Commonwealth v. Buterbaugh

• Decision Date: 13 May 2014
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Gerald Travis BUTERBAUGH, Appellant.
• Court: Pennsylvania Superior Court

91 A.3d 1247

2014 PA Super 102

COMMONWEALTH of Pennsylvania, Appellee

v.Gerald Travis BUTERBAUGH, Appellant.

Superior Court of Pennsylvania.

Argued Aug. 13, 2013.

Filed May 13, 2014.

David J. Foster, Lemoyne, for appellant.

Zachary I. Mills, Assistant District Attorney, Chambersburg, for Commonwealth, appellee.

BEFORE: BENDER, P.J., GANTMAN, J., PANELLA, J., DONOHUE, J., SHOGAN, J., LAZARUS, J., MUNDY, J., OTT, J., and WECHT, J.

OPINION BY PANELLA, J.

Appellant, Gerald Travis Buterbaugh, appeals from the judgment of sentence arising from a conviction of third-degree murder.¹ We granted en banc review to determine, among other things, whether an automobile constitutes a deadly weapon for purposes of the deadly weapon sentence enhancement. See204 Pa. Code §§ 303.10(a), 303.17b. Because we conclude that it does, and that Appellant's remaining issues do not merit relief, we affirm.

The trial court set forth the relevant facts and procedural history as follows.

This case concerns the murder of Dale Steven Henry, whom [Appellant] struck and killed with his pickup truck on May 31, 2010. The events leading up to Henry's murder begin on the afternoon of May 30. [Appellant] and some friends, including Shane Waters and Nathan Souders[,] were riding four-wheel all-terrain vehicles, or “four-wheeling,” at the Waters family farm near Burnt Cabins, in Fulton County. They started at around 5:00 or 6:00 p.m.

By all accounts, [Appellant] was a family man. He had no history of violence, and he had no prior criminal historyto speak of—only a few DUIs and minor offenses.² Though [Appellant] had been a heavy drinker in the past, he quit drinking about ten years prior to the incident. On May 30, 2010, however, he was drinking. At trial, [Appellant] said [he] had a “couple of beers,” admittedly a bad decision. He told State Police that he drank approximately six beers while four-wheeling that day.

Later that night, [Appellant] suggested to Souders and Waters that they have a drink at the Hillside Tavern, which is on the road between Burnt Cabins and Fannettsburg, on the Franklin County Side of Tuscarora Mountain. They left and drove over the mountain to the bar in [Appellant's] 1986 Ford pickup truck.

The three arrived at the Tavern a little after 1:00 a.m. [on] the morning of May 31, went inside, and ordered a round of drinks. Inside the bar, Souders saw a woman named Jocelyn Gamble he thought he knew and went to talk to her. It is unclear how many people were at the Hillside Tavern. Souders said there were “six or eight[;]” a bystander said, “less than ten.”

Also in the bar was Dale Steven Henry, a 32-year-old white male. He had been drinking a good bit and was drunk at the time—his blood alcohol content, drawn at 4:05 a.m. was .18%. Henry had not been using any illegal drugs, his history of drug abuse notwithstanding. Waters, who testified for the defense, said that Henry was belligerent. Another bystander testified that Henry was also talking to Ms. Gamble.

While Souders was conversing with his friend, [Appellant] drank two more beers. Souders talked to another woman, named “Courtney,” which apparently agitated some of the other six to eight people inside. There is some suggestion that Souders was rude to the woman. At any rate, a confrontation between Souders and the other occupants ensued. The agitators “jumped” Souders and hit him in the back of the head with a beer bottle. Because of the ruckus, the bartender ordered everyone to leave the bar. The people inside complied. [Appellant] and Shane Waters were the last two to leave.

[Appellant] was not involved in the altercation inside the bar. He did not strike anyone and no one hit him. [Appellant] was not involved when the fight spilled outside either, and no one stopped him from going to his truck. There is no evidence that Henry attacked or threatened [Appellant]. Neither did anyone hit Shane Waters.

Souders, on the other hand, was struck again by an unknown assailant, once everyone was outside the bar. According to Waters, Henry was one of the people who attacked Souders, but Souders could not identify Henry as an assailant. [Appellant] also did not know whether Henry assaulted Souders. [Appellant] did not stop to assist Souders, but went straight to his truck, got in and started the engine. Shane Waters pulled Souders away from the fracas and they both got into the truck, Souders in the middle, and Waters in the right passenger seat. In the fight, Souders got a black eye, and a small cut and a bruise to the back of his head. According to [Appellant] and Waters, the angry throng began to throw objects at the truck: beer bottles, rocks, and a pool cue. When the police inspected the scene outside the Tavern, however, they recovered only one broken beer bottle, no rocks, no pool cue sticks, and no other weapons of any kind.

