766 A.2d 843 (Pa. 2001), Commonwealth v. Booth

Citation:766 A.2d 843, 564 Pa. 228
Opinion Judge:The opinion of the court was delivered by: Mr. Justice Saylor
Party Name:COMMONWEALTH of Pennsylvania, Appellee, v. Jeffrey Robert BOOTH, Appellant.
Case Date:February 20, 2001
Court:Supreme Court of Pennsylvania

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766 A.2d 843 (Pa. 2001)

564 Pa. 228

COMMONWEALTH of Pennsylvania, Appellee,


Jeffrey Robert BOOTH, Appellant.

Supreme Court of Pennsylvania

February 20, 2001.

Submitted Aug. 4, 2000.

[564 Pa. 229] Patrick J. Thomassey, Esq., Monroeville, Michael O. Bodinsky, Esq., Pittsburgh, for J. Booth.

Wayne B. Gongaware, Esq., Greensburg, Leo J. Ciaramitaro, Esq., Murrysville, for COMMONWEALTH



SAYLOR, Justice.

The issue presented is whether the Commonwealth may rely upon the death of an unborn child as the predicate for the crime of homicide by vehicle while driving under the influence.

On June 29, 1997, a car driven by Appellant, Jeffrey Robert Booth, went through a stop sign and collided with a car being driven by Nancy Boehm. Both Mrs.

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Boehm, who was approximately [564 Pa. 230] 32 weeks pregnant, and her husband, a passenger in the car, were seriously injured, and their unborn child died in the womb as a result of the blunt force trauma sustained by Mrs. Boehm. Appellant's blood alcohol content was subsequently determined to be 0.12%. The Commonwealth charged Appellant with, inter alia, one count of homicide by vehicle, 75 Pa.C.S. § 3732, and one count of homicide by vehicle while driving under the influence ("homicide by vehicle/DUI"), 75 Pa.C.S. § 3735. 1 an omnibus pre-trial motion, Appellant asked the trial court to dismiss the charges of homicide by vehicle and homicide by vehicle/DUI on the ground that a fetus could not be the victim of such charges, as the law does not recognize a fetus as a person. The trial court agreed and dismissed the charges, citing as controlling precedent an earlier opinion from the same judicial district, Commonwealth v. Kemp, 75 Westmoreland L.J. 5 (1992), aff'd, 434 Pa.Super. 719, 643 A.2d 705 (1994) (table). In Kemp, charges had been filed against a pregnant woman on the basis of her purported "delivery" of cocaine, through her own use, to her unborn child. The trial court dismissed the charges, emphasizing the requirement that penal statutes be strictly construed. See 1 Pa.C.S. § 1928(b)(1).

The Commonwealth appealed the dismissal of the homicide by vehicle/DUI count to the Superior Court, and a divided panel reversed. See Commonwealth v. Booth, 729 A.2d 1187 (Pa.Super.1999). 2 The critical issue, as the Superior Court majority recognized, centered on the definition of the term "person" in Section 3735(a) of the Vehicle Code, which defines the offense of homicide by vehicle/DUI as follows:

(a) Offense defined.--Any person who unintentionally causes the death of another person as the result of a [564 Pa. 231] violation of section 3731 (relating to driving while 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....

75 Pa.C.S. § 3735(a) (emphasis added). The majority acknowledged that, because Section 3735(a) is a penal statute, it was to be construed strictly, see 1 Pa.C.S. § 1928(b)(1), 3 but explained that the principle of strict construction did not require the narrowest possible interpretation or permit an interpretation that disregarded evident legislative intent. See Commonwealth v. Highhawk, 455 Pa.Super. 186, 687 A.2d 1123, 1126 (1996). The majority noted further that, as Section 3735 does not define the term "person," its use of the term was subject to the definition contained in Section 102 of the Motor Vehicle Code, which shall apply "unless the context clearly indicates otherwise." 75 Pa.C.S. § 102. Section 102 defines "person" as "[a] natural person, firm, copartnership, association or corporation." Id. (emphasis added).

Turning to the Commonwealth's assertion that a viable fetus is "a natural person" within the meaning of Section 102, the Superior Court majority acknowledged that, in criminal matters, the Commonwealth recognizes the longstanding "born alive" rule, which it defined as "the common law principle that only human beings 'born alive' are independent persons within the meaning of the law." Id. at 1189 n. 5. The majority determined, however, that in

