J-A27021-18
2020 PA Super 20
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KATRINA A. SANDERS :
:
Appellant : No. 3562 EDA 2017
Appeal from the Judgment of Sentence July 17, 2017
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0003929-2016
BEFORE: BOWES, J., STABILE, J., and McLAUGHLIN, J.
DISSENTING OPINION BY McLAUGHLIN, J.: FILED FEBRUARY 3, 2020
Katrina A. Sanders admitted at trial that she was well aware of the
significant risk that she could hit a pedestrian when driving a bus, especially
a tandem bus such as she was driving on the day in question. N.T, 1/3/17, at
215, 217, 222. Yet on-board cameras captured her distractedly fiddling with
papers for 45 seconds while stopped at the subject intersection, and not
looking for traffic or pedestrians, until shortly before she struck and killed the
victim. Id. at 99. Sanders conceded that the victim was clearly visible during
that 45 seconds in recordings taken by the on-board cameras, but said she
did not see him on the day in question until he was directly in front of her bus.
Id. at 219, 221. The prosecution’s expert made it clear that Sanders’ view
from the driver’s seat was unobstructed and those 45 seconds gave her ample
opportunity to look for pedestrians, such as the victim. Yet despite knowing
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the risk and having plenty of time to look, she instead was examining the
papers in her hand. Id. at 98, 100.
Sanders also admitted on the record that at the time of the victim’s
death, she was fully aware of a safety rule requiring her to stop and look for
a full four seconds before making a left turn. She conceded that the rule
existed because of the heightened risk that the driver of a tandem bus would
not see a pedestrian in a crosswalk when executing a left turn. Id. at 225-
226. Yet once again, the videos document her failure to obey that rule, which
was in place specifically to protect against hitting a pedestrian in a crosswalk,
when she turned left and hit and killed the victim.
Based on this record, I believe the evidence was enough to establish
that Sanders consciously disregarded a known risk. The trial judge saw the
videos and heard all the testimony. He could reasonably conclude that
although Sanders knew the significant risks of hitting and even killing
pedestrians when turning a tandem bus left, she nonetheless was looking at
papers, and not into the intersection, for 45 seconds while stopped at the
intersection. Once the light turned green, the evidence shows, Sanders failed
to wait long enough to ensure there were no pedestrians in the path of her
bus before she turned, despite knowing the risk. As a result of her failures,
she struck and killed the victim. I therefore respectfully dissent.
The Majority accurately sets forth the law as to sufficiency of the
evidence. To support a conviction for homicide by vehicle, the Commonwealth
must prove that the defendant caused the death of another, recklessly or with
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gross negligence, while violating a law or municipal ordinance “applying to the
operation or use of a vehicle or to the regulation of traffic except [75 Pa.C.S.A.
§] 3802,” and that the violation caused the death. 75 Pa.C.S.A. § 3732(a);
Commonwealth v. Pedota, 64 A.3d 634, 636 (Pa.Super. 2013). Here, there
is no dispute that Sanders violated vehicle or traffic laws, or that the collision
caused the victim’s death. The Majority, however, finds the Commonwealth
failed to establish that Sanders recklessly or with gross negligence caused the
victim’s death. I disagree.
Here, the trial court explained why it believed the evidence was
sufficient to prove that Sanders acted recklessly or with gross negligence:
[T]he evidence showed that the Defendant operated her bus
in a grossly negligent or reckless manner. Specifically, the
evidence adduced at trial indicated that: 1) [Sanders] was
a professional driver with 20-30 years’ experience; 2)
[Sanders] was aware of the risks involved in driving
professionally, especially a 62 foot tandem bus; [3])
[Sanders] stopped her bus in the cross walk perpendicular
to where the victim was crossing; [4]) she was looking at
route paperwork while stopped at the light for
approximately 45 seconds, during which time nothing
impeded her view of the victim waiting the cross the street;
[5]) she briefly checked the intersection before moving, in
violation of written SEPTA policy requiring a four second
hesitation before turning; and [6]) she failed to see the
pedestrian, who had the right of way and was in a marked
crosswalk, until she struck him. [Sanders] was a
professional driver and grossly deviated from the standard
of conduct that a similarly qualified driver would have
exercised. Therefore, the evidence was sufficient to support
her conviction for homicide by vehicle.
Trial Court Opinion, filed 5/29/18, at 8-9 (“1925(a) Op.”).
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The evidence was sufficient to support the trial court’s conclusion.
Sanders testified at trial that she was acutely aware of the heightened risk of
hitting a pedestrian when turning a tandem bus left and that the four-second
rule served to mitigate that risk. The potential for such a large vehicle to kill
a pedestrian is obvious. Yet the videos nevertheless showed Sanders
reviewing the papers instead of being alert to her surroundings, failing to scan
the area fully before turning, and failing to follow a rule designed to ensure
no pedestrians were in her path. The evidence here was sufficient to establish
her conscious disregard of a substantial and unjustifiable risk, i.e., criminal
recklessness. See Commonwealth v. Moyer, 171 A.3d 849, 854 (Pa.Super.
