Com. v. Gaughan, D.

J-A10015-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
DANIEL DAVID GAUGHAN :
:
Appellee : No. 2463 EDA 2017

Appeal from the Order June 30, 2017
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0002489-2016

BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and RANSOM*, J.

MEMORANDUM BY GANTMAN, P.J.: FILED JULY 03, 2018

Appellant, the Commonwealth of Pennsylvania, appeals from the order

entered in the Monroe County Court of Common Pleas, which granted in part

the petition for a writ of habeas corpus, filed on behalf of Appellee, Daniel

David Gaughan, and dismissed all the counts with a mens rea of recklessness

or gross negligence,1 arising from a multiple motor vehicle accident, for failure

to present a prima facie case on those counts.2 We affirm.

The trial court opinion sets forth the relevant facts of this case as

____________________________________________

1 See Commonwealth v. Huggins, 575 Pa. 395, 836 A.2d 862 (2003)
(stating generally that mens rea of recklessness and gross negligence in
criminal context are fundamentally equivalent).

2 Pursuant to Pa.R.A.P. 311(d), the Commonwealth has certified in its notice
of appeal that the trial court’s order substantially handicapped or terminated
the prosecution of the Commonwealth’s case against Appellee. Accordingly,
this appeal is properly before us for review.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A10015-18

follows:

As a result of a fatal automobile accident in which two
persons were killed and three others injured, [Appellee] was
arrested and charged with two counts of Homicide by
Vehicle, 75 Pa.C.S.A. § 3732; two counts of Involuntary
Manslaughter, 18 Pa.C.S.A. § 250[4](a); four counts of
Aggravated Assault by Vehicle 75 Pa.C.S.A. § 3732.1 (A),
five counts of Recklessly Endangering Another Person
(“REAP”), 18 Pa.C.S.A. § 2705; and several traffic offenses
including Reckless Driving, 75 Pa.C.S.A. § 3736(a), Careless
Driving, 75 Pa.C.S.A. § 3714(a); Traffic Control Signals, 75
Pa.C.S.A. § 3112(A)(3)(i); Following too Closely, 75
Pa.C.S.A. § 3310(A); and Driving at a Safe Speed, 75
Pa.C.S.A. § 3361. [Appellee] waived his right to a
preliminary hearing and the charges were bound to court.
Subsequently, [Appellee] filed an omnibus motion which
included a petition for habeas corpus relief seeking dismissal
of all charges.

At [the] hearing on [Appellee]'s motion, the Commonwealth
presented the testimony of Stroud Area Regional Police
Department officer Kenneth Palmer, who qualified as an
expert in accident reconstruction, and submitted several
exhibits, including Officer Palmer’s accident reconstruction
report, his certifications, and an autopsy report and death
certificate for the decedents. [Appellee] did not present
evidence. The record was left open for the Commonwealth
to submit medical evidence regarding the victims referenced
in Counts 5 and 6. No additional evidence was submitted.
Both parties asked for and were granted leave to file briefs.
[Appellee] submitted a brief; the Commonwealth did not.

Based on the record presented by the parties, the relevant
facts, summarized in light of the applicable standards, are
as follows:

On October 13, 2014, at approximately 9:43 a.m.,
[Appellee] was driving a Volvo tractor trailer, without
cargo, south on State Route 209 in Stroud Township,
Monroe County toward the intersection of Route 209
and Schafers Schoolhouse Road. At that time, there
were no adverse road, weather, or lighting conditions,
the roadway was dry, and it was daylight.

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J-A10015-18

Route 209 is a four lane road, with two southbound
and two northbound lanes of travel. At the
intersection, there is additionally a left turn lane.
Traveling south, site distance to the intersection is
extensive and unobstructed.

The intersection is controlled by a traffic signal. As
[Appellee] approached, the signal was red. When a
Honda Civic travelling south in front of [Appellee]
slowed for the red light, [Appellee]’s tractor trailer
rear-ended the car. The Civic was spun off the road
and then back into the southbound travel lane where
it was again struck by [Appellee]’s tractor trailer. The
tractor trailer continued through the intersection and
collided with a pickup. Tragically, the two backseat
passengers in the Civic were killed, and the driver and
passenger were injured. The driver of the pickup was
also injured.

