COMMONWEALTH of Pennsylvania, Appellant, v. Theresa BARONE. COMMONWEALTH of Pennsylvania v. Theresa BARONE, Appellant.
Nos. 1950, 1805
Superior Court of Pennsylvania
January 25, 1980
Argued Sept. 13, 1979
419 A.2d 457 | 282 Pa. Super. 282
Ronald Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee at No. 1950 and appellant at No. 1805.
CERCONE, President Judge:
The Commonwealth brings the instant appeal from the trial court‘s order granting of appellee‘s demurrer to the charge of homicide by vehicle, Motor Vehicle Code,
Section 3732 of the Motor Vehicle Code provides:
Any person who unintentionally 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 is guilty of homicide by vehicle, a misdemeanor of the first degree, when the violation is the cause of death.
The Commonwealth argues and the Dissent agrees that the words of this provision are precise and unambiguous. From this the Commonwealth further reasons that this statute unequivocally evidences a legislative intent to impose the severe penal sanctions of up to five years imprisonment2 and a possible fine, on drivers who, no matter how unintentionally, cause a death while operating a vehicle in violation of any statewide or municipal rule regulating operation or use of an auto. In our opinion, the above language is not susceptible to such a “plain meaning” approach. After having examined the legislative history of this enactment, we would hold that the legislature intended to select culpable negligence as defined in the Crimes Code,
* Judge DONALD E. WIEAND is sitting by special designation.
Constitutional Challenges to Section 3732
On this cross-appeal from the lower court‘s refusal to hold section 3732 unconstitutional, the appellee, Ms. Barone, advances three contentions. Ms. Barone urges that section 3732 runs afoul of the Due Process Clause of the United States Constitution inasmuch as it is vague and overbroad, omits to require as an essential element of the offense some degree of “fault” or mens rea, and denies the accused the right to have all charges disposed of at the magistrates level. This latter invalidity is said to stem from the procedure made applicable to a section 3732 prosecution under our Supreme Court‘s decision in Commonwealth v. Campana.3 For the reasons which follow, we need only concern ourselves with the latter constitutional challenge.
a.
In evaluating Ms. Barone‘s assertions, we are initially guided by certain well settled principles of appellate review of constitutional questions. Thus, it is beyond cavil that this court will not sua sponte raise constitutional questions which have not been framed by the parties. E. g., Wiegand v. Wiegand, 226 Pa.Super. 278, 310 A.2d 426, rev‘d 461 Pa. 482, 337 A.2d 256 (1975). Nor should we address constitutional issues unnecessarily4 or when not properly presented and preserved in the lower court for our appellate review.5
On September 14, 1977, Ms. Barone was accorded a preliminary arraignment which was followed by a preliminary hearing on September 28, 1977. Subsequently, on October 17, 1977, Ms. Barone filed both a motion to quash the complaint on non-constitutional grounds and a separate petition seeking a declaration of the unconstitutionality of section 3732. The motion to quash omitted all reference to the alleged unconstitutionality of section 3732. The petition alleged only a deprivation of due process by virtue of the procedure mandated by Commonwealth v. Campana. The alternative constitutional attacks on the two theories of vagueness and overbreadth and lack of mens rea were not filed until January 10, 1978, and April 24, 1978, respectively. During the period between these latter two petitions, the Honorable Robert W. Tredinnick on April 7, 1978, dismissed Ms. Barone‘s constitutional forays. Presumably, this order only addressed the alleged denial of procedural due process and the vagueness and overbreadth contentions.
To complicate matters, in its answer to Ms. Barone‘s petition of April 24, 1978, the Commonwealth maintained that Ms. Barone had waived any grounds for relief bottomed upon the unconstitutionality of the statute which had not been raised in the original petition. See Record at 23a. Later, at oral argument on this petition, the Commonwealth reasserted its objection. See Record at 38a and 39a. The lower court apparently agreed with the Commonwealth‘s analysis and refused to address the merits of the last petition. See Record at 40a.
“(a) All pre-trial applications for relief shall be in writing and presented under the name and style of application.
(e) All grounds for the relief demanded shall be stated in the application and failure to state a ground shall constitute a waiver thereof.”
