concurring and dissenting.
I respectfully disagree with the conclusion of the majority that criminal negligence is the mens rea for homicide by *147vehicle while driving under the influence of alcohol, 75 Pa.C.S. § 3735. I believe that an examination of the legislative enactment of 75 Pa.C.S. § 3735.1, governing aggravated assault by vehicle while driving under the influence, and the recent amendment of the homicide by vehicle statute, 75 Pa.C.S. § 3732, demonstrates a legislative intent not to require proof of criminal negligence in order to sustain a conviction for 75 Pa.C.S. § 3735.
In Commonwealth v. McCurdy, 558 Pa. 65, 735 A.2d 681 (1999), we described 75 Pa.C.S. § 3735 as requiring proof: (1) of a conviction for driving under the influence pursuant to 75 Pa.C.S. § 3731, and (2) that this violation caused the death. Id. at 685. In the present case, the majority, relying on Commonwealth v. Heck, 517 Pa. 192, 535 A.2d 575 (1987), holds that Heck’s questionable premise that the former 75 Pa.C.S. § 3732 required proof of criminal negligence, notwithstanding that statute’s “unintentionally causes” language, controls this case. Consequently, because 75 Pa.C.S. § 3735 similarly penalizes a driver who “unintentionally causes” the death of another while driving under the influence, the majority engrafts onto McCurdy’s two elements the requirement that the Commonwealth also prove that the defendant acted with criminal negligence.
As a matter of statutory construction, I believe the majority’s position is incorrect. Section 3735 provides that “any person who unintentionally causes the death of another person as the result of a violation of section 3731 (relating to driving under the influence of alcohol or controlled substance) and is convicted of violating section 3731 is guilty of a felony of the second degree when the violation is the cause of death.... ” Noticeably absent from this definition is the word “negligence.”
The absence of the term “negligence” is not a mere legislative oversight. As evidenced by the legislative amendments to 75 Pa.C.S. § 3732 and the enactment of 75 Pa.C.S. § 3735.1, when the legislature intends to require proof of criminal negligence for an offense, it puts the words in the statute. In 1996, the legislature enacted 75 Pa.C.S. § 3735.1, which creat*148ed a new criminal offense for “aggravated assault by vehicle while driving under the influence.” Section 3735.1 provides:
[a]ny person who negligently causes serious bodily injury to another person as the result of a violation of section 3731 (relating to driving under influence of alcohol or controlled substance) and who is convicted of violating section 3731 commits a felony of the second degree when the violation is the cause of the injury.
75 Pa.C.S. § 3735.1(a) (emphasis added). The inclusion of the term “negligence” in this statute demonstrates a clear legislative intent to require proof of criminal negligence for a conviction. More tellingly, in December of 2000, the legislature amended the statute for homicide by vehicle, 75 Pa.C.S. § 3732.1 Formerly, the statute read:
[a]ny person who unintentionally 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 3731 (relating to driving under the influence of alcohol or controlled substance) is guilty of homicide by vehicle, a misdemeanor of the first degree, when the violation is the cause of death.
Effective February 18, 2001, 75 Pa.C.S. § 3732 now' provides:
[a]ny 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 3731 (relating to driving under influence of alcohol or controlled substance) is guilty of homicide by vehicle, a felony of the third degree, when the violation is the cause of death.
2000 Pa. Legis. Serv. Act 2000-108 (S.B.1312) (Purdon’s) (emphasis added). The deletion of “unintentionally causes” from the former statute and its replacement with “recklessly or with gross negligence” further illustrates that when the legislature intends proof of criminal negligence as part of the *149elements of an offense, specifically in connection with violations of the Vehicle Code, it does so in clear and unmistakable language.
As a matter of statutory construction, therefore, we should not supply additional elements to a criminal offense where the legislature has not sought fit to include them in the statute. Respecting 75 Pa.C.S. § 3735, we should read the legislature’s decision to leave this section unchanged as indicative of a legislative intent not to require proof of criminal negligence. If the legislature wished to require proof of criminal negligence to establish a violation of 75 Pa.C.S. § 3735, it could have done so either in 1996, when it enacted 75 Pa.C.S. § 3735.1 to require proof of negligence for aggravated assault by vehicle while driving under the influence, or in 2000, when it amended 75 Pa.C.S. § 3732 to require proof of criminal negligence for a conviction for homicide by vehicle. The legislature, however, made no such change.
I also find this Court’s decision in Heck to be of doubtful utility to the present matter. If one reads Heck as involving only statutory interpretation, then I believe the actions of the legislature since Heck show that we erred in concluding that the definition of criminal negligence contained in the Crimes Code, 18 Pa.C.S. § 302(b)(4), must be read into the statute.2 If, however, one reads Heck as holding that due process requires criminal negligence as the mens rea for a violation of the former 75 Pa.C.S. § 3732, then I would use the present case as an opportunity to disavow this interpretation of Heck as inconsistent with previous decisions upholding the constitutionality of 75 Pa.C.S. § 3732. Cf. Commonwealth v. Hicks, 502 Pa. 344, 466 A.2d 613 (1983) (rejecting equal protection challenge ,to former 75 Pa.C.S. § 3732); Commonwealth v. Field, 490 Pa. 519, 417 A.2d 160 (1980) (rejecting vagueness challenge to former 75 Pa.C.S. § 3732). But cf. Commonwealth v. O’Hanlon, 539 Pa. 478, 653 A.2d 616, 618 (1995) *150(interpreting Heck as requiring, on due process grounds, proof of criminal negligence to sustain a conviction for violation of former 75 Pa.C.S. § 3782). Due process does not mandate that criminal negligence be the mens rea for a crime for which the statute describes the degree of culpability as “unintentionally causes,” and which otherwise clearly and adequately describes the prohibited conduct. Accordingly, to the extent that the Heck opinion suggests this due process requirement and the majority follows this rationale with respect to 75 Pa.C.S. § 3735,1 must disagree.
For these reasons, I concur in the decision of the majority to affirm but do not join its analysis of the mens rea requirement of 75 Pa.C.S. § 3735.
Justice CASTILLE joins this concurring and dissenting opinion.. The statute at issue in Heck, supra.
. Mr. Justice McDermott made this criticism in his Dissention Opinion in Heck, where he (correctly, I believe) accused the majority of "usurping the legislative power to define crimes” and noted that the “culpability requirement in [former Section 3732] is contained in the word 'unintentionally’ ”, 535 A.2d at 580.