Commonwealth v. Pigg
| Citation | 391 Pa.Super. 418,571 A.2d 438 |
| Parties | COMMONWEALTH of Pennsylvania v. Thomas Mont PIGG, Appellant. |
| Decision Date | 07 March 1990 |
| Court | Superior Court of Pennsylvania |
Argued Sept. 28, 1989.
Samuel E. Teeter, Gettysburg, for appellant.
Roy A. Keefer, Asst. Dist. Atty., Gettysburg, for Com.
Before CIRILLO, President Judge, and BECK and JOHNSON, JJ.
Thomas Pigg appeals from his judgment of sentence entered by the Court of Common Pleas of Adams County. We affirm.
The facts and procedural history of this case were comprehensively set forth in the opinion of the Honorable Oscar F. Spicer President Judge of the Adams County Court of Common Pleas. The trial court found:
On April 5 1987, at approximately 5:10 p.m., Jeffery Small drove his car eastward on Pennsylvania Highway Route 116. With him was his wife, Diane, and daughter, Justina. As he entered a curve, he saw an eighteen wheeled tractor trailer completely blocking his path, coming from the opposite direction. As a result of the collision, Diane and Justina were both killed.
Police arrived on the scene shortly thereafter. They determined from physical evidence, that impact occurred in Mr. Small's lane on the two-lane highway. Empty beer cans were seen in the vicinity of Defendant's truck. The police observed classic signs of inebriation in Defendant's mannerisms, actions, and appearance. Around 7:05 p.m. samples of Defendant's blood were taken at Gettysburg Hospital as was a later urine specimen. One blood test was conducted at the hospital, yielding a result of .36 percent blood alcohol content. A second sample was sent to the state police laboratory, resulting in a reading of .30 percent. The urine specimen was checked by an independent laboratory and showed a .415 percent blood alcohol content.
G. Thomas Passananti, Ph.D., an expert called by Commonwealth at trial, explained the varying results. For example, the hospital test was based upon blood serum and such tests are higher than for whole blood. The state police test was of whole blood and was considered accurate. Dr. Passananti also described the effects of alcohol on the system and expressed an opinion that Defendant's blood alcohol content could not have been less than .30 percent at the time of the accident.
Defendant testified he was en route from Altoona to Lancaster to pick up a load. He stopped in Breezewood the previous evening and drank beer in his truck. He said that beer cans found at the scene were from that drinking episode. He stopped in Chambersburg on the day of the accident and had lunch, consisting of a cheeseburger, five or six cans of beer and four shots of whiskey. He said he felt normal as he later proceeded eastward on U.S. Route 30.
His first contact, or near contact, with an Adams County resident came just east of Gettysburg. Sharon L. Payne was stopped, facing west and waiting to make a left turn. She looked to see Defendant "laying over the steering wheel" and completely in her lane. (N.T. 40) Defendant swerved back into his lane when Ms. Payne blew her horn.
After Defendant went by, Ms. Payne remembered she needed to buy kerosene and turned around to return to Gettysburg. She was the third or fourth car behind Defendant when he stopped at a traffic light at the intersection of Buford Avenue, West Street, Springs Avenue and Chambersburg Street.
U.S. Route 30 is known as Buford Avenue west of this intersection and Chambersburg Street east of it. U.S. Route 30 curves to the left as one approaches from the west. If one approached the intersection from the east, Springs Avenue would seem a straight continuation of U.S. Route 30. Springs Avenue, then, intersects at a ninety degree angle with West Street to its south, where the point of the right angle marking the spot where U.S. Route 30 bends towards the north and west.
As Defendant proceeded through the intersection, his truck ran over the curb on the south side of Buford Avenue. He also hit a pole with a street sign on it. Ms. Payne said that wood flew all over and the pole hung halfway from the top.
Defendant said he was unaware of anything out of the ordinary occurring and kept going. Ms. Payne then determined to follow and obtain a license number.
The intersection of U.S. Route 30, (called York Street), Hanover Street, and Liberty Street is somewhat similar to the one earlier described. However, Hanover Street appears to be a continuation of U.S. Route 30 to one travelling east, as U.S. Route 30 again curves to the left. Hanover Street is also Pennsylvania Route 116.
