Commonwealth v. Booth

DEL SOLE, J.,

dissenting:

¶ 1 I dissent. In Amadio v. Levin, 509 Pa. 199, 501 A.2d 1085 (1985), the Pennsylvania Supreme Court found an unborn child may be considered a person for purposes of civil wrongful death actions. The majority applies this development of the Commonwealth’s common law in a civil context to criminal law, concluding an unborn child at the stage of viability is a “person” within the definition of the Crimes Code. In my view, the majority ignores recent pronouncements of the legislature on this subject. In 1997, the legislature enacted Chapter 26 of the Crimes Code, Crimes Against Unborn Child. This chapter outlines the full complement of statutorily defined crimes in which an unborn child is the victim. In this chapter, the definition of an “unborn child” is “... an individual organism of the species homo sapiens from fertilization until live birth.” 18 Pa.C.S.A. § 2602 (citing 18 Pa.C.S.A. § 3203). The statute does not define an unborn child as a “person” as the majority does in its extension of criminal liability in this case. Further, under Chapter 26, criminal homicide of an unborn child is limited to murder and involuntary manslaughter. 18 Pa.C.S.A. §§ 2603-05.

112 The legislature is free to criminalize the act of unintentionally causing the death of an unborn child while driving under the influence of alcohol or a controlled substance. The legislature is free to broaden the definition of “person” in the Crimes *1191Code to include an unborn child. The legislature has not done so.

¶ S I also note that the legislature has included an “unborn child” in certain limited definitions of “person” in the Crimes Code. For example, in 18 Pa.C.S.A. § 2607(1), the statute provides that the term “different person” as used in the culpability sections, 18 Pa.C.S.A. §§ 308(b) and 303(c), “shall also include an unborn child.” Therefore, it is clear that when the legislature intends to include an unborn child in the definition of a “person”, it does so specifically.

¶ 4 I am troubled by the extension of the criminal law on a common law basis. The legislature has specifically abolished common law crimes9 and requires that criminal statutes must be strictly construed. 1 Pa.C.S.A. § 1928(b)(1). Because the criminal statutes concerning crimes against an unborn child do not specifically or by implication include the crime of homicide by vehicle while driving under the influence of alcohol or other controlled substance, I would affirm the dismissal of this charge in Appellee’s case.

. 18 Pa.C.S.A § 107(b) Common law crimes abolished provides "No conduct constitutes a crime unless it is a crime under this title or another statute of this Commonwealth."