Concurring and Dissenting.
¶ 1 I join in the Majority’s disposition of the seat belt issue. As to the issue of whether the Commonwealth presented a prima facie case of recklessness for purposes of the involuntary manslaughter statute,101 respectfully dissent.
¶ 2 For purposes of this Concurring and Dissenting Opinion, I will assume that the Majority has properly determined that the involuntary manslaughter statute requires a showing of recklessness rather than criminal negligence.11 Section 302(b)(3) of the Crimes Code defines when a person acts in a reckless manner:
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 *1051conduct. 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.A. § 302(b)(3). “Conscious disregard” of a risk involves first becoming aware of the risk, and then choosing to proceed in spite of that risk. Commonwealth v. Miller, 385 Pa.Super. 186, 560 A.2d 229, 234 (1989). A “substantial” risk is one that increases the likelihood of harm to such a significant degree that disregarding this risk is seen as criminal conduct. See, Commonwealth v. Mastromatteo, 719 A.2d 1081, 1084 (Pa.Super.1998). An “unjustifiable” risk is one which is unwarranted, indefensible, and lacking a reasonable excuse. See, Black’s Law Dictionary (6th ed.1990) at 865 (defining “justifiable” and “justification”).
¶3 Our courts have examined the level of culpability where a person falls asleep at the wheel and thereby causes death or injury. Both our Supreme Court and this Court have determined that falling asleep at the wheel can constitute criminal negligence for purposes of the homicide by vehicle or careless driving statutes.12 See, Commonwealth v. Petroll, 558 Pa. 565, 586-88, 738 A.2d 993, 1005 (1999) (truck driver fell asleep at the wheel and collided with the back of a car, killing the occupants; Commonwealth established criminal negligence for purposes of homicide by vehicle); Commonwealth v. Cathey, 435 Pa.Super. 162, 645 A.2d 250, 251-252 (1994) (driver fell asleep, collided with another vehicle and injured the occupant; Commonwealth established criminal negligence for purposes of careless driving).
¶ 4 Thus, as the Majority correctly notes, our case law has not yet held that falling asleep at the wheel constitutes recklessness. On the other hand, our case law has not held that falling asleep can never constitute recklessness. In my view, this question is to be decided on a case-by-case basis, paying close attention to those facts which bear on the issue of whether the driver acted recklessly, i.e., consciously disregarded a substantial and unjustifiable risk of death by falling asleep at the wheel.13 Moreover, under the specific circumstances of this case, I would hold that the Commonwealth did establish a prima facie case of recklessness.
¶ 5 First, in Cathey, this Court reasoned that people generally fall asleep in stages and with warnings:
In a normal human being sleep does not come without warning. Before sleep *1052there is drowsiness and before drowsiness there is usually great fatigue of at least a desire to sleep. Human affairs would be in a precarious state if locomotive engineers, aviators, chauffeurs, motormen and others in charge of machinery in motion were hable to “fall asleep” at any time without first becoming consciously aware of sleep’s approach and taking immediate steps to bring to a stop the mechanism under their control or placing it in the hands of one who is completely awake and alert. The Creator wisely provided that sleep does not come upon human beings unannounced ....
... It is impossible to fathom how one who falls asleep while operating an automobile, thus blindly propelling thousands of pounds of steel and glass tens of miles per hour, cannot be guilty of a degree of negligence beyond mere ‘absence of ordinary care.’
Cathey, 645 A.2d at 251-252 (emphasis added), quoting, Bernosky v. Greff, 350 Pa. 59, 60-61, 38 A.2d 35, 36 (1944).
¶ 6 I recognize that Cathey concerned the issue of criminal negligence, rather than recklessness.14 On the other hand, the reasoning set forth in Cathey suggests that by continuing to drive after receiving the warning signs of sleep, a person does indeed consciously disregard a substantial risk of death on our highways.
¶ 7 Even if this is not necessarily true in every case, additional facts of Huggins’ particular case provide ample evidence from which a jury could reasonably conclude that Huggins acted recklessly. The nature and intent of Huggins’ conduct and the circumstances known to him were as follows. Huggins knew that his van was overloaded because he was driving a 15-passenger van in which 23 passengers were riding. Huggins knew that 20 of the passengers were children under 12 years of age. Huggins knew that at least nine of his passengers were not seated in seats at all and that many, if not most, of his passengers were not wearing safety restraints. Huggins knew it was a clear and sunny day when he “momentarily” fell asleep at 5:15 p.m. in his speeding van.15
¶ 8 I would also observe that the risk of death caused by falling asleep at the wheel was less palpable in Petroll and Cathey than in Huggins’ case. In Petroll and Cathey, each driver’s risk of causing death by falling asleep at the wheel involved people outside of the driver’s vehicle, e.g., occupants of other vehicles (and perhaps pedestrians) who, by chance, were in the path of the sleeping driver’s careening vehicle. In Huggins’ case, the driver’s risk of causing death by falling asleep at the wheel involved people inside (as well as outside) of the vehicle. Twenty-three passengers, 20 of them under the age of 12, were not potential victims by chance; they were potential victims of a driver who knew they were there and a driver who knew that they were subject to his control of the van. Unlike the Majority, I believe this is a highly relevant factor in determining whether a driver acts recklessly. Because I believe that the Commonwealth presented a prima facie case of recklessness for purposes of the involuntary man*1053slaughter statute, I must respectfully dissent.
