Com. v. Comer

Decision Date07 August 1998
Citation716 A.2d 593,552 Pa. 527
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. David COMER, Appellant.
CourtPennsylvania Supreme Court

Fortunato N. Perri, Jr., Philadelphia, for David Comer.

Catherine Marshall, Andrew S. Gibson, Philadelphia, for Com.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO and NEWMAN, JJ.

OPINION

ZAPPALA, Justice.

This is an appeal from an order of the Superior Court which affirmed the decision of the Philadelphia County Common Pleas Court. We affirm in part and reverse in part.

Following a bench trial, Appellant, David Comer, was convicted of recklessly endangering another person, 1 homicide by vehicle, 2 involuntary manslaughter, 3 and aggravated assault. 4 Post-verdict motions were denied and Appellant received a sentence of two and one half to five years imprisonment for homicide by vehicle, a consecutive sentence of two and one half to five years for involuntary manslaughter and a concurrent sentence of five to ten years for aggravated assault.

We granted allocatur to address four issues. The first two issues challenge the sufficiency of the evidence for Appellant's convictions of aggravated assault and involuntary manslaughter. In reviewing the sufficiency of the evidence, we must determine whether the evidence and all reasonable inferences deducible therefrom, viewed in the light most favorable to the Commonwealth as verdict winner, are sufficient to establish all the elements of the offense beyond a reasonable doubt. Commonwealth v. Brown, 544 Pa. 406, 676 A.2d 1178 (1996).

Viewed in this light, the evidence established that on July 28, 1992, at approximately 4:00 or 5:00 p.m., Appellant arrived at a pool party in Philadelphia. While there, he met his friend Matt Engler. Engler testified that both he and Appellant drank beer and that both men took pills described as "muscle relaxers" or "downers." 5 He stated that the pills were given to them by another individual at the party. When asked how much beer Appellant drank, Engler responded, "Not much." Appellant himself testified that he drank four or five beers at the party.

Shortly after midnight, Appellant and Engler left the party en route to a bar. Appellant, driving a rented white Buick Regal, travelled southbound in the right hand lane on Roosevelt Boulevard. He was driving at an excessive rate of speed when his right tire began to rub the curb near Grant Avenue. The vehicle then left the roadway, crashed into a SEPTA bus stand, and continued until it struck a brick wall. Justin Freeland and Carol Velozzi were waiting for a bus when Appellant's car came crashing through. Freeland died at the scene. Velozzi's leg was broken and she was hospitalized for two weeks.

Evidence introduced at trial established that the posted speed limit was 45 m.p.h. Two eyewitnesses testified that immediately prior to the accident they observed Appellant's vehicle travelling at a speed exceeding 45 m.p.h. Mary Ann Schacta testified that she estimated the speed of Appellant's vehicle as 55 m.p.h. Steven Sacco, a tow truck driver, testified that Appellant's vehicle passed him and was "out of control," travelling in excess of 70 m.p.h. No skid marks appeared on the pavement and there was no other evidence indicating that Appellant quickly applied his brakes. The evidence also established that there was no obstruction on the roadway at the time of the accident.

Officer Donald Lowenthal was the first officer to arrive at the scene. When he approached Appellant he detected a slight odor of alcohol. A blood alcohol content (BAC) test was administered at 2:07 a.m. which revealed an alcohol content of .033.

We shall first address the sufficiency of evidence issue relating to Appellant's conviction for aggravated assault. A person is guilty of aggravated assault if he "attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life." 18 Pa.C.S. § 2702(a)(1).

We examined the requisite mens rea of recklessness for an aggravated assault conviction in Commonwealth v. O'Hanlon, 539 Pa. 478, 653 A.2d 616 (1995). In O'Hanlon the defendant, while severely intoxicated, 6 drove his vehicle through a red light and struck another vehicle. Both the defendant and the driver of the other vehicle were seriously injured.