Officer Palmer responded to the scene, conducted an
investigation, and prepared a report. Officer Palmer’s
investigation revealed that the collision occurred as
summarized above. In addition, there were no pre-
impact skid marks. A review of the tractor trailer’s
Electronic Control Module, or “black box,” revealed
that [Appellee] did not brake until one-quarter to one-
half of a second before impact and that prior to
impact, [Appellee] was travelling 53 miles per hour,
two miles less than the posted speed limit. Inspection
of the Civic and pickup revealed that there were no
mechanical failures relating to either vehicle that
contributed to the accident. Similarly, inspection of
the tractor trailer did not reveal any mechanical
failures that caused or contributed to the accident,
although the airbrakes could not properly be checked
because the brake lines could not be activated.

On completion of his investigation, Officer Palmer
issued a report that included six conclusions regarding
the incident. He testified about his conclusions during
the hearing. The first conclusion is that environmental
and roadway factors did not contribute to the collision.
The second and third conclusions determined the Civic

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J-A10015-18

and pickup did not have any pre-collision defects that
contributed to the collision. The fourth conclusion has
three subparts: a) one-half of a second before impact
the tractor trailer was moving at 53 MPH with no
braking; b) one-quarter of a second before impact the
tractor trailer was moving at 53 MPH with the service
brake applied; and c) at first impact, the tractor trailer
was moving at 43 MPH with the service brake applied.
The fifth and sixth conclusions state that the two
decedents died as a result of blunt force trauma
sustained in the collision, that the three other victims
were…injured as a result of the collision, and that the
collision occurred because [Appellee] “failed to react
to approaching traffic conditions.”

Neither alcohol nor controlled substances played a
part in the tragedy. An evaluation of [Appellee]’s cell
phone to determine whether he had been using it at
the time of the accident was inconclusive. No
evidence was presented as to observations or
statements of eye witnesses, if any, the manner in
which [Appellee] was driving before the accident, his
prior activities, his physical, mental or emotional
condition, how long he had been driving that day or
that week, or his driver’s log book.

After hearing the evidence and reviewing [Appellee]’s brief
and the applicable law, we issued the challenged order
which, as noted, dismissed all offenses that carry a mens
rea of recklessness. We did not dismiss the remaining
summary traffic offenses because the Commonwealth had
unquestionably established a prima facie case of those
charges.

1. [Appellee’s] Motion for Habeas Corpus Relief is
GRANTED in part and DENIED in part. The motion
is GRANTED as to the counts 1 through 13 and 18,
all of which charge crimes that require a mens rea of
recklessness. The motion is DENIED as to counts 14
through 17, all of which charge crimes that do not
require a mens rea of recklessness….

In broad summary, the Commonwealth failed to
demonstrate in the evidence on record that

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J-A10015-18

[Appellee’s] failure to recognize the traffic ahead of
him arose from any affirmative conduct, as opposed
to inadvertence or inattentiveness. While the
evidence presented to the [c]ourt was sufficient to
demonstrate carelessness or negligence, it did not
present a basis to conclude [Appellee] was engaging
in any conduct that would elevate his culpability to a
conscious disregard of a substantial risk to reach the
requisite level of recklessness. In this regard, the
Commonwealth did not file a brief to discuss the
element of mens rea or point to facts which, under the
law, established a prima facie case of recklessness.

(Order, dated June 30, 2017, ¶1). [Appellee] has not
challenged our denial of his motion as to the summary traffic
offenses. The Commonwealth filed this appeal.

(Trial Court Opinion, filed September 11, 2017, at 2-5) (internal footnotes and

citations omitted). The trial court did ordered the Commonwealth on July 31,

2017, to file a concise statement of errors complained of on appeal, per

Pa.R.A.P. 1925(b). The Commonwealth timely complied on August 11, 2017.

The Commonwealth raises the following issue on appeal:

DID THE COMMONWEALTH PRESENT SUFFICIENT
EVIDENCE OF RECKLESSNESS OR GROSS NEGLIGENCE TO
SUSTAIN THE NECESSARY PRIMA FACIE BURDEN AT A
HABEAS CORPUS PROCEEDING WITH REGARD TO THE
CHARGES OF HOMICIDE BY VEHICLE, AGGRAVATED
ASSAULT BY VEHICLE, INVOLUNTARY MANSLAUGHTER,
RECKLESSLY ENDANGERING ANOTHER PERSON, AND
RECKLESS DRIVING?

