J-S37011-17
2017 Pa Super 314
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TINA MARIA MOYER
Appellant No. 1663 MDA 2016
Appeal from the Judgment of Sentence Entered June 21, 2016
In the Court of Common Pleas of Adams County
Criminal Division at No: 0000782-2015
BEFORE: STABILE, J., MOULTON, J., and MUSMANNO, J.
OPINION BY STABILE, J.: FILED OCTOBER 02, 2017
Appellant, Tina Marie Moyer, appeals from the June 21, 2016
judgment of sentence imposing an aggregate 36 to 108 months of
incarceration for homicide by vehicle (75 Pa.C.S.A. § 3732), recklessly
endangering another person (“REAP”) (18 Pa.C.S.A. § 2705), and driving
under the influence of a controlled substance (75 Pa.C.S.A. § 3802). We
affirm.
The trial court summarized the pertinent facts in its Pa.R.A.P. 1925(a)
opinion:
Here, in [the] light most favorable to the Commonwealth
as verdict winner, the evidence at trial showed the following:
Appellant was driving her vehicle on Kindig Road, ran a stop sign
at the intersection of Kindig Road and Route 97, and pulled out
into oncoming traffic on a busy road with a speed limit of thirty-
five (35) miles per hour. Appellant’s line of sight going in the
southbound direction was completely obstructed by a building as
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Appellant approached the stop sign. Rather than inch up past
the stop sign to look for oncoming traffic, Appellant never
stopped and proceeded into the intersection, traveling 12 miles
per hour, pulling out directly in front of decedent’s northbound
box truck. The box truck crashed into Appellant’s car, crossed
the double yellow line, and then crashed into a tow truck driving
southbound on Route 97. The evidence also showed that
Appellant was familiar with her route of travel, the placement of
the stop sign, and the nature of the intersecting road.
Trial Court Opinion, 11/29/16, at 5.
At the conclusion of Appellant’s trial, a jury found her guilty of
homicide by vehicle and REAP, but not guilty of homicide by vehicle while
driving under the influence (75 Pa.C.S.A. § 3735). The trial court found
Appellant guilty of DUI and various summary traffic offenses. On June 21,
2016, the trial court sentenced Appellant to 27 to 84 months of incarceration
for homicide by vehicle, a consecutive 9 to 24 months for REAP, and a
concurrent 3 to six months for DUI.
On June 23, 2016, two days after Appellant’s sentence, the United
States Supreme Court handed down its decision in Birchfield v. North
Dakota, 136 S. Ct. 2160 (2016), wherein the Court held that criminalization
of a suspect’s refusal to consent to a blood test violates the Fourth
Amendment to the United States Constitution. Instantly, Appellant claims
that police provided her with Pennsylvania form DL-26,1 which states that
refusal to consent to a blood draw would result in enhanced criminal
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1
Form DL-26 was revised after Birchfield.
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penalties. Following Birchfield, this Court has held that such penalties are
constitutionally invalid, and that consent obtained under threat of increased
penalties is constitutionally suspect. Commonwealth v. Giron, 155 A.3d
655 (Pa. Super. 2017) (vacating a sentence that included increased criminal
penalties based on the defendant’s refusal to consent to a blood test);
Commonwealth v. Evans, 153 A.3d 323 (Pa. Super. 2016) (remanding for
evaluation of the validity of the defendant’s consent). The precise
circumstances of Appellant’s consent were not the subject of a hearing and
therefore are not of record. The blood draw revealed trace amounts of
Alprazolam and THC.2
On July 1, 2016, Appellant filed a timely post-sentence motion arguing
that the Commonwealth produced insufficient evidence to support her
homicide by vehicle conviction. The motion did not address Birchfield. The
trial court denied Appellant’s motion on July 11, 2016. On July 13, 2016,
according to the certified docket, Appellant filed an untimely second post-
sentence motion, titled “Motion to Vacate Sentence,” asking the trial court to
vacate her DUI conviction under Birchfield. On August 10, 2016, the trial
court entered an order accepting Appellant’s July 13, 2016 motion as a nunc
pro tunc post-sentence motion. Because the trial court’s August 10, 2016
order fell within 30 days of its July 11, 2016 order denying Appellant’s
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2
In Commonwealth v. Ennels, ___ A.3d ___ (Pa. Super. 2017) this Court
held that Birchfiled applies to alcohol and drug-related DUI investigations.
