Commonwealth v. Koch

443 A.2d 1157, 297 Pa. Super. 350, 1982 Pa. Super. LEXIS 3806

• Court: Superior Court of Pennsylvania
• Decided: April 2, 1982
• Docket: 1626
• Status: Published

Opinions

WICKERSHAM, Judge:

On September 19, 1979, appellant, Jay C. Koch, III., was found guilty by a jury of homicide by vehicle.¹ Appellant’s post-verdict motions were denied and appellant was sentenced to a two-year term of probation and fined $750.00 plus costs. This appeal followed.

The facts in the instant case may be summarized as follows. On February 4, 1979, at approximately 7:55 p. m., appellant was driving his 1966 Volkswagen from his parents’ home in Kirkwood to his dormitory room at Millersville State College. Appellant was traveling west on Long Lane when he collided with a 1974 Volkswagen at the intersection of Long Lane and New Danville Pike. The 1974 Volkswagen was driven by Diane C. Holton, and Michael L. McClune was a passenger. They were traveling south on the New Danville Pike at the time of the collision. Diane Holton died as a result of injuries sustained in the accident.

The intersection of Long Lane and New Danville Pike was controlled by stop signs for Long Lane, but there were no stop signs for New Danville Pike. Appellant testified at trial that he stopped at the stop sign on Long Lane, looked both ways, and observing no oncoming cars, entered the intersection at which time the accident occurred.

Section 3732 of the Vehicle Code (75 Pa.C.S.) defines the crime of homicide by vehicle as follows:

Any person who unintentionally 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 is guilty of homicide by vehicle, a misdemeanor of the first degree, when the violation is the cause of death.

Appellant first argues on appeal that section 3732 as applied to appellant constitutes a denial of due process, because it is a strict liability criminal statute under which a conviction allows substantial penalties, including up to five years in prison, and inflicts grave damage to the reputation of one so convicted.² We disagree.

We rely on a recent decision of our supreme court in Commonwealth v. Field, 490 Pa. 519, 417 A.2d 160 (1980) (opinion by Roberts, J.). In Field, a cameraman for KDKATV, Pittsburgh was standing on a sidewalk filming the picketing and other strike-related activities of employees of the Atlantic Richfield Oil Company (ARCO) when he was struck by an ARCO tractor-trailer. The cameraman was fatally injured and the driver of the tractor-trailer was held on the charges of homicide by vehicle, 75 Pa.C.S. § 3732, and driving on the sidewalk, 75 Pa.C.S. § 3703. The lower court granted a pre-trial motion by the defendant to dismiss the information against him on the ground that section 3732 of the Vehicle Code is unconstitutionally vague. The Commonwealth took an appeal.

There were two issues on appeal before the supreme court in Field: 1) Whether section 3732 is unconstitutionally vague and 2) in view of their decision in Commonwealth v. Koczwara, 397 Pa. 575, 155 A.2d 825 (1959), cert. denied, 363 U.S. 848, 80 S.Ct. 1624, 4 L.Ed.2d 1731 (1960), whether section 3732 violates due process by imposing criminal liability without fault.³ The supreme court rejected the vagueness challenge citing Commonwealth v. Burt, 490 Pa. 173, 415 A.2d 89 (1980). The court also rejected the due process challenge holding that section 3732 requires the Commonwealth to prove that the victim’s death was caused by the culpable conduct of the accused.

Here, however, unlike in Koczwara, there is no effort to impose a prison term in the absence of culpable conduct. As the Attorney General recognizes, section 3732 requires the Commonwealth to prove that appellee [defendant] has deviated from the standard of care established by section 3703, the underlying Vehicle Code provision allegedly violated here [driving on the sidewalk].... Consistent with the culpability requirement, section 3703 leaves for determination at trial whether appellee knew, or should have known, he engaged in the conduct claimed to be in violation of that section. Thus, for example, it remains to be decided if a reasonable driver could, in view of the congestion at the terminal exit, know where the sidewalk was or, indeed, if a sidewalk existed. Section 3732 also requires the Commonwealth to prove that appellee’s alleged violation of section 3703 caused the victim’s death. As the Attorney General points out; at the very least, death must be a “probable consequence” of appellee’s culpable conduct. See 18 Pa.C.S. § 303(d).