In principle, this Rule initially allows the filing of separate applications for relief, that is, a motion to quash and a petition to declare unconstitutional,7 but it does not grant an accused a license to omit grounds of attack which are essentially related to and encompassed within the subject matter of the initial applications. See Commonwealth v. Coades, 260 Pa.Super. 327, 330, 394 A.2d 575, 577 (1978). The first petition contesting the constitutionality of section 3732 omitted any reference to “vagueness” or lack of a mens rea. Ms. Barone‘s counsel, who had represented her since the preliminary arraignment, offered no explanation to the courts below as to why these other alleged constitutional deficiencies were not contained in the first petition. Moreover, he failed to argue in response to the Commonwealth‘s answer that he was unaware of these other facial grounds of constitutional invalidity at the time the first application was filed. The dictates of Rule 304 are clear. We have held that it does not permit an accused to sit back and take chances on one ground for relief and afterwards willy nilly advance other similar grounds, hoping to get a favorable disposition at some indeterminate point in the pre-trial future. Coades, 260 Pa.Super. at 330, 394 A.2d at 577. This tactic cannot be tolerated within the concept of orderly administration of criminal justice in trial and appellate courts. Thus, we would hold that an unexcused failure to
b.
Thus, Ms. Barone‘s sole constitutional argument rests on her claim she was denied due process of law because “she was not afforded the opportunity to have all charges quickly disposed of at the magistrates level.” More specifically, Ms. Barone boldly asserts, with no citation of authority, that where, as here, a summary offense is an essential element of the charged indictable offense, an accused is absolutely entitled to a finding of guilty or not guilty on the summary offense. Insofar as the Dissenting opinion finds this hypothesis to be devoid of merit, we agree.8
II.
Turning to the merits of the Commonwealth‘s appeal from the lower tribunal‘s granting of Ms. Barone‘s demurrer,9 the questions presented seek an answer to what are the material elements of a section 3732 offense, and what, if
Logically, in adjudging whether the culpability requirements of section 302(a) are applicable to any of the material elements of a section 3732 offense, analysis should commence with section 305 which generally governs the scope of section 302(a). Section 305 provides in pertinent part:
“(a) The requirements of culpability prescribed by Section 302 of this title . . . do not apply to:
(2) offenses defined by statutes other than this title, insofar as a legislative purpose to impose absolute liability for such offenses or with respect to any material element thereof plainly appears.”
This section of the Crimes Code is essentially identical to the parallel provision of the Model Penal Code, § 2.05(1)(b) (1962). The Comments to this proviso expressly observe “[t]hat this section makes a frontal attack on absolute or strict liability in penal law, whenever the offense carries a possibility of sentence of imprisonment.” Model Penal Code, § 2.05, Comment 1 (Tent. Draft No. 4, 1955) (emphasis added). Implementation of this strong common law tradition against strict penal responsibility10 is found in the Code‘s commandment that legislation should not be found to impose strict liability unless a legislative intent to do so
The above approach, however, is not novel to Pennsylvania appellate courts. Our courts, as the Dissent correctly points out, have customarily adhered to the following principles of statutory construction 1) When the legislature employs language which is plain and unambiguous, there is no longer justification to resort to the rules of statutory construction;11 2) In deciding whether a word or phrase is plain and unambiguous within the meaning of the above principle, an appellate court is to construe the word or phrase in accordance with its common and approved usage and12; 3) If our legislature has utilized a word or phrase which is centuries old in our common law jurisprudence, we must interpret it consistently with its heritage in our legal traditions.13
I begin with the words that are used to delineate the offense in this case. E. g., In re North Am. Rayon Corp., 383 Pa. 428, 430, 119 A.2d 205, 207 (1956). See Commonwealth ex rel. Cerminara v. Cerminara, 239 Pa.Super. 111, 115-117, 362 A.2d 1011, 1014-15 (1976). The critical word in the title is “homicide.” In this Commonwealth, our court has uniformly interpreted enactments which carry this solemn title as requiring that the voluntary act which caused
a.
Where, as here, we determine that the words or phrases of an act are equivocal or ambiguous, legislative intention may be ascertained by examining the circumstances which surrounded enactment, the harm sought to be regulated and prevented, the object sought to be obtained, the consequences of any particular construction, and the germane legislative history.
