SPAETH, Judge, concurring:

It is clear from the evidence that the Commonwealth did not prove recklessness or gross negligence on the part of appellee. See Commonwealth v. Busler, 445 Pa. 359, 284 A.2d 783 (1971); Commonwealth v. Clowser, 212 Pa. Super. 208, 239 A.2d 870 (1968). Therefore, if the lower court was correct in construing the Act of June 17, 1976, P.L. 162, No. 81, § 1, 75 Pa.C.S.A. § 3732, as requiring proof of recklessness or gross negligence, the demurrer was properly sustained. See Commonwealth v. Greer, 232 Pa. Super. 448, 335 A.2d 770 (1975). If, however, the Commonwealth is correct in construing section 3732 as requiring nothing more than proof of a traffic violation causing death, then the evidence was sufficient to withstand the demurrer.

Appellee argues that section 3732 should be construed to require proof of recklessness or gross negligence, as the lower court construed it. In the alternative, she argues that if section 3732 is construed to create strict criminal liability, it is unconstitutional. The dissent has concluded that section 3732 should be construed to create strict criminal liability, and I agree (although I regard the issue as exceedingly close, and respect the President Judge's contrary conclusion). The dissent has also concluded, however, that as so construed, section 3732 is constitutional, and as to this, I disagree; in my opinion, section 3732 represents a violation of due process, perhaps not under the federal constitution, but certainly under our state constitution.

I

Statutes creating, or arguably creating, strict criminal liability have required the courts to engage in a distinctive analysis, not usual in the criminal law. Before examining the statute involved in the present case, therefore, it is important to review the cases, so that one may understand how this analysis has developed and what its distinctive features are. In conducting this review, it will be convenient to look first at the federal cases, and then at the cases decided by our Supreme Court and by this court.

A

The Federal Cases

"The existence of mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence." Dennis v. United States, 341 U.S. 494, 500, 71 S.Ct. 857, 862, 95 L.Ed. 1137 (1950). "The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil." Morissette v. United States, 342 U.S. 246, 250, 72 S.Ct. 240, 243, 96 L.Ed. 288 (1951); see Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957). The concept of strict criminal liability is apparently of relatively recent origin in our system of law, and has been the subject of Supreme Court scrutiny on only a very few occasions. In only one case, Morissette, has the Court undertaken a full discussion of the problems presented by a statute creating, or arguably creating, a strict liability crime.

In Morissette the question before the Court was whether the statute creating the crime of converting government property should be construed to require proof of the defendant's intent to steal. Mr. Justice JACKSON, speaking for the majority, discussed the origins of strict liability crimes and compared strict liability crimes to common law crimes. In the course of this discussion, he explained the Court's earlier decisions in Balint and Behrman:

However, the Balint and Behrman offenses belong to a category of another character, with very different antecedents and origins. The crimes there involved depend on no mental element but consist only of forbidden acts or omissions. This while not expressed by the Court, is made clear from examination of a century-old but accelerating tendency, discernible both here and in England, to call into existence new duties and crimes which disregard any ingredient of intent. The industrial revolution multiplied the number of workmen exposed to injury from increasingly powerful and complex mechanisms, driven by freshly discovered sources of energy, requiring higher precautions by employers. Traffic of velocities, volumes and varieties unheard of came to subject the wayfarer to intolerable casualty risks if owners and drivers were not to observe new cares and uniformities of conduct. Congestion of cities and crowding of quarters called for health and welfare regulations undreamed of in simpler times. Wide distribution of goods became an instrument of wide distribution of harm when those who dispersed food, drink, drugs, and even securities, did not comply with reasonable standards of quality, integrity, disclosure and care. Such dangers have engendered increasingly numerous and detailed regulations which heighten the duties of those in control of particular industries, trades, properties or activities that affect public health, safety or welfare.

He further explained:

While many of these duties are sanctioned by a more strict civil liability, lawmakers, whether wisely or not, have sought to make such regulations more effective by invoking criminal sanctions to be applied by the familiar technique of criminal prosecutions and convictions. This has confronted the courts with a multitude of prosecutions, based on statutes or administrative regulations, for what have been aptly called "public welfare offenses." These cases do not fit neatly into any of such accepted classifications of common-law offenses, such as those against the state, the person, property, or public morals. Many of these offenses are not in the nature of positive aggressions or invasions, with which the common law so often dealt, but are in the nature of neglect where the law requires care, or inaction where it imposes a duty. Many violations of such regulations result in no direct or immediate injury to person or property but merely create the danger or probability of it which the law seeks to minimize. While such offenses do not threaten the security of the state in the manner of treason, they may be regarded as offenses against its authority, for their occurrence impairs the efficiency of controls deemed essential to the social order as presently constituted. In this respect, whatever the intent of the violator, the injury is the same, and the consequences are injurious or not according to fortuity. Hence, legislation applicable to such offenses, as a matter of policy, does not specify intent as a necessary element. The accused, if he does not will the violation, usually is in a position to prevent it with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities. Also, penalties commonly are relatively small, and conviction does no grave damage to an offender's reputation. Under such considerations, courts have turned to construing statutes and regulations which make no mention of intent as dispensing with it and holding that the guilty act alone makes out the crime. This has not, however, been without expressions of misgiving.

After discussing the common law origins of the crime of theft, and concluding that the crime of converting government property had the crime of theft as a direct antecedent, Justice JACKSON concluded that in creating the crime of converting government property, Congress intended to require proof of an intent to steal.

