Commonwealth v. Sanders

259 A.3d 524

COMMONWEALTH of Pennsylvania, Appellee

v.Katrina A. SANDERS, Appellant

No. 3562 EDA 2017

Superior Court of Pennsylvania.

Argued March 2, 2021

Filed August 16, 2021

Bruce W. Miller, Philadelphia, for appellant.

Adrienne D. Jappe, Norristown, for appellee.

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

OPINION BY STABILE, J.:

Appellant, Katrina A. Sanders, appeals from her judgment of sentence of five years’ probation for homicide by vehicle, careless driving, careless driving—unintentional death, failure to yield the right-of-way, and improper turning movement.¹ While driving a bus in the scope of her employment with Southeastern Pennsylvania Transportation Authority ("SEPTA"), Appellant struck and killed a 93-year-old pedestrian as he crossed the street. We hold that the evidence is insufficient to sustain Appellant's conviction for homicide by vehicle because the evidence does not support a finding of recklessness or gross negligence. Accordingly, we reverse Appellant's conviction for homicide by vehicle and remand for resentencing on all remaining convictions.

The trial court recounted the evidence as follows:

On April 2, 2016, Officer Floriendo of the Cheltenham Police Department responded to the report of a fatal accident at the intersection of Glenside Avenue and Limekiln Pike in Cheltenham, Montgomery County. Upon arriving at the scene, the officer observed the ninety-three year old victim underneath [ ]a SEPTA bus. Another motorist, who was behind the SEPTA bus in the westbound lane of Glenside Avenue at the time of the accident, testified that as the bus began to make a left-hand turn onto Limekiln Pike, she observed an elderly man begin to cross Limekiln Pike from west to east. The man put his hand up, and then vanished from her sight. She testified that the bus was making a slow, methodical turn. While she was stopped at the light, prior to the bus moving, she did not see the man standing on the corner.

Officer Joseph Morrissey, Jr., was in charge of the investigation and of the crash scene. Morrissey also testified as an expert in crash reconstruction. On the day of the accident, he observed the victim under the SEPTA bus. He testified that in the area of the crash, Limekiln Pike runs north and sou[th], and Glenside Avenue runs east and west. The intersection of these roads is controlled by a traffic signal and there are four designated, marked crosswalks.

He was present for the autopsy of the victim, which indicated that the 93 year old man died of multiple injuries to the trunk and related fractures. Morrissey was present for a mechanical inspection of the bus, which revealed no defects or issues that could have contributed to the crash. As a result of his investigation, Officer Morrissey determined that speed, roadway conditions, weather, or obstructed vision were not contributing factors in the crash.

Officer Morrissey reviewed the Rules Manual for the Surface Transportation and Bus Division from SEPTA, as well and surveillance video taken from inside of the bus. The surveillance video, which depicts the driver's view looking out the front windshield of the bus as well as a view of the driver taken from behind, shows [Appellant] picking up and looking at papers as she is stopped at the light. As a result of this distraction, she stopped over the white stop line, in the crosswalk. As a result, Officer Morrissey opined, she may not have been able to see the victim on the diagonal corner waiting to cross. The video shows that [Appellant] had an unobstructed view of the intersection for 45 seconds, at which time the victim is visible in the video. During those 45 seconds, [Appellant] was preoccupied with the papers in her hand and did not scan the intersection for pedestrians or other traffic hazards. At the time she begins the turn, there are no other vehicles or pedestrians in the intersection. Before beginning her turn, [Appellant] hesitated approximately 2.33 seconds, in contravention of SEPTA's policy requiring drivers to wait a full four seconds before entering an intersection. Additionally, she turns the wheel with one hand instead of two, while still holding the route paperwork. The victim was in the crosswalk for approximately 6.75 seconds before being struck and made it approximately 32 feet across the intersection. Officer Morrissey was able to determine this by examining the tire marks and body slide marks leading to the bus's final stop which indicated that [Appellant] applied the brakes after she struck the victim. The pedestrian had the right of way. Officer Morrissey testified that in his expert opinion, [Appellant] operated her bus in a reckless, careless and negligent manner, which caused the crash.

