Commonwealth v. Peters

320 A.3d 1231

COMMONWEALTH of Pennsylvania

v.Kevin R. PETERS, Appellant

No. 2591 EDA 2021

Superior Court of Pennsylvania.

Filed August 7, 2024

Appeal from the Judgment of Sentence Entered October 15, 2021, In the Court of Common Pleas of Bucks County, Criminal Division, at CP-09-CR-0003901-2020, Diane E. Gibbons, J

Jules Epstein, Philadelphia, for appellant.

Timothy W. Lutes, Assistant District Attorney, Doylestown, for Commonwealth, appellee.

BEFORE: PANELLA, P.J., LAZARUS, J., STABILE, J., DUBOW, J., KUNSELMAN, J., NICHOLS, J., MURRAY, J., McLAUGHLIN, J., and KING, J.

OPINION BY MURRAY, J.:

Kevin R. Peters (Appellant) appeals from the judgment of sentence imposed after a jury convicted him of two counts each of third-degree murder, aggravated assault – serious bodily injury (aggravated assault), recklessly endangering another person, homicide by vehicle while driving under the influence (DUI), aggravated assault by vehicle while DUI, homicide by vehicle, and aggravated assault by vehicle.¹ The trial court separately convicted Appellant of DUI – general impairment, DUI – high rate of alcohol, and the summary offenses of driving within single lane, following too closely, driving vehicle at safe speed, and reckless driving (collectively, the non-jury offenses).² Appellant challenges the sufficiency of the evidence supporting the jury’s finding of malice, the mens rea required for his convictions of third-degree murder and aggravated assault. After careful consideration, we conclude the Commonwealth established the high degree of recklessness required for a finding of malice, and therefore, we affirm.

The trial court detailed the underlying facts:

Shortly after midnight on Friday, December 6, 2019, Nicholas Hafto called 911 police emergency and reported that he was driving on Interstate 95 (I-95) North, and that "there is a white Mazda SUV, swerving, almost sideswiped me, he came flying right by me." At trial, Mr. Hafto further explained that the SUV erratically changed speeds, back and forth from fast to slow. He stated that the SUV made an abrupt exit off I-95 at the Route 29 New Jersey exit, noting that while exiting, the operator of the SUV slammed on his brakes.

Another motorist, Scott Emrick, also called 911. He reported that he was also traveling on I-95 and observed a white Mazda SUV "swerving left and right." He also reported erratic acceleration, deceleration, and a sharp exit off I-95and noted that the vehicle’s headlights were not on.

Surveillance cameras captured images of the SUV as it exited I-95 into New Jersey. Approximately one minute later, the vehicle reentered [I-95] and proceeded South.

At approximately 1:00 a.m., Edmonde Sestini, Jr., a driver working for Clarion Ambulance, was driving South on I-95 at a speed between 50 and 60 miles per hour when a white Mazda SUV passed him at a high rate of speed. Mr. Sestini testified that the SUV "came flying past me on the left-hand side." Approximately half a minute later, and approximately [a] half-mile further down I-95, Mr. Sestini came upon the SUV stopped behind a second vehicle[,] which was facing north in the southbound lane of traffic and was completely engulfed in flames. One man had already been able to get out of [the burning] vehicle, [and] another man was trying to get out. Mr. Sestini and his partner removed [Appellant] from behind the wheel of the SUV, and, due to [Appellant’s] complaints of hip pain, placed him on the ground and dragged him away from the fire.

The collision occurred near the Ford Road overpass in Bristol Township, Bucks County. At approximately 1:05 a.m., the [Pennsylvania] State Police [(PSP)] were dispatched. Upon arrival at the scene, police found a van fully engulfed in flames and a 2016 Mazda CX-5 SUV … with heavy front-end damage. … [Appellant] was transported from the scene to Jefferson Torresdale Hospital in Northeast Philadelphia.

Two men involved in the collision, … Juan Tavarez [(Tavarez)], and his son, Charlys Tavarez Santelises [(Santelises),] were able to extricate themselves from the burning vehicle and make their way to Jefferson Torresdale Hospital. The bodies of [Tavarez’s other son, Juan Jose Tavarez Santelises,] and Claribel Dominguez were removed from the rear seat of the van. Later that same day, forensic pathologist Dr. Ian Hood autopsied the bodies and determined to a reasonable degree of medical certainty that thermal burns caused the death of both individuals.

The survivors, [ ] Tavarez and [ ] Santelises, suffered permanent injuries and testified at length to the extent of their injuries and the treatment they received.

