Com. v. Kling

• Decision Date: 07 May 1999
• Citation: 1999 PA Super 110,731 A.2d 145
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. John J. KLING, Appellant.
• Court: Pennsylvania Superior Court

731 A.2d 145

1999 PA Super 110

COMMONWEALTH of Pennsylvania, Appellee, v. John J. KLING, Appellant.

Superior Court of Pennsylvania.

Argued January 27, 1999.

Filed May 7, 1999.

Joseph M. Devecka, State College, for appellant.

Dwight C. Harvey, District Attorney, McConnellsburg, for Com., appellee.

Before CAVANAUGH, EAKIN and OLSZEWSKI, JJ.

EAKIN, J.:

¶ 1 John J. Kling appeals from the judgment of sentence entered following his convictions for third degree murder, aggravated assault, recklessly endangering another person, and possession of marijuana. We affirm.

¶ 2 On August 28, 1996, appellant was driving his red Chrysler Conquest near McConnellsburg when he noticed a black Chevrolet Camaro in his rear view mirror. The Camaro, driven by Larry Seville, took off after appellant and both automobiles began racing up a curvy mountain road known as Scrub Ridge. At speeds in excess of 80 m.p.h., both vehicles reached the crest of Scrub Ridge, and with appellant in the lead, the improvident competitors began descending the mountain road.

¶ 3 The first downside mile from the top of Scrub Ridge is riddled with eight substantial curves and five cautionary speed signs. Nevertheless, appellant maintained his excessive speeds, pulling away from the Camaro and disappearing into the blind curves. Through the second of these curves, appellant was on the wrong side of the road and nearly hit Jean Pepple traveling the opposite direction in her minivan. In spite of this near collision, appellant neither slowed down nor took action to mitigate the obvious danger from his racing.

¶ 4 Approaching the eighth major curve on the downslope, appellant swung into the no-passing zone and blew past two pickup trucks traveling in front of him. He then headed into the sharp double curve at nearly 70 m.p.h., crossed the center line again, and struck a vehicle driven by Helen Mellott. The collision, eight-tenths of a mile after appellant ran Ms. Pepple off the road, killed Ms. Mellott instantly and left her ten-year-old son with a ruptured artery to his liver.

¶ 5 On December 17, 1997, following a jury trial, appellant was found guilty of third degree murder, aggravated assault, recklessly endangering another person, and possession of marijuana.¹ He was sentenced to prison for an aggregate term of twelve to thirty years. This appeal follows, wherein the following issues are raised:

I. Whether the evidence was sufficient to establish the element of malice required to sustain appellant's convictions for third degree murder and aggravated assault?

II. Whether the trial court erred in denying appellant's requested charges to the jury?

III. Whether the trial court erred in failing to allow appellant to present evidence of his own medical condition?

¶ 6 Appellant's first issue challenges the sufficiency of the evidence for his convictions of third degree murder and aggravated assault. In reviewing the sufficiency of the evidence, our task is to determine whether the evidence and all reasonable inferences therefrom, viewed in the light most favorable to the verdict winner, was sufficient to enable the factfinder to find every element of the crime charged beyond a reasonable doubt. Commonwealth v. Zambelli, 695 A.2d 848, 851 (Pa.Super.1997).

¶ 7 Third degree murder occurs when a person commits a killing which is neither intentional nor committed during the perpetration of a felony, but contains the requisite malice. 18 Pa.C.S. § 2502(c); Commonwealth v. Johnson, 719 A.2d 778, 785 (Pa.Super.1998). Aggravated assault arises when a person attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting an extreme indifference to the value of human life. 18 Pa.C.S. § 2702(a)(1). Malice is the crucial element in question here, as it is the component which distinctly characterizes both of these offenses. See Commonwealth v. Fierst, 423 Pa.Super. 232, 620 A.2d 1196, 1203 (1993)

(malice must be present to sustain a conviction for both third degree murder and aggravated assault).

¶ 8 There is no distinction between the malice essential to third degree murder and that necessary for aggravated assault. See Commonwealth v. Hickson, 402 Pa.Super. 53, 586 A.2d 393 (1990),

appeal denied, 527 Pa. 663, 593 A.2d 838 (1991) (malice is a constituent element of both third degree murder and aggravated assault; jury's finding of not guilty for third degree murder, i.e., a malicious act, precludes a second trial for aggravated assault); see also Commonwealth v. O'Hanlon, 539 Pa. 478, 653 A.2d 616, 618 (1995) (aggravated assault is the functional equivalent of a murder in which, for some reason, death fails to occur). As such, the mens rea of malice respective to each of these offenses may be discussed concurrently.