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original post-sentence motion, the trial court retained jurisdiction and the
appeal period was tolled. Commonwealth v. Dreves, 839 A.2d 1122 (Pa.
Super. 2003) (en banc). The trial court denied Appellant’s nunc pro tunc
motion on September 7, 2016, concluding that she was not entitled to
retroactive application of Birchfield because she did not preserve a
challenge to the warrantless blood draw during trial. Appellant filed this
timely appeal on October 6, 2016.
Appellant challenges the sufficiency of the evidence in support of her
homicide by vehicle conviction and the legality of her DUI conviction in light
of Birchfield. We will consider these issues in turn. The following standard
governs this Court’s review of a sufficiency of the evidence challenge:
When evaluating a sufficiency claim, our standard is
whether, viewing all the evidence and reasonable inferences in
the light most favorable to the Commonwealth, the factfinder
reasonably could have determined that each element of the
crime was established beyond a reasonable doubt. This Court
considers all the evidence admitted, without regard to any claim
that some of the evidence was wrongly allowed. We do not
weigh the evidence or make credibility determinations.
Moreover, any doubts concerning a defendant’s guilt were to be
resolved by the factfinder unless the evidence was so weak and
inconclusive that no probability of fact could be drawn from that
evidence.
Commonwealth v. Kane, 10 A.3d 327, 332 (Pa. Super. 2010), appeal
denied, 29 A.3d 796 (Pa. 2011).
Section 3732 of the Motor Vehicle Code defines homicide by vehicle:
Any 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
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to the operation or use of a vehicle or to the regulation of traffic
except section 3802 (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.
75 Pa.C.S.A. § 3732(a).
The Crimes Code defines criminal recklessness 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.A. § 302(b)(3). We have held that “[t]he concept of gross
negligence is encompassed within the concept of recklessness as set forth in
[§ 302(b)(3)].”3 Commonwealth v. Matroni, 923 A.2d 444, 448 (Pa.
Super. 2007). In construing the definition of recklessness as applied to
§ 3732, we have upheld convictions where the defendant’s conduct
“evidenced a conscious disregard of the substantial and unjustified risk that
he would be involved in a traffic accident causing death.” Id. at 449; see
also Commonwealth v. Grimes, 842 A.2d 432, 435 (Pa. Super. 2004),
appeal denied, 864 A.2d 1203 (Pa. 2004).
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3
Appellant argues that the trial court erroneously gave an instruction
defining gross negligence as a lesser form of culpability than recklessness.
Appellant’s Brief at 11-12. Appellant also acknowledges that this issue was
not preserved in the trial court. Id. We therefore will not consider it.
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In Matroni, this Court upheld a conviction under § 3732 where the
defendant, after tailgating a pickup truck in the left southbound lane of the
Fruitville Pike in Lancaster County, abruptly changed lanes several times and
then slammed into a tractor trailer in the left southbound lane. Matroni,
923 A.2d at 447. The tractor-trailer was forced into the northbound lanes,
where it struck an oncoming car, killing the driver. Id. at 447-48. We
reasoned that the defendant’s “speeding, tailgating, and erratically changing
lanes” was sufficient evidence of recklessness. Id. at 448. In Grimes, we
upheld the conviction where the defendant swerved into the oncoming lane
of traffic ten to twenty times and eventually struck the victim’s oncoming
car, killing him. Grimes, 842 A.2d at 433, 435.
Appellant relies heavily on Commonwealth v. O’Hanlon, 653 A.2d
616 (Pa. 1995) and Commonwealth v. McHale, 858 A.2d 1209 (Pa. Super.
