729 A.2d 1187 (Pa.Super. 1999), Commonwealth v. Booth

Citation:729 A.2d 1187
Opinion Judge:The opinion of the court was delivered by: Olszewski, J.
Party Name:COMMONWEALTH of Pennsylvania, Appellant, v. Jeffrey Robert BOOTH, Appellee.
Case Date:April 07, 1999
Court:Superior Court of Pennsylvania

Page 1187

729 A.2d 1187 (Pa.Super. 1999)

COMMONWEALTH of Pennsylvania, Appellant,


Jeffrey Robert BOOTH, Appellee.

Superior Court of Pennsylvania

April 7, 1999.

Submitted Jan. 11, 1999.

Page 1188

Wayne B. Gongaware, Assistant District Attorney, Greensburg, for Com., appellant.

Patrick J. Thomassey, Monroeville, for appellee.



¶ 1 On June 29, 1997, appellee was driving his vehicle along Hahntown-Wendell Road in North Huntingdon Township when he allegedly failed to stop for a stop sign and struck the car driven by Nancy Boehm. Mrs. Boehm, who was approximately 33 weeks pregnant at the time of the accident, was riding in the car with her husband. Both were seriously injured, and Mrs. Boehm's unborn child died in her womb as a result of injuries sustained in the accident. On July 9, 1997, the Commonwealth charged appellee with eight counts,1 including one count of homicide by vehicle2 and one count of homicide by vehicle while driving under the influence.3 In February 1998, appellee filed an omnibus pre-trial motion asking the trial court to dismiss the counts of homicide by vehicle and homicide by vehicle while driving under the influence because the victim was an unborn child. On June 2, 1998, the trial judge granted appellee's motion and dismissed the charges.

¶ 2 In considering this case on appeal, the Commonwealth presents only one question for our review: "Is a viable fetus a person for purposes of the homicide by vehicle DUI statute?"4 Appellant's brief,

Page 1189

at 3. The Commonwealth argues that this Court should set aside the long-standing "born alive" rule as it applies to the criminal laws of this Commonwealth.5 Having thoroughly reviewed the rationale for the "born alive" rule, our Supreme Court's decision in Amadio v. Levin, 509 Pa. 199, 501 A.2d 1085 (1985), and persuasive decisions from other jurisdictions, we find ample support for the Commonwealth's position. Thus, we find that the term "person" as referenced in 75 Pa.C.S.A. § 3735 protects viable but not yet born children and we reverse the decision of the court below dismissing one count of homicide by vehicle while driving under the influence.

¶ 3 We begin by noting that "courts are to strictly construe penal statutes, and any ambiguity contained in such acts must be interpreted in favor of the accused and against the prosecution." Commonwealth v. Driscoll, 485 Pa. 99, 401 A.2d 312, 316 (1979) (citing 1 Pa.C.S.A. § 1928(b)(1)). At the same time, we recognize that "we are not required to interpret the words of a criminal statute in their narrowest sense or disregard evident legislative intent." Commonwealth v. Highhawk, 455 Pa.Super. 186, 687 A.2d 1123, 1126 (1996).

¶ 4 Homicide by vehicle while driving under the influence is defined as:

(a) Offense defined.--Any person who unintentionally causes the death of another person as the result of a violation of section 3731 (relating to driving under the influence of alcohol or controlled substance) and who is convicted of violating section 3731 is guilty of a felony of the second degree when the violation is the cause of death....

75 Pa.C.S.A. § 3735(a) (emphasis added). While the statute is...

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