(Commonwealth’s Brief at 3).

The Commonwealth argues Appellee drove his tractor-trailer on a major

roadway, at an unsafe speed of 53 mph, failed to apply his brakes until a

quarter of a second before striking the first vehicle twice, failed to stop at a

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J-A10015-18

red light, and struck a second vehicle. The roadway is straight and flat for

approximately a half-mile, with an unobstructed view of the red traffic signal

and of warning lights indicating the presence of a red traffic signal. The

Commonwealth submits this circumstantial evidence established a prima facie

case as to recklessness or gross negligence, for counts one through thirteen

and count eighteen. The Commonwealth concludes this Court should reverse

the order dismissing the charges at issue and reinstate them. We disagree.

We emphasize that a pre-trial habeas decision is not subject to an abuse

of discretion standard. Commonwealth v. Karetny, 583 Pa. 514, 880 A.2d

505 (2005). A pre-trial habeas decision on the Commonwealth’s prima facie

case for a charged crime is a question of law subject to plenary review.

Commonwealth v. Dantzler, 135 A.3d 1109, 1112 (Pa.Super. 2016) (en

banc) (citing Karetny, supra).

After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Jonathan Mark,

we conclude the Commonwealth’s issue merits no relief. The trial court

opinion fully discusses and properly disposes of the question presented. (See

Trial Court Opinion at pages 6-13) (finding: record shows Commonwealth

failed to demonstrate accident occurred from any affirmative conduct of

Appellee, as opposed to his inattentiveness; Commonwealth presented

evidence sufficient to demonstrate negligence, but it did not present any basis

to conclude Appellee engaged in conduct to elevate his culpability to conscious

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J-A10015-18

disregard of substantial risk to reach requisite mens rea of recklessness;

Commonwealth’s case is that fatal accident occurred because Appellee simply

did not appreciate slowing traffic before him in his travel lane, which absent

more, is insufficient to carry charges requiring mens rea of recklessness;

Commonwealth failed to create jury question involving Appellee’s activities,

state of mind, health, physical condition, or fitness to drive; Commonwealth’s

evidence perhaps established negligence or carelessness or momentary

inattentiveness but not enough to raise permissible inference of recklessness;

despite tragic nature of this case, record does not support mens rea for

contested charges). We agree.

Further, we reject the Commonwealth’s reliance on Commonwealth v.

Grimes, 842 A.2d 432 (Pa.Super. 2004) and Commonwealth v. Seibert,

799 A.2d 54 (Pa.Super. 2002), as those cases are both procedurally and

substantively inapposite. Here, the Commonwealth is appealing from a pre-

trial habeas corpus decision. The cases the Commonwealth cites involved the

defendants’ appeals following jury verdicts. Moreover, the facts of the Grimes

and Seibert cases included additional relevant factors which established the

mens rea of recklessness. For example, in Grimes, the evidence showed the

defendant had weaved all over the roadway and repeatedly swerved into

oncoming traffic an estimated ten to twenty times, failed to apply his brakes,

and made no attempt to avoid hitting the victim’s car. In Seibert, the

evidence showed the defendant drove into oncoming traffic and struck a

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J-A10015-18

tractor-trailer head-on. Here, the record is devoid of similar additional factors

to support the inference of recklessness. Any suggestion that a motor vehicle

code violation, without more, is a form of “recklessness per se” is contrary to

case law. See Commonwealth v. Bullick, 830 A.2d 988, 1003-04

(Pa.Super. 2003) (stating: “What is material is actual reckless driving or

conduct…for it is this conduct which creates the peril in question”).

Accordingly, we affirm on the basis of the trial court’s opinion.

Order affirmed.

Judge McLaughlin joins this memorandum.

