dissenting:
¶ 1 I respectfully dissent from the holding of the majority, which affirms the judgments of sentence of murder in the third degree and of aggravated assault. Because I would not find the evidence sufficient to allow a finding of more than mere recklessness, I would hold that the requisite mens rea was not established.
¶ 2 In order to prove recklessness sufficient to support a conviction of third degree murder or aggravated assault, the degree of culpability is that which considers and then disregards the threat necessarily posed to human life by the offending conduct. There must be an element of deliberation or conscious disregard of danger not present to the same extent in either reckless driving or driving while intoxicated. Com. v. Comer, 552 Pa. 527, 531-582, 716 A.2d 593, 596 (1998) (quoting Com. v. O’Hanlon, 539 Pa. 478, 482, 653 A.2d 616, 618 (1995)). An en bane panel of this court in Com. v. Dellavecchia, 725 A.2d 186 (Pa.Super.1998), in applying this standard, reversed a conviction of aggravated assault where an intoxicated driver drove at an excessive rate of speed over congested city streets, weaving in and out of traffic, prior to a crash.
¶ 3 The necessary element lacking is that the appellant considered, then disregarded, the threat to the lives of the victims. There is no evidence to show the necessary deliberation by appellant. Specifically, the passenger in appellant’s vehicle did not testify that she admonished caution and that her advice went unheeded; other motorists did not attempt to communicate cautionary warnings to appellant as he speeded past them. The lack of evidence of warnings distinguishes the evidence of mens rea in this case from that presented in Com. v. Scofield, 360 Pa.Super. 552, 521 A.2d 40 (1987); Com. v. Pigg, 391 Pa.Super. 418, 571 A.2d 438 (1990); Com. v. Scales, 437 Pa.Super. 14, 648 A.2d 1205 (1994); and Com. v. Urbanski, 426 Pa.Super. 505, 627 A.2d 789 (1993).
¶ 4 The facts of this case, in my opinion, place it squarely within the holdings of Comer and Dellavecchia, and require a finding that the evidence did not demonstrate the legal malice necessary for conviction of third degree murder and aggravated assault.
¶5 Appellant is not without criminal culpability for his actions. The jury returned guilty verdicts for involuntary manslaughter, homicide by vehicle, three counts of recklessly endangering another person, and simple assault. In my opinion, the evidence is clearly sufficient to support these verdicts. I would remand to the lower court for resentencing on these remaining counts since no sentence was imposed on them, with the exception of the one count of reckless endangerment of appellant’s passenger.