Id. 490 Pa. at 524-525, 417 A.2d at 163 (footnotes omitted).

We are constrained by the decision in Commonwealth v. Field, supra, where the supreme court determined that section 3732 does not violate due process because it requires a showing of culpable conduct. Since the decision in Field, there have been various interpretations by this court as to what level of culpability is embraced by section 3732. Commonwealth v. Spurgeon, 285 Pa.Super. 563, 428 A.2d 189 (1981) (Section 3732 creates strict criminal liability without regard to any scienter element and does not require a showing of reckless or negligent culpability); Commonwealth v. Hartzell, 282 Pa. Super. 549, 423 A.2d 381 (1980) (Section 3732 does not require a showing of culpability as defined in 18 Pa.C.S. § 302—intentionally, knowingly, recklessly, or negligently);⁴ and Commonwealth v. Nay, 281 Pa.Super. 226, 421 A.2d 1231 (1980) (Section 3732 requires a showing of culpably negligent conduct as defined by 18 Pa.C.S. § 302(b)(4). See also Commonwealth v. Lang, 285 Pa.Super. 34, 426 A.2d 691 (1981) and Commonwealth v. McIlwain School Bus Lines, 283 Pa.Super. 1, 423 A.2d 413 (1980) (Both cases cite Commonwealth v. Nay, supra).5

We conclude from the supreme court’s decision in Field that the culpable conduct required by section 3732 is a showing that the defendant “has deviated from the standard of care established by” the underlying Vehicle Code provision allegedly violated by him. Id. 490 Pa. at 524, 417 A.2d at 163. In Field, the underlying offense was driving on a sidewalk, 75 Pa.C.S. § 3703, while in the instant case, it was failure to yield at a stop sign, 75 Pa.C.S. § 3323. As stated in Field, in order to establish the underlying offense the Commonwealth must show that the defendant “knew, or should have known, he engaged in the conduct claimed to be in violation of that section.” Id., 490 Pa. at 525, 417 A.2d at 163. In effect, our supreme court has saved section 3732 from the due process challenge of criminal liability without fault by a bootstrap analysis, namely, the culpability required for the underlying offense also defines the culpability required for homicide by vehicle.

The supreme court also stated in Field that the Commonwealth ' must prove that the defendant’s violation of the underlying Vehicle Code provision caused the victim’s death. In defining this causal relationship between the violation and the death, the supreme court adopted a strict liability approach. The victim’s death must, at the very least, be a “probable consequence” of the defendant’s violation. See 18 Pa.C.S. § 303(d).⁶

We summarize below the elements of the crime of homicide by vehicle, 75 Pa.C.S. § 3732, as set forth in Field:

1) Defendant deviated from the standard of care established by the underlying Vehicle Code provision [or municipal ordinance].

a) Defendant knew, or should have known, he engaged in the conduct claimed to be in violation of the underlying Vehicle Code provision [or municipal ordinance].

2) A death occurred.

b) The death was, at the very least, a probable consequence of the defendant’s violation of the underlying Vehicle Code provision [or municipal ordinance].

According to Field, the requirement that the defendant knew, or should have known, that he was violating the underlying Vehicle Code provision establishes some kind of culpability on his part. We must, therefore, conclude that section 3732 is not a strict liability criminal statute nor is it violative of due process. Commonwealth v. Field, supra 490 Pa. at 525-526, 417 A.2d at 164 (Flaherty, J., concurring).

The culpability required by section 3732 does not fall into one of the categories defined in 18 Pa.C.S. § 302 (intentionally, knowingly, recklessly, or negligently). It is lesser than criminal negligence, 18 Pa.C.S. § 302(b)(4), which involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation. Proof of criminal negligence or recklessness, 18 Pa.C.S. § 302(b)(3), is required in order to convict a defendant of involuntary manslaughter, 18 Pa.C.S. § 2504. As the supreme court stated in a footnote <in Field:

In our view it was the legislative judgment in enacting section 3732 to expand the scope of criminal liability for violations of the Vehicle Code causing death. Compare 18 Pa.C.S. § 2504; Commonwealth v. Busier, supra note 3 [445 Pa. 359, 284 A.2d 783 (1971)]; Commonwealth v. Clowser, 212 Pa.Super. 208, 239 A.2d 870 (1968).

