Commonwealth v. Peters

Full title: COMMONWEALTH OF PENNSYLVANIA v. KEVIN R. PETERS Appellant

Court: Superior Court of Pennsylvania

Date published: Aug 7, 2024

2024 Pa. Super. 171 (Pa. Super. Ct. 2024)

Opinion

2591 EDA 2021 J-E03004-23

08-07-2024

COMMONWEALTH OF PENNSYLVANIA v. KEVIN R. PETERS Appellant

MURRAY, J.

Appeal from the Judgment of Sentence Entered October 15, 2021 In the Court of Common Pleas of Bucks County Criminal Division at CP-09-CR-0003901-2020

BEFORE: PANELLA, P.J., LAZARUS, J., STABILE, J., DUBOW, J., KUNSELMAN, J., NICHOLS, J., MURRAY, J., McLAUGHLIN, J., and KING, J.

OPINION

MURRAY, J.

Kevin R. Peters (Appellant) appeals from the judgment of sentence imposed after a jury convicted him of two counts each of third-degree murder, aggravated assault - serious bodily injury (aggravated assault), recklessly endangering another person, homicide by vehicle while driving under the influence (DUI), aggravated assault by vehicle while DUI, homicide by vehicle, and aggravated assault by vehicle.¹ The trial court separately convicted Appellant of DUI - general impairment, DUI - high rate of alcohol, and the summary offenses of driving within single lane, following too closely, driving vehicle at safe speed, and reckless driving (collectively, the non-jury offenses).² Appellant challenges the sufficiency of the evidence supporting the jury's finding of malice, the mens rea required for his convictions of third-degree murder and aggravated assault. After careful consideration, we conclude the Commonwealth established the high degree of recklessness required for a finding of malice, and therefore, we affirm.

1 18 Pa.C.S.A. §§ 2502(c), 2702(a)(1), 2705; 75 Pa.C.S.A. §§ 3735(a)(1)(i), 3735.1(a), 3732(a), 3732.1(a).

2 75 Pa.C.S.A. §§ 3802(a)(1), 3802(b), 3309(1), 3310(a), 3361, 3736(a).

The trial court detailed the underlying facts:

Shortly after midnight on Friday, December 6, 2019, Nicholas Hafto called 911 police emergency and reported that he was driving on Interstate 95 (I-95) North, and that "there is a white Mazda SUV, swerving, almost sideswiped me, he came flying right by me." At trial, Mr. Hafto further explained that the SUV erratically changed speeds, back and forth from fast to slow. He stated that the SUV made an abrupt exit off I-95 at the Route 29 New Jersey exit, noting that while exiting, the operator of the SUV slammed on his brakes.

Another motorist, Scott Emrick, also called 911. He reported that he was also traveling on I-95 and observed a white Mazda SUV "swerving left and right." He also reported erratic acceleration, deceleration, and a sharp exit off I-95 and noted that the vehicle's headlights were not on.

Surveillance cameras captured images of the SUV as it exited I-95 into New Jersey. Approximately one minute later, the vehicle reentered [I-95] and proceeded South.

At approximately 1:00 a.m., Edmonde Sestini, Jr., a driver working for Clarion Ambulance, was driving South on I-95 at a speed between 50 and 60 miles per hour when a white Mazda SUV passed him at a high rate of speed. Mr. Sestini testified that the SUV "came flying past me on the left-hand side." Approximately half a minute later, and approximately [a] half-mile further down I-95, Mr. Sestini came upon the SUV stopped behind a second vehicle[,] which was facing north in the southbound lane of traffic and was completely engulfed in flames. One man had already

been able to get out of [the burning] vehicle, [and] another man was trying to get out. Mr. Sestini and his partner removed [Appellant] from behind the wheel of the SUV, and, due to [Appellant's] complaints of hip pain, placed him on the ground and dragged him away from the fire.

The collision occurred near the Ford Road overpass in Bristol Township, Bucks County. At approximately 1:05 a.m., the [Pennsylvania] State Police [(PSP)] were dispatched. Upon arrival at the scene, police found a van fully engulfed in flames and a 2016 Mazda CX-5 SUV … with heavy front-end damage. … [Appellant] was transported from the scene to Jefferson Torresdale Hospital in Northeast Philadelphia.

Two men involved in the collision, … Juan Tavarez [(Tavarez)], and his son, Charlys Tavarez Santelises [(Santelises),] were able to extricate themselves from the burning vehicle and make their way to Jefferson Torresdale Hospital. The bodies of [Tavarez's other son, Juan Jose Tavarez Santelises,] and Claribel Dominguez were removed from the rear seat of the van. Later that same day, forensic pathologist Dr. Ian Hood autopsied the bodies and determined to a reasonable degree of medical certainty that thermal burns caused the death of both individuals.

The survivors, [] Tavarez and [] Santelises, suffered permanent injuries and testified at length to the extent of their injuries and the treatment they received. …

* * *

Subsequent investigation into the cause of the collision revealed that the occupants of the van were driving on I-95 South[,] returning from working an 11-hour shift at a New Jersey package sorting plant. [] Tavarez, the driver of the van, drove at a speed of between 50 and 55 miles per hour as a precautionary measure due to a slight whistling sound in the van. Because of their reduced speed, … Tavarez[] activated his emergency flashers and moved into the right lane of traffic. The first indication that he had of what was about to occur was what Mr. Tavarez described to be like a bomb going off, immediately followed by an engulfing fire.

Trial Court Opinion, 3/4/22, at 1-3, 5 (citations to record omitted).

The trial court further summarized the evidence of Appellant's activities prior to the collision:

[Appellant] had spent the evening at an open bar social event before proceeding to two separate bars. The open bar event was held in a private room at Ruth's Chris Steak House in Philadelphia and ran from 5:00 p.m. through 8:00 p.m. During these hours[, Appellant] was drinking vodka. He and his co-workers then moved to the public bar[ at Ruth's Chris,] where [Appellant] consumed bourbon. Co-worker Jaquelyn Smith testified she had offered [Appellant] a ride home shortly after 10:00 p.m., but he declined, instead [] asking to be taken to another bar, the "Rogue's Gallery," with one of his co-workers. The other co-workers used private transport services. A receipt from the Rogue's Gallery indicated three drinks were ordered in total: one "Love City Lager" and two "Neshaminy 2X IPAs." [Appellant] testified that he consumed two of these drinks. The bill was paid at 12:18 a.m. Shortly thereafter, a video from the parking garage of [Appellant's] workplace showed that he was unable to operate the automated payment machine. [Appellant] physically lifted the gate to leave the garage[, damaging it]. Once he left the garage, surveillance cameras captured images of [Appellant] driving through a stop sign. Video surveillance footage from the Scudder-Falls Bridge area … shows [Appellant] changing lanes and exiting the highway without using turn signals.

On December 6, 2019, at 1:45 a.m., an employee of Jefferson Torresdale Hospital drew a blood sample from [Appellant]. Police seized a serum plasma sample from [Appellant] pursuant to a search warrant executed on December 18, 2019. That sample was later submitted to National Medical Services for analysis. … [Appellant] had a whole blood alcohol concentration (BAC) of .151 percent. Toxicologist Donna Papsun offered her expert opinion that an individual with a BAC of .151 percent is incapable of safe driving.³

[PSP] Corporal Brianne Glad, an accident reconstruction expert, testified that she downloaded information from the event

data recorder, or "black box," from [Appellant's] vehicle. That information established [Appellant] was traveling at a speed of 113 miles per hour [(mph)⁴ five seconds prior to the collision with the victims' van. … Half a second prior to the collision[, Appellant] was traveling at 115 miles per hour. [Corporal Glad testified Appellant] did not apply [his vehicle's] brakes until, at most, four-tenths of a second before impact.

Id. at 5-6 (emphasis and footnote added; citations to record omitted).

3 Toxicologist Papsun further testified that an individual with a BAC of .151% would have delayed reaction time, delayed perception, and impaired judgment. N.T., 9/15/21, at 149-51.

4 It is undisputed that (1) the posted speed limit was 55 mph; and (2) there were no weather, mechanical, or roadway conditions that caused or contributed to the collision.

Appellant testified at trial and admitted to consuming multiple alcoholic beverages over several hours. See N.T., 9/16/21, at 72, 85-86. Appellant stated that he nevertheless "felt fine to drive." Id. at 78. Immediately prior to the collision, Appellant testified, he attempted to retrieve his cell phone to utilize its GPS function, despite driving over 100 mph. Id. at 81; see also id. at 80-81 (Appellant stating he was lost and had missed his intended exit on I-95). Appellant conceded he (1) unbuckled his seatbelt; (2) took his eyes off of the road; (3) reached over to a backpack located on the passenger's side floorboard; and (4) grabbed his phone from inside the backpack. Id. at 81, 91; see also id. at 91 (Appellant stating on cross-examination he "thought it would be okay to reach down for a moment."). The collision ensued immediately thereafter. Id. at 81-82.

After the close of evidence, the trial court issued its charge to the jury. The court instructed as follows with respect to malice:

There's no one definition of malice because it can involve so many different circumstances and so many different factors…. And I am going to give you three separate explanations[.] … Malice is a shorthand way of referring to … particular mental states … of a defendant [] that the law regards as being bad enough to make the killing murder.

A killing is [committed] with malice if the defendant's actions show his wanton and willful disregard of an unjustified and extremely high risk that his conduct would result in death or serious bodily injury to another person. In this form of malice, the Commonwealth need not prove that the defendant specifically intended to kill anybody. The Commonwealth must prove, however, that the defendant took action or engaged in conduct [] consciously; that is, knowingly[] disregarding the serious risk that his conduct was creating[,] and that … his disregard of that risk demonstrates an extreme indifference to the value of human life.