In 1966 Congress passed the Highway Safety Act of 1966,
The initial report was published in January of 1973. The report revealed that Pennsylvania‘s traffic laws were among the most outdated and non-uniform in the United States. Employing the provisions of the U.V.C. as the norm, the study ranked Pennsylvania 49 out of 51 jurisdictions. See United States Department of Transportation, National Committee on Uniform Traffic Laws and Ordinances, Contemporary Overview of Traffic Law Uniformity in the United States 9 (1973). Alarmed by the consequences of failing to comply with the standard,20 the Pennsylvania Department of Justice secured a Federal Highway-Safety Grant to finance research on a proposed revision of the Motor Vehicle Code.
Harm to be remedied and object sought to be obtained.23
As alluded to above, the primary legislative intent in revising the rules of the road chapter of the Motor Vehicle Code was to eliminate highway accidents and delays which were due in large degree to both Pennsylvania and non-resident operators proceeding on the highways on the basis of different and obsolete rules of driver conduct. See Morris & Packel, supra, at 1. Regarding the legislation sub judice, the prime object sought to be obtained was no different than that which provoked the modernization of all the rules of the road, i. e., uniformity. Not surprisingly, therefore, the legislature turned to the U.V.C. as a model for its homicide by vehicle provision. Id. at 186. Of course, as the Dissent observes, there were additional possible reasons why the legislature chose to enact a distinct offense governing vehicular homicides. Foremost among these other reasons might have been a desire to reduce the fatalities on our roadways, and a corresponding recognition of the limited utility of our involuntary manslaughter statute in coping with the problem. Id. However, both of these weighty concerns are not jeopardized by reading the subject statute as not dispensing with the requirement that the harm causing violation must nevertheless be culpable. More directly, to credit the legislature with an intent to deter life endangering conduct on our roadways is to acknowledge that in order for punish-
Other Statutes24
Nor do the supposed shortcomings of our involuntary manslaughter statute alone justify a determination that the vehicular homicide proviso was intended to create strict criminal responsibility. This Court has recently ruled that the convenience of investigation and prosecution is not the polestar in ascertaining what the essential elements of an offense are or what degree of culpability must accompany them. E. g., Commonwealth v. Hughes, 268 Pa.Super. 536, 408 A.2d 1132; Commonwealth v. Sojourner, 268 Pa.Super. 488, 408 A.2d 1108 (1979). We concede that the history of this proviso confirms a legislative judgment that a distinct offense was needed due to the reluctance of juries to convict for involuntary manslaughter in fatal traffic accident cases, see Morris & Packel, supra, at 186; however, we dispute that this history supports the further proposition that as a result of this difficulty the legislature threw in the proverbial
It is true that under the present involuntary manslaughter statute a negligent operator completely escapes any criminal punishment unless the violation which precipitated death was perpetrated “in a reckless or grossly negligent manner.” Crimes Code,
IV.
The only remaining question is whether the trial court properly sustained Ms. Barone‘s demurrer to the charge. In reviewing the propriety of this action, “the test to be applied . . . is whether the evidence of record and the inferences reasonably drawn therefrom would support a guilty verdict, and in making our determination we must read the evidence in the light most favorable to the Commonwealth.” Commonwealth v. Trainor, 252 Pa.Super. 332, 334, 381 A.2d 944, 945 (1977) (quoting with approval from Commonwealth v. Bey, 221 Pa.Super. 405, 406, 292 A.2d 519, 520 (1972). Instantly, the focus of our inquiry is whether the Commonwealth‘s evidence was sufficient to prove beyond a reasonable doubt that Ms. Barone‘s conduct
Thus viewed, the Commonwealth adduced the following. On September 14, 1977, Ms. Barone was on route to her place of employment in a two-door, brown Toyota. At approximately 8:00 a. m. she arrived at the intersection of Bethel Grant Road and Morris Road in Upper Gwynedd Township, Montgomery County. The weather was clear and the roadways dry. As she approached the intersection, she observed a stop sign and initially obeyed its command to come to a complete stop. As is often the case at a major thoroughfare during this time of day, traffic was heavy. She observed this traffic for approximately two to three minutes waiting for an opportunity to safely cross the intersection. Subsequently, Ms. Barone apparently either failed to look to her right or misjudged the distance and rate of speed of the oncoming traffic and proceeded into the intersection. While in the intersection her auto was struck by a motorcycle resulting in the motorcycle operator‘s death. Commonwealth witnesses also testified that prior to impact Ms. Barone neither sounded her horn nor did she apply her brakes in an effort to avoid the collision. We are persuaded that based upon the above the jury could not have properly found that Ms. Barone‘s actions amounted to “a gross deviation from the standard of care that a reasonable person would observe in [her] situation.” We are convinced that no jury of reasonable men and women could have found a gross deviation from the applicable standard of care in light of the undisputed fact that Ms. Barone waited patiently at the stop sign for several minutes before proceeding into the intersection. Under these circumstances, such conduct could not have established a violation of section 3732.