McEWEN, President Judge Emeritus,Concurring and Dissenting.
¶ 1 While I hasten to join in the erudite opinion of the majority affirming the ruling of the distinguished Judge Linda Wallach Miller which dismissed the charges of involuntary manslaughter, I am unable to join in that portion of the ruling of the majority which reverses the ruling of the trial court and thereby permits the introduction of evidence of the non-use of seat belts by the occupants of the vehicle. Rather, I share the view of the trial court that Section 4581(f) of the Vehicle Code compels the exclusion of any reference by the Commonwealth to the non-use of seat belts by the van passengers, 75 Pa.C.S. § 4581(f). It merits emphasis that such an exclusion would not, however, preclude the Commonwealth from introduction of evidence that the children were sitting on the floor of the van at the time of the accident.
. The involuntary manslaughter statute provides:
a person is guilty of involuntary manslaughter when as a direct result of the doing of an unlawful act in a reckless or grossly negligent manner, or the doing of a lawful act in a reckless or grossly negligent manner, he causes the death of another person.
18 Pa.C.S.A. § 2504.
. The Majority properly notes that under our Supreme Court's precedent, "gross negligence” for purposes of the involuntary manslaughter statute is equivalent to recklessness, rather than the less culpable mental state of criminal negligence. Majority Opinion at 1046, citing, Commonwealth v. Lobiondo, 501 Pa. 599, 602-04, 462 A.2d 662, 664 (1983); see also, Commonwealth v. Comer, 552 Pa. 527, 533-35, 716 A.2d 593, 597 (1998). For several reasons, I would respectfully urge our Supreme Court to revisit this issue, and clarify this area of the law if it deems necessary. First, it would appear that our Supreme Court’s ruling to this effect was dicta in both Comer and Lobiondo. Next, because the involuntary manslaughter statute uses the phrase "reckless or grossly negligent,” it can be argued that the two terms are distinct and not mere synonyms. See, Commonwealth v. Lassiter, 554 Pa. 586, 591-93, 722 A.2d 657, 660 (1998) (rules of statutory construction provide that "each word by the Legislature has meaning and was used for a reason, not as mere surplusage”). Third, I would note that involuntary manslaughter is graded as a first-degree misdemeanor, just as is homicide by vehicle. Homicide by vehicle requires a mental state only of criminal negligence. Comer, 552 Pa. at 538 n. 14, 716 A.2d at 599 n. 14. Finally, in Commonwealth v. Samuels, 566 Pa. 109, 113 n. 5, 778 A.2d 638, 641 n. 5 (2001), our Supreme Court recently cited with approval a trial court’s jury instruction on involuntary manslaughter which largely tracked the definition of criminal negligence under 18 Pa.C.S.A. § 302(b)(4). See also, id. at 113, 778 A.2d at 641 "the jury’s finding of guilt as to involuntary manslaughter necessarily included a finding of criminal negligence”; id. at 148, 778 A.2d at 663 (Newman, J., concurring and dissenting) (the phrase “recklessly or with gross negligence” demonstrates the Legislature’s intent to require criminal negligence as a culpable mental state).
. The homicide by vehicle statute provides:
"Any 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 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.”
75 Pa.C.S.A. § 3732. The careless driving statute provides: "a person who drives a vehicle in careless disregard for the safety of persons or property is guilty of careless driving, a summary offense.” 75 Pa.C.S.A. § 3714.
. Such an examination might include, without limitation, consideration of the following factors: the warning signs of sleep that the defendant consciously disregarded; the mechanical condition of his vehicle; the number and age of the occupants of his vehicle; the manner in which the passengers were seated; the safety restraints used by his passengers; the conditions on the road; the weather; the likelihood that someone else could have avoided the risk; and the speed at which the defendant was traveling.
. We also note that the trial court in Cathey acquitted the defendant of reckless driving, a charge which requires a showing of conscious disregard of the risk. Cathey, 645 A.2d at 253. As a result, the Cathey Court did not determine whether falling asleep at the wheel could constitute recklessness.
. The record reflects that Huggins was traveling 23 m.p.h. over the posted speed limit. My review of the record does not indicate that he "knew” the degree to which he was speeding.