The second way malice is described is a wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, a mind regardless of social duty that indicates an unjustified disregard for the probability of death or great bodily harm and an extreme indifference to the value of human life. …

… [T]he third way that the courts have defined malice is that the defendant consciously disregarded … an unjustified and extremely high risk that his actions might cause the death of another person or … [cause] serious bodily injury to another person.

N.T., 9/17/21, at 32-34 (formatting modified).⁵

5 The trial court's charge is consistent with the Pennsylvania Standard Criminal Jury Instructions. See Pa. SSJI (Crim) 15.2502C (third-degree murder); see also Commonwealth v. Chmiel, 30 A.3d 1111, 1184 (Pa. 2011) ("The law presumes that the jury will follow the instructions of the court." (citation omitted)).

The trial court additionally instructed: "[I]n deciding, you may not rely on evidence that [Appellant] became intoxicated of his own volition in order to conclude that he was so intoxicated that he lacked the mental state required for the crime to be committed." Id. at 59; see also Commonwealth v. Hutchinson, 25 A.3d 277, 312 (Pa. 2011) ("A defense of … voluntary intoxication[] is an extremely limited defense available only to those defendants who admit criminal liability but contest the degree of culpability based upon an inability to formulate the specific intent to kill.").

During deliberations, the jury asked the trial court for clarification with respect to the "three definitions of malice[.]" N.T., 9/17/21, at 72. The trial court then re-issued the same definitions detailed above. Id. at 72-74.

The jury found Appellant guilty of the aforementioned offenses, including third-degree murder and aggravated assault. The trial court convicted Appellant of the non-jury offenses. On October 15, 2021, the trial court sentenced Appellant to an aggregate 19½ - 39 years in prison.

Appellant filed a motion for reconsideration of sentence, which the trial court denied on November 9, 2021. This timely appeal followed. Appellant and the trial court have complied with Pa.R.A.P. 1925.

Appellant presents the following issue:

Was the evidence insufficient as a matter of law to sustain the verdicts for Third Degree Murder and Aggravated Assault Causing Serious Bodily Injury where the prosecution proof showed that Appellant, intoxicated, caused a tragic accident resulting in deaths and injuries but did not establish the requisite mens rea of malice?

Appellant's Brief at 5.

Appellant challenges the sufficiency of the evidence. This claim "presents a question of law, for which our standard of review is de novo and our scope of review is plenary." Commonwealth v. Packer, 168 A.3d 161, 166 (Pa. 2017).

[O]ur standard of review of sufficiency claims requires that we evaluate the record in the light most favorable to the verdict winner[,] giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence. Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt.

Commonwealth v. Sebolka, 205 A.3d 329, 336-37 (Pa. Super. 2010) (citation omitted).

In applying the above test, we may not weigh the evidence and substitute our judgment for that of the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances.

Commonwealth v. Dunphy, 20 A.3d 1215, 1219 (Pa. Super. 2011) (citation omitted).

Appellant claims the Commonwealth failed to present sufficient evidence to support a finding of malice, which is necessary to sustain his convictions of third-degree murder and aggravated assault. See Appellant's Brief at 18-27. Appellant emphasizes the Pennsylvania Supreme Court has stated, "the decision to drive while under the influence of alcohol and/or a controlled substance does not, standing alone, constitute malice." Id. at 19 (emphasis added) (quoting Packer, 168 A.3d at 170). According to Appellant, "[i]t is only when additional factors not present here are proved that malice can be found." Id. at 24 (citations omitted). Appellant avers his convictions contradict established precedent, which we discuss further below. Id. at 18 (Appellant claiming, "every precedential decision from the Pennsylvania Supreme Court and this Court confirm the insufficiency of the evidence as to malice"); see also id. at 27 (Appellant alleging the trial court, in its Pa.R.A.P. 1925(a) opinion, "cited to no decisional law that governs facts such as these").

Appellant further argues,

"Recklessness," by its nature, requires a "conscious" disregard of a substantial risk. 18 Pa.C.S. § 302. Because our Supreme Court has made clear that knowing one is drunk and then choosing to drive is not sufficient to establish this mens rea, see [] Packer, supra, there had to be something more that gave the driver[,] here, Appellant[,] the awareness "notice" that driving while inebriated that death was "essentially certain to occur."

Appellant's Reply Brief at 9-10 (brackets omitted); see also Appellant's Brief at 25 (claiming the notice or "'warning' could come from the defendant's own past, from the words of others, or from the circumstances of a particular case - it just had to be more than driving while intoxicated" alone).

The Commonwealth counters the evidence, viewed in the light most favorable to it as the verdict-winner, was sufficient for the jury to find Appellant acted with the mens rea necessary to sustain his convictions of third-degree murder and aggravated assault. Commonwealth Brief at 23, 30. The Commonwealth explains it

is not contending that drinking and driving "standing alone" constitutes malice, because the caselaw clearly demonstrates otherwise. Rather, it is the overwhelming and rampant instances of sustained recklessness[,] coupled with [Appellant's] drinking and ignoring the risks to the victims[,] that combined to demonstrate malice.

Id. at 31-32.

The Commonwealth further claims Appellant improperly "repeatedly attempts to impute [a] 'notice' or 'warning' requirement" to establish the mens rea necessary for both offenses. Id. at 49; see also id. at 46 (asserting "any sort of creation of a … requirement on third parties to take affirmative and overt actions to stop a defendant to establish the requisite malice is irrational and against established caselaw." (citations omitted)). According to the commonwealth, "Appellant had repeated opportunities to stop and reflect upon his choices." Id. at 45.

We begin by considering Packer, where the appellant, shortly before a fatal vehicle crash, repeatedly "huffed" (i.e., inhaled) aerosol dust cleaner, which caused her to become unconscious and lose control of her car. Packer, 168 A.3d at 163-64. Importantly, the appellant had a "history of losing consciousness after huffing and [] knowledge of the immediacy of the effects of huffing on her…." Id. at 171; see also id. (stating appellant "knew, from her numerous prior experiences with huffing, that the effects … on her were immediate, debilitating and persisted for ten to fifteen minutes following inhalation."). A jury convicted the appellant of third-degree murder and aggravated assault, among other offenses. Id. at 165.

The appellant appealed her judgment of sentence, challenging, in relevant part, the sufficiency of the evidence to support a finding of malice to sustain her convictions of third-degree murder and aggravated assault. Id. at 165-66. This Court affirmed. Id. at 166 (citing Commonwealth v. Packer, 146 A.3d 1281, 1285 (Pa. Super. 2016)). The appellant petitioned for allowance of appeal, which the Pennsylvania Supreme Court granted. Id. at 166.

Before addressing the appellant's sufficiency challenge, the Packer Court observed that "an impaired driver who causes the death of another does not typically act with the requisite malice to support convictions of third-degree murder and aggravated assault." Id. at 166 (citing Commonwealth v. Kling, 731 A.2d 145, 148 (Pa. Super. 1999) ("motor vehicle crashes seldom give rise to proof of the malice needed to sustain a conviction for third degree murder or aggravated assault.")); see also Packer, 168 A.3d at 170 ("the mens rea generally associated with the decision to drive under the influence is ordinary recklessness and does not constitute malice."). However, the Packer Court recognized that "each case must be analyzed on its own facts against the standard established by this Court." Id. at 167-68 (emphasis added).

Packer discussed the requisite mens rea to sustain convictions of third-degree murder and aggravated assault:⁶

6 "There is no distinction between the malice essential to third degree murder and that necessary for aggravated assault." Kling, 731 A.2d at 147; see also Commonwealth v. O'Hanlon, 653 A.2d 616, 618 (Pa. 1995) (aggravated assault is the functional equivalent of a murder in which, for some reason, death fails to occur).

[O]ur courts have consistently held that malice is present under circumstances where a defendant did not have an intent to kill, but nevertheless displayed a conscious disregard for an unjustified and extremely high risk that his actions might cause death or serious bodily harm.

Id. at 168 (citations and quotation marks omitted); see also id. at 172 (stating the "standard for malice … requires recklessness of consequences and the conscious disregard for an unjustified and extremely high risk that a chosen course of conduct might cause a death or serious personal injury."). The Court elaborated,

[i]n the DUI context, this Court has held that the decision to drive while under the influence of alcohol and/or a controlled substance does not, standing alone, constitute malice. … O'Hanlon, 653 A.2d at 618. We observed that neither "ordinary negligence" nor "mere recklessness" is sufficient to satisfy the mens rea of aggravated assault. Id. at 617-18. Instead, we found that the crime "requires a higher degree of culpability, i.e., that which considers and then disregards the threat necessarily posed to human life by the offending conduct," and entails "an element of deliberation or conscious disregard of danger." Id. at 618.

For the degree of recklessness contained in the aggravated assault statute to occur, the offensive act must be performed under circumstances which almost assure that injury or death will ensue. The recklessness must, therefore, be such that life threatening injury is

essentially certain to occur. This state of mind is, accordingly, equivalent to that which seeks to cause injury. Id.

The O'Hanlon Court found that the requisite mens rea is only met in circumstances where "the defendant could reasonably anticipate that serious bodily injury or death would be the likely and logical consequence of his actions ... [but] the consequence was ignored." Id.

Packer, 168 A.3d at 170 (emphasis added; formatting modified).

The Packer Court held the totality of the evidence was sufficient to sustain the appellant's convictions, where she huffed "both immediately prior to and while operating a vehicle on a public highway"; knew from warning labels that "this product was not intended to be ingested"; and had a known history of becoming unconscious from huffing. Id. at 171. The Supreme Court stated,

This is not a typical case of ordinary recklessness that arises when someone chooses to drive while intoxicated. See O'Hanlon, 653 A.2d at 618…. [Appellant] consciously disregarded an unjustified and extremely high risk that her chosen course of conduct might cause a death or serious bodily injury. See id. Because of [appellant's] history of losing consciousness after huffing and her knowledge of the immediacy of the effects of huffing on her, she "could reasonably anticipate that serious bodily injury or death would be the likely and logical consequence of [her] actions ... [but] the consequence was ignored." Id.