Accordingly, we would affirm the lower court‘s determination that the above evidence was not sufficient to go to the jury.
Order affirmed and defendant discharged.
WIEAND, J., files a dissenting opinion in which PRICE and HESTER, JJ., join.
SPAETH, Judge, concurring:
It is clear from the evidence that the Commonwealth did not prove recklessness or gross negligence on the part of appellee. See Commonwealth v. Busler, 445 Pa. 359, 284 A.2d 783 (1971); Commonwealth v. Clowser, 212 Pa.Super. 208, 239 A.2d 870 (1968). Therefore, if the lower court was correct in construing the Act of June 17, 1976, P.L. 162, No. 81, § 1,
Statutes creating, or arguably creating, strict criminal liability have required the courts to engage in a distinctive analysis, not usual in the criminal law. Before examining the statute involved in the present case, therefore, it is important to review the cases, so that one may understand how this analysis has developed and what its distinctive features are. In conducting this review, it will be convenient to look first at the federal cases, and then at the cases decided by our Supreme Court and by this court.
A
The Federal Cases
“The existence of mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence.” Dennis v. United States, 341 U.S. 494, 500, 71 S.Ct. 857, 862, 95 L.Ed. 1137 (1950). “The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.”5 Morissette v. United States, 342 U.S. 246, 250, 72 S.Ct. 240, 243, 96 L.Ed. 288 (1951); see Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957). The concept of strict criminal liability is apparently of relatively
The first case where the issue of the constitutionality of a strict liability crime was addressed by the Court was Shevlin-Carpenter Co. v. Minnesota, 218 U.S. 57, 30 S.Ct. 663, 54 L.Ed. 930 (1910). There the Court in dictum said that due process was not violated by a state statute that imposed imprisonment for the violation of a strict liability crime. In United States v. Balint, 258 U.S. 250, 42 S.Ct. 301, 66 L.Ed. 604 (1922), and United States v. Behrman, 258 U.S. 280, 42 S.Ct. 303, 66 L.Ed. 619 (1922), the Court relied on the dictum in Shevlin-Carpenter in concluding that federal narcotics violations punishable by prison terms could be sustained without proof of intent. In so holding in Balint, the Court stated that the offense before it was an example of a “regulatory measure[] in the exercise of what is called the police power where the emphasis of the statute is evidently upon achievement of some social betterment rather than the punishment of crimes.” 258 U.S. at 252, 42 S.Ct. at 302. The Court concluded that in drafting the statute, “Congress weighed the possible injustice of subjecting an innocent seller to a penalty . . . or exposing innocent purchasers to danger from the drug, and concluded that the latter was the result preferably to be avoided.” Id. at 254, 42 S.Ct. at 303. In United States v. Dotterweich, 320 U.S. 277 (1943), 64 S.Ct. 134, 88 L.Ed. 48, the Court, without extended discussion, relied on Balint and Behrman in concluding that a conviction for violation of a federal law concerning the misbranding of drugs could be sustained without proof of intent. The Court described the crime as an example of “a now familiar type of legislation whereby penalties serve as effective means of regulation. Such legislation dispenses with the conventional requirement for criminal conduct—awareness of some wrongdoing. In the interest of the larger good it puts the burden of acting at hazard upon a person otherwise innocent but
only one case, Morissette, has the Court undertaken a full discussion of the problems presented by a statute creating, or arguably creating, a strict liability crime.