Two important principles may be derived from Morissette; it is these principles that render distinctive the analysis to be employed when examining a statute creating, or arguably creating, strict criminal liability. The first principle is that in determining whether the imposition of strict criminal liability is consistent with due process, several factors, including the policy and intent of the legislature, the origins of the offense, the reasonableness of the standards imposed, and the punishment and stigma attached to a conviction, must be considered. The second principle is that in considering these several factors, a court must shuttle back and forth, between the question whether the statute can be construed as not requiring proof of criminal intent, and the question whether, if so construed, the statute will violate due process; the answer to one of these questions will color, or affect, the answer to the other. Thus in Morissette the Court was persuaded to construe the statute as not creating strict criminal liability but instead as requiring proof of intent.

In Holdzidge v. United States, 282 F.2d 302 (8th Cir. 1960), Judge, now Mr. Justice, BLACKMUN, after discussing the cases, summarized this process of analysis as follows:

From these cases emerges the proposition that where a federal criminal statute omits mention of intent and where it seems to involve what is basically a matter of policy, where the standard imposed is, under the circumstances, reasonable and adherence thereto properly expected of a person, where the penalty is relatively small, where conviction does not gravely besmirch, where the statutory crime is not one taken over from the common law, and where congressional purpose is supporting, the statute can be construed as one not requiring criminal intent. The elimination of this element is then not violative of the due process clause.

Or, to state Justice BLACKMUN's formulation conversely: If the factors discussed in Morissette are otherwise — e.g., if the penalty is not relatively small, and the conviction does gravely besmirch — then the elimination of the element of criminal intent may be violative of the due process clause.

Justice BLACKMUN's formulation has been quoted with approval by one other Justice of the Supreme Court, see United States v. Freed, supra, 401 U.S. at 613 n. 4, 91 S.Ct. at 1120 (BRENNAN, J., concurring), and has been repeatedly applied by the federal courts. See United States v. Mowat, 582 F.2d 1194 (9th Cir. 1978); United States v. Heller, 579 F.2d 990 (6th Cir. 1978); United States v. Erne, 576 F.2d 212 (9th Cir. 1978); United States v. Ayo-Gonzalez, 536 F.2d 652 (5th Cir. 1976); United States v. Flum, 518 F.2d 39 (8th Cir. 1975); United States v. Ray, 488 F.2d 15 (10th Cir. 1973); United States v. Margraf, 483 F.2d 708 (3d Cir. 1973) ( en banc), vacated, 414 U.S. 1106, 94 S.Ct. 833, 38 L.Ed.2d 734 (1973); United States v. Brown, 453 F.2d 101 (8th Cir. 1971); United States v. Corbin Farm Service, 444 F. Supp. 510 (E.D.Cal. 1978) aff'd, 578 F.2d 259 (9th Cir. 1978); United States v. Bowen, 428 F. Supp. 754 (D.Md. 1976). As one would anticipate, the cases have reached varying results, according to whether the Morissette-Holdridge factors were or were not present.

Sometimes it has been held that a requirement of intent may not be read into the statute, but that even when so construed, the relevant factors are such that the statute does not violate due process. Thus, in United States v. Ayo-Gonzalez, supra, the Fifth Circuit applies the Morissette-Holdridge analysis to determine whether the Bartlett Act prohibited unintentional fishing incursions by foreign vessels in United States waters. After an extensive examination of the policy of the Act and its legislative history, the court concluded that no proof of intent was required to sustain a conviction. The court also concluded that this creation of strict criminal liability did not violate due process because the conviction did not invite moral stigma and the maximum sentence of one year imprisonment was not too severe. See United States v. Mowat, supra (similar analysis; no proof of intent required for conviction of unauthorized entry onto a military reservation); United States v. Erne, supra (no proof of intent required for conviction under section 7215 of the Internal Revenue Code); United States v. Flum, supra (extensive analysis; no proof of intent required for conviction of attempting to board an aircraft with a concealed deadly weapon); United States v. Ray, supra (Migratory Bird Treaty Act and regulations thereto do not violate due process despite fact that they dispense with element of intent); United States v. Bowen, supra (no proof of intent required for conviction under statute prohibiting creation of obstruction to navigable waterways); see also United States v. Corbin Farm Service, supra.

Other times it has been held that a requirement of intent may be read into the statute, if the result will be that then the statute will not violate due process. Thus, in United States v. Heller, supra, the Sixth Circuit concluded that to sustain a conviction under a federal statute making it a crime to transmit any demand or request for a ransom the prosecutor was required to prove that the defendant had an intent to extort. The court reached this conclusion after making the analysis prescribed in Morissette and Holdridge. Especially pertinent to the decision were the legislative history of the statute and the severity of the punishment. See United States v. Brown, 453 F.2d 101 (8th Cir. 1971); see also United States v. Flum, supra (HEANEY, J., dissenting).

Finally, other times it has been held that a requirement of intent may not be read into a statute, even though the result is that the statute will then violate due process. See Lambert v. California, supra. There the Court was precluded from reading in a requirement of intent because the California court had construed the legislation in question — a Los Angeles ordinance — as not including such a requirement. After considering the relevant factors (more fully discussed in Morissette), the Court held that the ordinance violated due process.