Packer, 168 A.3d at 171 (emphasis added; some citations omitted; some citations modified); see also id. at 172 ("There is a significant difference between deciding to drive while intoxicated and deciding to drive with knowledge that there is a strong likelihood of becoming unconscious.").

In Kling, this Court rejected the appellant's sufficiency challenge to his third-degree murder and aggravated assault convictions. Kling, 731 A.2d at 150. While the appellant was not intoxicated, we held he maliciously exhibited sustained recklessness prior to a fatal car crash, despite an obvious risk of harm to others, while "racing" another driver at a high rate of speed on a dangerous mountain road. Id. The Kling Court stated:

Appellant was deliberately racing his high-powered car at speeds of 75-80 m.p.h. on a two and one-half mile stretch of a curvy mountain road. He was familiar with this road, having traveled it two to three times per week for over a year prior to the crash. He passed five cautionary signs warning him to slow down around the treacherous curves. In spite of these warnings, appellant proceeded at high rates of speed and, cutting the curves in order to negotiate the turns, he nearly hit [a motorist] driving in the opposite lane of travel. Without a doubt, the aggregate of these circumstances plainly warned appellant his conduct was nearly certain to result in a serious or fatal disaster. Nevertheless, he consciously disregarded this awareness and continued his race for eight-tenths of a mile after running [a motorist] off the road. Illegally passing two pick-up trucks, sustaining his reckless and malicious conduct, appellant sped into a dangerous double blind curve[,] where he smashed into the victims.

Id. (emphasis added).

The Kling Court observed that motor vehicles "still outdistance firearms as the most dangerous instrumentality in the hands of irresponsible persons in our society today." Id. Importantly, we held, "a conviction based on malice is appropriate where evidence demonstrates the element of sustained recklessness⁷ by a driver in the face of an obvious risk of harm to his victims." Id. at 149 (footnote added; emphasis in original).

7 Kling defined "sustained recklessness" as a pattern supported by the facts and circumstances of the case, which exhibits

the sustained, purposeful recklessness necessary to prove a knowing and conscious disregard that death or serious bodily injury was reasonably certain to occur. Indeed, these circumstances are facts which allow a [factfinder] to find the [accused] had time and reason to calculate and reflect upon a deadly condition taking place, such that recklessness and malice exist.

Kling, 731 A.2d at 150 (quotation marks omitted).

In Dunphy, the appellant drove after consuming a large amount of alcohol and struck and killed a pedestrian attempting to cross the street. Dunphy, 20 A.3d at 1216-17. This Court rejected the appellant's sufficiency challenge to his third-degree murder conviction, and upheld the jury's finding that he acted with the requisite malice. Id. at 1219-20. We stated, "[m]alice may be inferred by considering the totality of the circumstances." Id. at 1219 (emphasis added) (citing Commonwealth v. Thomas, 656 A.2d 514, 516 (Pa. Super. 1995)). The Dunphy Court held malice existed under the totality of the circumstances, comprised of the following factors:

• "The intoxicated condition of appellant[] and the excessive rate of speed he was traveling on a street where pedestrians were present";

• "The absence of any testimony that there was a physical or climatic condition that would explain his failure to stop before or after the accident";

• Appellant admitted "that although he saw pedestrians in front of him, he speeded up to make the [red traffic] light"; and

• Appellant's flight after striking a pedestrian.

Id. at 1219-20 (some capitalization altered).

Finally, in Commonwealth v. Urbanski, 627 A.2d 789, 793 (Pa. Super. 1993), this Court found the Commonwealth presented sufficient evidence to support the jury's finding of malice for a third-degree murder conviction, where the intoxicated appellant drove and struck an oncoming vehicle, causing the death of the appellant's passenger. Id. at 791, 793-94. The appellant drove after consuming large amounts of alcohol; appellant ignored his passenger's repeated pleas to stop driving erratically; and there were no weather or road conditions to explain the accident. Id. at 793-94. We held that the appellant, under the totality of the circumstances, "was or should have been aware of the danger that could result from driving so fast and so recklessly, especially after having had so much to drink." Id. at 794 (emphasis added).

Instantly, the trial court found the totality of the evidence established the requisite malice to sustain Appellant's third-degree murder and aggravated assault convictions:

Upon review of the record in this matter, this [c]ourt finds the evidence to be sufficient to support the jury's finding of malice. The evidence established that [Appellant], a Bucks County resident, attended an open bar holiday party in Philadelphia after work the evening before the collision. Rather than taking the train, which was his habit when traveling back and forth from

work, [Appellant] chose to drive into Philadelphia. N.T., 9/16/21, at 49-51, 57-58, 83-84. He stayed at the party for approximately three hours, where he consumed vodka. Rather than proceeding home, he went to the public bar[,] where he remained for another two hours, this time drinking bourbon. Shortly after 10:00 p.m., approximately five hours after consuming his first drink, he rejected an offer of a ride home, instead choosing to go to yet another bar where he continued to drink. He stopped consuming alcohol sometime shortly before 12:18 a.m., approximately seven hours after he began to drink. Despite the availability of hotels and other transportation options, and knowing that he was substantially impaired, he chose to drive home. That decision remained unaltered even though he could not manage to get out of the [parking] garage without forcing his way out.

[Appellant's] decision-making continued to demonstrate a conscious disregard for the safety of others. … On I-95, while intoxicated, he traveled without headlights, at high rates of speed, [and] alternated his speed from fast to slow. He did not use his turn signals and continuously changed lanes and passed other vehicles too closely, all of which created such a dangerous situation that two drivers felt compelled to take evasive action and call 911. N.T., 9/13/21, at 138-40, 151, 153; N.T. 9/14/21, at 7, 9. At the time [Appellant] rear-ended the victims' vehicle, he was driving at a speed of 115 mph. By his admission, [Appellant] did not have his eyes on the highway[,] since he was reaching down into a backpack on the passenger floor to retrieve his phone…. N.T., 9/16/21, at 81-82, 91. As a result, he did not apply his brakes until less than half a second before impact.

After drinking continuously for at least six hours, [Appellant's] decision to drive at extreme speeds while weaving through traffic on a high-speed interstate highway "is not a typical case of ordinary recklessness that arises when someone chooses to drive while intoxicated." [] Packer, 168 A.3d at 171. To continue to drive in that fashion after nearly sideswiping two other vehicles who were forced to take evasive action demonstrates "a conscious disregard for 'an unjustified and extremely high risk that [Appellant's] actions might cause death or serious bodily harm.'" Id. at 168. Under all these circumstances, [Appellant's] decision to attempt to retrieve his phone …, drawing his attention from the roadway for such a long time that he did not perceive a clearly visible vehicle in front of him and

failed to apply his brakes until less than half of a second before the collision, "brought about a situation so unnecessarily dangerous to human life" it all but "assure[d] that injury or death [would] ensue." Id. at 170. Therefore, there is sufficient evidence to support the jury's finding of malice.

Trial Court Opinion, 3/4/22, at 10-12 (emphasis added).

Our review confirms the trial court's foregoing reasoning is supported by the record and the law. See id. This case is factually distinct from Packer, wherein the appellant was intoxicated from huffing and had a history of becoming unconscious from huffing. See, e.g., Packer, 168 A.3d at 171-72 ("There is a significant difference between deciding to drive while intoxicated and deciding to drive with knowledge that there is a strong likelihood of becoming unconscious."). Nevertheless, like Packer, we conclude "[t]his is not a typical case of ordinary recklessness that arises when someone chooses to drive while intoxicated." Id. at 171; see also id. at 167-68 (stating that "each case must be analyzed on its own facts").

Moreover, upon careful review, we find the cases upon which Appellant relies are distinguishable. Appellant argues this case is governed by Commonwealth v. Comer, 716 A.2d 593 (Pa. 1998), superseded by statute on other grounds. See Appellant's Brief at 22-23; Appellant's Reply Brief at 6. The appellant in Comer drove while intoxicated (after consuming alcohol⁸ and prescription muscle relaxers), and struck two people waiting for a bus, killing one and seriously injuring the other. Comer, 716 A.2d at 595. The appellant was driving at an excess speed (approximately 10-20 mph over the speed limit), and his vehicle left the road after one of the tires struck a curb. Id. Additionally, "there was no [] evidence indicating that [a]ppellant quickly applied his brakes," nor any "obstruction on the roadway at the time of the accident." Id. The Comer Court held that the evidence was insufficient to prove the appellant acted with malice necessary to sustain his conviction of aggravated assault, id. at 596-97, finding that the "Commonwealth did not establish that [a]ppellant possessed the state of mind equivalent to that which seeks to cause injury." Id. at 596.

8 The appellant's BAC was 0.33%. Comer, 716 A.2d at 595.

We find Comer distinguishable. As this Court stated in Kling:

Unlike Comer, the crash here did not ensue immediately after the driver became aware of his life-threatening conduct. To the contrary, [A]ppellant had adequate time to calculate and reflect upon the consequences of his reckless conduct, thus rendering the choice to continue it malicious.

Kling, 731 A.2d at 150 (emphasis added).

Appellant also relies on another distinguishable case, Commonwealth v. McHale, 858 A.2d 1209 (Pa. Super. 2004). Appellant's Brief at 24; Appellant's Reply Brief at 6-7. In McHale, the appellant drove his car after consuming a significant amount of alcohol, despite lacking a driver's license and insurance coverage. Id. at 1211. An off-duty police officer observed the appellant get into his car and leave a parking spot; he "revved the engine and then sped through the driveway adjacent to the bar prior to turning onto the road."⁹ Id. Immediately thereafter, the officer watched appellant's car "come into contact with a car parked on the side of the road and then collide with two people who had been standing near the car…." Id. The appellant "continued to drive away from the scene over [the officer's] shouts to stop." Id. On appeal, this Court agreed with appellant that the evidence was insufficient to establish the malice necessary to sustain his convictions of aggravated assault, stating his "actions do not rise to the requisite level of mens rea to show malice. [The appellant] was clearly negligent, but his actions did not rise to the level of recklessness required to support a conviction for aggravated assault." Id. at 1214.