In Morissette the question before the Court was whether the statute creating the crime of converting government property should be construed to require proof of the defendant‘s intent to steal. Mr. Justice JACKSON, speaking for the majority, discussed the origins of strict liability crimes and compared strict liability crimes to common law crimes. In the course of this discussion, he explained the Court‘s earlier decisions in Balint and Behrman:
However, the Balint and Behrman offenses belong to a category of another character, with very different antecedents and origins. The crimes there involved depend on no mental element but consist only of forbidden acts or omissions. This while not expressed by the Court, is made clear from examination of a century-old but accelerating tendency, discernible both here and in England, to call into existence new duties and crimes which disregard any ingredient of intent. The industrial revolution multiplied the number of workmen exposed to injury from increasingly powerful and complex mechanisms, driven by freshly discovered sources of energy, requiring higher precautions by employers. Traffic of velocities, volumes and varieties
unheard of came to subject the wayfarer to intolerable casualty risks if owners and drivers were not to observe new cares and uniformities of conduct. Congestion of cities and crowding of quarters called for health and welfare regulations undreamed of in simpler times. Wide distribution of goods became an instrument of wide distribution of harm when those who dispersed food, drink, drugs, and even securities, did not comply with reasonable standards of quality, integrity, disclosure and care. Such dangers have engendered increasingly numerous and detailed regulations which heighten the duties of those in control of particular industries, trades, properties or activities that affect public health, safety or welfare. 342 U.S. at 252-54, 72 S.Ct. at 245 (footnotes omitted).
He further explained:
While many of these duties are sanctioned by a more strict civil liability, lawmakers, whether wisely or not, have sought to make such regulations more effective by invoking criminal sanctions to be applied by the familiar technique of criminal prosecutions and convictions. This has confronted the courts with a multitude of prosecutions, based on statutes or administrative regulations, for what have been aptly called “public welfare offenses.” These cases do not fit neatly into any of such accepted classifications of common-law offenses, such as those against the state, the person, property, or public morals. Many of these offenses are not in the nature of positive aggressions or invasions, with which the common law so often dealt, but are in the nature of neglect where the law requires care, or inaction where it imposes a duty. Many violations of such regulations result in no direct or immediate injury to person or property but merely create the danger or probability of it which the law seeks to minimize. While such offenses do not threaten the security of the state in the manner of treason, they may be regarded as offenses against its authority, for their occurrence impairs the efficiency of controls deemed essential to the social order as presently constituted. In this respect,
whatever the intent of the violator, the injury is the same, and the consequences are injurious or not according to fortuity. Hence, legislation applicable to such offenses, as a matter of policy, does not specify intent as a necessary element. The accused, if he does not will the violation, usually is in a position to prevent it with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities. Also, penalties commonly are relatively small, and conviction does no grave damage to an offender‘s reputation. Under such considerations, courts have turned to construing statutes and regulations which make no mention of intent as dispensing with it and holding that the guilty act alone makes out the crime. This has not, however, been without expressions of misgiving. 342 U.S. at 255-57, 72 S.Ct. at 245 (footnotes omitted).
After discussing the common law origins of the crime of theft, and concluding that the crime of converting government property had the crime of theft as a direct antecedent, Justice JACKSON concluded that in creating the crime of converting government property, Congress intended to require proof of an intent to steal.
Two important principles may be derived from Morissette; it is these principles that render distinctive the analysis to be employed when examining a statute creating, or arguably creating, strict criminal liability. The first principle is that in determining whether the imposition of strict criminal liability is consistent with due process, several factors, including the policy and intent of the legislature, the origins of the offense, the reasonableness of the standards imposed, and the punishment and stigma attached to a conviction, must be considered. The second principle is that in considering these several factors, a court must shuttle back and forth, between the question whether the statute can be construed as not requiring proof of criminal intent, and the question whether, if so construed, the statute will violate due process; the answer to one of these questions will color,
In Holdridge v. United States, 282 F.2d 302 (8th Cir. 1960), Judge, now Mr. Justice, BLACKMUN, after discussing the cases, summarized this process of analysis as follows:
From these cases emerges the proposition that where a federal criminal statute omits mention of intent and where it seems to involve what is basically a matter of policy, where the standard imposed is, under the circumstances, reasonable and adherence thereto properly expected of a person, where the penalty is relatively small, where conviction does not gravely besmirch, where the statutory crime is not one taken over from the common law, and where congressional purpose is supporting, the statute can be construed as one not requiring criminal intent. The elimination of this element is then not violative of the due process clause.
