Com. v. Barone

CourtSuperior Court of Pennsylvania
Writing for the CourtBefore CERCONE; CERCONE; SPAETH, J., files a concurring opinion in which HOFFMAN; WIEAND; SPAETH; After discussing the common law origins of the crime of theft, and concluding that the crime of converting government property had the crime of theft as
PartiesCOMMONWEALTH of Pennsylvania, Appellant, v. Theresa BARONE. COMMONWEALTH of Pennsylvania v. Theresa BARONE, Appellant.
Decision Date25 January 1980

Page 457

419 A.2d 457
276 Pa.Super. 282
COMMONWEALTH of Pennsylvania, Appellant,
v.
Theresa BARONE.
COMMONWEALTH of Pennsylvania
v.
Theresa BARONE, Appellant.
Superior Court of Pennsylvania.
Argued Sept. 13, 1979.
Filed Jan. 25, 1980.

Page 459

[276 Pa.Super. 284] Wallace A. Murray, Norristown, for appellant at No. 1950 and appellee at No. 1805.

Ronald Williamson, Asst. Dist. Atty., Norristown, for Commonwealth, appellee at No. 1950 and appellant at No. 1805.

[276 Pa.Super. 285] Before CERCONE, President Judge, and PRICE, SPAETH, HESTER, WIEAND, CAVANAUGH and HOFFMAN, JJ. *

CERCONE, President Judge:

The Commonwealth brings the instant appeal from the trial court's order granting of appellee's demurrer to the charge of homicide by vehicle, Motor Vehicle Code, 75 Pa.C.S. § 3732 (1977). 1 Ms. Barone filed a cross-appeal challenging an earlier order of court dismissing various of her earlier petitions and motions attacking the constitutionality of this statute. Albeit for different reasons, the majority of this Court agree that the order of the trial court discharging appellant should be affirmed.

Section 3732 of the Motor Vehicle Code provides:

Any person who unintentionally causes the death of another person while engaged in the violation of any law of this Commonwealth or municipal ordinance applying to the operation or use of a vehicle or to the regulation of traffic is guilty of homicide by vehicle, a misdemeanor of the first degree, when the violation is the cause of death.

The Commonwealth argues and the Dissent agrees that the words of this provision are precise and unambiguous. From this the Commonwealth further reasons that this statute unequivocally evidences a legislative intent to impose the severe penal sanctions of up to five years imprisonment 2 and a possible fine, on drivers who, no matter how unintentionally, cause a death while operating a vehicle in violation of any statewide or municipal rule regulating operation or use of an auto. In our opinion, the above language is not susceptible to such a "plain meaning" approach. After having examined the legislative history of this enactment, we would hold that the legislature intended to select culpable negligence as defined in the Crimes Code, 18 Pa.C.S. § 302(b)(4) (1973), as its touchstone for punishment.

[276 Pa.Super. 286] I.

Constitutional Challenges to Section 3732

On this cross-appeal from the lower court's refusal to hold section 3732 unconstitutional, the appellee, Ms. Barone, advances three contentions. Ms. Barone urges that section 3732 runs afoul of the Due Process Clause of the United States Constitution inasmuch as it is vague and overbroad, omits to require as an essential element of the offense some degree of "fault" or mens rea, and denies the accused the right to have all charges disposed of at the magistrates level. This latter invalidity is said to stem from the procedure made applicable to a section 3732 prosecution under our Supreme Court's decision in Commonwealth v. Campana. 3 For the reasons which follow,

Page 460

we need only concern ourselves with the latter constitutional challenge.

a.

In evaluating Ms. Barone's assertions, we are initially guided by certain well settled principles of appellate review of constitutional questions. Thus, it is beyond cavil that this court will not sua sponte raise constitutional questions which have not been framed by the parties. E. g., Wiegand v. Wiegand, 226 Pa.Super. 278, 310 A.2d 426, rev'd 461 Pa. 482, 337 A.2d 256 (1975). Nor should we address constitutional issues unnecessarily 4 or when not properly presented and preserved in the lower court for our appellate review. 5 [276 Pa.Super. 287] Presently, application of these principles compels the conclusion that only one constitutional question has been properly preserved for our review.