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light of this Court's decision in Amadio v. Levin, 509 Pa. 199, 501 A.2d 1085 (1985), the Commonwealth's recognition of the "born alive" rule should cease. In Amadio, this Court had held that the estate of a stillborn child may institute a wrongful death and survival action for fatal injuries suffered while en ventre sa mere (that is, in the mother's womb). See id. at 208, 501 A.2d at 1089. Among the reasons for its decision, the Court had cited the significance, for problems of proof, of modern advances in medical knowledge. See id. at 203, 501 A.2d at 1086. Concluding that the progress of medical science [564 Pa. 232] was as relevant in the criminal as in the civil context, and that "it [was] time for the courts of this Commonwealth to react to advances in medical science rather than ignore such progress," Booth, 729 A.2d at 1190, the Superior Court majority held that "[v]iable fetuses not yet born alive are 'persons' within the meaning of the criminal laws of general application in this Commonwealth." Id. at 1190. The majority emphasized that its decision would not contravene or otherwise affect the Crimes Against the Unborn Child Act, 18 Pa.C.S. §§ 2601-2609, which created new criminal offenses, the victims of which are unborn children, or the Abortion Control Act, 18 Pa.C.S. §§ 3201-3220; rather, the decision would apply "only in cases where the criminal laws protect 'persons' in the most general terms." 4 Id. at 1190.

The dissent faulted the majority for failing to appreciate the significance of recent legislative pronouncements on the subject, including the Crimes Against the Unborn Child Act, see Booth, 729 A.2d at 1190 (Del Sole, J., dissenting), emphasizing that homicide by vehicle, DUI-related or otherwise, is not among the new offenses that the statute creates. More generally, the dissent expressed concern that the majority had impermissibly extended the criminal law on a common law basis. See id. at 1191. We granted allowance of appeal in light of the public importance of the matter at issue.

Such public importance requires that, at the outset, we make clear the nature, and the consequent limitations, of our review. As the Supreme Court of Illinois observed, in a decision addressing substantially the same issue, "[t]he extent to which the unborn child is to be accorded the legal status of one already born is one of the most debated questions of our time...." People v. Greer, 79 Ill.2d 103, 37 Ill.Dec. 313, 402 N.E.2d 203, 208 (1980). Two decades later, the debate continues. Weighing the substantive merits of the various positions [564 Pa. 233] in that debate is no part of our role in this matter. Rather, our role is to ensure that the issue before us is resolved in accordance with the settled principles that guide the criminal jurisprudence of this Commonwealth.

Our analysis begins with the fundamental acknowledgment that Section 3735 defines a crime under the laws of Pennsylvania. See supra note 3. Prior to the enactment of Title 18 (the Crimes Code) in 1972, the Commonwealth's criminal law was "a conglomeration of statutory law and common law-the latter filling the void in those areas where the former [was] silent." Sheldon S. Toll, Pennsylvania's New Crimes Code--The Commonwealth's First New Criminal Code in More Than a Century, PA. B.A.Q. 294, 296 (Mar.1973) (hereinafter Toll, Pennsylvania's New Crimes Code). The Penal Code of 1939, for example, provided that "[e]very offense now punishable either by the statute or common law of this Commonwealth and not specifically provided for by this act, shall continue to be an offense punishable as heretofore." 18 P.S. § 5101 (repealed) (emphasis added; footnote omitted). The common law "[could] be used to establish the offense itself or to

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define the scope of imprecise statutory drafting." Toll, Pennsylvania's New Crimes Code, PA. B.A.Q. at 296. See, e.g., Commonwealth v. Redline, 391 Pa. 486, 492, 137 A.2d 472, 474 (1958) (observing that "[t]he definition of murder at English common law ... alone defines the crime in this State").

Since the adoption of the Crimes Code, however, no conduct constitutes a crime in this Commonwealth unless it is a crime under Title 18 or another statute. See 18 Pa.C.S. § 107(b). Stated differently, Pennsylvania is a "code jurisdiction": it recognizes no common law crimes. See id.; see also Commonwealth v. Bellis, 497 Pa. 323, 328 n. 6, 440 A.2d 1179, 1181 n. 6 (Pa.1981); Booth, 729 A.2d at 1191 (Del Sole, J., dissenting); Toll, Pennsylvania's New Crimes Code, PA. B.A.Q. at 296-97. Necessarily, then, when the judiciary is required to resolve an issue concerning the elements of a criminal offense, its task is fundamentally one of statutory interpretation, and its overriding purpose must be to ascertain and effectuate the legislative intent underlying the statute. [564 Pa. 234] See 1 Pa.C.S. § 1921(a); Commonwealth v. Fisher, 485 Pa. 8, 12, 400 A.2d 1284, 1287 (1979).

Moreover, penal statutes are to be strictly construed. See 1 Pa.C.S. § 1928(b)(1); Commonwealth v. Wooten, 519 Pa. 45, 53, 545 A.2d 876, 879 (1988); Hill, 481 Pa. at 43 n. 6, 391 A.2d at 1306 n. 6. 5 The need for strict construction does not require that the words of a penal statute be given their narrowest possible meaning or that legislative intent be disregarded, see Wooten, 519 Pa. at 53, 545 A.2d at 880; Commonwealth v. Gordon, 511 Pa. 481, 487, 515 A.2d 558, 561 (1986); Commonwealth v. Duncan, 456 Pa. 495, 497, 321 A.2d 917, 919 (1974), nor does it override the more general principle that the words of a statute must be construed according to their common and approved...

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