Or, to state Justice BLACKMUN‘s formulation conversely: If the factors discussed in Morissette are otherwise—e. g., if the penalty is not relatively small, and the conviction does gravely besmirch—then the elimination of the element of criminal intent may be violative of the due process clause.
Justice BLACKMUN‘s formulation has been quoted with approval by one other Justice of the Supreme Court, see United States v. Freed, supra, 401 U.S. at 613 n. 4, 91 S.Ct. at 1120 (BRENNAN, J., concurring), and has been repeatedly applied by the federal courts. See United States v. Mowat, 582 F.2d 1194 (9th Cir. 1978); United States v. Heller, 579 F.2d 990 (6th Cir. 1978); United States v. Erne, 576 F.2d 212 (9th Cir. 1978); United States v. Ayo-Gonzalez, 536 F.2d 652 (5th Cir. 1976); United States v. Flum, 518 F.2d 39 (8th Cir. 1975); United States v. Ray, 488 F.2d 15 (10th Cir. 1973); United States v. Margraf, 483 F.2d 708 (3d Cir. 1973) (en banc), vacated, 414 U.S. 1106, 94 S.Ct. 833, 38 L.Ed.2d 734 (1973); United States v. Brown, 453 F.2d 101
Sometimes it has been held that a requirement of intent may not be read into the statute, but that even when so construed, the relevant factors are such that the statute does not violate due process. Thus, in United States v. Ayo-Gonzalez, supra, the Fifth Circuit applies the Morissette-Holdridge analysis to determine whether the Bartlett Act prohibited unintentional fishing incursions by foreign vessels in United States waters. After an extensive examination of the policy of the Act and its legislative history, the court concluded that no proof of intent was required to sustain a conviction. The court also concluded that this creation of strict criminal liability did not violate due process because the conviction did not invite moral stigma and the maximum sentence of one year imprisonment was not too severe. See United States v. Mowat, supra (similar analysis; no proof of intent required for conviction of unauthorized entry onto a military reservation); United States v. Erne, supra (no proof of intent required for conviction under section 7215 of the Internal Revenue Code); United States v. Flum, supra (extensive analysis; no proof of intent required for conviction of attempting to board an aircraft with a concealed deadly weapon); United States v. Ray, supra (Migratory Bird Treaty Act and regulations thereto do not violate due process despite fact that they dispense with element of intent); United States v. Bowen, supra (no proof of intent required for conviction under statute prohibiting creation of obstruction to navigable waterways); see also United States v. Corbin Farm Service, supra.
Other times it has been held that a requirement of intent may be read into the statute, if the result will be that then the statute will not violate due process. Thus, in United States v. Heller, supra, the Sixth Circuit concluded that to
Finally, other times it has been held that a requirement of intent may not be read into a statute, even though the result is that the statute will then violate due process. See Lambert v. California, supra. There the Court was precluded from reading in a requirement of intent because the California court had construed the legislation in question—a Los Angeles ordinance—as not including such a requirement. After considering the relevant factors (more fully discussed in Morissette), the Court held that the ordinance violated due process.
B
The Pennsylvania Supreme and Superior Court Cases
In examining statutes creating, or arguably creating, strict criminal liability, our courts have consistently employed the same analysis as was applied in Holdridge. Thus, in Commonwealth v. Koczwara, 397 Pa. 575, 155 A.2d 825 (1959), which was decided before Holdridge, our Supreme Court characterized statutes that do not require proof of criminal intent as “regulatory provisions in fields which are essentially noncriminal . . . generally enforceable by light penalties.” Id., 397 Pa. at 580, 155 A.2d at 827. Later, in Commonwealth v. Bready, 220 Pa.Super 157, 286 A.2d 654 (1971), this court was required to determine whether a section of the 1959 Vehicle Code making it a crime for a magistrate to fail to make a monthly report created strict criminal liability. Citing Koczwara and Morissette, we assigned several reasons for our conclusion that the crime was
The analysis set forth in Holdridge, therefore, is not to be confined to questions of federal constitutional due process and the interpretation of federal statutes. Rather, it also represents the analysis that will be applied by our own state courts in interpreting a state statute creating, or arguably creating, strict criminal liability.8 Not only was the analysis applied by this court in Bready the same as that applied by Justice BLACKMUN in Holdridge, but the factors listed in Holdridge as pertinent to determining due process under the federal Constitution are equally pertinent to determining due process under the Pennsylvania Constitution.9 Thus, our Supreme Court in Koczwara ruled that a too severe punishment may be a violation of due process under the Pennsylvania Constitution.