[Appellant] backed his pickup out onto the road. It stalled and he restarted it, and shifted into forward, pointing toward the road going over the mountain. [Appellant] told police that he was angry and that he revved his engine and spun the tires to try to scare the people outside of the bar. [Appellant] hit the gas and sped forward at “a fairly rapid rate of speed” and accelerated as fast as he could toward Henry. At that time, Henry was standing near the white fog line of the road. Henry had nothing in his hands, and he was not making threatening gestures toward the truck. Henry did not make any sudden movements, and he did not jump in front of the truck. [Appellant] testified that it looked like Henry was throwing something at the truck.

Just before impact, Waters exclaimed, “whoa, there's a guy!” [Appellant] hit Henry head-on, on the passenger side of the front of the truck. The Commonwealth's accident reconstruction expert conducted tests and determined that the truck's speed at the time of impact was 17 miles per hour. The expert also concluded that the truck was travelling at its maximum potential speed when it hit Henry. Both the accident reconstruction expert and the forensic pathologist testified that the speed of impact was sufficient to cause death.

[Appellant] did not apply the brakes, and he did not swerve to avoid Henry. Nathan Souders testified that if he were driving, he thought he could have avoided hitting Henry. In his statement to police, Shane Waters said that “[Henry] could have been avoided,” though he later attempted to qualify that statement at trial. Waters also admitted [Appellant] could have avoided the collision if he had applied the brakes instead of accelerating.

For his part, [Appellant] later gave a statement to Trooper Michael Dick and Corporal Paul McMullen at the Pennsylvania State Police Barracks in McConnellsburg:

Q. [Prosecutor] All right. Now, did [Appellant] express any words concerning—to show his anger? Did he describe to you how he felt at the time?

A. [Trooper Michael Dick] He said he was pissed.

Q. And then what did he tell you happened?

A. He said as he's driving, he pulls out onto the road. Now he's angry. He sees someone standing right along the white fog line, and he said he's pissed. He goes, “I'm driving at him. I'm trying to scare him, because I'm trying to push him off the road.” Those are his words. “I'm trying to push him off the road.” And then he goes, “I may even give a little jerk,” and he motions with the steering wheel, a little jerk to the right. He was trying to scare him, he said, and then he struck the victim.

Q. Now, did you specifically ask him whether or not he saw that person on the white fog line?

A. Yes. I asked that question. He said he did see them. In fact, he was trying to scare them.

Q. Now, did Corporal McMullen ask [Appellant] what was going through his mind as he hit that person?

A. Yes, he did.

Q. And what was [Appellant's] response?

A. “Kiss my ass.”

[Appellant] sped up the mountain road. He told Souders that he “wanted to go back and fly through them and get some more.” He did not, however, return to the Tavern, because the pickup was being followed. [Appellant] was eventually able to lose the pursuers.

Responding emergency personnel found [Henry] lying face-up on the white fog line of the roadway. He was severely injured. Henry was evacuated by helicopter to Altoona Trauma Center, and he arrived there at 3:56 a.m. on May 31. The treating doctors were of the opinion that Henry's injuries were hopelessly fatal, and they pronounced him dead later on the same day at 2:10 p.m.

The cause of Henry's death was multiple blunt force trauma caused by the collision. The forensic pathologist testified that fatal collision to Henry occurred at a low speed and it is “well-documented that low speed impacts can cause death.”

Meanwhile, [Appellant] returned to Jonathan Clark's house to have Souders' injuries attended to. The impact with Henry's body damaged the hood and front radiator grill of the pickup. Afraid that the people from the Tavern were still looking for them, [Appellant] and Waters tried to find a replacement hood for the pickup.

State police canvassed the area, looking for [Appellant] and the pickup truck. Two troopers went to his home, but nobody was there. After contacting [Appellant's] family members, troopers were able to have him voluntarily go to the McConnellsburg Barracks later on the night of May 31. [Appellant] drove his pickup to the Barracks, with a new hood on it. The old, damaged hood was in the bed. After his interview, [Appellant] was not arrested, and State Police continued their investigation. On June 8, 2010, they filed a criminal complaint against [Appellant] charging him with one count of criminal homicide and took him into custody.

[Appellant], represented by Christopher Sheffield, Esq., pleaded not guilty. After a four-day trial, the jury returned a verdict of not guilty on the count of first-degree murder and guilty on the count of third-degree murder.

Due to the gravity of the case and the issues involved, the [trial court] held a...