Judge Ransom did not participate in the consideration or decision of
this case.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/3/18

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 -.3 -0 ..J1J1F 111111111 auppui t Ul vruCF NuFSuanr LU rcl.R.ri.r.1V4Q(d).1JUI

Circulated 06/13/2018 02:52 PM

COURT OF COMMON PLEAS OF MONROE COUNTY
FORTY-THIRD JUDICIAL DISTRICT
COMMONWEALTH OF PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA :

: No. 2489 CRIMINAL 2016
V.
: Appeal Docket No. EDA 2017

DANIEL DAVID GAUGHAN

Defendant

OPINION IN SUPORT OF ORDER PURSUANT TO Pa. R.A.P. 19250)

Introduction

On June 30, 2017, we issued an order granting in part Defendant's motion for

habeas corpus relief by dismissing all charges that carry a mens rea of recklessness.'

The order provided a broad summary of the reasons for our ruling and indicated that an

opinion would follow. Before the opinion was issued, the Commonwealth filed this

appeal. As a result, we issued an order directing the Commonwealth to file a statement

of errors complained of on appeal pursuant to Pa. R.A.P. 1925(b) and held off filing this

opinion so that we could at once state the reasons for our order and address issues

raised by the Commonwealth. The Commonwealth filed a Rule 1925(b) statement.2 We

now file this opinion in accordance with Pa.R.A.P. 1925(a) and our Order.

1 Defendant's habeas motion was part of an omnibus pretrial motion which included other requests for relief that

were resolved during the omnibus hearing and addressed in an earlier order dated February 27, 2017. Neither party
has challenged the rulings pertaining to Defendant's other requests for relief and those rulings are not at issue in this
appeal.

2 In its Rule 1925(b) Statement, the Commonwealth reserved the right to address additional issues because its
statement was filed before this opinion. We do not believe that a party may unilaterally reserve the right to file a
supplemental appeal statement. Nonetheless, fairness dictates that the Commonwealth be given the opportunity to
supplement its statement with new issues after it receives this opinion and has the opportunity to review our
reasoning. If such a request is timely filed, we will grant it.

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 aa_tapitituu m ouppuit Ul %/MCI pUlbUt1114 tu ra.n.rt.r.ivutat.pup

Background

As a result of a fatal automobile accident in which two persons were killed and

three others injured, Defendant was arrested and charged with two counts of Homicide

by Vehicle , 75 Pa.C.S.A. §3732; two counts of Involuntary Manslaughter, 18 Pa.C.S.A.

§ 2505(a); four counts of Aggravated Assault by Vehicle 75 Pa.C.S.A. §3732.1(A), five

counts of Recklessly Endangering Another Person ("REAP"), 18 Pa.C.S.A. § 2705; and

several traffic offenses including Reckless Driving, 75 Pa.C.S.A. § 3736(a), Careless

Driving, 75 Pa.C.S.A. § 3714(a); Traffic Control Signals, 75 Pa.C.S. §3112(A)(3)(I);

Following too Closely, 75 Pa.C.S. §3310(A); and Driving at a Safe Speed , 75 Pa.C.S.

§3361. Defendant waived his right to a preliminary hearing and the charges were

bound to court. Subsequently, Defendant filed an omnibus motion which included a

petition for habeas corpus relief seeking dismissal of all charges.

At hearing on Defendant's motion, the Commonwealth presented the testimony

of Stroud Area Regional Police Department officer Kenneth Palmer, who qualified as an

expert in accident reconstruction, and submitted several exhibits, including Officer

Palmer's accident reconstruction report, his certifications, and an autopsy report and

death certificate for the decedents. Defendant did not present evidence. The record was

left open for the Commonwealth to submit medical evidence regarding the victims

referenced in Counts 5 and 6. No additional evidence was submitted. Both parties

asked for and were granted leave to file briefs. (N.T., 2/27/2017, pp. 62-63; Order dated

2/27/2017). Defendant submitted a brief; the Commonwealth did not.

Based on the record presented by the parties, the relevant facts, summarized in

light of the applicable standards, are as follows:

2
 .2.)_Lipililuip ui OUppUIL Ul VIUGI pmsuam w ra.R.P1.r, utuktt).pu
I

On October 13, 2014, at approximately 9:43 a.m., Defendant was driving a Volvo

tractor trailer, without cargo, south on State Route 209 in Stroud Township, Monroe

County toward the intersection of Route 209 and Schafers Schoolhouse Road. At that

time, there were no adverse road, weather, or lighting conditions, the roadway was dry,

and it was daylight.