9 The posted speed limit of the relevant section of road was 35 mph; the appellant was driving between 35 - 50 mph. McHale, 858 A.2d at 1211.

Appellant also relies upon Commonwealth v. Dellavecchia, 725 A.2d 186 (Pa. Super. 1999) (en banc). Appellant's Brief at 23; Appellant's Reply Brief at 7-8. There, the appellant, who had a BAC of .194%, drove his truck in the parking lane of a highway, well in excess of the speed limit, and collided with another vehicle, causing injuries to multiple people. Id. at 187. On appeal, the appellant challenged the sufficiency of the evidence supporting his convictions for aggravated assault, claiming the mens rea element was absent, as his conduct was not malicious. Id. at 188. This Court agreed, relying primarily upon Comer, supra. Id. ("Pursuant to … Comer, we are constrained to conclude that the evidence here is insufficient to establish the mens rea element needed to sustain [a]ppellant's convictions for aggravated assault.").

The Dellavecchia Court held,

[l]ike Comer, [a]ppellant drove at an excessive rate of speed over congested city streets, weaving in and out of traffic, prior to the crash. Also like the defendant in Comer, [a]ppellant was under the influence of intoxicating substances, as he stipulated at trial to the fact that he had a blood alcohol content of .194%. If anything, the conduct in Comer was more egregious in that Comer made no attempt to apply his brakes or reduce his speed prior to striking the pedestrians. Comer, … 716 A.2d at 595. Appellant, however, did apply his brakes in an effort to avoid impact.

As an intermediate appellate court, we are bound to apply the decisions of our Supreme Court absent a legally relevant distinction. Because the facts of this case are substantially similar to those presented in Comer, we conclude that the evidence was insufficient to establish that [a]ppellant possessed a state of mind equivalent to that which seeks to cause injury. We therefore reverse [a]ppellant's aggravated assault convictions.

Id. at 189 (citations to record and footnote omitted).

We conclude McHale and Dellavecchia, like Comer, are primarily distinguishable from the instant case because "the crash here did not ensue immediately after the driver became aware of his life-threatening conduct." Kling, 731 A.2d at 150 (distinguishing Comer). To the contrary, Appellant had ample opportunity to reflect upon and cease his reckless conduct, yet he persisted over a considerable period of time. See, e.g., Kling, 731 A.2d at 150 ("appellant had adequate time to calculate and reflect upon the consequences of his reckless conduct, thus rendering the choice to continue it malicious."). Moreover, Appellant was speeding at an excessive rate that was drastically higher than the situation in Comer, McHale, and Dellavecchia.

The evidence showed that Appellant, after drinking to excess over several hours, attempted to exit his parking garage, but could not operate the garage's payment machine. See N.T., 9/15/21, at 182-83, 191-93; N.T., 9/16/21, at 73-74. Appellant then damaged the gate when he forcibly opened it to exit. See N.T., 9/15/21, at 185; N.T., 9/16/21, at 76. Appellant's difficulties in exiting the garage certainly alerted him that he was too intoxicated to drive safely. Yet he was not deterred.

After Appellant began driving, numerous instances alerted him that continuing to drive, while significantly impaired, posed an extremely high and unjustifiable risk to others. Indeed, Appellant violated numerous traffic laws, drove recklessly for nearly an hour before the collision, and narrowly avoided hitting two other motorists on I-95 (prompting both motorists to call 911 to report Appellant's hazardous driving). See N.T., 9/13/21, at 138-41, 151; N.T., 9/14/21, at 7, 10; N.T., 9/15/21, at 90. Appellant twice missed his intended exit on I-95, despite having lived in the area for six years. See N.T., 9/15/21, at 203-04; N.T., 9/16/21, at 47, 79-81, 89-90. Immediately before the collision, the intoxicated Appellant admittedly took his eyes off the road while driving over 100 mph, and reached over to the passenger-side floorboard to retrieve his phone. See N.T., 9/16/21, at 81-82, 91.

Under the totality of the circumstances, the evidence was sufficient to demonstrate Appellant "displayed a conscious disregard for an unjustified and extremely high risk that his actions might cause death or serious bodily harm." Packer, 168 A.3d at 168 (citations omitted). Appellant's extremely reckless conduct, especially by continuing to speed excessively after two near collisions, and taking his eyes off the road while significantly intoxicated, "virtually guarantee[d] some manner of accident w[ould] occur through the intentional doing of an uncalled-for act in callous disregard of its likely harmful effects on others." Id. at 171 (citations omitted). Appellant maliciously exhibited sustained recklessness over a considerable period of time prior to the fatal crash, despite an obvious risk of harm to other motorists and the general public. See Kling, 731 A.2d at 149 ("a conviction based on malice is appropriate where evidence demonstrates the element of sustained recklessness by a driver in the face of an obvious risk of harm to his victims." (emphasis in original)).

We acknowledge this case presents a close call. Nevertheless, we cannot conclude that the totality of the evidence with respect to malice "is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances." Dunphy, 20 A.3d at 1219. We will not usurp the province of the jury. See Commonwealth v. Sanchez, 82 A.3d 943, 972 (Pa. 2013) (in reviewing a sufficiency challenge, we "may not substitute our own judgment for the jury's, as it is the fact-finder's province to weigh the evidence, determine the credibility of witnesses, and believe all, part, or none of the evidence submitted."). Viewing the evidence, as we must, in the light most favorable to the Commonwealth, we conclude the record supports the jury's finding that Appellant acted with the requisite malice to sustain his convictions of third-degree murder and aggravated assault. See Packer, 168 A.3d at 169-71; Kling, 731 A.2d at 149-50; Urbanski, 627 A.2d at 793-94. Accordingly, we affirm Appellant's judgment of sentence.

Judgment of sentence affirmed.

P.J. Panella, Judge Nichols, and Judge King join the Opinion.

Judge Stabile joins the Opinion and files a Concurring Opinion in which P.J. Panella, Judge Murray and Judge King join.

Judge Lazarus files a Dissenting Opinion in which Judge Dubow, Judge Kunselman and Judge McLaughlin join.

CONCURRING OPINION

STABILE, J.

I fully concur with the reasoning and disposition of the Majority's opinion but write separately to address several points raised by my learned colleague in her Dissent.

The Dissent first suggests that the trial court applied a less stringent malice standard than controlling caselaw permits. An element of both third-degree murder and aggravated assault is that the defendant acted with malice. An impaired driver acts with malice by exhibiting "recklessness of consequences," and a disregard of "unjustified and extremely high risk that his actions might cause death or serious bodily injury." Commonwealth v. Kling, 731 A.2d 145, 147-48 (Pa. Super. 1999).

According to the Dissent, "malice" requires reckless conduct to be exhibited in a way that makes the act "essentially certain to cause the death or serious bodily injury," and it "is insufficient to prove that someone's bad decisions could have, may have, or likely would result in death or serious bodily injury." Dissenting Opinion, at 8 (emphasis in original). The Dissent finds that the latter standard, applied by the Majority, is "a significant departure from the heightened burden that Pennsylvania courts have routinely required." Id., at 8 n.2.

The Dissent relies heavily on our Supreme Court's decision in Commonwealth v. Packer, 168 A.3d 161 (Pa. 2017). However, I respectfully disagree that the case supports the Dissent's position. Packer explained that "our courts have consistently held that malice is present under circumstances where a defendant did not have an intent to kill, but nevertheless displayed a conscious disregard for an unjustified and extremely high risk that his actions might cause death or serious bodily harm." Packer, 168 A.3d at 168 (quotation marks and internal citations omitted, emphasis added).

After reviewing years of precedent on the issue, the Packer Court reaffirmed the standard for "malice," holding that it "requires recklessness of consequences and the conscious disregard for an unjustified and extremely high risk that a chosen course of conduct might cause a death or serious personal injury." Id. at 172 (emphasis added). The Majority's holding here is completely in line with the holding of that case.¹