…

* * *

Subsequent investigation into the cause of the collision revealed that the occupants of the van were driving on I-95 South[,] returning from working an 11-hour shift at a New Jersey package sorting plant. [ ] Tavarez, the driver of the van, drove at a speed of between 50 and 55 miles per hour as a precautionary measure due to a slight whistling sound in the van. Because of their reduced speed, … Tavarez[ ] activated his emergency flashers and moved into the right lane of traffic. The first indication that he had of what was about to occur was what Mr. Tavarez described to be like a bomb going off, immediately followed by an engulfing fire.

Trial Court Opinion, 3/4/22, at 1-3, 5 (citations to record omitted).

The trial court further summarized the evidence of Appellant’s activities prior to the collision:

[Appellant] had spent the evening at an open bar social event before proceeding to two separate bars. The open bar event was held in a private room at Ruth’s Chris Steak House in Philadelphia and ran from 5:00 p.m. through 8:00 p.m. During these hours[, Appellant] was drinking vodka. He and his co-workers then moved to the public bar[ atRuth’s Chris,] where [Appellant] consumed bourbon. Co-worker Jaquelyn Smith testified she had offered [Appellant] a ride home shortly after 10:00 p.m., but he declined, instead [ ] asking to be taken to another bar, the "Rogue’s Gallery," with one of his co-workers. The other co-workers used private transport services. A receipt from the Rogue’s Gallery indicated three drinks were ordered in total: one "Love City Lager" and two "Neshaminy 2X IPAs." [Appellant] testified that he consumed two of these drinks. The bill was paid at 12:18 a.m. Shortly thereafter, a video from the parking garage of [Appellant’s] workplace showed that he was unable to operate the automated payment machine. [Appellant] physically lifted the gate to leave the garage[, damaging it]. Once he left the garage, surveillance cameras captured images of [Appellant] driving through a stop sign. Video surveillance footage from the Scudder-Falls Bridge area … shows [Appellant] changing lanes and exiting the highway without using turn signals.

On December 6, 2019, at 1:45 a.m., an employee of Jefferson Torresdale Hospital drew a blood sample from [Appellant]. Police seized a serum plasma sample from [Appellant] pursuant to a search warrant executed on December 18, 2019. That sample was later submitted to National Medical Services for analysis. … [Appellant] had a whole blood alcohol concentration (BAC) of .151 percent. Toxicologist Donna Papsun offered her expert opinion that an individual with a BAC of .151 percent is incapable of safe driving.³

[PSP] Corporal Brianne Glad, an accident reconstruction expert, testified that she downloaded information from the event data recorder, or "black box," from [Appellant’s] vehicle. That information established [Appellant] was traveling at a speed of 113 miles per hour [(mph)⁴] five seconds prior to the collision with the victims’ van. … Half a second prior to the collision[, Appellant] was traveling at 115 miles per hour. [Corporal Glad testified Appellant] did not apply [his vehicle’s] brakes until, at most, four-tenths of a second before impact.

Id. at 5-6 (emphasis and footnote added; citations to record omitted).

Appellant testified at trial and admitted to consuming multiple alcoholic beverages over several hours. See N.T., 9/16/21, at 72, 85-86. Appellant stated that he nevertheless "felt fine to drive." Id. at 78. Immediately prior to the collision, Appellant testified, he attempted to retrieve his cell phone to utilize its GPS function, despite driving over 100 mph. Id. at 81; see also id. at 80-81 (Appellant stating he was lost and had missed his intended exit on I-95). Appellant conceded he (1) unbuckled his seatbelt; (2) took his eyes off of the road; (3) reached over to a backpack located on the passenger’s side floorboard; and (4) grabbed his phone from inside the backpack. Id. at 81, 91; see also id. at 91 (Appellant stating on cross-examination he "thought it would be okay to reach down for a moment."). The collision ensued immediately thereafter. Id. at 81-82.

After the close of evidence, the trial court issued its charge to the jury. The court instructed as follows with respect to malice:

There’s no one definition of malice because it can involve so many different circumstances and so many different factors …. And I am going to give you three separate explanations[.] … Malice is a shorthand way of referring to … particular mental states … of a defendant [ ] that the law regards as being bad enough to make the killing murder.

A killing is [committed] with malice if the defendant’s actions show his wanton and willful disregard of an unjustified and extremely high risk that his conduct would result in death or serious bodily injury to another person. In this form of malice, the Commonwealth need not prove that the defendant specifically intended to kill anybody. The Commonwealth must prove, however, that the defendant took action or engaged in conduct [ ] consciously; that is, knowingly[ ] disregarding the serious risk that his conduct was creating[,] and that … his disregard of that risk demonstrates an extreme indifference to the value of human life.

The second way malice is described is a wickedness of disposition, hardness of

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