B

The Pennsylvania Supreme and Superior Court Cases

In examining statutes creating, or arguably creating, strict criminal liability, our courts have consistently employed the same analysis as was applied in Holdridge. Thus, in Commonwealth v. Koczwara, 397 Pa. 575, 155 A.2d 825 (1959), which was decided before Holdridge, our Supreme Court characterized statutes that do not require proof of criminal intent as "regulatory provisions in fields which are essentially noncriminal . . . generally enforceable by light penalties." Id., 397 Pa. at 580, 155 A.2d at 827. Later, in Commonwealth v. Bready, 220 Pa.Super 157, 286 A.2d 654 (1971), this court was required to determine whether a section of the 1959 Vehicle Code making it a crime for a magistrate to fail to make a monthly report created strict criminal liability. Citing Koczwara and Morissette, we assigned several reasons for our conclusion that the crime was not a strict liability crime: it was unlike a violation of a regulatory provision; the legislative intent to create strict liability was not clear; the crime was a direct descendent of a common law crime; and the punishment was severe. Similarly, in Commonwealth v. Black, 251 Pa. Super. 539, 380 A.2d 911 (1977), this court, again relying on Koczwara, concluded that section 3929(a)(2) of the Crimes Code did not create strict criminal liability because the crime was unlike a violation of a public welfare regulatory provision, and the penalties were severe. See Commonwealth v. Unkrich, 142 Pa. Super. 591, 16 A.2d 737 (1940).

The analysis set forth in Holdridge, therefore, is not to be confined to questions of federal constitutional due process and the interpretation of federal statutes. Rather, it also represents the analysis that will be applied by our own state courts in interpreting a state statute creating, or arguably creating, strict criminal liability. Not only was the analysis applied by this court in Bready the same as that applied by Justice BLACKMUN in Holdridge, but the factors listed in Holdridge as pertinent to determining due process under the federal Constitution are equally pertinent to determining due process under the Pennsylvania Constitution. Thus, our Supreme Court in Koczwara ruled that a too severe punishment may be a violation of due process under the Pennsylvania Constitution.

II

It is now in order to apply the Morissette-Holdridge-Koczwara-Bready analysis to the present case. The first step will be to determine whether, in enacting section 3732, the legislature intended to make homicide by vehicle a strict liability crime. If it appears that the legislature did so intend, the second step will be to determine whether the section violates due process. If it appears that it does, the third, and last, step will be to re-examine the section, to determine whether it may be saved, or whether it must be declared unconstitutional.

A

In enacting section 3732, did the Legislature intend to create strict criminal liability?

The "mere omission from a criminal enactment of any mention of intent should not necessarily be construed as dispensing with it." Morissette v. United States, supra, 342 U.S. at 250, 72 S.Ct. at 243. So too, the legislature's use of the word "unintentionally" in section 3732 should not be regarded as by itself sufficient to demonstrate that the legislature intended to remove any and every type of culpability or mens rea as an element of the crime. In order to ascertain the legislature's intent, we must consider the general policy of the legislature toward strict liability crimes, the common law origins and history, if any, of the specific crime at issue — here, homicide by vehicle — and the relevant legislative history. This consideration will disclose an almost even balance between factors for and against the conclusion that the legislature intended strict criminal liability.

1

Besides the general principle that penal statutes are to be strictly construed in the defendant's favor, see 1 Pa.C.S.A. § 1928 (b)(1); Commonwealth v. Darush, 256 Pa. Super. 344, 389 A.2d 1156 (1978), several more specific factors militate against the conclusion that the legislature intended to create strict criminal liability.

First, the legislative policy in this state is against strict criminal liability. In 1972 the legislature enacted the Crimes Code. The Crimes Code was derived from the Model Penal Code and provides that culpability may be found only where the defendant acted either "intentionally," "knowingly," "recklessly," or "negligently." The Model Penal Code and the Crimes Code create no strict liability crimes, except for summary offenses. Indeed, section 2.05 of the Model Penal Code "makes a frontal attack on absolute or strict liability," Model Penal Code, Comment to Tentative Draft No. 4 at p. 140, and section 305 of the Crimes Code, which is derived from section 2.05, was described by the Joint State Government Commission as having been enacted "to tone down" absolute or strict liability in penal law as a whole. See S. Toll, Pennsylvania Crimes Code Annotated, 86 (1974). Section 305 provides:

§ 305. Limitations on scope of culpability requirements

(a) When culpability requirements are inapplicable to summary offenses and to offenses defined by other statutes. — The requirements of culpability prescribed by section 301 of this title (relating to requirement of voluntary act) and section 302 of this title (relating to general requirements of culpability) do not apply to:

(1) summary offenses, unless the requirement involved is included in the definition of the offense or the court determines that its application is consistent with effective enforcement of the law defining the offense; or

(2) offenses defined by statutes other than this title, in so far as a legislative purpose to impose absolute liability for such offenses or with respect to any material element thereof plainly appears.

(b) Effect of absolute liability in reducing grade of offense to summary offense. — Notwithstanding any other provision of existing law and unless a subsequent statute otherwise provides:

(1) when absolute liability is imposed with respect to any material element of an offense defined by a statute other than this title and a conviction is based upon such liability, the offense constitutes a summary offense; and

(2) although absolute liability is imposed by law with respect to one or more of the material elements of an offense defined by a statute other than this title, the culpable commission of the offense may be charged and proved, in which event negligence with respect to such elements constitutes sufficient culpability and the classification of the offense and the sentence that may be imposed therefor upon conviction are determined by section 106 of this title (relating to classes of offenses) and Chapter 11 of this title (relating to authorized disposition of offenders).