2004). According to Appellant, O’Hanlon provides the following examples
of felonious recklessness: a person who fires a gun into a crowd; a person
who drives his car into a crowd after having aimed it at an individual; or a
person who specifically drives at a pedestrian.” Appellant’s Brief at 11
(citing O’Hanlon, 653 A.2d at 618). The O’Hanlon Court does indeed
provide those examples. But in O’Hanlon, the defendant was challenging
the sufficiency of the evidence of the requisite mens rea for aggravated
assault, not homicide by vehicle. Id. at 616. As the Supreme Court noted,
the mens rea for aggravated assault is recklessness “under circumstances
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manifesting extreme indifference to the value of human life.” Id. at 617
(quoting 18 Pa.C.S.A. § 2702(a)(1)). Thus, “[t]he offensive act must be
performed under circumstances which almost assure that injury or death will
ensue.” Id. at 618. Because the O’Hanlon Court analyzed aggravated
assault, a first-degree felony with a different mens rea requirement than the
third-degree felony of homicide by vehicle, the analysis in O’Hanlon is
inapposite.
Likewise, in McHale, this Court considered whether the
Commonwealth produced sufficient evidence of aggravated assault where
the defendant, while intoxicated, drove his vehicle into two victims standing
near a parked car. The defendant fled the scene, was not licensed to drive,
and was uninsured. McHale, 858 A.2d at 1210-11. The victims suffered
severe injuries but survived. Id. at 1211-12. We explained that
recklessness manifesting extreme indifference to human life is malice. Id.
at 1212. Malice, in turn, is “wickedness of disposition, hardness of heart,
cruelty, recklessness of consequences, and a mind regardless of social duty,
although a particular person may not be intended to be injured.” Id. at
1213. We wrote that “motor vehicle crashes seldom give rise to proof of the
malice needed to sustain a conviction for third degree murder or aggravated
assault.” Id. at 1214 (quoting Commonwealth v. Kling, 731 A.2d 145,
148 (Pa. Super. 1999), appeal denied, 745 A.2d 1219 (Pa. 1999)). The
McHale Court concluded that the defendant’s intoxication and his failure to
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stop at the scene, while reprehensible, did not constitute malice. Id. at
1216-18.
The facts and holding in McHale are not pertinent to the instant
matter, as malice is not at issue. Nonetheless, we find instructive the
McHale Court’s criticism of the Commonwealth’s apparent attempt to “blur
the lines of criminal liability based upon negligence, ordinary recklessness
and the form of recklessness encompassed in malice, that reflects ‘extreme
indifference to the value of human life’” in order to obtain convictions for
greater offenses Id. at 1218. Appellant, in her reliance on O’Hanlon and
McHale, uses the same line-blurring tactic in an attempt to escape liability
for a lesser offense than aggravated assault.
Instantly, as set forth in the trial court’s opinion, Appellant drove at a
speed of 12 miles per hour past a stop sign onto a busy street with a
building obstructing her view of the cross traffic as she approached the
intersection. The speed limit for the cross traffic was 35 miles per hour.
Appellant was familiar with the intersection. Appellant repeatedly
characterizes her maneuver as a “rolling stop” and a mere vehicle code
violation that did not constitute criminal recklessness. Appellant also notes
that she did not commit multiple vehicle code violations, as did the
defendants in Matroni and Grimes. She further argues that the victim’s
death was extremely unlikely given the nature of her conduct, and that
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death occurred because the victim was not wearing a seatbelt and because
he was ejected through the open passenger door of his box truck.
While Appellant would have us dismiss her conduct as a mere rolling
stop, we conclude that the record supports the jury’s finding that Appellant
acted recklessly. Appellant acknowledges that her vehicle slowed from 25
miles per hour to 12 miles per hour and remained at 12 miles per hour for
two seconds prior to impact. Moving at 12 miles per hour past a stop sign
evidences more than a simple failure to come to a complete stop.