Defendant mistakenly continued straight, instead of following U.S. Route 30, and found himself heading toward Bonneauville and McSherrystown. With Ms. Payne following, he proceeded through Bonneauville and then signalled for a right turn. He did not immediately turn, however, until farther down the highway. He then pulled into a private entrance.
Ms. Payne also turned and then went to Defendant's truck. She asked if he were all right or needed help. She begged him not to continue. Defendant's only response was to tell her to get out of his way, "so he could go down the road." (N.T. 49) When Ms. Payne asked him if he had been drinking, Defendant said he had never drunk a drop in his life. He then proceeded to pull out, bumping Ms. Payne's vehicle slightly.
Ms. Payne then called the police because she was "worried about this man hurting himself or somebody else." (N.T. 52)
A few minutes later, the fatal collision occurred.
State Police charged Defendant with two counts each of murder in the third degree, homicide by vehicle, homicide by vehicle while driving under the influence, and driving under the influence.
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After a change of venue was ordered, trial occurred in Cumberland County. Commonwealth presented nine witnesses in chief, one on rebuttal and Defendant, two witnesses during the trial. The case was presented to the jury on November 4, 1987. After deliberating for a period of time, the jurors were released and returned the next morning.
Shortly after Court reconvened, the jury asked for additional instructions on malice as it pertained to recklessness on the charge of murder of the third degree. The Court was also asked to discuss "the degrees of recklessness and consciousness." (N.T. 301)
After the Court discussed recklessness, defense counsel requested that a definition of malice again be submitted to the jury. In complying, the Court instructed, inter alia, that "malice consists of cruelty, hardness of heart, an attitude or a mind heedless of social duty" which showed reckless indifference to the value of human life. (N.T. 307) No objection was made to the charge. The jury returned later with verdicts of guilty to all counts....
At trial Pigg was represented by John A. Wolfe, Esquire, who, following the entry of Pigg's convictions, filed timely post-trial motions. On February 16, 1988 attorney Wolfe filed supplemental post-trial motions and at the same time filed a petition to withdraw as Pigg's counsel. On February 19, 1988, Samuel E. Teeter, Esquire was appointed to represent Pigg and given thirty days to file supplemental post-trial motions. On March 21, 1988, attorney Teeter filed a motion to extend the time for reviewing the record and for filing additional post-trial motions. This motion was granted on the same date and attorney Teeter was given an additional twenty days. On April 11, 1988, attorney Teeter filed a second motion to extend and on April 12, 1988 the court entered an order giving attorney Teeter an additional ten days to review the record and to file supplemental post-trial motions. On April 21, 1988 attorney Teeter filed supplemental post-trial motions. Following oral argument, Pigg's post-trial motions were denied. Thereafter, Pigg was sentenced and filed no motion to reconsider sentence. This appeal followed.
Pigg raises the following issues for our consideration:
(1) Whether the trial court erred when it denied the motion in arrest of judgment of appellant, Thomas Mont Pigg, in respect to the two third-degree murder charges based on appellant's contention that insufficient evidence was introduced by the Commonwealth at trial to prove malice.
(2) Whether the trial court erred in denying appellant's post-verdict motion challenging the adequacy of the trial court's jury instruction on the essential prerequisites for proof of malice based upon the Commonwealth's "recklessness" theory.
(3) Whether the trial court erred by denying appellant's post-verdict motion based upon appellant's claim that his trial counsel was ineffective for failing to object to prejudicial testimony offered by the Commonwealth concerning appellant's prior erratic driving on the day, but not at the time, of the accident.
(4) Whether the trial court erred when it failed to find that the homicide by vehicle while driving under the influence convictions merged for purposes of sentencing into the third-degree murder convictions and whether the trial court exceeded its authority when it imposed consecutive sentences on the two homicide by vehicle while driving under the influence convictions.
First, Pigg contends that the Commonwealth's evidence was insufficient to support the two third-degree murder convictions. Specifically, Pigg asserts that the Commonwealth failed to prove the requisite element of malice to support his murder convictions. Moreover, Pigg states that "proof of excessive drinking ... coupled with reckless or careless operation ... of his large tractor trailer rig on the roadway do not in themselves constitute malice absent other proof that [he] was conscious of the extraordinary and unusual peril or probable peril to human life caused by such operation of his vehicle at the time and place of...
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