The requirement in this section that the intention to create strict (or "absolute") criminal liability must "plainly appear" manifests a strong legislative policy against strict liability crimes. Consistent with this policy is the provision that when strict criminal liability is created, the crime is no more than a summary offense, unless a "subsequent statute otherwise provides." See Commonwealth v. Jade East, 237 Pa. Super. 140, 346 A.2d 542 (1975). In this case, therefore, unless it can be concluded that section 3732 was "plainly" intended to create strict criminal liability, we should interpret the section as including some culpability or mens rea requirement.

Second, a consideration of the history of the term "homicide" also supports the conclusion that the legislature did not intend to create strict criminal liability. Criminal homicides have always required some degree of culpability. Under the Crimes Code, criminal homicide is defined as "intentionally, knowingly, recklessly or negligently caus[ing] the death of another human being," and includes "murder, voluntary . . . [and] involuntary manslaughter." 18 Pa.C.S.A. § 2501(a) and (b). Thus the legislature's use of the word "homicide," in defining the crime of "homicide by vehicle," supports the conclusion that the legislature intended to require proof of some degree of culpability, for where the legislature "borrows terms of art . . . it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed." Morissette v. United States, supra, 342 U.S. at 263, 72 S.Ct. at 250.

It must be noted further that included in the "cluster of ideas" attached to criminal homicide is the specific idea of unlawful act or misdemeanor manslaughter. Under section 4703 of the 1939 Penal Code it appeared that a conviction of involuntary manslaughter could be obtained without regard to the defendant's negligence or recklessness if the death resulted from the defendant's unlawful act. See Commonwealth v. Aurick, 138 Pa. Super. 180, 10 A.2d 22 (1940), rev'd, 342 Pa. 282, 19 A.2d 920 (1941). However, in vehicular manslaughter cases the courts have interpreted the term "unlawful act" as requiring proof that in committing the unlawful act, e.g., violating a traffic ordinance, the defendant acted with recklessness or criminal negligence. See Commonwealth v. Aurick, 342 Pa. 282, 19 A.2d 920 (1941), rev'g, 138 Pa. Super. 180, 10 A.2d 22 (1940); Commonwealth v. Clowser, supra. Thus, in Clowser, Judge HOFFMAN, after discussing a number of authorities from this and other jurisdictions, concluded that "the unlawful act, that is, the infraction, must be done in such a manner as to more than constitute a mere thoughtless omission or slight deviation from the norm of prudent conduct. . . . Were we to hold otherwise, the Commonwealth might obtain a conviction for manslaughter based upon a violation of a regulatory statute, where the conduct involved might not support a civil suit." Id. 212 Pa.Super. at 213-14, 239 A.2d at 873 (citation omitted). Under the Crimes Code, "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 . . ., he causes the death of another person." 18 Pa.C.S.A. § 2504. Thus, under both the cases and the Crimes Code, there can be no unlawful act manslaughter without a showing of recklessness or gross negligence. This fact supports the conclusion that the legislature did not intend to create a new type of unlawful act homicide that would require no proof of recklessness or negligence.

Third, and finally, one aspect of legislative history also supports the conclusion that the legislature did not intend to create strict criminal liability. In enacting The Vehicle Code of 1976, of which section 3732 is a part, the legislature decided not to create the crime of careless driving. Under House Bill No. 1817 there was a proposal to retain the crime of reckless driving and to create a new crime of careless driving. After extensive debate, however, the careless driving section was defeated. In support of removing the careless driving section from the Bill, Representative Eckensberger stated:

Now may I respectfully submit to the members of this House that we do not need to create a new crime identified as careless driving. It shocks my conscience that we should say that it henceforth will be a crime if you drive carelessly. Now that amounts to ordinary negligence. Can you imagine the number of cases that would flow through a magistrate's office if we were to identify ordinary negligence as a crime? It would proliferate the number of cases, clog up the courts unnecessarily. We are doing well now without it.

. . . . .

Mr. Bonetto suggests that careless drivers should not be on the highway. I suggest to you that at some point in time every one of us has been careless in the manner of operating a vehicle — not intentionally so, depending, of course, on how you interpret the word "careless" — and that he and the rest of us would probably not be on the highway, as well as the rest of the general public, if we are going to say that every careless act should be a crime. I am not advocating that carelessness should not be accounted for. We have the civil courts that take care of the careless operation of vehicles.

Legislative Journal-House, at pp. 4072-73 (1976).

Later, when the matter was being considered for the third time Representative Eckensberger stated:

Very briefly, the amendment would seek to delete a new crime, being that of careless driving. I believe that we should remove this section in House bill No. 1817 because we will retain the concept of reckless driving as an offense; there will still be civil liabilities attached to careless driving. To subject our citizens to being arrested for committing what I consider to be ordinary negligence would be unfair to our citizenry in the Commonwealth who operate their motor vehicles in good faith.

I find no need for the section. I hope that all of the members do recall the debate of yesterday. I am not going to try to go into all of those things now, but merely hope that all the members will support this amendment.

In support of Representative Eckensberger's amendment, Representative Manderino, stated:

Mr. Speaker, very briefly, I think some of the points that I intended to make were made by Mr. Hutchinson. I think Mr. Eckensberger's and Mr. Hutchinson's point of view is entirely correct. I see no reason to introduce into the statutes of Pennsylvania a new concept in the violation of the Motor Vehicle Code wherein ordinary negligence, carelessness, can be the reason for a citation.

