Commonwealth v. Fabian

60 A.3d 146

2013 PA Super 6

COMMONWEALTH of Pennsylvania, Appellee

v.Mark FABIAN, Appellant.

Superior Court of Pennsylvania.

Argued Dec. 4, 2012.

Filed Jan. 11, 2013.

Suzanne M. Swan, Public Defender and Jessica L. Herndon, Public Defender, Pittsburgh, for appellant.

Michael W. Streily, Deputy District Attorney, Amy E. Constantine, Assistant

District Attorney, Pittsburgh, for Commonwealth, appellee.

BEFORE: PANELLA, ALLEN, and STRASSBURGER,^* JJ.

OPINION BY ALLEN, J.:

Mark Fabian (“Appellant”) appeals from the judgment of sentence imposed after he was convicted of involuntary manslaughter and four counts of recklessly endangering another person.¹ We affirm.

The trial court recounted the factual background as follows:

September 3rd, 2008 was a ride from school that 10 year old Tyler and 6 year old Walter will never forget. Both boys are special needs children. They attend a special school in the City of Pittsburgh. They get picked up at their home in the morning and get dropped off in the afternoon. Except on this day, their afternoon ride home was anything but normal.

A–1 Van Service is a company that provides transportation services. One of its services is to “haul” students to and from school. One way it accomplishes this goal is by using passenger vans like a Dodge Caravan. It employs a driver. The driver works a split shift. The driver does the pick-up and delivery in the morning, has a few hours off during the mid-day but returns in the afternoon to do the drop-off at the student's home.

Jennifer Logan did not get her normal van that morning of September 3rd, 2008. Something was wrong with it. Her boss told her to take Van # 9. Ms. Logan climbed into Van # 9 and began her morning trip. She felt something was wrong. The van shook and shimmied when she applied the brakes. At her first stop, Walter's house, she commented to Walter's mom that something was wrong. It was suggested that she take it back to the garage and get it checked out. At her second stop, Tyler's house, she repeated the comments. Tyler's mom and Tyler's aide, Colleen Visconti, both told the driver to complain about it when she got back to the garage. After traversing the hills to the school and dropping off Walter, Tyler and Tyler's aide, Ms. Logan returned to the A–1 garage. She spoke with her boss, Cori Skellie. She complained. There was something funny about Van # 9, [Ms. Logan] said. They argued. Finally, Ms. Logan is told a mechanic will look at it.

While Ms. Logan is waiting for her mother to come pick her up at work, she sees [Appellant], a mechanic with A–1, get in Van # 9. [Appellant] drives it in the parking lot and mashes [sic] on the brakes 3 times. He drives it inside the garage. Van # 9 is put on the floor lift. A–1 employees saw some of the wheels [pulled] off the van. Not a single one saw the drums of the brakes removed.

After her mid-day break, Ms. Logan returns to complete her work shift. She is told Van # 9 is fixed. She takes Van # 9. She makes the 15–20 minute ride to school. School personnel bring Walter and Tyler out to the van. Walter sits in the very back. He is buckled in. Tyler is buckled into a car seat on the passenger side on the middle row of seats. Tyler's aide, Miss Colleen, is directly behind the driver and to the left of Tyler. The van leaves the school.

A few blocks away is a narrow, very steep street with two-way traffic. Ms. Logan turns down the street. She picks up speed. She puts her foot on the brake. It goes to the floor. There is no brake. Her speed increases. She sees grass on the opposite side of the street. Maybe this will slow me down is her thinking. It does not. She hits a tree. She thought all four of them were dead. She was part right. Tyler's aid, [Miss Colleen], while alive at the scene, died later at the hospital. Ms. Logan was extracted from the wreckage and from her perch on someone's lawn, she kept uttering, “I told them something was wrong with that van.”

A homicide investigation ensues. Observations at the scene showed no brakes were applied or there were no brakes working. A trail of brake fluid on the steep street came from Van # 9. A full inspection of Van # 9 was very revealing. As a baseline of sorts, the inspectors used the service work order completed by an A–1 Service mechanic, [Appellant]. [Appellant] completed this form and said he pulled all 4 tires, brakes are fine, adjust up rears and noted measurements of brakes both the front and back.

The measurements of the brakes were different. Law enforcement measured the thickness of the friction material that is pressed onto the rear brake drum at 7/32nds of an inch. [Appellant's] measurement was 4/32nds of an inch. The 3/32nd of an inch difference is significant to those in that field and is something that would be readily observable to a person trained in that field.