1 Our Supreme Court over time has consistently described "malice" as knowledge of conduct that "might cause death or serious bodily injury." See Packer, 168 A.3d at 166, 171; Commonwealth v. Ludwig, 874 A.2d 623 (Pa. 2005); Commonwealth v. Paddy, 800 A.2d 294, 324 (Pa. 2002); In Interest of Smith, 579 A.2d 889, 895 (Pa. 1990); Commonwealth v. Young, 431 A.2d 230, 232 (Pa. 1981); Commonwealth v. Hare, 404 A.2d 388, 391 (Pa. 1979); Commonwealth v. Garcia, 378 A.2d 1199, 1206 (Pa. 1977); In re Estate of Klein, 378 A.2d 1182, at n.21 (Pa. 1977); Commonwealth v. Taylor, 337 A.2d 545, 565-66 (Pa. 1975) (Roberts, J., concurring). So too has the Superior Court, see Commonwealth v. Akhmedov, 216 A.3d 307, 316 (Pa. Super. 2019), appeal denied, 224 A.3d 364 (Pa. 2020); Commonwealth v. Knox, 219 A.3d 186, 195 (Pa. Super. 2019), appeal denied, 228 A.3d 256 (Pa. 2020); Commonwealth v. Thompson, 106 A.3d 742, 757 (Pa. Super. 2014), appeal denied, 134 A.3d 56 (Pa. 2016); Commonwealth v. Holley, 945 A.2d 241, 247-48 (Pa. Super. 2008), appeal denied, 959 A.2d 928 (Pa. 2008); Commonwealth v. Smith, 956 A.2d 1029, 1036-37 (Pa. Super. 2008), appeal denied, 989 A.2d 917 (Pa. 2010); Commonwealth v. Bruce, 916 A.2d 657, 664 (Pa. Super. 2007), appeal denied, 932 A.2d 74 (Pa. 2007); Commonwealth v. McClendon, 874 A.2d 1223, 1229 (Pa. Super. 2005); Commonwealth v. Baskerville, 681 A.2d 195, 200 (Pa. Super. 1996), appeal denied, 689 A.2d 230 (Pa. 1997); and Commonwealth v. Scales, 648 A.2d 1205, 1207 (Pa. Super. 1994), appeal denied, 659 A.2d 559 (Pa. 1995), although on occasion we have stated that when malice is based on recklessness, conduct must be such that "death or bodily injury would likely and logically result." See Commonwealth v. Luster, 71 A.3d 1029, 1055 (Pa. Super. 2013) (Ott, J., concurring), appeal denied, 83 A.3d 414, (Pa. 2013); Commonwealth v. Faulk, 928 A.2d 1061, 1070 (Pa. Super. 2007), appeal denied, 944 A.2d 756 (Pa. 2008); Commonwealth v. Bruce, 916 A.2d 657, 664 (Pa. Super. 2007), appeal denied, 932 A.2d 74 (Pa. 2007); Commonwealth v. Allen, 833 A.2d 800, 803 (Pa. Super. 2003), appeal denied, 860 A.2d 488 (Pa. 2004); Commonwealth v. Hackenberger, 795 A.2d 1040, 1044, (Pa. Super. 2002), aff'd 836 A.2d 2 (Pa. 2003); Commonwealth v. Lowery, 784 A.2d 795, 802 (Pa. Super. 2001), appeal denied, 796 A.2d 980 (Pa. 2002); and Kling, supra. It is evident from these cases that when this Court has used the term "likely," there has been no indication that a meaning other than "might" was intended. The terms have been used interchangeably.

The Dissent would nevertheless adopt a more stringent standard of malice requiring a defendant to be "essentially certain" that his conduct would cause death or serious bodily injury. The Dissent draws this standard from Packer's summary of Commonwealth v. O'Hanlon, 653 A.2d 616, 618 (Pa. 1995), where malice was described as a degree of recklessness in which the offensive act was "performed under circumstances which almost assure that injury or death will ensue." Packer, 160 A.3d at 170 (quoting O'Hanlon, 653 A.2d at 618). Further, "the recklessness must . . . be such that life threatening injury is essentially certain to occur." Id. (quoting O'Hanlon, 653 A.2d at 618).

But this was not the final word in Packer. The Court went on to describe malice as a state of mind in which "the defendant could reasonably anticipate that serious bodily injury or death would be the likely and logical consequence of his actions . . . [but] the consequence was ignored." Id. (quoting O'Hanlon, 653 A.2d at 618). Later in the Packer opinion, the Court cited examples of cases where malice was proven, reiterating that "[i]n each of these instances, the defendant could reasonably anticipate that serious bodily injury or death would be the likely and logical consequence of his actions." Id. (emphasis added). At the conclusion of the opinion, when issuing its holding, the Packer Court again repeated the malice standard as requiring a conscious disregard for the risks of conduct that "might cause a death or serious personal injury." Id., at 172.

Accordingly, it does not appear that, by referencing O'Hanlon, our Supreme Court had any intention of applying a more exacting standard for malice as stated by the Dissent here. Instead, the Court has time and again equated malice with reckless conduct that "might cause a death or serious bodily injury." See Packer, 168 A.3d at 172.²

2 Admittedly, the Packer Court created some tension in using the somewhat incompatible terms, "essentially certain" and "might." We must nevertheless accept the Court's latest and final statement of the law that "[t]he standard for malice enunciated in Dunn, reiterated in O'Hanlon and reaffirmed today requires recklessness of consequences and the conscious disregard for an unjustified and extremely high risk that a chosen course of conduct might cause a death or serious personal injury." Packer, 168 A.3d at 172 (emphasis added).

I see as the Dissent's second error its statement that Appellant's life-threatening decisions leading up to the accident were irrelevant to the issue of malice. Appellant's decision to drive his vehicle instead of taking a train or taxi, and to use a highway rather than a local road, are in the Dissent's view, of no moment. See Dissenting Opinion, 8-9. Further, the Dissent construes the decision to drive while intoxicated as incidental to the offense of DUI, reasoning that every DUI homicide would result in a third-degree murder conviction if that fact alone evidences a defendant's malice. Id., at 8.

By viewing those lone facts in isolation, I believe the Dissent fails to appreciate both the role of the fact-finder and our standard of review. Appellant's decision to drink and drive on a highway was but one piece of the totality of the circumstances which the jury was entitled to consider. On review of a ruling on evidentiary sufficiency, we must construe all the evidence admitted at trial in the light most favorable to the verdict winner, and then determine if there was any record evidence that would establish every element of a crime beyond a reasonable doubt. See Commonwealth v. Smith, 97 A.3d 782, 790 (Pa. Super. 2014).

While a single fact alone may not support malice, its contribution to the totality of the facts in a case may lend itself to such a finding. See Commonwealth v. Dunphy, 20 A.3d 1215, 1219 (Pa. Super. 2011). Indeed, the Court upheld a finding of malice in Packer because there was evidence that the defendant's reckless conduct had ensued after "she decided to drive a vehicle under the influence of [inhaling difluoroethane, DFE]. Packer, 168 A.3d at 172.

As importantly, I find the Dissent's third error to be in interpreting our precedent to require that advance "warning" or "notice" must have been given to Appellant prior to the accident in order for a finding of malice to be made. This precondition was inferred by the Dissent from our Supreme Court's opinion in Packer despite that the terms, "notice" and "warning" were never used in that decision.

The Dissent suggests that "notice" or "warning" are shorthand references to the malice standard, which is met "when a perpetrator consciously disregards an unjustified or extremely high risk that his actions might cause death or serious bodily injury." See Dissenting Opinion, at 4 n.1. The Dissent's application of its "shorthand," however, belies its contention that it is using "notice" and "warning" merely as substitutes for the established standard for "malice."

For example, the Dissent dismisses the 911 calls of Nicholas Hafto and Scott Emerick that described Appellant's driving as negligent, careless, and reckless because neither of these drivers attempted to communicate to Appellant that he was driving in that manner. See id., at 10-11. The Dissent dismisses the lack of illumination on Appellant's car since he was never alerted to any issues with his lights. Id. at 13 n.7. The Dissent dismisses Jacquelyn Smith's offer to provide a ride to Appellant because she did not first warn him that he had consumed too much alcohol to drive safely. Id. at 11-12. The Dissent also concludes that none of the following constitute the "warning" necessary to support a finding of malice: Appellant's inability to operate the parking kiosk, record silence as to whether Appellant had a history of drunk driving, and knowledge that every adult knows the dangers of alcohol. Id. at 9-10.

Our caselaw does not speak to whether any of those specific scenarios necessarily inform a motorist that continuing a pattern of conduct would rise to the level of what a court would call "malice." Instead, such incidents would constitute the unique facts of a case that when considered in totality, may or may not prove that state of mind. I do not question that if a defendant receives a "warning" about the risks of his conduct that such evidence may be probative as to whether he had a conscious disregard of an extremely high risk that death or personal injury might occur. See Commonwealth v. Urbanski, 627 A.2d 789, 793 (Pa. Super. 1993) (appellant recklessly disregarded wife's protests about the risks of his erratic driving and the probability of a tragic result). But that is a far different than a judicial rule that prohibits a finding of malice where the defendant did not receive warning from a third-party regarding the risks of his conduct. As such a rule would depart from our established precedent and constitute judicial fact-finding, it was properly rejected by the Majority.

Finally, I take issue with the Dissent's fourth and final error in what I consider to be reweighing several pieces of evidence to support its conclusion that malice was not proven. The common thread in each of these instances is, I believe, that the Dissent has usurped the role of the fact-finder by drawing inferences in Appellant's favor despite that an opposite inference may reasonably be drawn from the evidence.

The Dissent states that Smith's offer of a ride home could not contribute to a finding of malice because she also offered a ride to every co-worker on the night in question, she too was drinking alcohol, and she did not warn Appellant that he had consumed too much alcohol to drive. See Dissenting Opinion, at 11-12. But viewed in the light most favorable to the Commonwealth, the jury could have inferred from Smith's offer to Appellant that she was concerned about his ability to drive regardless of her offer to drive other co-workers home.

The Dissent states that all of the video evidence presented at trial established that Appellant's headlights were on and functioning, precluding the jury from finding malice based on the reports given by Hafto and Emerick that the lights appeared to be off prior to the accident. Id. at 13 n.6. At best, however, there was conflicting evidence as to whether Appellant consciously disregarded the danger of not having his vehicle illuminated. This was an issue for the jury, and I see no basis in the law or in the facts of this case to state, as the Dissent does, that we must presume Appellant reasonably thought the lights were operational because he never received "warning" or "notice" to the contrary.

The Dissent next states that Appellant's malice, or sustained recklessness, could not be proven because he at times drove below the speed limit, he exited the highway safely, and Hafto and Emerick reported that Appellant attempted to avoid colliding with their vehicles. These facts, however, must be viewed in a light most favorable to the Commonwealth, and as part of the totality of all the other facts in the case. As such, the jury was free to disregard those facts as evidence that Appellant lacked malice; the jury was also free to consider other evidence of his conduct as proof of reckless driving.

The Dissent's impermissible reweighing of the evidence is best illustrated by its treatment of the "black box" analysis given by the state police accident reconstructionist, Corporeal Brianne Glad. The Dissent suggests that Appellant could not have acted with malice as a matter of law because the accident reconstruction showed that he applied the brakes of his vehicle four-tenths of a second prior to the crash. See id., at 12-14. Here again, the Dissent overlooks that the jury was entitled to consider this evidence in a more culpable light, and in the context of all the surrounding circumstances.

