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.
CONCURRING OPINION BY BOWES, J.: FILED FEBRUARY 3, 2020
I join in the majority writing of my esteemed colleague, and agree that
Appellant’s conviction for homicide by vehicle should be reversed, but upon
slightly different reasoning.
To recap, homicide by vehicle is established by evidence that the
defendant recklessly caused the death of another person through a violation
of any law applicable to operation or use of a vehicle. 75 Pa.C.S. § 3732(a).
The term “recklessly” as a degree of criminal culpability is defined as follows:
A person acts recklessly with respect to a material element of an
offense when he consciously disregards a substantial and
unjustifiable risk that the material element exists or will result
from his conduct. The risk must be of such a nature and degree
that, considering the nature and intent of the actor’s conduct and
the circumstances known to him, its disregard involves a gross
deviation from the standard of conduct that a reasonable person
would observe in the actor’s situation.
18 Pa.C.S. § 302(b)(3).
J-A27021-18
Viewing these two statutes together, it is clear that to establish the mens
rea necessary to support Appellant’s conviction, the Commonwealth was
required to prove that Appellant disregarded a substantial and unjustifiable
risk that she would cause the death of a person by grossly deviating from the
conduct that a reasonable person would have observed in Appellant’s
situation.
The majority suggests that the risk that Appellant failed to ascertain was
actually seeing the victim himself. See Majority Opinion at 11 n.2, 14.
Undeniably, Appellant was unaware of the presence of the victim before she
turned left. However, the evidence did establish that Appellant was aware
that the blind spot created by the side mirror on her vehicle posed a risk that
she could hit an unseen pedestrian while during left. I believe that the
question is not whether Appellant actually saw the victim, but whether the
Commonwealth offered legally sufficient evidence to prove beyond a
reasonable doubt that Appellant’s actions amounted to a gross deviation from
the conduct that a reasonable person would have observed in the face of the
general risk created by the mirror. In my view, they did not.
This conclusion is based on my consideration of the nature and the intent
of Appellant’s conduct and the circumstances known to her. Appellant was
stopped. She neglected to observe the intersection during the forty-five
seconds that she waited at the red light. Prior to beginning to move forward
to make a left-hand turn, she waited 2.33 seconds and scanned the roadway
-2-
J-A27021-18
to her left, right, and straight ahead. She proceeded slowly through her turn,
at a mere eight miles per hour, continuing to watch the road ahead of her.
Nonetheless, the victim remained in Appellant’s blind spot, and she stuck him,
tragically causing his death. No one contends that Appellant actually saw the
victim prior to striking him, that she pulled out into the intersection
immediately without observing her surroundings, that she was speeding as
she rounded the corner, or other conduct that has been deemed sufficient to
demonstrate more than negligence. See, e.g., Commonwealth v. Moyer,
171 A.3d 849, 854 (Pa.Super. 2017) (holding evidence was legally sufficient
to establish recklessness where defendant who had an obstructed view turned
into thirty-five-mile-per-hour traffic at twelve miles per hour on a busy road
without stopping at a stop sign); Commonwealth v. Matroni, 923 A.2d 444,
448-49 (Pa.Super. 2007) (holding evidence of cumulative conduct of
speeding, tailgating, and erratically changing lanes was sufficient to establish
recklessness).
My view of the evidence leads me to conclude that, considering the
totality of the circumstances, including Appellant’s 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, the evidence was sufficient to find that Appellant’s
behavior was a deviation from the standard of conduct of a reasonable person.
However, it was not sufficient to constitute a gross deviation giving rise to
-3-
J-A27021-18
the inference that Appellant acted with disregard of a substantial and
unjustifiable risk that she would cause the death of a person. As the majority
aptly states, “[t]he circumstances of this case do not suggest the level of
brazenness or hard-heartedness characteristic of acts of recklessness” under
§ 302(b)(3).1 Majority Opinion at 13. Accord Commonwealth v. Karner,
193 A.3d 986, 992-93 (Pa.Super. 2018) (affirming dismissal of homicide-by-
vehicle charges upon holding, as a matter of law, that evidence that the
defendant was driving eight to twelve miles over the speed limit and collided
____________________________________________
1 The dissent suggests that, in concluding that the Commonwealth’s evidence
was insufficient to establish the mens rea element of homicide by vehicle, I
have violated this Court’s standard of review by reweighing the evidence. On
the contrary, I fully accept the fact-finder’s determinations and the weight it
accorded the Commonwealth’s evidence. Nonetheless, it is this Court’s
responsibility to consider and determine whether the evidence behind those
factual determinations, viewed in the light most favorable to the
Commonwealth, is sufficient as a matter of law to establish each element of
the crime at issue. See, e.g., Commonwealth v. Mikitiuk, 213 A.3d 290,
300 (Pa.Super. 2019) (“Whether the evidence was sufficient to sustain the
charge presents a question of law.”). Legal questions are subject to de novo
plenary review. See id.
My application of our standard of review in this case is consistent with this
Court’s analysis of the mens rea elements of various crimes in similar appeals.
See, e.g., Commonwealth v. MacArthur, 629 A.2d 166, 168-69 (Pa.Super.
1993) (reversing third-degree murder conviction upon concluding that the
defendant’s conduct failed to rise to the level of malice under the
circumstances of the case). Indeed, the dissent’s position appears to be
inconsistent with this Court’s recent sufficiency review in Commonwealth v.
Hoffmann, 198 A.3d 1112, 1119-20 (Pa.Super. 2018) (McLaughlin, J.)
(applying sufficiency standard of review in affirming trial court’s grant of
judgment of acquittal after a jury convicted the defendant of third-degree
murder and aggravated assault; as a matter of law, evidence of the
defendant’s conduct amounted only to gross negligence, not a conscious
disregard of an extremely high risk that her actions would result in death).
-4-
J-A27021-18
with car that turned off the roadway more slowly than the defendant expected
constituted negligence rather than recklessness or gross negligence).
I therefore concur.
Judge Stabile concurs in the result.
-5-
Com. v. Sanders, K.
Combined Opinion