantamount to an actual desire to injure or kill; at the very least, the conduct must be such that one could reasonably anticipate death or serious bodily injury would likely and logically result. See O’Hanlon, supra, 653 A.2d at 618 (regarding aggravated assault).

¶ 10 In view of this heightened mens rea, motor vehicle crashes seldom give rise to proof of the malice needed to sustain a conviction for third degree murder or aggravated assault. Recent case law exemplifying this lies in O’Hanlon, supra, a case involving a driver who ran a red light and struck another vehicle, causing serious injury to the other driver. Our Supreme Court reversed the aggravated assault conviction, finding only mere recklessness, not that which almost assured death or injury would ensue. In so doing, the Court explained “[s]erendipity, not intention, placed the victim in his path when he drove through the red fight.” Id., 653 A.2d at 618.

¶ 11 More recently, in Commonwealth v. Comer, 552 Pa. 527, 716 A.2d 593 (1998), our Supreme Court again reversed a conviction of aggravated assault, where a driver recklessly caused a severe accident. The facts of this case demonstrated a much more egregious course of conduct than in OH anion.

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Cite This Page — Counsel Stack

Bluebook (online)
731 A.2d 145, 1999 Pa. Super. 110, 1999 Pa. Super. LEXIS 888, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-kling-pasuperct-1999.