Route 209 is a four lane road, with two southbound and two northbound lanes of

travel. At the intersection, there is additionally a left turn lane. Traveling south, site

distance to the intersection is extensive and unobstructed.

The intersection is controlled by a traffic signal. As Defendant approached, the

signal was red. When a Honda Civic travelling south in front of Defendant slowed for the

red light, Defendant's tractor trailer rear -ended the car. The Civic was spun off the road

and then back into the southbound travel lane where it was again struck by Defendant's

tractor trailer. The tractor trailer continued through the intersection and collided with a

pickup. Tragically, the two backseat passengers in the Civic were killed and the driver

and passenger were injured. The driver of the pickup was also injured. (N.T. 2/27/2017,

pp.39-42; Commonwealth's Exhibit 2, Accident Reconstruction Report, pp. 4-5 and 22;

Affidavit of Probable Cause).

Officer Palmer responded to the scene, conducted an investigation, and

prepared a report. (N.T., 2/27/2017, Commonwealth's Exhibit 2). Officer Palmer's

investigation revealed that the collision occurred as summarized above. In addition,

there were no pre -impact skid marks. A review of the tractor trailer's Electronic Control

Module, or "black box," revealed that Defendant did not brake until one -quarter to one-

half of a second before impact and that prior to impact, Defendant was travelling 53

3
 .J.J,...1/4/p1111U1 I II I OUppUlt Ul VIUCI purauam IV ra.n.n.r. vzokaj.pui

miles per hour, two miles less than the posted speed limit. (N.T. 02/27/17, p. 53).

Inspection of the Civic and pickup revealed that there were no mechanical failures

relating to either vehicle that contributed to the accident. Similarly, inspection of the

tractor trailer did not reveal any mechanical failures that caused or contributed to the

accident, although the airbrakes could not properly be checked because the brake lines

could not be activated.3

On completion of his investigation, Officer Palmer issued a report that included

six conclusions regarding the incident. He testified about his conclusions during the

hearing. The first conclusion is that environmental and roadway factors did not

contribute to the collision. The second and third conclusions determined the Civic and

pickup did not have any pre -collision defects that contributed to the collision. The fourth

conclusion has three subparts: a) one-half of a second before impact the tractor trailer

was moving at 53 MPH with no braking; b) one-quarter of a second before impact the

tractor trailer was moving at 53 MPH with the service brake applied; and c) at first

impact, the tractor trailer was moving at 43 MPH with the service brake applied. The fifth

and sixth conclusions state that the two decedents died as a result of blunt force trauma

sustained in the collision, that the three other victims were in injured as a result of the

collision, and that the collision occurred because Defendant "failed to react to

approaching traffic conditions." (N.T., 2/27/2017, pp. 34-43; Commonwealth's Exhibit 2,

p. 24 (unnumbered)).

Neither alcohol nor controlled substances played a part in the tragedy. (N.T.

02/27/2017, p. 54). An evaluation of Defendant's cell phone to determine whether he

3The owner of the tractor trailer, or possibly its insurer, also performed an investigation. As of the date of the
omnibus hearing, the Commonwealth did not have the report. (NJ., 2/27/2-17, pp 5 and 64-65),

4
 0.)._.lq./1111U11 III OUppUll Ul vrue, pUlbtleIlL LV ran.n.r. i uzoka).pui

had been using it at the time of the accident was inconclusive. (Id.). No evidence was

presented as to observations or statements of eye witnesses, if any, the manner in

which Defendant was driving before the accident, his prior activities, his physical,

mental or e motional condition, how long he had been driving that day or that week, or

his driver's log book.

After hearing the evidence and reviewing Defendant's brief and the applicable

law, we issued the challenged order which, as noted, dismissed all offenses that carry a

mens rea of recklessness. We did not dismiss the remaining summary traffic offenses

because the Commonwealth had unquestionably established a prima facie case of

those charges. The order stated, in relevant part, that:

1. Defendant's Motion for Habeas Corpus Relief is
GRANTED in part and DENIED in part. The motion is
GRANTED as to the counts 1 through 13 and 18, all of
which charge crimes that require a mens rea of
recklessness. The motion is DENIED as to counts 14
through 17, all of which charge crimes that do not require a
mens rea of recklessness....

broad summary, the Commonwealth failed to
In
demonstrate in the evidence on record that Defendant's
failure to recognize the traffic ahead of him arose from any
affirmative conduct, as opposed to inadvertence or
inattentiveness. While the evidence presented to the Court
was sufficient to demonstrate carelessness or negligence, it
did not present a basis to conclude the Defendant was
engaging in any conduct that would elevate his culpability to
a conscious disregard of a substantial risk to reach the
requisite level of recklessness. In this regard, the
Commonwealth did not file a brief to discuss the element of
mens rea or point to facts which, under the law, established
a prima fade case of recklessness.