On September 14, 1977, Ms. Barone was accorded a preliminary arraignment which was followed by a preliminary hearing on September 28, 1977. Subsequently, on October 17, 1977, Ms. Barone filed both a motion to quash the complaint on non-constitutional grounds and a separate petition seeking a declaration of the unconstitutionality of section 3732. The motion to quash omitted all reference to the alleged unconstitutionality of section 3732. The petition alleged only a deprivation of due process by virtue of the procedure mandated by Commonwealth v. Campana. The alternative constitutional attacks on the two theories of vagueness and overbreadth and lack of mens rea were not filed until January 10, 1978, and April 24, 1978, respectively. During the period between these latter two petitions, the Honorable Robert W. Tredinnick on April 7, 1978, dismissed Ms. Barone's constitutional forays. Presumably, this order only addressed the alleged denial of procedural due process and the vagueness and overbreadth contentions.

To complicate matters, in its answer to Ms. Barone's petition of April 24, 1978, the Commonwealth maintained that Ms. Barone had waived any grounds for relief bottomed upon the unconstitutionality of the statute which had not been raised in the original petition. See Record at 23a. Later, at oral argument on this petition, the Commonwealth reasserted its objection. See Record at 38a and 39a. The lower court apparently agreed with the Commonwealth's analysis and refused to address the merits of the last petition. See Record at 40a.

[276 Pa.Super. 288] Pennsylvania Rule of Criminal Procedure 304 (eff. version January 1, 1965) 6 provides in relevant part:

"(a) All pre-trial applications for relief shall be in writing and presented under the name and style of application.

(e) All grounds for the relief demanded shall be stated in the application and failure to state a ground shall constitute a waiver thereof.

Page 461

In principle, this Rule initially allows the filing of separate applications for relief, that is, a motion to quash and a petition to declare unconstitutional, 7 but it does not grant an accused a license to omit grounds of attack which are essentially related to and encompassed within the subject matter of the initial applications. See Commonwealth v. Coades, 260 Pa.Super. 327, 330, 394 A.2d 575, 577 (1978). The first petition contesting the constitutionality of section 3732 omitted any reference to "vagueness" or lack of a mens rea. Ms. Barone's counsel, who had represented her since the preliminary arraignment, offered no explanation to the courts below as to why these other alleged constitutional deficiencies were not contained in the first petition. Moreover, he failed to argue in response to the Commonwealth's answer that he was unaware of these other facial grounds of constitutional invalidity at the time the first application was filed. The dictates of Rule 304 are clear. We have held that it does not permit an accused to sit back and take chances on one ground for relief and afterwards willy nilly advance other similar grounds, hoping to get a favorable disposition at some indeterminate point in the pre-trial future. Coades, 260 Pa.Super. at 330, 394 A.2d at 577. This tactic cannot be tolerated within the concept of orderly administration of criminal justice in trial and appellate courts. Thus, we would hold that an unexcused failure to [276 Pa.Super. 289] raise the alternative constitutional theories in the original petitions amounted to "a waiver thereof." Pa.R.Crim.P. 304.

b.

Thus, Ms. Barone's sole constitutional argument rests on her claim she was denied due process of law because "she was not afforded the opportunity to have all charges quickly disposed of at the magistrates level." More specifically, Ms. Barone boldly asserts, with no citation of authority, that where, as here, a summary offense is an essential element of the charged indictable offense, an accused is absolutely entitled to a finding of guilty or not guilty on the summary offense. Insofar as the Dissenting opinion finds this hypothesis to be devoid of merit, we agree. 8

II.

Turning to the merits of the Commonwealth's appeal from the lower tribunal's granting of Ms. Barone's demurrer, 9 the questions presented seek an answer to what are the material elements of a section 3732 offense, and what, if [276 Pa.Super. 290] any, degree of culpability must accompany the elements. The Dissent would rule that the minimum culpability requirements of the Crimes Code, 18 Pa.C.S. § 302(a) (1973) are not applicable to any of the essential elements of a section 3732 offense as "a legislative purpose to impose absolute liability (for any death resulting from violation of any traffic law) plainly appears." Crimes Code, 18 Pa.C.S.

Page 462

§ 305(a)(2) (1973). As we are unable to find the same clarity in the words employed, we cannot agree with Dissent's treatment and disposition of this question.