For every accident that would occur, there would be a criminal citation. I think that we should not do that. I think that Mr. Eckensberger, upon reflection of yesterday's vote, and many others have realized this, and I would ask for a vote sustaining the position of Mr. Eckensberger and pulling out the designation of careless driver as a violation of the Vehicle Code.

Representative Scirica stated:

Mr. Speaker, I cannot think of any other area in the law where ordinary negligence carries with it a criminal penalty. We should leave this as a civil matter and I think it is important that we support Mr. Eckensberger's amendment.

After this third debate on the House floor, the House voted to remove the careless driving section from the Bill.

This history manifests a desire on the part of the legislature not to make citizens subject to criminal sanctions for mere carelessness. Accordingly, it provides a strong argument that the legislature would also not intend to subject appellee to a misdemeanor charge for what was, at most, mere carelessness.

2

Despite the foregoing considerations, I have concluded that in creating the crime of homicide by vehicle, the legislature did intend to create strict criminal liability. My principal reason for this conclusion is the history of section 3732.

There appears to have been no debate in the House or Senate specifically concerned with section 3732. That section, however, has a history of its own, which is relevant to the issue before us. It was derived from section 11-903(a) of the Uniform Vehicle Code, which provides:

(a) Whoever shall unlawfully and unintentionally cause the death of another person while engaged in the violation of any state law or municipal ordinance applying to the operation or use of a vehicle or to the regulation of traffic shall be guilty of homicide when such violation is the proximate cause of said death.

Uniform Vehicle Code § 11-903(a). Accordingly, included in the "cluster of ideas" attached to section 3732 is the development and interpretation of section 11-903(a) of the Uniform Vehicle Code. See 1 Pa.C.S.A. § 1927.

Until 1962, the Uniform Vehicle Code described the crime created by section 11-903(a) as "negligent homicide"; and the section read as follows:

(a) When the death of any person ensues within 1 year as a proximate result of injury received by the driving of any vehicle in reckless disregard of the safety of others, the person so operating such vehicle shall be guilty of negligent homicide.

Uniform Vehicle Code section 11-903(a) (1956 version).

In 1962, however, the present version was adopted. When the 1956 version ("reckless disregard") is compared with the present version ("violation of any state law or municipal ordinance"), it is clear that the drafters of the Uniform Vehicle Code intended to change the character of the crime, and to make it into a strict liability crime, requiring proof of no more than a mere violation of any traffic ordinance that resulted in the death of another. See Commentary, Homicide by Vehicle 1 (1978).

Many states have enacted statutes similar to section 11-903(a). Most of these states, however, have either added or retained some requirement that the defendant act negligently or recklessly. See National Committee on Uniform Traffic Law Ordinances, Traffic Laws Annotated, § 11-903 (1972). North Carolina enacted section 11-903(a) without any significant alterations, and it has been interpreted in that state as requiring no proof of criminal intent. State v. Freeman, 31 N.C. App. 93, 228 S.E.2d 516 (1976). When the same thing happened in Ohio, State v. Kotapish, 171 Ohio St. 349, 171 N.E.2d 505 (1960), the Ohio legislature repealed the statute and enacted a new statute that required proof of recklessness or negligence. See Traffic Laws Annotated, supra.

We must assume, I believe, that when the Pennsylvania legislature enacted section 3732, it was aware of the history of that section in Ohio and the other states that added or retained some requirement that the defendant act negligently or recklessly. Yet, although it very easily could have done so, the legislature did not add any requirement of negligence or recklessness to the section, nor did it enact the 1956 version of section 11-903(a) of the Uniform Vehicle Code. Thereby the legislature indicated its intent to adopt the 1962 revision, requiring proof of no more than a traffic violation causing death.

It is true that section 3732 was only one section among many that were included in the massive piece of legislation passed as The Vehicle Code of 1976. This fact, plus the fact that there was no legislative debate concerning section 3732, might suggest that the section simply slipped through the legislature without being noticed, and that if it had been noticed, the legislature would not have created strict criminal liability, just as it did not create the crime of careless driving. This suggestion, however, cannot be accepted, for section 3732 did not slip through unchanged. In the course of enacting it, the legislature removed the words "unlawfully" and "proximate" from section 11-903(a) of the Uniform Vehicle Code, and added the phrase, "a misdemeanor of the first degree."

In addition to this history, it is important to note that if the legislature had intended to limit criminal violations under section 3732 to reckless or negligent defendants, it need not have enacted the section at all, for those defendants were already subject to prosecution for involuntary manslaughter under section 2504 of the Crimes Code. See 18 Pa.C.S.A. § 2504. Indeed, a consideration of the crime of involuntary manslaughter provides what seems to me a probably correct explanation of why the legislature intended to create strict criminal liability under section 3732. The cases demonstrate that the Commonwealth has had difficulty in obtaining convictions for involuntary manslaughter, for proof of a traffic violation may not be proof of recklessness or gross negligence. See Commonwealth v. Trainor, 252 Pa. Super. 332, 381 A.2d 944 (1977); Commonwealth v. Greer, supra; Commonwealth v. Clowser, supra. It seems probable that in enacting section 3732, the legislature intended to overcome this difficulty by broadening the scope of liability to include those persons who merely violated traffic ordinances. The North Carolina court in State v. Freeman, supra, attributed just such an intent to the North Carolina legislature. Said the court:

The number of deaths resulting from the operation of motor vehicles on the highways has increased to an alarming extent. Indictment for the common law crime of manslaughter has proved ineffective as a means of repressing the negligence in motor vehicle operation causing death upon the public thoroughfares. The motorist is generally a reputable citizen, and the wrong committed by him which brings someone to his death is most often an unintentional violation of a prohibitory statute or ordinance, unaccompanied by recklessness or possible consequences of a dangerous nature, when tested by the rule of reasonable prevision. Thus it is apparent that the intention of the legislature in enacting [homicide by vehicle] was to define a crime of lesser degree of manslaughter wherein criminal responsibility for death by vehicle is not dependent upon the presence of culpable or criminal negligence.