It is undisputed that, at the time of impact, Appellant was driving 115 MPH, which was 60 MPH over the posted limit. At that speed, Appellant covered 168 feet per second,³ making it impossible for nearly any driver to maintain control. Yet, while travelling at such an excessive speed that maneuvering the vehicle safely was impossible, Appellant made a conscious decision to take his eyes off the road and reach for his phone. Any attempt to brake less than half a second before impact would have been rendered futile by numerous other reckless decisions he had already made that night.

3 Miles per hour (MPH) may be converted to feet per second by multiplying MPH by the value, 1.467. See Miles per Hour to Feet per Second Converter, available at https://www.inchcalculator.com/convert/mile-per-hour-to-foot-per-second/ (last visited July 2, 2024).

These circumstances were, in my view, sufficient for the jury to find malice despite Appellant's purported attempt to apply his brakes. The jury was in no way bound to find a lack of malice simply because Appellant made, at most, a token effort to avert disaster. Moreover, the evidence that the brake was applied in Appellant's vehicle was not necessarily exculpatory as the Dissent presumes - it was just as probable that Appellant touched the brake pedal inadvertently while reaching for his phone on the floor of his vehicle.⁴ Again, this Court must construe the evidence in the light most favorable to the Commonwealth, not Appellant. Thus, the Dissent's recasting and reweighing of the evidence violates our standard of review and invades the fact-finding prerogative of the jury.

4 I would further add that the Dissent makes a leap in assuming that Appellant's attempt to brake was a "conscious" attempt to avoid a collision or display concern for others, precluding a finding of malice. At that speed, and at Appellant's level of intoxication, the jury could have inferred that an attempt to brake was merely reflexive, and not indicative of a break in the chain of sustained recklessness.

Having addressed what I consider to be the problematic aspects of the Dissent, I wish to conclude by highlighting the prevalent, predictable, tragic and senseless harm caused by those who decide to drink and drive.

According to the National Highway Safety Administration, "[e]very day, about 37 people in the United States die in drunk-driving crashes - that's one person every 39 minutes. In 2021, 13,384 people died in alcohol-impaired driving traffic deaths - a 14% increase from 2020."⁵ For years, national campaigns and public service announcements have responded to these statistics by warning against drinking and driving, making it impossible for any driver to credibly claim not to know that such conduct is often fatal. Yet, it appears that this destructive behavior remains unabated.

5 See Drunk Driving Overview https://www.nhtsa.gov/risky-driving/drunkdriving#:~:text=Overview,a%2014%25%20increase%20from%202020 (last visited July 2, 2024).

I therefore find it worth repeating the words of the dissent in Commonwealth v. O'Hanlon, 653 A.2d 616 (Pa. 1995) (Papadakos, J., dissenting), which aptly capture the frustration and senseless loss of lives due to drunk driving as we once again are forced to consider the issue of malice in that context:

In this day and age when thousands and thousands of innocent travelers upon the nation's highways are being mangled and slaughtered each year by drunken drivers, the time is long past due when this court must say STOP, ENOUGH IS ENOUGH! Drunk drivers are brainless lethal weapons.

Is there anyone in America today who has been licensed to drive that does not know of the dangers of driving while in a state of intoxication? How can we say that a person who voluntarily drinks intoxicating beverages knowing that he or she will most likely drive a motor vehicle during the drinking session, or shortly thereafter, is not acting under circumstances manifesting extreme indifference to the value of human life?

O'Hanlon, 653 A.2d at 618-19 (Papadakos, J., dissenting).

These sentiments ring as true today as they did when they were expressed nearly 30 years ago. For that reason, I believe that they should continue to inform our approach to the legal standards that govern criminal liability for driving under the influence. Drunk driving is so inherently dangerous that its deadly consequences cannot reasonably come as a surprise to those who knowingly expose others to that risk.

President Judge Panella, Judge Murray, and Judge King join the Concurring Opinion.

DISSENTING OPINION

LAZARUS, J.

I respectfully dissent from the learned Majority's conclusion that the Commonwealth presented sufficient evidence to establish the requisite malice for Peters' convictions of third-degree murder and aggravated assault - serious bodily injury. In my view, the Commonwealth failed to present sufficient evidence of malice under our case law and, accordingly, I would vacate those convictions.

The Majority accurately represented the factual and procedural history of this case. See Majority, at 1-7. However, I disagree with the Majority's stated standard of review, particularly with regard to the manner in which the Majority defines and applies malice in the context of third-degree murder and aggravated assault - serious bodily injury. See Majority, at 8-24.

A person commits aggravated assault - serious bodily injury when he "attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly[,] or recklessly under circumstances manifesting an extreme indifference to the value of human life." 18 Pa.C.S.A. § 2702(a)(1).

The Crimes Code defines third-degree murder as "[a]ll other kinds of murder" other than first- and second-degree murder and classifies it as "a felony of the first degree." Id. at § 2502(c). To sustain a conviction of third-degree murder, the Commonwealth must prove that the defendant killed another person with malice. Commonwealth v. Hardy, 918 A.2d 766, 774 (Pa. Super. 2007). "Third[-]degree murder occurs when a person commits a killing [that] is neither intentional nor committed during the perpetration of a felony, but contains the requisite malice." Commonwealth v. Truong, 36 A.3d 592, 597 (Pa. Super. 2012) (en banc) (citation omitted). Malice is a legal term, which encompasses "not only a particular ill-will, but every case where there is a 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." Commonwealth v. Packer, 168 A.3d 161, 168 (Pa. 2017) (citation omitted). A fact-finder may find malice not only in an intentional killing, "but also in an unintentional homicide where the perpetrator consciously disregarded an unjustified and extremely high risk that his actions might cause death or serious bodily injury." Commonwealth v. Ludwig, 874 A.2d 623, 632 (Pa. 2005) (quotation and citation omitted).

The malice requirements for aggravated assault and third-degree murder are the same. Packer, 168 A.3d at 168. The malice required to sustain a third-degree murder or aggravated assault conviction exists "where the accused acts in gross deviation from the standard of reasonable care, failing to perceive that such actions might create a substantial and unjustifiable risk of death or serious bodily injury." Commonwealth v. Mercado, 649 A.2d 946, 955 (Pa. Super. 1994) (citation omitted). "In view of this heightened mens rea, motor vehicle crashes seldom give rise to proof of the malice needed to sustain a conviction for third[-]degree murder[.]" Commonwealth v. Kling, 731 A.2d 145, 148 (Pa. Super. 1999). "However, in some circumstances, the malice requirement has been met, and this [C]ourt has not hesitated to uphold an aggravated assault or a third[-]degree murder charge depending on the particular facts of a motor vehicle crash." Commonwealth v. Riggs, 68 A.3d 780, 785 (Pa. Super. 2012).

In the context of a DUI, the decision to drive while under the influence of alcohol and/or a controlled substance, standing alone, does not constitute malice. Commonwealth v. O'Hanlon, 653 A.2d 616, 618 (Pa. 1995). This type of crime "requires a higher degree of culpability, i.e., that which considers and then disregards the threat necessarily posed to human life by the offending conduct," and entails "an element of deliberation or conscious disregard of danger[.]" Id. "For th[is] degree of recklessness . . . to occur, the offensive act must be performed under circumstances [that] almost assure that injury or death will ensue." Id. (emphasis added). "The recklessness must, therefore, be such that life threatening injury is essentially certain to occur." Id. (emphasis added). "This state of mind is, accordingly, equivalent to that which seeks to cause injury." Id. This mens rea requirement is met only in circumstances where "the defendant could reasonably anticipate that serious bodily injury or death would be the likely and logical consequence of his actions . . . [but that] consequence was ignored." Packer, 168 A.3d at 170-71 (reaffirming distinction between ordinary recklessness and malice).

Pennsylvania courts have frequently had occasion to address the concept of "malice" as applied in the context of DUI-related motor vehicle accidents. Our Supreme Court previously announced the requisite degree of malice and recklessness, described above, in O'Hanlon, supra, and Commonwealth v. Comer, 716 A.2d 593 (Pa. 1998), and recently reaffirmed the standard in Packer, supra. In Packer, our Supreme Court addressed this "notice," or "warning," ¹requirement of malice with respect to motor vehicle accidents, noting:

1 I use "notice" or "warning" as shorthand to refer to the malice standard which, as stated throughout this opinion, is met when a perpetrator consciously disregards an unjustified or extremely high risk that his actions are almost certain to cause death or serious bodily injury. See Commonwealth v. Young, 431 A.2d 230, 232 (Pa. 1981); see also O'Hanlon, 653 A.2d at 618; Packer, 168 A.3d at 170-71.

Packer huffed [Dust-Off, containing] DFE [(difluoroethane)] immediately prior to and while operating a vehicle on a public highway. She knew, from the clearly marked label and the bittering agent added to the Dust-Off, that this product was not intended to be ingested. She further knew, from her numerous prior experiences with huffing, that the effects of DFE on her were immediate, debilitating[,] and persisted for ten to fifteen minutes following inhalation. Moreover, she knew that huffing had caused her to lose consciousness on other occasions in the past.

With all of this knowledge of DFE and the immediate and overwhelming effects it had on her, she nonetheless made the conscious and informed decision to huff four or five bursts of DFE, inhaling the chemical for a total of fourteen to twenty-four seconds within a five-minute timespan. She inhaled immediately before driving on a public roadway and again while temporarily stopped [at] a red light. Precisely what had previously occurred after huffing happened to her again on the night in question-after inhaling her final bursts of DFE at the red light and proceeding to drive her vehicle on the public highway, she lost consciousness. Predictably, without control of her vehicle, she killed [the victim].