Id. 490 Pa. at 525 n.4, 417 A.2d at 163 n.4.

In Commonwealth v. Houtz, 496 Pa. 344, 437 A.2d 385 (1981) (Opinion by Roberts, J.), our supreme Court recently commented on the above quotation from Field and explained further the relationship between the crimes of homicide by vehicle and involuntary manslaughter.

This legislative ‘expansion’ was accomplished not by the elimination of any of the elements of the crime of involuntary manslaughter, but by a relaxation of the degree of proof of two existing elements: culpable conduct and causation. The crime of involuntary manslaughter, as charged here, requires proof that the actor engaged in the Vehicle Code violation in a ‘reckless or grossly negligent manner,’ and that the death was caused ‘as a direct result.’ 18 Pa.C.S. § 2504. See Commonwealth v. Clowser, 212 Pa.Super; 208, 239 A.2d 870 (1968). By contrast, under the crime of homicide by vehicle, it must be shown only that the actor ‘knew, or should have known,’ that he engaged in the conduct claimed to be in violation of the Vehicle Code, and that, at the very least, death was a ‘probable consequence’ of the conduct. Commonwealth v. Field, 490 Pa. at 525, 417 A.2d at 163. These relaxed degrees of culpable conduct and causation set forth in the crime of homicide by vehicle are necessarily established by proof of the more stringent counterparts contained in the crime of involuntary manslaughter.

437 A.2d at 387.

In view of our holding today, our previous decisions are overruled to the extent that section 3732 of the Vehicle Code was defined as a strict criminal liability statute without regard to any scienter element or as an offense involving criminal negligence as defined by section 302(b)(4) of the Crimes Code.

Appellant’s second contention on appeal is that he should be discharged because he was never charged with a violation of the Vehicle Code, which he argues is a necessary element of homicide by vehicle. This argument was rejected by this court in Commonwealth v. Wilkinson, 278 Pa.Super. 490, 420 A.2d 647 (1980), where we stated:

In order to secure a conviction under this statute [75 Pa.C.S. § 3732], the Commonwealth must prove beyond a reasonable doubt that the defendant ‘engaged in the violation of any law ... or ... ordinance applying to the operation or use of a vehicle or to the regulation of traffic . .. . ’ Nothing in the statute indicates a legislative intent that in order to establish this element of the offense, the Commonwealth must bring a separate charge for such violation. Had the Legislature intended to bifurcate the Commonwealth’s proof of homicide by vehicle into two stages—the first stage being the prosecution for violating a particular vehicle or traffic law or ordinance, and the second stage (comprising the prosecution of homicide by vehicle) being limited to proof that the violation resulted in a death—, explicit language would be expected since such a bifurcation would be unusual. In the absence of such explicit language, we see no policy reason that requires the Commonwealth to follow such a procedure. As long as the Commonwealth gives the defendant adequate notice of the particular vehicle or traffic law or ordinance allegedly violated in causing the death, whether or not the Commonwealth brings a separate charge for such violation is immaterial.

Id., 278 Pa.Superior Ct. at 496, 420 A.2d at 650 (footnote omitted).

We find that under Commonwealth v. Wilkinson, supra, the complaint and the information filed in the instant case provided appellant with adequate notice of the underlying offense. Appellant’s contention that the complaint and information should have been filed within thirty (30) days after the incident is totally without merit.⁷ The thirty-day limitation, 42 Pa.C.S. § 5553(a),⁸ only applies to the institution of proceedings for summary offenses under the Vehicle Code and, as appellant admits in his appellate brief, neither the complaint nor the information charged him with a summary offense. Consequently, section 5553(a) is inapplicable here.