Additionally, we must consider that the stop sign preceded a busy cross
street, and that a building obscured the view of one lane of cross traffic.
Next, we must consider that Appellant was not braking for the final two
seconds before impact, from which we can infer that Appellant did not
observe that the accident was imminent. Finally, we consider that Appellant
was familiar with the intersection and had driven through it many times.
Thus, it can be can infered that she knew she was turning onto a busy street
and knew that a building partially obscured the view of cross traffic on one
side. In light of all of this evidence, we conclude the Commonwealth
produced sufficient evidence that Appellant exhibited a “conscious disregard
of the substantial and unjustified risk that [s]he would be involved in a
traffic accident causing death.” Matroni, 923 A.2d at 449. As in Matroni,
Appellant crashed into a vehicle with sufficient impact to force it into the
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opposing traffic lane, where it crashed into an oncoming vehicle, resulting in
a fatality.
We are willing to assume that the victim’s failure to wear a seatbelt
and his open passenger door significantly increased the possibility of his
tragic death in this instance. The evidence of the victim’s conduct, however,
does not alter our conclusion that Appellant, based on the evidence of her
own conduct, exhibited a conscious disregard of a substantial and unjustified
risk of a fatal accident. Appellant’s sufficiency of the evidence argument
fails.
Next, Appellant argues that the trial court erred in declining to vacate
her DUI conviction under Birchfield. As explained above, the United States
Supreme Court handed down Birchfield two days after Appellant’s
sentence. Appellant never challenged the warrantless blood draw during
trial, and did not raise any issue under Birchfield until her nunc pro tunc
post-sentence motion. In Pennsylvania, it has long been the rule that
criminal defendants are not entitled to retroactive application of a new
constitutional rule unless they raise and preserve the issue during trial.
Commonwealth v. Newman, 99 A.3d 86, 90 (Pa. Super. 2014) (en banc),
appeal denied, 121 A.3d 496 (Pa. 2014). The Newman Court relied on
Commonwealth v. Cabeza, 469 A.2d 146, 148 (Pa. 1983). There, the
Supreme Court wrote:
[W]here an appellate decision overrules prior law and
announces a new principle, unless the decision specifically
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declares the ruling to be prospective only, the new rule is to be
applied retroactively to cases where the issue in question is
properly preserved at all stages of adjudication up to and
including any direct appeal.
Id. (emphasis added). Instantly, Appellant failed to challenge the
warrantless blood draw at any stage of the litigation prior to her nunc pro
tunc post-sentence motion. Thus, she is not entitled to retroactive
application of Birchfield.
Appellant argues that she should not have been required to anticipate
the United States Supreme Court’s Birchfield opinion. The same could be
said, however, in nearly every case in which a defendant is denied
retroactive application of a new constitutional principle. The rule permitting
retroactive application was created for the benefit of defendants who raised
and preserved the issue in question and in whose case the issue remained
pending while a higher court decided the issue in a similar case. The
Cabeza Court explained:
In both cases, a defense challenge to the ruling was raised
during trial and the issue preserved and argued in post trial
motions and on appeal. The only noteworthy difference between
[Commonwealth v. Scott, 436 A.2d 607 (Pa. 1981),] and the
appellee is that Scott was argued and decided first. The instant
case may well have been the case which overruled prior law if
Scott had not been decided while appellee’s appeal to the
Superior Court was pending. The question of whether to apply
an enlightened rule in favor of a discredited one should not be
determined by the fortuity of who first has his case decided by
an appellate court.
Id.
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In contrast, Appellant’s case could not have been the case that
invalidated warrantless blood draws coerced by the threat of criminal
prosecution because Appellant never raised the issue. Absent further
development of the law of retroactivity from the Pennsylvania Supreme
Court, Appellant is not entitled to rely on Birchfield. The trial court did not
err in refusing to vacate Appellant’s DUI sentence.
Because we find no reversible error, we affirm the judgment of
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/2/2017
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Commonwealth v. Moyer
Combined Opinion