I recognize, and have earlier in this opinion emphasized, that the intent to impose strict criminal liability must "plainly appear." Here, however, I have concluded that the intent does plainly appear; that conclusion, it seems to me, is required by the history of section 11-903(a) as the model for section 3732, and by a recognition of the legislature's probable purpose to broaden liability beyond that contained in the involuntary manslaughter provision of the Crimes Code. No doubt what seems plain to one person may not seem so plain to another. As I remarked at the beginning of this opinion, I regard the issue of what the legislature intended as exceedingly close; for given the strength of the policy against strict criminal liability, as expressed in the Crimes Code, and the legislature's unwillingness to make careless driving a crime, as reflected in its debates, it is certainly arguable that whatever the legislature's intention in enacting section 3732, it is not an intention that "plainly appears." I can only respond that for me, it appears plainly enough.

It has been argued that as a matter of policy, it would be most unwise to impose strict criminal liability for conduct such as appellee's. I entirely agree; but I may not permit my opinion on a matter of policy to affect my decision here, for so long as the legislature acts lawfully, it is entitled to decide matters of policy. See Lurie v. Republican Alliance, 412 Pa. 61, 65, 192 A.2d 367, 370 (1963), quoting Commonwealth ex rel. Fox v. Swing, 409 Pa. 241, 186 A.2d 24 (1962). Our duty, as a court, is not to examine the wisdom of the legislature's decisions, as reflected in its enactment, but to determine and then enforce the meaning of that enactment. See 1 Pa.C.S.A. § 1921(a).

B

When construed to create strict criminal liability, does section 3732 violate due process?

In testing the constitutionality of a statute creating strict criminal liability, the two most important considerations are the severity of the possible punishment and the moral stigma that may be attached to a conviction. As the Sixth Circuit stated in United States v. Heller, supra, "Certainly if Congress attempted to define a [strict liability] offense that placed an onerous stigma on an offender's reputation and that carried a severe penalty, the Constitution would be offended." 579 F.2d at 994. And see Morissette v. United States, supra, (strict criminal liability may be upheld where "penalties commonly are relatively small, and conviction does no grave damage to an offender's reputation"); Holdridge v. United States, supra ("where the penalty is relatively small; where conviction does not gravely besmirch").

1

Appellee's conviction under section 3732 of homicide by vehicle places a most onerous stigma on her reputation.

The Commentary, Homicide by Vehicle, supra, states that the use of the term "homicide by vehicle," as compared with the term "manslaughter." "lessen[s] the stigma attached to convictions." Id. at 13. If this be so, the stigma attached nevertheless remains most onerous. As Henry Hart has observed, one cannot truthfully say to any defendant that there is nothing wrong with being labeled a criminal. Hart, The Aims of the Criminal Law, 23 Law Contemp. Prob. 401, 423 n. 57 (1958). Especially is this so when the crime is "homicide by vehicle." Labels may not be ignored. To be labeled a rapist or murderer places a far more onerous stigma on a person than to be labeled as someone convicted of misbranding a drug. See United States v. Dotterweich, supra. While the word "homicide", by itself, means only the killing of a human being, included within this definition are the terms "murder" and "manslaughter." Indeed, the Crimes Code defines the term "criminal homicide" so as to include "murder" and "manslaughter." See 18 Pa.C.S.A. § 2501(b). Adding the phrase "by vehicle" does little to lessen the stigma attached to the word "homicide," except perhaps among lawyers. In popular parlance, "homicide" is usually equated with "murder." Thus a common example of the use of the term "homicide" is to describe "a squad of detectives that specializes in solving murders (the boys in will get all the details — Thurston Scott)". Webster's Third International Dictionary, (1965).

While there apparently has been no case holding what type of a conviction does such grave damage to reputation as to violate the federal due process clause, it must be noted that the stigma attached to "homicide by vehicle" is different from, and far more serious than, the stigma attached to such crimes as the fishing violation considered in United States v. Ayo-Gonzalez, supra, or the trespass violation considered in Holdridge. This court has been extremely concerned with the unfair effects that a criminal record may have upon a defendant's future. See Commonwealth v. Iacino, 270 Pa. Super. 350, 411 A.2d 754 (1979) (expunction of criminal record); Commonwealth v. Malone, 244 Pa. Super. 62, 366 A.2d 584 (1976) (same). Indeed, it is not an overstatement to say that to saddle appellee in this case with a homicide record might result in more damage to her future than even the imprisonment she may receive for her conviction.

2

The remaining question is whether section 3732 carries a penalty that is "severe," United States v. Heller, supra, or "relatively small," Morissette v. United States, supra; Holdridge v. United States, supra. The penalty under section 3732 may be imprisonment for a maximum term of five years.