In reversing the conviction for aggravated assault, we found that there was an increased degree of recklessness required by the aggravated assault statute, i.e., reckless "under circumstances manifesting extreme indifference to the value of human life." We held that

mere recklessness is insufficient to support a conviction for aggravated assault, which 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. There must be an element of deliberation or conscious disregard of danger not present to the same extent in, e.g., either reckless endangerment ... or driving while intoxicated.

Id. at 482, 653 A.2d at 618.

We further stated that

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 life threatening injury 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.

In O'Hanlon, we noted that examples of recklessness in which life threatening injury is essentially certain to occur include firing a gun into a crowd, Commonwealth v. Daniels, 467 Pa. 35, 354 A.2d 538 (1976), or driving a vehicle into a crowd after having aimed the vehicle at a particular individual, Commonwealth v. Laing, 310 Pa.Super. 105, 456 A.2d 204 (1983).

Applying the aforementioned law to the facts of this case, we find that the Commonwealth did not establish that Appellant possessed the state of mind equivalent to that which seeks to cause injury. The evidence established that Appellant was driving at an excessive rate of speed after consuming four or five beers and ingesting at least one "downer" at some time prior to the accident. While Appellant's actions are clearly criminal, they do not constitute aggravated assault.

The Commonwealth argues that this case is controlled by Commonwealth v. Scofield, 360 Pa.Super. 552, 521 A.2d 40 (1987), alloc. denied, 517 Pa. 593, 535 A.2d 82 (1987), where the defendant's aggravated assault conviction was sustained when it was established that he drove his vehicle in an erratic manner after consuming a small amount of alcohol and ingesting drugs. Although superficially similar, the case is factually distinguishable.

In Scofield, the defendant was driving his vehicle and scraping his car against the bumper of a vehicle parked on the street. Sparks were flying and the defendant travelled another ten feet in this manner before swerving onto the sidewalk and striking a building. A nearby cabdriver realized that the defendant had struck a pedestrian, who was under the right fender of the defendant's vehicle. The cabdriver directed the defendant to turn the car off and even attempted to reach into the car to remove the keys from the ignition. The defendant became belligerent, hit the cabdriver and attempted to bite him. The defendant then unsuccessfully tried to put his car into reverse, but a flat tire prevented his flight. As a result of the incident, the pedestrian's leg was amputated.

Although the defendant's BAC was only .004, a drug test revealed two different types of barbiturates in his urine. Furthermore, the officer at the scene testified that the defendant had an odor of alcohol on his breath, spoke with a thick tongue, had a hard time standing and had to be helped away from the vehicle.

The Superior Court concluded that the record was replete with evidence that the defendant operated his car in an intentionally reckless manner. It noted that the defendant repeatedly scraped his car against parked vehicles, and that he had no regard for the victim's plight when confronted with the situation. The court found that the defendant's behavior prior to and after the accident established that he was aware of his reckless conduct. Thus the defendant considered, then disregarded, the threat to the life of the victim. These circumstances demonstrate a higher degree of recklessness than those presented in the instant case.

In contrast, Appellant sped past another vehicle, his car rubbed the curb of the sidewalk and the accident ensued immediately thereafter. The fact that both Appellant and the defendant in Scofield drank alcohol and ingested some amount of a controlled substance is not controlling. As we find Appellant's conduct more akin to that which occurred in O'Hanlon, we reverse his conviction for aggravated assault.

We next examine Appellant's claim that the evidence was insufficient to sustain his conviction for involuntary manslaughter. A person is guilty of involuntary manslaughter when, as a direct result of the doing of an act in a reckless or grossly negligent manner, he causes the death of another person. 18 Pa.C.S. § 2504.

We have held that there is a distinction between the term "negligently" as set forth in 18 Pa.C.S. § 302(b)(4) and "recklessly" as set for in 18 Pa.C.S. § 302(b)(3). The latter definition encompasses gross negligence. Commonwealth v. Lobiondo, 501 Pa. 599, 462 A.2d 662 (1983). Section 302(b)(3) defines "recklessly" as follows:

A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and intent of the actor's conduct and the...

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