[Appellant] testified at trial. She testified that she had been driving for SEPTA for approximately 18 years. She had experience driving an articulating bus off and on for nine years. The day of the crash, she was shuttling passengers between Regional Rail stations. This was her first time on that route. At the end of her route, all passengers disembarked at Glenside station and she was required to travel down Glenside Avenue and make a left onto Limekiln Pike to get back on the route and return the bus to Midvale station. The designated route was outlined in the paperwork she can be seen reading in the surveillance video. She testified that when she reached the intersection, she looked at the corner and didn't see anyone so she began to read the instructions for the route. If she did not follow the designated route, she would be considered off-route, which could lead to termination. When the light turned green, she looked left, forward and right before moving to make sure there was no oncoming traffic. She did not see the victim at any point prior to moving. At the time of impact, she was travelling approximately 8 miles per hour. She testified that as a professional driver, especially of a tandem bus, there is a significant risk of hitting another vehicle or a pedestrian, causing damage or injury.

Following a bench trial, [Appellant] was convicted of Homicide by Vehicle, Careless Driving, Careless Driving—Unintentional Death, Improper Movement and Failure to Signal. The Court found her not guilty of Improper Left Turn and Reckless Driving.

Trial Court Opinion, 5/29/18, at 1-5 (citations and footnotes omitted). On July 7, 2017, the trial court sentenced Appellant to five years’ probation. Following sentencing, Appellant filed timely post-sentence motions, which the trial court denied. Appellant filed a timely notice of appeal, and both Appellant and the trial court complied with Pa.R.A.P. 1925. On February 3, 2020, over one dissent, a three-judge panel of this Court reversed Appellant's judgment of sentence for homicide by vehicle and remanded for resentencing on all other counts. The Commonwealth petitioned for en banc consideration by this Court. On April 1, 2020, we granted the petition.

Appellant raises the following three claims in this appeal.

1. The defendant [Appellant] was found not guilty of the predicate offense of reckless driving, and therefore, could not be found guilty of homicide by vehicle.

2. The evidence was insufficient to convict the defendant [Appellant] of homicide by vehicle.

3. The court committed error in allowing the Commonwealth's crash reconstruction expert to testify that defendant [Appellant] operated her bus in a reckless manner.

Appellant's Brief at 4-5.

Upon review, we conclude once again that the evidence was insufficient to convict Appellant of homicide by vehicle, and that we do not need to address Appellant's other issues.

In reviewing the sufficiency of the evidence, we must determine whether the evidence admitted at trial and all reasonable inferences drawn therefrom, viewed in the light most favorable to the Commonwealth as verdict winner, were sufficient to prove every element of the offense beyond a reasonable doubt. Commonwealth v. Diamond , 623 Pa. 475, 83 A.3d 119, 126 (2013). "[T]he facts and circumstances established by the Commonwealth need not preclude every possibility of innocence." Commonwealth v. Colon-Plaza , 136 A.3d 521, 525–26 (Pa. Super. 2016). It is within the province of the fact-finder to determine the weight to be accorded to each witness's testimony and to believe all, part, or none of the evidence. Commonwealth v. Tejada , 107 A.3d 788, 792–93 (Pa. Super. 2015). The Commonwealth may sustain its burden of proving every element of the crime by means of wholly circumstantial evidence. Commonwealth v. Crosley , 180 A.3d 761, 767 (Pa. Super. 2018). As an appellate court, we may not re-weigh the evidence and substitute our judgment for that of the fact-finder. Commonwealth v. Rogal , 120 A.3d 994, 1001 (Pa. Super. 2015).

The Vehicle Code defines homicide by vehicle as follows:

Any person who recklessly or with gross negligence causes the death of another person while engaged in the violation of any law of this Commonwealth or municipal ordinance applying to the operation or use of a vehicle or to the regulation of traffic except section 3802 (relating to driving under influence of alcohol or controlled substance) is guilty of homicide by vehicle, a felony of the third degree, when the violation is the cause of death.

75 Pa.C.S.A. § 3732(a). To prove this offense, the Commonwealth must prove beyond a reasonable doubt that (1) the defendant violated a Pennsylvania statute (except the DUI statute² ) or municipal ordinance relating to operation or use of a vehicle or regulation of traffic, (2) the violation caused the victim's death, and (3) the defendant's conduct was either reckless or grossly negligent.

The evidence, viewed in the light most favorable to the Commonwealth, satisfies the first element, violation of a provision of the Vehicle Code. Appellant violated multiple Vehicle Code provisions, including failure to yield the right of way ( 75...