(Order dated June 30, 2017, ¶1). Defendant has not challenged our denial of his motion

as to the summary traffic offenses. The Commonwealth filed this appeal.

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DISCUSSION

In its Rule 1925(b) statement, the Commonwealth provides a broad summary of

the events leading up to the collision, reiterates Officer Palmer's conclusions, and

asserts that the evidenced presented was sufficient to establish a prima facie case of

the crimes charged. We disagree.

Where a criminal defendant seeks pre-trial to challenge the prima facie

sufficiency of the Commonwealth's evidence, he may do so by filing a writ of habeas

corpus with the Court of Common Pleas. Commonwealth v. Carmody, 799 A.2d 143,

146 (Pa. Super. 2002), citing Commonwealth v. McBride, 595 A.2d 589, 590 n. 2 (Pa.

1995). In such instances, the habeas court acts in the capacity of a reviewing court to

assess whether sufficient evidence exists to require the defendant to be brought to trial.

Id. at 146-47. During the pre-trial stage of a criminal prosecution, it is not necessary for

the Commonwealth to prove a defendant's guilt beyond a reasonable doubt. Rather,

the burden is on the Commonwealth to put forth merely a prima facie case of a

defendant's guilt. Commonwealth v. Huggins, 836 A.2d 862, 866 (Pa. 2003). Thus, a

petition for writ of habeas corpus is the proper means to test a pre-trial finding that the

Commonwealth possesses sufficient evidence to establish a prima facie case that a

defendant committed the crimes with which he is charged. See Commonwealth v.

Saunders, 746, 691 A.2d 946, 948 (Pa. Super. 1997); Commonwealth v. Rachau, 670

A.2d 731, 734 (Pa. Cmwlth. 1996); Commonwealth v. Kowalek, 647 A.2d 948, 949 (Pa.

Super. 1994).

In order to satisfy its burden of establishing a prima facie case, the

Commonwealth need only produce legally competent evidence that demonstrates the

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 .ao_upluiluit w OUppUll Ul vwei pillW.1011i IL/ ra.rt.n.r.IUGukcii.pul

existence of each of the material elements of the crimes charged, and the existence of

facts connecting the accused to the crimes charged. Commonwealth v. Wojdak, 466

A.2d 991, 996 (Pa. 1983). The absence of evidence as to the existence of a material

element is therefore fatal. Commonwealth v. Ludwig, 874 A.2d 623, 632 (Pa. 2005),

citing Commonwealth v. Wojdak, 466 A.2d 991, 996-97 (Pa. 1983). The proof need only

be such that, if the evidence were presented at the trial court and accepted as true, the

judge would be warranted in allowing the case to go to the jury. Id. at 368, 466 A.2d at

996, quoting Commonwealth ex rel. Scolio v. Hess, 27 A. 2d 705, 707 (Pa. Super.

1942). Finally, "inferences reasonably drawn from the evidence of record which would

support a verdict of guilty are to be given effect, and the evidence must be read in the

light most favorable to the Commonwealth." Huggins, 836 A.2d at 866.

The issue presented in this matter is whether the Commonwealth made out a

prima facie case for the mens rea (recklessness) necessary to support the charges of

Homicide by Vehicle, Aggravated Assault by Vehicle, Involuntary Manslaughter, REAP,

and Reckless Driving (collectively the "Contested Charges"). For reasons stated in our

June 30, 2017 order, as amplified below, we found that it did not. Upon review prompted

by this appeal, we remain convinced that, on the record presented, our conclusion is

correct.

The Contested Charges are defined as follows:

75 Pa.C.S.A. § 3732 - Homicide by Vehicle

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

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