Com. v. Kemp, S.
Com. v. Kemp, S. No. 873 EDA 2016
| Pa. Super. Ct. | Feb 17, 2017Background
- On October 8, 2011, Samuel Kemp, while impaired by multiple drugs, struck Jabril Townsend, who was standing behind his disabled car; Townsend suffered serious, long‑term injuries and multiple surgeries.
- Police observed Kemp with slurred speech, drowsiness, and poor balance; toxicology showed cocaine, oxycodone, and morphine; Dr. Cone opined Kemp was impaired.
- Kemp admitted ingesting pills before driving and later told officers his brakes failed; parties stipulated to a 42‑foot skid mark and severe vehicle damage.
- Kemp was tried non‑jury and convicted of multiple offenses including aggravated assault (18 Pa.C.S. § 2702) and DUI–combined impairment (75 Pa.C.S. § 3802(d)(3)); he received an aggregate sentence of 9–18 years plus probation and an added sentence for DUI.
- On appeal he challenged (1) sufficiency and weight of the evidence supporting aggravated assault and (2) the legality/merger of the DUI–combined impairment sentence with aggravated assault–DUI.
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Kemp) | Held |
|---|---|---|---|
| Sufficiency of evidence for aggravated assault (extreme indifference/malice) | Evidence (ingesting drugs, driving impaired, officers’ observations, skid marks, severe injuries) shows extreme indifference and malice | Kemp contends evidence lacks quantity/quality to prove the heightened recklessness/malice required for aggravated assault | Reversed: evidence insufficient to prove the malice/extreme‑indifference mens rea for aggravated assault |
| Merger of DUI–combined impairment with aggravated assault–DUI for sentencing | DUI elements are subsumed within aggravated assault–DUI; crimes arose from single act | Kemp argued the DUI sentence should merge with aggravated assault–DUI | Vacated DUI–combined impairment sentence and remanded for re‑sentencing (merger required) |
| Weight of the evidence challenging aggravated assault conviction | Commonwealth relied on the same facts as sufficiency | Kemp asserted verdict was against the weight | Not reached substantively because aggravated assault conviction was reversed for insufficiency |
| Post‑conviction counsel request (procedural) | Trial court later granted new counsel post‑sentencing; appellee did not contest timeliness | Kemp filed pro se for new counsel before sentencing and court did not consider it prior to sentencing | Procedural history noted; not dispositive of the reversal/remand (court granted new counsel after sentencing) |
Key Cases Cited
- Commonwealth v. O'Hanlon, 653 A.2d 616 (Pa. 1995) (establishes that aggravated assault from driving requires a higher degree of recklessness—conduct that essentially assures serious injury or death)
- Commonwealth v. Comer, 716 A.2d 593 (Pa. 1998) (drunk driving resulting in serious injury did not, by itself, prove the malice/extreme indifference required for aggravated assault)
- Commonwealth v. Kling, 731 A.2d 145 (Pa. Super. 1999) (aggravated assault sustained where defendant had prolonged opportunity to appreciate and continue life‑threatening conduct)
- Commonwealth v. Miller, 955 A.2d 419 (Pa. Super. 2008) (aggravated assault supported where driver ignored police, fled at high speed, ignored signals, and exhibited conduct showing malicious disregard)
- Commonwealth v. McHale, 858 A.2d 1209 (Pa. Super. 2004) (cautions against equating voluntary intoxication with malice per se; insufficient evidence of aggravated assault where facts aligned with ordinary recklessness)
- Commonwealth v. Packer, 146 A.3d 1281 (Pa. Super. 2016) (aggravated assault and third‑degree murder supported where driver knowingly drove when there was strong likelihood of blacking out, demonstrating extreme indifference)