¶ 9 Malice exists where there is a "wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty, although a particular person may not be intended to be injured." Commonwealth v. Pigg, 391 Pa.Super. 418, 571 A.2d 438, 441 (1990),appeal denied, 525 Pa. 644, 581 A.2d 571 (1990) (quoting Commonwealth v. Drum, 58 Pa. 9, 15 (1868)). Where malice is based on a reckless disregard of consequences, it is not sufficient to show mere recklessness; rather, it must be shown the defendant consciously disregarded an unjustified and extremely high risk that his actions might cause death or serious bodily injury. See Commonwealth v. Scales, 437 Pa.Super. 14, 648 A.2d 1205, 1207 (1994),

appeal denied, 540 Pa. 640, 659 A.2d 559 (1995) (regarding third degree murder). A defendant must display a conscious disregard for almost certain death or injury such that it is tantamount to an actual desire to injure or kill; at the very least, the conduct must be such that one could reasonably anticipate death or serious bodily injury would likely and logically result. See O'Hanlon, supra, 653 A.2d at 618 (regarding aggravated assault).

¶ 10 In view of this heightened mens rea, motor vehicle crashes seldom give rise to proof of the malice needed to sustain a conviction for third degree murder or aggravated assault. Recent case law exemplifying this lies in O'Hanlon, supra, a case involving a driver who ran a red light and struck another vehicle, causing serious injury to the other driver. Our Supreme Court reversed the aggravated assault conviction, finding only mere recklessness, not that which almost assured death or injury would ensue. In so doing, the Court explained "[s]erendipity, not intention, placed the victim in his path when he drove through the red light." Id., 653 A.2d at 618.

¶ 11 More recently, in Commonwealth v. Comer, 552 Pa. 527, 716 A.2d 593 (1998), our Supreme Court again reversed a conviction of aggravated assault, where a driver recklessly caused a severe accident. The facts of this case demonstrated a much more egregious course of conduct than in O'Hanlon. After ingesting alcohol and barbiturates, Comer got behind the wheel of his car and proceeded to a strip club on an urban thoroughfare. Although he was familiar with the busy road, Comer drove his vehicle at excessive rates of speed, cutting off cars and plowing onto a sidewalk. Ultimately, his vehicle severed a light pole, smashed into a bus stop, and crossed over all the lanes of the intersecting avenue, stopping only after it crashed into a brick wall. This disaster killed one person and severely injured another. The Court held Comer's conduct, while criminally reprehensible, was insufficient to establish the state of mind equivalent to that which seeks to cause injury.²

¶ 12 This is not to say that being in a vehicle insulates a driver from conviction of these crimes. In both O'Hanlon and Comer, the Court distinguished Commonwealth v. Scofield, 360 Pa.Super. 552, 521 A.2d 40 (1987),appeal denied, 517 Pa. 593, 535 A.2d 82 (1987), an automobile case where aggravated assault was upheld. Scofield was driving his car, scraping it against the bumper of a vehicle parked on the street. Although sparks emanated, he drove another ten feet, swerved onto the sidewalk and struck a building. A passing cabdriver realized Scofield had struck a pedestrian and was dragging him underneath the vehicle. The alarmed cabdriver approached and told Scofield to turn the car off; he even attempted to reach into the car and remove the keys. Scofield, however, became belligerent and assaulted the cabdriver. He then tried to put his car into reverse, but a flat tire prevented his flight. Because Scofield's behavior prior to and after the accident established his awareness of the risk of serious injury, a panel of this Court found intentionally dangerous conduct and upheld his aggravated assault conviction.

¶ 13 Indeed, at first glance, Comer and Scofield seem factually analogous, but as the Supreme Court noted, the "circumstances [in Scofield ] demonstrated a higher degree of recklessness than those presented in [Comer."] Comer, 716 A.2d at 597. The cornerstone of this conclusion rested with the notion Scofield considered, then disregarded, the threat to the life of the victim; "[i]n contrast, [Comer] sped past another vehicle, his car rubbed the curb of the sidewalk and the accident ensued immediately thereafter." Id. (emphasis added).³ Thus, the Comer Court indicated a conviction based on malice is appropriate where evidence demonstrates the element of sustained recklessness by a driver in the face of an obvious risk of harm to his victims. A review of Pennsylvania case law thoroughly supports this proposition.

¶ 14 In Pigg, supra, an intoxicated tractor-trailer driver killed two people after he crashed into their vehicle on a narrow road. Prior to this collision, he drove several other vehicles off the road and ignored another driver's request to stop driving. The Court found this conduct easily amounted to malice, explaining "there can be no question that Pigg knew the danger ...