2017) (concluding evidence supported homicide by vehicle conviction
premised on failure to stop at stop sign, where defendant only slowed to 12
miles per hour for two seconds prior to impact, stop sign preceded a busy
cross street, building obscured view of one lane of cross traffic, and defendant
was familiar with the intersection and had driven through it many times).
I respectfully submit that both the Majority Opinion and the Concurring
Opinion improperly reweigh the evidence in concluding otherwise.
Respectfully, in my view, the approaches my colleagues espouse violate our
standard of review. When considering a sufficiency challenge, what we may
not do is re-weigh the evidence and substitute our judgment for that of the
fact-finder. Commonwealth v. Rogal, 120 A.3d 994, 1001 (Pa.Super. 2015).
Rather, if the Commonwealth has presented evidence of each element of the
crime, the evidence is sufficient unless it is “so weak and inconclusive that as
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a matter of law no probability of fact may be drawn from the combined
circumstances.” Commonwealth v. Bradley, 69 A.3d 253, 255 (Pa.Super.
2013).
While the Majority acknowledges our standard of review, respectfully, in
my view, it fails to abide by it, as does the Concurring Opinion. Neither of my
colleagues concludes that the evidence was “so weak and inconclusive that as
a matter of law no probability of fact may be drawn from the combined
circumstances.” In my view, each fails to view the evidence in the light most
favorable to the Commonwealth, as verdict winner, and instead improperly
evaluates the evidence and assigns it the importance it deems proper.
In violation of the standard of review, the Majority reviews the evidence
and assigns it the significance the Majority finds appropriate, to conclude that
“[i]t is simply out of proportion to classify” Sanders’ waiting 2.33 seconds,
instead of the full four seconds, as recklessness or gross negligence. Majority
Opinion at 11. Rather, in the Majority’s opinion, Sanders’ failing in this regard
only amounted to a “relatively minor infraction.” Similarly, the Concurring
Opinion examines Sanders’ actions and decides that although her conduct was
“a deviation from the standard of conduct of a reasonable person,” it did not
rise to the level of a “gross deviation.” Concurring Opinion at 2, 3. The
Concurring Opinion bases that view on its appraisal of Sanders’ conduct – her
“review of the paperwork while stopped, the position of the bus over the stop
line, the initiation of the left-hand turn after waiting only 2.33 seconds, and
the papers held in her left hand while turning….” Id. at 3.
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Respectfully, such assessments are inherently subjective judgments and
no proper part of a sufficiency review. The subjectivity of my colleagues’ view
is evident in their agreement that “[t]he circumstances of this case do not
suggest the level of brazenness or hard-heartedness characteristic of acts of
recklessness.” Majority Opinion at 13; Concurring Opinion at 4. Neither the
Majority Opinion nor the Concurring Opinion cite any authority for the
proposition that criminal recklessness requires a finding of “brazenness” or
“hard-heartedness,” and I am aware of none. Respectfully, such descriptors
are more at home in the classic definition of malice, which Pennsylvania courts
have often termed as “a wickedness of disposition, hardness of heart, cruelty,
recklessness of consequences, and a mind regardless of social duty....”
Commonwealth v. Reilly, 549 A.2d 503, 510 (Pa. 1988) (quoting
Commonwealth v. Drum, 58 Pa. 9, 15 (1868)). They have not appeared
heretofore in a definition of criminal recklessness, and I thus believe my
colleagues are employing an incorrect substantive standard. See Moyer, 171
A.3d at 853-54 (explaining that malice standard does not apply to homicide
by vehicle).
Moreover, I cannot say that I, as an appellate judge, know better than
the fact-finder the significance of, for example, the driver of a tandem bus
waiting and looking for pedestrians for only 2.33 seconds, instead of four
seconds. Nor is it for me, as an appellate judge, to decide whether doing so
amounts to a gross or ordinary deviation from the standard of conduct.
Rather, when confronted on appeal with a sufficiency challenge, we ask
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whether there was evidence beyond a reasonable doubt to support the fact-
finder’s determination that the evidence met every element of the crime
charged. See Bradley, 69 A.3d at 255.
With respect, the Majority’s conclusion that Sanders “simply did not see
the victim at any point prior to moving” the bus demonstrates the Majority’s
error. Majority Opinion at 10. Respectfully, the issue is why Sanders failed to
see the victim in time. Here, the prosecution put evidence before the trial
court that Sanders did not see him until it was too late because she violated
safety rules that she admitted she not only knew existed, but also was aware
served to prevent just the sort of tragedy that occurred here. It is not for this
Court to review the evidence and decide for ourselves if Sanders “simply” and
faultlessly “did not see the victim,” or to decide whether, on balance, the
verdict was “out of proportion” to the evidence. Id. at 10, 11. Instead, as long
as the prosecution presented evidence of every element of the crime, we
affirm unless the evidence was too insubstantial to support any finding of fact.