Viewing the evidence, as we must, in the light most favorable to the Commonwealth, her awareness of the particular dangers her conduct posed is further demonstrated by her behavior before and after the accident. The record reflects that after huffing in the Walmart parking lot, but before driving, she paused to ask [her fiancé] how much he trusted her. . . . [I]mmediately following the accident (after she regained consciousness), she lied about what happened, asked about the detectability of DFE in her bloodstream, and repeatedly asked if she was going to jail.

This is not a typical case of ordinary recklessness that arises when someone chooses to drive while intoxicated. Packer consciously disregarded an unjustified and extremely high risk that her chosen course of action might cause a death or serious bodily injury. Because of Packer's history of losing consciousness after huffing and her knowledge of the immediacy of the effects

of huffing on her, she "could reasonably anticipate that serious bodily injury or death would be the likely and logical consequence of [her] actions . . . [but] the consequence was ignored."

Packer, 168 A.3d at 171 (emphasis added) (citations omitted).

In Comer, the defendant drove after drinking and ingesting "muscle relaxers." See Comer, 716 A.2d at 595. The defendant was observed, just prior to the crash, scraping his right tire against the curb, exceeding the speed limit, veering off the road, and crashing through a bus stand and into a brick wall. Id. He struck two pedestrians in the process, killing one and seriously injuring the other. Id.

Our Supreme Court concluded that the evidence in Comer did not support a finding of malice. The Court stated that "[w]hile [a]ppellant's actions are clearly criminal, they do not constitute aggravated assault." Id. at 596. Notably, the Court determined that after examining the defendant's behavior before and after the accident, there was no evidence "that he was aware of his reckless conduct" or that he "considered, then disregarded, the threat to the life of the victim." Id. at 596-97.

After our Supreme Court decided Comer, this Court, in Commonwealth v. Dellavecchia, 725 A.2d 186 (Pa. Super. 1998), addressed a similar scenario. In Dellavecchia, the defendant, with a blood alcohol content (BAC) of .194%, drove his truck at excessive speeds while weaving in and out of city traffic. Id. at 189. The defendant's truck collided with a parked Chevrolet Camaro at such a high speed that the defendant's truck went airborne and landed on a nearby Toyota Camry, flipped over, and landed on its roof. Id. at 186. The defendant was charged with aggravated assault - serious bodily injury. Id.

This Court determined that the Commonwealth had failed to present sufficient evidence to sustain the malice requirement of aggravated assault - serious bodily injury. See id. at 188-89. We stated:

Notwithstanding the Commonwealth's efforts, we are not persuaded that the facts presented here are materially distinguishable from those presented in Comer so as to compel a different result. Like Comer, [a]ppellant drove at an excessive rate of speed over congested city streets, weaving in and out of traffic, prior to the crash. Also like the defendant in Comer, [a]ppellant was under the influence of intoxicating substances, as he stipulated at trial to the fact that he had a [BAC] of .194%. If anything, the conduct in Comer was more egregious in that Comer made no attempt to apply his brakes or reduce his speed prior to striking the pedestrians. Appellant, however, did apply his brakes in an effort to avoid impact.

Id. at 189 (emphasis added, footnotes and citations omitted).

Since Comer and Dellavecchia, this Court has repeatedly emphasized that, in order to satisfy the heightened mens rea requirement of third-degree murder and aggravated assault - serious bodily injury, there must be additional factors present. See, e.g., Commonwealth v. Dunphy, 20 A.3d 1215 (Pa. Super. 2011) (malice found when defendant, driving intoxicated at close to twice posted speed limit, saw pedestrians in crosswalk but sped up to "make the light," struck and killed pedestrian, and fled after impact); Commonwealth v. Allen, 833 A.2d 800 (Pa. Super. 2003) (malice present where defendant hit guardrail before accident but kept driving for two miles with victim impaled on defendant's car and continued for five more miles after body rolled off).

As noted above, malice, in the DUI context, requires that the recklessness exhibited must involve an awareness that the conduct is essentially certain to cause the death or serious bodily injury. See O'Hanlon, supra; Packer, supra. It is insufficient to prove that someone's bad decisions could have, may have, or likely would result in death or serious bodily injury. O'Hanlon, supra; Packer, supra. Instantly, the trial court's opinion omits mention of this essential requirement, and the Commonwealth appears to ignore it as well, encouraging this Court to view the facts under an inappropriate standard of malice. See Trial Court Opinion, 3/4/22, at 1-12; Commonwealth's Brief, at 25-27. ²

2 The Commonwealth suggests that the proper analysis of malice is whether Peters' actions "might" create a risk of death or serious bodily injury and that Peters should have "reasonably anticipate[d]" that death or serious bodily injury would "likely" result" from his actions. See id. at 26. In my view, this interpretation of the law is incorrect and represents a significant departure from the heightened burden that Pennsylvania courts have routinely required. See Packer, supra; O'Hanlon, supra.

Additionally, I observe that Peters' decision to drive his vehicle instead of taking a train or taxi, and to use a highway rather than a local road, is of no moment. Indeed, our law is clear that the mere decision to drive intoxicated does not satisfy the malice requirement. If these factors met the requirement of malice, then every DUI homicide would result in a third-degree murder conviction. I emphasize that driving drunk in and of itself does not meet the heightened mens rea requirement outlined in O'Hanlon and Comer and reaffirmed in Packer.

Consequently, Peters' decisions throughout the day, including, his decision to drive to work when there was a work event involving alcohol, his decision not to take the train home, his decision not to find a hotel or motel to spend the night, and his failure to call for a ride, are merely decisions that coincide with drunk driving. See O'Hanlon, supra. Those decisions, while reckless and ill-advised, do not demonstrate the type of malice that our law requires the Commonwealth to prove.

In my view, the facts of this case reveal that the Commonwealth failed to present sufficient evidence of the "warning" requirement of malice necessary for third-degree murder and aggravated assault in the DUI context. Peters' inability to operate the parking garage kiosks is not a "warning" contemplated by our case law. See Commonwealth v. Urbanski, 627 A.2d 789, 793 (Pa. Super. 1993) (concluding appellant's wife's repeated reminders of danger of drunk driving and repeated requests he let her drive instead, conveyed sufficient warning for malice). Additionally, the record is silent on whether Peters had a history of drunk driving. See Packer, supra (defendant's personal knowledge that inhaling DFE caused defendant to black out previously while driving and asking if fiancé "trusted her," exhibited conscious disregard for almost certain death or serious bodily injury). Moreover, the Commonwealth's urging that the malice requirement is satisfied because "every adult" knows the dangers of alcohol is similarly unavailing³Indeed, as I stated and emphasize above, driving while intoxicated by itself does not create the requisite malice for third-degree murder or aggravated assault serious bodily injury. See Packer, supra; Comer, supra; O'Hanlon, supra.

3 Merely knowing the dangers of consuming alcohol and driving does not satisfy the malice requirement of third-degree murder and aggravated assault - serious bodily injury. Our Supreme Court's recent decision in Packer is enlightening in this regard. As I emphasized above, it was not Packer's general knowledge that inhaling DFE was harmful or dangerous that caused her mens rea to rise to that of malice. See Packer, supra. Rather, it was Packer's personal knowledge of the specific effect DFE had on her due to her prior experiences with DFE and the immediate and debilitating effect it had on her. Id. Similarly, merely knowing that consuming alcohol and driving is dangerous does not satisfy the heightened malice requirement for third-degree murder and aggravated assault - serious bodily injury. See O'Hanlon, supra; Packer, supra.

Additionally, the two 911 reports of Peters' driving are meaningless under the facts of this case. Neither of those phone calls communicated the warning to Peters himself, and neither driver testified that he warned Peters. Indeed, Hafto, the first 911 caller, testified that he observed Peters' vehicle pass him at a high rate of speed. See N.T. Jury Trial Day 1, 9/13/21, at 139-40. In response, Hafto stayed behind the Mazda and gave it a wide berth. Id. Hafto testified that as he traveled behind the Mazda, it drove both over and under the posted speed limit of 65 miles per hour. Id. at 152-53. Hafto drove in such a way that kept the Mazda in front of him at all times. Id. at 151-53 (Hafto testifying that he would decrease speed to avoid passing Mazda). Emrick, the second 911 caller, initially testified that the Mazda was driving erratically and, in the 911 phone call recording, stated that the vehicle's lights were off. See N.T. Jury Trial Day 2, 9/14/21, at 7-8; id. at 13 (Commonwealth Exhibits 3 and 4, Emrick's 911 call, admitted into evidence). ⁴ However, Emrick also testified that the Mazda exited the highway safely. Id. at 10. These phone calls certainly portrayed Peters' driving as negligent, careless, and reckless at times. Nevertheless, I emphasize that neither of these drivers attempted to communicate to Peters that he was driving erratically. See N.T. Jury Trial Day 1, 9/13/21, at 138-55 (Hafto's testimony); N.T. Jury Trial Day 2, 9/14/21, at 5-26 (Emrick's testimony); see also Commonwealth v. Pigg, 571 A.2d 438, 442 (Pa. Super. 1990) (finding of malice supported where defendant, operating 18-wheeler, drove other drivers off road and ignored requests of fellow driver to stop driving).

4 Emrick's 911 call was divided into two exhibits because, during Emrick's phone call, he crossed over the state line into New Jersey and his call was transferred to New Jersey's 911 service. See id. at 11-12.

Furthermore, Jacquelyn Smith's offer of a ride home also fails to satisfy the warning requirement of malice. Smith testified that she offered a ride to every co-worker at the party. See N.T. Jury Trial Day 2, 9/14/21, at 114-15. Smith also testified that, although she arrived late to the work party, she too was drinking alcohol. Id. at 108-13 (Smith testifying that between her arrival at 6:30 p.m. and her departure at 10:00 p.m., everyone ordered at least three drinks). Additionally, even though Smith offered Peters a ride, she did not caution Peters that he had consumed too much alcohol or warn him not to drive. Id. at 114-16 (Smith testifying she offered Peters a ride because they both lived in Bucks County and she did not offer to drop him off at train station or any other alternative). Under these facts, I cannot conclude that Smith's actions warned Peters of his inability to drive.⁵ See Urbanski, supra.