Logically, in adjudging whether the culpability requirements of section 302(a) are applicable to any of the material elements of a section 3732 offense, analysis should commence with section 305 which generally governs the scope of section 302(a). Section 305 provides in pertinent part:

"(a) The requirements of culpability prescribed by . . . Section 302 of this title . . . do not apply to:

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

This section of the Crimes Code is essentially identical to the parallel provision of the Model Penal Code, § 205(1)(b) (1962). The Comments to this proviso expressly observe "(t)hat this section makes a frontal attack on absolute or strict liability in penal law, whenever the offense carries a possibility of sentence of imprisonment." Model Penal Code, § 2.05, Comment 1 (Tent. Draft No. 4, 1955) (emphasis added). Implementation of this strong common law tradition against strict penal responsibility 10 is found in the Code's commandment that legislation should not...

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5 practice notes
  • Commonwealth v. Raban
    • United States
    • United States State Supreme Court of Pennsylvania
    • February 12, 2014
    ...of investigation and prosecution is not the primary inquiry in ascertaining the elements of an offense, citing Commonwealth v. Barone, 276 Pa.Super. 282, 419 A.2d 457 (1980). Appellant adds that absolute liability offenses are disfavored, and, absent a clear indication by the legislature to......
  • Com. v. Heck
    • United States
    • Pennsylvania Supreme Court
    • December 28, 1987
    ...We perceive the problem to be one of judicial interpretation, however, and not of legislative enactment. In Commonwealth v. Barone, 276 Pa.Super. 282, 419 A.2d 457 (1980), the Commonwealth appealed from the trial court's order granting the appellee's demurrer to the charge of vehicular homi......
  • Com. v. Lang
    • United States
    • Superior Court of Pennsylvania
    • February 27, 1981
    ...here, other than to say that the questions have been settled against Lang's line of argument. Commonwealth v. Barone, --- Pa.Super. ----, 419 A.2d 457 (1980). See also Commonwealth v. Field, --- Pa. ----, 417 A.2d 160 (1980); Commonwealth v. Burt, 490 Pa. 173, 415 A.2d 89 (1980); Commonweal......
  • Com. v. Corradino, No. 00827
    • United States
    • Pennsylvania Superior Court
    • March 26, 1991
    ...enactment of any mention of intent should not necessarily be construed as dispensing with it") (quoted in Commonwealth v. Barone, 276 Pa.Super. 282, 311, 419 A.2d 457, 473 (1980) (SPAETH, J., concurring)). Here, appellant has made no argument, either in the court below or on this appeal, co......
  • Request a trial to view additional results
5 cases
  • Commonwealth v. Raban
    • United States
    • United States State Supreme Court of Pennsylvania
    • February 12, 2014
    ...of investigation and prosecution is not the primary inquiry in ascertaining the elements of an offense, citing Commonwealth v. Barone, 276 Pa.Super. 282, 419 A.2d 457 (1980). Appellant adds that absolute liability offenses are disfavored, and, absent a clear indication by the legislature to......
  • Com. v. Heck
    • United States
    • Pennsylvania Supreme Court
    • December 28, 1987
    ...We perceive the problem to be one of judicial interpretation, however, and not of legislative enactment. In Commonwealth v. Barone, 276 Pa.Super. 282, 419 A.2d 457 (1980), the Commonwealth appealed from the trial court's order granting the appellee's demurrer to the charge of vehicular homi......
  • Com. v. Lang
    • United States
    • Superior Court of Pennsylvania
    • February 27, 1981
    ...here, other than to say that the questions have been settled against Lang's line of argument. Commonwealth v. Barone, --- Pa.Super. ----, 419 A.2d 457 (1980). See also Commonwealth v. Field, --- Pa. ----, 417 A.2d 160 (1980); Commonwealth v. Burt, 490 Pa. 173, 415 A.2d 89 (1980); Commonweal......
  • Com. v. Corradino, No. 00827
    • United States
    • Pennsylvania Superior Court
    • March 26, 1991
    ...enactment of any mention of intent should not necessarily be construed as dispensing with it") (quoted in Commonwealth v. Barone, 276 Pa.Super. 282, 311, 419 A.2d 457, 473 (1980) (SPAETH, J., concurring)). Here, appellant has made no argument, either in the court below or on this appeal, co......
  • Request a trial to view additional results

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