See Bradley, 69 A.3d at 255.
Tellingly, neither of my colleagues concludes that the evidence here was
“so weak and inconclusive that as a matter of law no probability of fact may
be drawn from the combined circumstances,” and I do not see how such a
conclusion would be supportable. SEPTA safety rules in evidence here require
the driver of a stopped bus “to follow the four-second rule that gives the
operator/employee an opportunity to scan the area in front of the bus before
moving.” Commonwealth Ex. 8. Sanders admitted on the stand that she knew
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not only of the rule, but also of its purpose of protecting against her not seeing
a pedestrian in the crosswalk, and thus hitting the pedestrian while turning
left. Yet she also admitted that she failed to follow the rule, when she was
executing a left turn. That was enough evidence to prove recklessness or gross
negligence.
The Majority counters that “[e]very driver knows that there is a risk of
hitting a pedestrian while driving a vehicle and knows that she must look
carefully before turning into an intersection to reduce the risk of striking a
pedestrian, yet failure to follow these principles does not automatically
constitute homicide by vehicle.” Majority Opinion at 15. That response
demonstrates a fundamental misunderstanding of my position.
Respectfully, it goes without saying that hitting and killing a pedestrian
in such commonplace circumstances as the Majority describes does not
automatically constitute homicide by vehicle. My difference with the Majority
relates to the specific evidence in this case. That evidence includes the expert
testimony that Sanders could have seen the victim if she had only looked into
the intersection during the 45 seconds she was stopped. It also includes
Sanders’ testimony about her awareness of the particular risk of striking
pedestrians while driving a tandem bus and of SEPTA safety rules intended to
mitigate that risk, and that she knowingly failed to abide by those rules.
Judge Bowes in her Concurring Opinion responds that my “position
appears to be inconsistent with this Court’s recent sufficiency review in
Commonwealth v. Hoffman, 198 A.3d 1112, 1119-20 (Pa.Super. 2018)
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(McLaughlin, J.).” Concurring Opinion at 4 n.1. She claims that her analysis is
in line with cases such as Commonwealth v. MacArthur, 629 A.2d 166,
168-69 (Pa.Super. 1993). Respectfully, the Concurring Opinion appears to
misunderstand Hoffman and MacArthur. In both of those cases, we found
the evidence insufficient because there was a lack of evidence, not because
we thought the evidence was not weighty enough to warrant a conviction.
For example, in Hoffman, the Commonwealth presented evidence that
the defendant had taken sleep-inducing medications, fell asleep on a couch,
and later rolled off the couch and onto an infant on the floor next to her,
suffocating the child. 198 A.3d 1119. We concluded that such evidence was
not enough to establish malice, and thus support convictions for third-degree
murder and aggravated assault. We explained that “the Commonwealth had
failed to provide evidence that, by taking the medication, [the defendant]
consciously disregarded an extremely high risk that her actions would result
in” the child’s death. Id. We likewise rebuffed the Commonwealth’s argument
that the jury could have found malice based on the defendant’s alleged delay
in seeking emergency help. We explained that there was “no evidence” of how
long the defendant knew the infant had stopped breathing before she called
911. Id. at 1120.
We also turned aside in Hoffman a claim that inconsistencies in the
defendant’s various statements to police showed her consciousness of guilt,
as supporting a finding of malice. We pointed out that there was “no evidence”
of the crime for which she felt guilty or that she had “anything more than a
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general sense of responsibility for the infant’s death.” Id. We rejected the
additional claim that the jury could have found malice based on a finding of
intentional conduct. We explained that “[a]t no time” did the Commonwealth
present evidence that the defendant had acted intentionally, but rather had
presented evidence of only an unintentional accident. Id. at 1120.
In MacArthur, there was similar lack of evidence of malice. There, the
defendant pushed a much larger man, who then flipped backwards over a
railing, fell down five steps, and landed on the back of his neck, resulting in
his death. 629 A.2d at 168. We cited a line of cases holding that a single blow,
without more, is insufficient to establish malice, and thus third-degree murder.
We then explained that there was “nothing in the record” in that case to
provide the necessary “more.” Id. at 169.
This case is very different from Hoffman and MacArthur. In this case,
there was affirmative evidence that Sanders consciously disregarded a
substantial and unjustifiable risk. Sanders herself testified that she knew of
the marked risk of death to pedestrians while turning a tandem bus, and that
she was aware of safety rules that she admitted were designed to reduce that
risk. The risk of death to the pedestrian in such an accident is patent. Yet the
evidence nonetheless showed her disregarding that risk and disobeying the
safety rules. That is plain evidence of criminal recklessness, and is sufficient
to support a conviction for homicide by vehicle. I respectfully dissent.
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