Most commentators agree that no sentence of imprisonment is ever proper in a strict criminal liability case. The basis for this conclusion is that strict liability crimes, or what have been termed public welfare offenses, are distinct from true crimes, or infamous crimes, which involve moral culpability. Thus Mr. Justice BRANDEIS has stated that it is "the imprisonment in a penitentiary which now renders a crime infamous." United States v. Moreland, 258 U.S. 433, 477-78, 42 S.Ct. 368, 373, 66 L.Ed. 700 (1921) (BRANDEIS, J., dissenting, joined by TAFT, C.J., and HOLMES, J.). See J. FEINBERG, DOING AND DESERVING, 111-13 (1970). The Official Comment to the Model Penal Code states that strict liability crimes "are indefensible in principle, unless reduced to terms that insulate conviction from the type of moral condemnation that is and ought to be implicit when a sentence of imprisonment may be imposed." Model Penal Code, Comment to Tentative Draft No. 4 at 140. Herbert Wechsler, the Official Reporter to the Model Penal Code, has stated that strict criminal liability should not be imposed "where any major sanction is involved. In such a case, if not always, absolute penal liability is an abuse." Wechsler, The Challenge of a Model Penal Code, 65 Harv.L.Rev. 1097, 1109 (1952). Francis Sayre, one of the first, and most noted, commentators in the area, stated that the reason the defendant's intent need not be probed in strict liability crimes is that "the penalty in such cases is so slight that the courts can afford to disregard the individual in protecting the societal interest." Sayre, Public Welfare Offenses, 33 Col.L.Rev. 55, 69-70 (1933). He went on to state:

If [the punishment] be serious, particularly if the offense be punishable by imprisonment, the individual interest of the defendant weighs too heavily to allow conviction without proof of guilty mind. To subject defendants entirely free from moral blameworthiness to the possibility of prison sentences is revolting to the community sense of justice; and no law which violates this fundamental instinct can long endure.

Similarly, Herbert Packer has stated:

The relevant distinctions may perhaps be found in the consequences of a `criminal conviction.' While we have few clues about the indirect consequences of a judgment formally denominated `criminal' with respect to relatively minor infractions, the direct consequence is easily assessable. The combination of stigma and loss of liberty involved in a conditional or absolute sentence of imprisonment sets that sanction apart from anything else the law imposes. Here at the very least the line should be drawn. No one should be sentenced to imprisonment or its equivalent without being afforded the opportunity to litigate the issue of mens rea. . . .

Packer, Mens Rea and the Supreme Court, 1962 Sup.Ct.Rev. 107, 150.

See Zweibon v. Mitchell, 516 F.2d 594, 679 n. 13 (D.C. Cir. 1975) (BAZELON, J., concurring and dissenting) (distinguishes judicial concern where the sanction for strict liability is loss of property as opposed to physical incarceration); People ex rel. Price v. Sheffield Farms Co., 225 N.Y. 25, 32-33, 121 N.E. 474, 477 (1918) (CARDOZO, J.) (strict liability may be proper for petty offense but reserves judgment on propriety of imprisonment for strict and vicarious liability crimes).

Given the fact that strict liability crimes involve no moral culpability, imprisonment for their commission can serve no proper penal purpose. Thus the National Commission on Reform of Federal Criminal Laws states in Volume 1 of its Working Papers:

The justification for imposing criminal liability where there is no fault has been that enforcement of society's demands requires it. * * * If a person's conduct has been truly without fault, however, the threat of punishment will not favorably affect his conduct. The imposition of punishment is not needed to "reform" or "rehabilitate" him; no fault requiring correction has been identified. Punishment, if it takes the form of detention, will prevent him from engaging in the conduct while he is detained. It may also satisfy the community's (irrational) demand for retribution for the harm which the conduct caused.

These slight functions which can be served are manifestly inadequate justifications for criminal liability without fault. Preventive detention of the kind involved here has no place in the criminal law. It is unlikely that the community will feel strongly about offenses of this kind (although it may strongly support regulation of the activity involved), particularly when there is no culpability, and unlikelier still that, if the community has such feelings, they will be so strong that they should be recognized for the sake of the community, despite their irrationality. Working Papers, supra at 129

Accordingly, the imposition of a prison sentence for a strict liability crime has been condemned by the Commission and by the legal commentators as "irrational," and "incompatible with the basic requirements of our Anglo-American, and indeed, any civilized jurisprudence," Wasserstrom, Strict Liability in the Criminal Law, 12 Stan.L.Rev. 730 (1960).

I acknowledge that despite the foregoing scholarly commentary, the federal courts have held that a sentence of imprisonment may be imposed for conviction of a strict liability crime. United States v. Balint, supra (five years); United States v. Freed, supra (ten years); United States v. Mowat, supra (six months imprisonment); United States v. Ayo-Gonzalez, supra (one year imprisonment). But see United States v. Heller, supra (possible twenty year term is too severe for a strict liability crime). It is because of these cases that I said at the beginning of this opinion that "perhaps" section 3732 did not violate federal due process. It very well may violate federal due process, for in addition to carrying a sentence of imprisonment, conviction "gravely besmirch[es]" the defendant's reputation. United States v. Holdridge, supra. However, I know of no federal case resting a finding of violation of due process on damage to reputation alone.

How the federal courts would decide such a case need not concern us, for under the decisions of our Supreme Court and of this court, it is settled that imposition of imprisonment upon conviction of a strict liability crime does constitute a violation of due process under our State constitution.