5 I note that this "warning" or "notice" requirement is not limited to one form. Indeed, it can arise from the defendant's own past experience, see Packer, supra, from the words of others, see Urbanski, supra; Pigg, supra, or from the circumstances of the particular case, see Dunphy, supra; Allen, supra. I observe that, in Dunphy, despite the Majority's contentions to the contrary, this "warning" or "notice" requirement took the form of the appellant seeing pedestrians crossing the street in front of him. Despite having been warned of the presence of people in the roadway, he sped up and struck a pedestrian. See Dunphy, 20 A.3d at 1217. The facts of the instant case simply do not support a finding of malice as detailed supra and infra.

Further, Corporal Glad, the Commonwealth's accident reconstruction expert, testified that Peters applied his brakes before the collision. See N.T. Jury Trial Day 3, 9/15/21, at 40-123 (Commonwealth expert testifying regarding speed of vehicles and "black box" recordings). Corporal Glad testified that the Mazda's "black box" recorded speeds in excess of 100 miles per hour just prior to the crash. Id. at 90-91 (Mazda approached speed of 115 miles per hour approximately one second before impact). Approximately four-tenths of a second prior to the crash, the Mazda's "black box" also recorded "weight" being released from the accelerator pedal and "weight" being applied to the brake pedal. Id. at 91-92. Corporal Glad explained that this data indicates that the brakes were applied just prior to the crash. Id. Thus, it is clear from the evidence that Peters applied the brakes, albeit, quite literally, at the last second. See Dellavecchia, 725 A.2d at 189 (Commonwealth presented insufficient evidence of mens rea element of recklessness for aggravated assault where defendant drove at excessive speeds, wove in and out of congested city traffic, had BAC of .194%, but applied brakes prior to accident "in an effort to avoid impact").⁶, ⁷

6 I would echo this Court's prior statement in Dellavecchia that, notwithstanding the Commonwealth's efforts, there is simply no evidence in this case to overcome the heightened mens rea malice requirement for third-degree murder and aggravated assault - serious bodily injury. See id. ("As an intermediate appellate court, we are bound to apply the decisions of our Supreme Court absent a legally relevant distinction."). In my view, this Court should leave it up to our Supreme Court or the legislature to review the issue of drunk driving deaths and injuries for a determination of whether a change in the definition of malice is warranted, as it relates to such behavior. Simply put, this Court cannot disregard Peters' application of the brakes as one fact that disproves the requisite malice to sustain his convictions. See Dellavecchia, supra.

7 Moreover, I observe that, although not relied upon expressly by the Majority, the Commonwealth argues that because Peters' vehicle lights were off, he was consciously disregarding a known risk to other drivers. See Commonwealth Brief, at 37-38, 41, 43, 47-48, 56. This contention has no bearing on a determination of malice in this case. It is clear, from my review of the record, that Peters was never alerted to any issues with his lights. After the accident, Trooper Robert Ace investigated Peters' Mazda and concluded that the headlight switch was in the "on" position, and that the damage from the accident prevented an accurate assessment of whether the brake lights were operable. See N.T. Jury Trial Day 3, 9/15/21, at 22-28. Before the accident, while both Hafto and Emrick testified that at various points it appeared as though Peters' headlights were off, neither warned Peters. See N.T. Jury Trial Day 1, 9/13/21, at 138-55; N.T. Jury Trial Day 2, 9/14/21, at 5-26. Additionally, in every video the Commonwealth presented of Peters' driving, his headlights were on and illuminated. See N.T. Jury Trial Day 3, 9/15/21, at 182-88, 196-97 (Trooper Brandon Corby testifying regarding contents of videos recovered); Commonwealth Exhibits 43 and 44 (surveillance videos from parking garage, depicting Mazda's headlights on); Commonwealth Exhibit 42 (security video from exterior of parking garage depicting Mazda's headlights on, but brakes lights off); Commonwealth Exhibit 48 (Philadelphia street surveillance video depicting Mazda's headlights on, but brake lights off); Commonwealth Exhibits 49 and 50 (Philadelphia street surveillance stills depicting Mazda's headlights on, but brake lights off); see also N.T. Jury Trial Day 3, 9/15/21, at 197-200 (Trooper Corby testifying regarding Scudder-Falls Bridge videos); Commonwealth Exhibit 52 (Scudder-Falls Bridge video depicting Mazda's headlights on, but brake lights off). At best, this evidence demonstrates that Peters believed his brake lights and headlights were operable, and on, at least some of the time leading up to the accident. However, this evidence does not demonstrate Peters' awareness or conscious disregard of the failing brake lights. Accordingly, the Commonwealth's arguments regarding the brake lights does not support Peters' conviction for third-degree murder or aggravated assault - serious bodily injury.

Thus, based upon this Court's prior decision in Dellavecchia, I would conclude that Peters' application of the brakes prior to the accidents tends to show that he was trying to avoid a collision, unlike virtually every other DUI-related third-degree murder. See Dellavecchia, supra; Dunphy, supra; Packer, supra; Allen, supra. In other words, Peters' application of the brakes shows that he lacked the requisite malice to sustain these convictions. Consequently, even if Peters' prior actions and decisions somehow amounted to the requisite malice, which I maintain they do not, then Peters' application of his brakes should certainly break that chain of "sustained recklessness." See Kling, supra.

The Majority urges that this case demonstrates that Peters "maliciously exhibited sustained recklessness over a considerable period of time prior to the fatal crash, despite an obvious risk of harm to other motorists and the general public." See Majority, at 23. In reaching its conclusion, the Majority relies upon Dunphy and Kling. See Majority, at 14-16, 22-24. In my view, as discussed supra, the facts of Dunphy support my conclusion that the Commonwealth failed to present sufficient evidence of the heightened mens rea malice requirement. To reiterate, in Dunphy, the defendant, who was already driving at twice the speed limit, saw the pedestrians in the crosswalk and then sped up. See Dunphy, supra. After the defendant in Dunphy collided with the victim, the victim "fl[ew] into the air, land[ed] on the hood of his truck, fl[ew] of[f of] the truck, and then land[ed] on the street," after which the defendant ¶ed the scene. See id. at 1217. The facts of Dunphy are clearly distinguishable from the instant case. As highlighted above, there is evidence that Peters was traveling below the speed limit at times, and above the speed limit at other times. Furthermore, the Commonwealth presented evidence that Peters attempted to apply the brakes, which tends to indicate that Peters saw the victims and tried to avoid a collision. See Dellavecchia, supra. Moreover, Peters did not attempt to flee the scene.

In Kling, this Court addressed whether extremely reckless street racing rose to the requisite level of malice for third-degree murder. See Kling, 731 A.2d at 146-47. In Kling, the defendant began racing a fellow driver at speeds in excess of 80 mph. See id. Both drivers crested over a hill and continued to accelerate downhill towards a series of "substantial curves [with] cautionary speed signs." Id. "Nevertheless, appellant maintained his excessive speeds, pulling away from the [other driver] and disappearing into the blind curves." Id. On the second blind curve, appellant was in the wrong lane of traffic and nearly struck a minivan. See id. Yet, the appellant continued to accelerate and "neither slowed down nor took action to mitigate the obvious danger from his racing." Id. The appellant then entered a no-passing zone, almost striking two pickup trucks, before traveling into a "sharp double curve at nearly 70 mph, crossed the center line again, and struck a vehicle," killing the driver instantly and rupturing the 10-year-old passenger's artery. Id. The collision occurred less than one mile after appellant's near miss with the minivan. See id. While Kling interpreted and applied the holdings of Comer, Dellavecchia, Urbanski, Pigg, and O'Hanlon, it was not a DUI. See Kling, 731 A.2d at 147-51. Nevertheless, this Court concluded that the appellant's driving was akin to playing "Russian roulette with the other drivers." See id. at 150.

In my view, the only relevance Kling has to the instant case is the purported "near misses" of Peters driving near the witnesses Hafto and Emrick. The "sustained recklessness" described in Kling is distinguishable from the facts of the case before this Court. Indeed, Peters: was reported driving at speeds both below and above the posted speed limit; was seen exiting the highway safely; and, both Hafto and Emrick reported driving in a way to avoid Peters. Consequently, these interactions cannot satisfy the "sustained recklessness by a driver in the face of an obvious risk of harm to his victims," id. at 149 (emphasis in original), like that exhibited by the appellant in Kling. I note that the appellant in Kling, engaged in a high-speed street race for almost one mile along a series of blind-switchback turns. See id. at 147-48. He did not, at any point, exhibit a concern for others or attempt to slow down. See id. It is clear that the behavior exhibited in Kling demonstrated the requisite malice. Accordingly, in my view, Kling is factually distinguishable from the present circumstances, and I am unpersuaded by the Majority's contentions to the contrary.

For all the foregoing reasons, I conclude that the Commonwealth presented insufficient evidence to sustain the malice requirement of either third-degree murder or aggravated assault - serious bodily injury. Smith, supra. Even considering the totality of the circumstances, I would find this Court is constrained to reverse these convictions. While the facts of this case are horrific and heartrending, they simply do not support a finding of malice under the precedent by which this Court is bound. Further, because this case is substantially similar to Dellavecchia, I would further conclude that the evidence was insufficient to establish that Peters possessed a state of mind equivalent to that which seeks to cause serious bodily injury or death. Accordingly, I respectfully dissent, and would reverse and vacate Peters' convictions of third-degree murder and aggravated assault - serious bodily injury.

Judges Dubow, Kunselman, McLaughlin join Dissenting Opinion.