The rear brakes were not adjusted according to government witnesses. To make an adjustment, there is a wheel, of sorts, called a “star wheel[”], that with a special brake tool or a regular screw driver, the wheel is turned a few clicks and that brings the friction material closer to the drum. When the “star wheel” is adjusted, it exposes the threads of the screw. The exposed threads would look fresh, shiny and new because it had not previously been exposed to all the brake dust that is normally generated inside the brake drum. Clean, new threads—a telltale sign that the brakes had recently been adjusted—were not present.

All four wheels were not pulled. The rear drums were difficult to get off. While one was easier than the other, the more difficult one had to be beat with a hammer. Had the drums been pulled just ten miles earlier [ (the distance Ms. Logan had driven the van prior to the accident) ], the drums would have been removed with far greater ease. Another indication that the drums were not pulled was the large amount of dust inside. After the struggle to remove the drums, the bowl of the drum [was tilted] up and both were full of dust and debris. The dust, a normal byproduct of braking action, was far in excess of the amount one would see after just 10 miles of travel.

Had the rear drums been removed two obvious defects would have been noticed. The left rear cylinder was frozen. It was totally non-operational. From an inspection viewpoint, the left rear brake would be deemed defective. The right rear [drum] had a 1–inch crack in the shoe. The crack is the result of heat and stress. Given the problems on the left side rear (non-operational cylinder), some overcompensation was taking place on the right side which contributed to the crack in the shoe. The conclusion of government inspectors and testifying experts was that Van # 9 should not have been allowed to leave the garage with those brake system defects.

Armed with this knowledge, the focus of the investigation shifted to the company, A–1 Service, and in particular, its mechanic, [Appellant]. Eight days after the crash, two City of Pittsburgh police officers interview[ed] [Appellant] at his home. [Appellant] said he was assigned to look at Van # 9. He took it for a test ride. He pulled all 4 wheels. [Appellant] measured the brake pads and shoe[s] and inspected all brake components. He also told these investigators that he adjusted the rear brakes, that he used brake cleaner on the rear brakes, inspected the shoes and pistons, and concluded that all components were dry with no leakage. [Appellant] did not check the master cylinder because during his test drive, the brakes felt fine. [He] also added that the brakes had a shiny surface, there were no cracks. In essence, [Appellant] said the brakes were in good shape.

[Appellant] was then confronted with photographs and their inspection findings of Van # 9. As for the crack in the rear shoe, his explanation was that it must have happened after he looked at it. He had no explanation for discrepancies between their measurements and his. He said he never opened the hood[,] therefore he did not see the cap on the master cylinder not in its normal location. [Appellant] had no explanation for the large amount of dust.

Five months later, on February 25, 2009, [Appellant] was accused of involuntary manslaughter for causing the death of Colleen Visconti as a direct result of him not repairing Van # 9 in a reckless or grossly negligent manner [sic]. He was also charged with 4 counts of recklessly endangering another person. Those people were the van's driver, the two students and the one student's aide.

Trial Court Opinion, 1/30/12, 2–5 (citation and footnotes omitted).

On January 23, 2010, a jury convicted Appellant of involuntary manslaughter and four counts of recklessly endangering another person. The trial court also found Appellant guilty of the summary offense of unlawful activities. 75 Pa.C.S. § 4107(b)(2). On December 1, 2010, the trial court sentenced him to an aggregate of two and one-half to five years of incarceration, followed by a five-year probationary term. The trial court denied Appellant's timely filed post-sentence motion. This appeal followed. Both Appellant and the trial court have complied with Pa.R.A.P. 1925.

Appellant raises the following issues for our review:

I. Is evidence sufficient to convict of involuntary manslaughter when the Commonwealth fails to prove the direct or substantial cause of the vehicle accident that led to the [victim's] death?

II. Is evidence sufficient to convict of involuntary manslaughter when the Commonwealth fails to prove that [Appellant] acted recklessly or in a grossly negligent manner?

III. Is evidence sufficient to convict of reckless endangerment when the Commonwealth fails to prove that [Appellant] acted with recklessness that placed another in danger of death or serious bodily injury?

Appellant's Brief at 6 (capitalization removed).

All three of Appellant's issues challenge the sufficiency of the evidence supporting his convictions. Our standard of review is well settled:

The standard ...