Judgment of sentence affirmed.

SPAETH and BROSKY, JJ., file concurring opinions. CERCONE, President Judge, files a concurring and dissenting opinion. POPOVICH, J., files a dissenting opinion. JOHNSON, J., files a dissenting statement. DiSALLE and SHERTZ, JJ., did not participate in the consideration of this case.

1 . The jury found appellant not guilty of the charge of involuntary manslaughter.

2 . It has been suggested in other cases that appellant waived this constitutional issue by not notifying the Attorney General of the Commonwealth in accordance with Pa.R.A.P. 521(a). Commonwealth v. Duncan, 279 Pa.Super. 395, 421 A.2d 257 (1980); Commonwealth v. Ashford, 268 Pa.Super. 225, 407 A.2d 1328 (1979). We have, however, decided to dispose of the issue in the interest of judicial economy, and further because the plain wording of Rule 521(a) excludes its effect where the Commonwealth is a party. Commonwealth v. Linder, 284 Pa.Super. 327, 333 n.4, 425 A.2d 1126, 1129 n.4 (1981).

3 . In Commonwealth v. Field, 490 Pa. 519, 417 A.2d 160 (1980), both the vagueness and due process challenges were included in the defendant’s motion to dismiss the information against him. The defendant alleged in his motion, inter alia, that the crime of homicide by vehicle violates due process because it imposes criminal sanctions (including possible imprisonment) upon “unintentional conduct.” Id., 490 Pa. at 522 & n.l, 417 A.2d at 162 & n.l.

4 . We note that Justice Roberts of the Pennsylvania Supreme Court, who authored the opinion in Commonwealth v. Field, supra, joined in the decision of this court in Commonwealth v. Hartzell, 282 Pa.Super. 549, 423 A.2d 381 (1980).

5 . Prior to the supreme court’s decision in Commonwealth v. Field, supra, this court analyzed the crime of homicide by vehicle, 75 Pa.C.S. § 3732, in Commonwealth v. Barone, 276 Pa.Super. 282, 419 A.2d 457 (1980). In Barone, the court was divided into three different views of section 3732. President Judge Cercone joined by Judge Cavanaugh determined that the Commonwealth must show culpable negligence as defined by 18 Pa.C.S. § 302(b)(4) in order to convict a defendant of homicide by vehicle. Judge Spaeth joined by Judge Hoffman in a concurring opinion stated that section 3732 creates strict liability and violates due process in light of its possible five-year prison sentence and its classification as a homicide. Judge Wieand joined by Judges Price and Hester filed a dissenting opinion concluding that the statute imposes strict liability but is constitutionally valid. We note that Barone did not express the views of a majority of the court and, therefore, is not decisional. Commonwealth v. Mason, 456 Pa. 602, 322 A.2d 357 (1974).

6 . Judge Popovich concludes in his dissenting opinion that in the instant case, death was not a probable consequence of appellant’s failure to observe a stop sign. We are unable to reach this issue, because it has not been raised by appellant on appeal. Appellant’s attack on the constitutionality of section 3732 of the Vehicle Code is limited to the culpability requirement, or lack thereof, and appellant does not argue that there was insufficient evidence to sustain his conviction.

7 . Appellant cites 75 Pa.C.S. § 6302 in support of his argument that the complaint in this case was not timely filed. Former section 6302(a) provided a thirty-day limitation for instituting proceedings for summary offenses under the Vehicle Code. Section 6302 now provides that “[a] prosecution for any offense under this title must be commenced within the period limited by Chapter 55 of Title 42 (relating to limitation of time).” 75 Pa.C.S. § 6302 (Supp. 1981-82). The thirty-day limitation for summary offenses under the Vehicle Code is currently set forth in 42 Pa.C.S. § 5553(a).

8 . 42 Pa.C.S. § 5553(a) provides:

(a) General rule.—..., proceedings for summary offenses under Title 75 (relating to vehicles) must be commenced within 30 days after the commission of the alleged offense or within 30 days after the discovery of the commission of the offense or the identity of the offender, whichever is later, and not thereafter.