In Commonwealth v. Koczwara, supra, the defendant was convicted of violating the Pennsylvania Liquor Code by serving alcohol to minors. The evidence established that an employee of the defendant served the minors when the defendant was not present and without the defendant's knowledge. Nevertheless the defendant was convicted, fined, and sentenced to three months imprisonment. On appeal the Supreme Court noted that the crime was a violation of a mere "regulatory provision," " generally enforceable by light penalties, and although violations are labelled crimes, the considerations applicable to them are totally different from those applicable to true crimes, which involve moral delinquency and which are punishable by imprisonment or another serious penalty." 397 Pa. at 580, 155 A.2d at 827. Although concluding that the legislature could create such strict criminal liability, the Court held that to imprison the defendant violated due process under the Pennsylvania Constitution. In so holding the Court stated:

The Courts of the Commonwealth have already strained to permit the legislature to carry over the civil doctrine of respondeat superior and to apply it as a means of enforcing the regulatory scheme that covers the liquor trade. We have done so on the theory that the Code established petty misdemeanors involving only light monetary fines. It would be unthinkable to impose vicarious criminal responsibility in cases involving true crimes. Although to hold a principal criminally liable might possibly be an effective means of enforcing law and order, it would do violence to our more sophisticated modern-day concepts of justice. Liability for all true crimes, wherein an offense carries with it a jail sentence, must be based exclusively upon personal causation.

While Koczwara involved vicarious liability, it is nevertheless controlling on the issue presented in this case because of the distinction made by the Court between, on the one hand, true crimes, and on the other hand, strict liability (including vicarious liability) crimes. The Court made it clear that to imprison someone for anything other than a true crime was unconstitutional; and it defined a true crime as one that involves both "moral delinquency" and "personal causation." From this distinction the conclusion followed that since strict liability (including vicarious liability) crimes are not true crimes, they may not constitutionally be punished by imprisonment. Thus in Koczwara our Supreme Court went beyond Balint, and the federal cases following it, and gave judicial recognition to the views of Sayre and the other commentators, that since strict liability crimes are not true crimes they should not be punished like true crimes.

This principle has been applied by this court in cases arising after Koczwara. For instance, in Commonwealth v. Bready, supra, this court cited Koczwara, stated that a punishment of 60 days imprisonment was too harsh, and therefore interpreted the statute in question as one that did not impose strict liability. Similarly, in Commonwealth v. Black, supra, in deciding whether the statute in question imposed strict liability, this court again cited Koczwara, and held that prison terms of two to five years were "too heavy" to permit the statute to be construed as one imposing strict liability. And see Government of Virgin Islands v. Rodriquez, 423 F.2d 9, 13 n. 12 (3d Cir. 1970) (discussing strict liability; Koczwara represents a "restriction of the doctrine to public welfare offenses punishable by fines rather than by imprisonment.")

C

Is it possible to save section 3732?

Since, when construed to create strict criminal liability, section 3732 violates due process, both because conviction too gravely besmirches the defendant's reputation and because the punishment is too severe, it is necessary to proceed to the third, and final, step of the Morissette — Holdridge analysis, and re-examine the section to determine whether after all it may be construed so that it will not violate due process. Two possible constructions suggest themselves.

1

The first possible construction would be to construe section 3732 as not imposing strict criminal liability. That is what the Sixth Circuit did in United States v. Heller, supra, and this court, in Commonwealth v. Bready, supra, and Commonwealth v. Black, supra; it would not be an unworthy result here, given the force of the factors previously discussed in part II of this opinion as favoring the conclusion that strict liability was not intended. Nevertheless, the difficulty, which I find insuperable, would be that then we should have to answer the question, If section 3732 does not create strict criminal liability, what sort of conduct does it make culpable? By its own terms section 3732 does not refer to intentional conduct. The only remaining forms of culpable conduct would seem to be either recklessness or negligence. However, if section 3732 is construed to require proof of either of these, it becomes a duplicate of section 2504 of the Crimes Code, which defines involuntary manslaughter as a crime:

(a) General rule. — 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.

It would be to some extent absurd to have two different criminal statutes apply to the same conduct. Apart from the possibility that problems would probably be created by the "more specific offense" doctrine, see Commonwealth v. Brown, 269 Pa. Super. 150, 409 A.2d 108 (1979), it seems clear, as already discussed, that in enacting section 3732, the legislature intended to avoid the difficulties of proof encountered in involuntary manslaughter cases, that is, intended that homicide by vehicle should not duplicate but should be easier to prove than involuntary manslaughter.

2

The second possible construction would be to construe section 3732 as creating strict criminal liability, but to save it by removing that part or parts that result in a violation of due process. That is what the Supreme Court did in Commonwealth v. Koczwara, supra, where instead of striking down the section of the Liquor Code involved, the Court merely removed from the section the sanction of imprisonment. To save section 3732, however, one would have to remove from it not only the sanction of imprisonment but also the label "homicide by vehicle"; for as discussed above, what renders the section a violation of due process is the combination of a too severe penalty and a too onerous stigma. Removing both the sanction of imprisonment and creating a new name for the crime would amount to rewriting the section and would be an encroachment upon the legislative function.

3

I am thus left with the conclusion that rather than attempt to save section 3732, it should be declared unconstitutional. The legislature would then be free to produce a constitutional version of the section, if it should so desire.

I should affirm the decision of the lower court.

HOFFMAN, J., joins in this concurring opinion.