Commonwealth v. Samuels

778 A.2d 638, 566 Pa. 109, 2001 Pa. LEXIS 1854

• Court: Supreme Court of Pennsylvania
• Decided: August 28, 2001
• Docket: 91 M.D. Appeal Docket 2000
• Status: Published

Opinions

OPINION OF THE COURT

FLAHERTY, Chief Justice.

This appeal from a conviction for homicide by vehicle while driving under the influence of alcohol raises the issue of the state of mind necessary to support a conviction of that offense. Appellant maintains that criminal negligence as defined in the crimes code is required and that the trial court erred in failing to give a jury instruction to that effect, as he requested.

The record contains the following evidence. On February 26, 1997, appellant was drinking copiously¹ in a bar with friends when James DiAmicis and friends entered. Mr. DiAmicis greeted appellant’s date, whom he knew, angering appellant and leading to a minor confrontation. When appellant left the bar, he and a couple of his friends waited outside until Mr. DiAmicis left later with one of his friends. Appellant drove his pickup truck across the parking lot into the car of DiAmicis’s friend, then reversed his vehicle and headed for the exit. As he drove out, he changed direction to run over Mr. DiAmicis, killing him, then washed his truck at a car wash. The next morning at work, appellant borrowed a coworker’s car and fled to Colorado where he was apprehended two months later on a fugitive warrant and returned to Pennsylvania.

In May, 1998, a jury convicted appellant of involuntary manslaughter, driving under the influence (DUI), homicide by vehicle while DUI, and accident involving death or bodily injury.² He received an aggregate sentence of five to eleven years. Superior Court affirmed. We allowed the appeal in order to consider whether the trial court erred in denying appellant’s requested charge on criminal negligence as it pertains to the offense of homicide by vehicle while DUI.

To support his position that the offense of homicide by vehicle while DUI is not a strict liability offense but rather requires proof of criminal negligence — that is, ignoring a substantial and unjustifiable risk and involving a gross deviation from the standard of care that a reasonable person would observe in the circumstances — appellant relies on Commonwealth v. Heck, 517 Pa. 192, 535 A.2d 575 (1987). The Commonwealth, on the other hand, relies on Commonwealth v. McCurdy, 558 Pa. 65, 735 A.2d 681 (1999), wherein this court stated that the offense of homicide by vehicle while DUI requires (1) a conviction of DUI pursuant to 75 Pa.C.S. § 3731 and (2) proof that the violation caused the death, neither of which requires a showing of negligence. The Commonwealth therefore concludes that appellant was not entitled to a jury instruction on criminal negligence, there was no trial error, and the judgment of sentence should be affirmed. Contrary to the Commonwealth’s contentions, however, McCurdy does not mandate a different conclusion as the issue in that case did not involve the applicable mens rea requirement for vehicular homicide offenses.³

Appellant argues that Heck, by analogy, supports his position. In Heck, this court addressed a related issue where the offense was homicide by vehicle (not DUI related), 75 Pa.C.S. § 3732. Explicitly, that statute, like the one at issue here, requires only that the death be caused unintentionally. We held, however, that the minimum level of culpability is criminal negligence, stating that Commonwealth v. Field, 490 Pa. 519, 417 A.2d 160 (1980), had already established that 75 Pa.C.S. § 3732 was not a strict liability offense and that 18 Pa.C.S. § 302 establishes criminal negligence as the minimum level of culpability.⁴

The logic of appellant’s argument is sound. The motor vehicle code, 75 Pa.C.S. § 3732, defines vehicular homicide, the offense at issue in Heck, as follows: “Any person who unintentionally causes the death of another person while engaged in the violation of any [motor vehicle law except DUI] is guilty of homicide by vehicle, a misdemeanor of the first degree, when the violation is the cause of death.” The basis of appellant’s conviction, 75 Pa.C.S. § 3735(a), DUI-related vehicular homicide, states: “Any person who unintentionally causes the death of another person as the result of a violation of section 3731[DUI] is guilty of a felony of the second degree when the violation is the cause of death.... ” The material language is identical. If we adhere to the rationale of Heck, it would follow that 75 Pa.C.S. § 3735 requires proof of criminal negligence.

Although the trial court may have erred by refusing to charge the jury that criminal negligence is the culpability requirement for the offense of DUI-related vehicular homicide, any error in this regard is harmless in this case and a new trial is not warranted.

Under the harmless error doctrine, we will affirm the judgment of sentence in spite of error by the trial court if we conclude beyond a reasonable doubt that the error did not contribute to the jury’s verdict. Commonwealth v. Wright, 560 Pa. 34, 742 A.2d 661 (1999). The trial court’s refusal to charge on criminal negligence as an element of homicide by vehicle — DUI-related could not have contributed to the jury’s verdict as the court charged the jury on criminal negligence as it pertained to the involuntary manslaughter charge⁵ and the jury convicted appellant of that offense. The jury’s finding of guilt as to involuntary manslaughter necessarily included a finding of criminal negligence. Thus any error by the trial court in failing to charge the jury that criminal negligence was also required for the vehicular homicide charge is clearly harmless.⁶

Therefore we will affirm the judgment of Superior Court.

Judgment affirmed.

Justice SAYLOR files a concurring opinion. Justice NEWMAN files a concurring and dissenting opinion in which Mr. Justice Castille joins.

1 . There was testimony that appellant drank at least ten or twelve vodka mixed drinks as well as about half of a fifth of tequila on the evening in question.

2 . 18 Pa.C.S. § 2504 and 75 Pa.C.S. §§ 3731, 3735, and 3742 respectively-

3 . The issue in McCurdy was whether the constitutional infirmity of 75 Pa.C.S. § 3731(a)(5) undermined the driver’s conviction under § 3731(a)(1), and did not implicate the specific issue presented in this case, the minimum level of culpability under § 3735.

4 . Field analyzed § 3732 pursuant to a due process challenge based on the law of the land clause of Article I, section 9 of the Constitution of Pennsylvania. See Commonwealth v. Koczwara, 397 Pa. 575, 155 A.2d 825, 830 (1959); Commonwealth v. Field, 417 A.2d at 164 (Flaherty, J., concurring).

5 . In defining the offense of involuntary manslaughter, the trial court explained gross negligence as follows:

A Defendant’s conduct is grossly negligent when he should be aware of a substantial and unjustifiable risk that death will result from his conduct. The risk being such that it is grossly unreasonable for him to fail to perceive — , that is, recognize the risk.... The Defendant should be aware of the risk — of such a risk even though he does not actually perceive it. The risk of death must be of such a nature and degree that the Defendant’s disregard of the risk or failure to perceive it, considering the nature and extent of his conduct and the circumstances known to him, involves a gross deviation from the standard conduct or care that a reasonable person would observe in the Defendant’s situation.

N.T., 5/22/98, at 73-74.

6 . Moreover, unlike Heck, where the Commonwealth failed to present evidence of even the minimal level of culpability, in this case the Commonwealth presented evidence that appellant changed the direction of his vehicle in order to run over the victim, killing him, washed his truck at a car wash, then fled the jurisdiction.