II
It is now in order to apply the Morissette-Holdridge-Koczwara-Bready analysis to the present case. The first step will be to determine whether, in enacting section 3732, the legislature intended to make homicide by vehicle a strict liability crime. If it appears that the legislature did so intend, the second step will be to determine whether the section violates due process. If it appears that it does, the third, and last, step will be to re-examine the section, to
A
In enacting section 3732, did the Legislature intend to create strict criminal liability?
The “mere omission from a criminal enactment of any mention of intent should not necessarily be construed as dispensing with it.” Morissette v. United States, supra, 342 U.S. at 250, 72 S.Ct. at 243. So too, the legislature‘s use of the word “unintentionally” in section 3732 should not be regarded as by itself sufficient to demonstrate that the legislature intended to remove any and every type of culpability or mens rea as an element of the crime. In order to ascertain the legislature‘s intent, we must consider the general policy of the legislature toward strict liability crimes, the common law origins and history, if any, of the specific crime at issue—here, homicide by vehicle—and the relevant legislative history. This consideration will disclose an almost even balance between factors for and against the conclusion that the legislature intended strict criminal liability.
1
Besides the general principle that penal statutes are to be strictly construed in the defendant‘s favor, see
First, the legislative policy in this state is against strict criminal liability. In 1972 the legislature enacted the Crimes Code.10 The Crimes Code was derived from the Model Penal Code and provides that culpability may be found only where the defendant acted either “intentionally,”
§ 305. Limitations on scope of culpability requirements
(a) When culpability requirements are inapplicable to summary offenses and to offenses defined by other statutes.—The requirements of culpability prescribed by section 301 of this title (relating to requirement of voluntary act) and section 302 of this title (relating to general requirements of culpability) do not apply to:
(1) summary offenses, unless the requirement involved is included in the definition of the offense or the court determines that its application is consistent with effective enforcement of the law defining the offense; or
(2) offenses defined by statutes other than this title, in so far as a legislative purpose to impose absolute liability for such offenses or with respect to any material element thereof plainly appears.
(b) Effect of absolute liability in reducing grade of offense to summary offense.—Notwithstanding any other provision of existing law and unless a subsequent statute otherwise provides:
(1) when absolute liability is imposed with respect to any material element of an offense defined by a statute other than this title and a conviction is based upon such liability, the offense constitutes a summary offense; and
(2) although absolute liability is imposed by law with
respect to one or more of the material elements of an offense defined by a statute other than this title, the culpable commission of the offense may be charged and proved, in which event negligence with respect to such elements constitutes sufficient culpability and the classification of the offense and the sentence that may be imposed therefor upon conviction are determined by section 106 of this title (relating to classes of offenses) and Chapter 11 of this title (relating to authorized disposition of offenders).
18 Pa.C.S. § 305 .
The requirement in this section that the intention to create strict (or “absolute“) criminal liability must “plainly appear [ ]” manifests a strong legislative policy against strict liability crimes. Consistent with this policy is the provision that when strict criminal liability is created, the crime is no more than a summary offense, unless a “subsequent statute otherwise provides.” See Commonwealth v. Jade East, 237 Pa.Super. 140, 346 A.2d 542 (1975). In this case, therefore, unless it can be concluded that section 3732 was “plainly” intended to create strict criminal liability, we should interpret the section as including some culpability or mens rea requirement.
Second, a consideration of the history of the term “homicide” also supports the conclusion that the legislature did not intend to create strict criminal liability. Criminal homicides have always required some degree of culpability. Under the Crimes Code, criminal homicide is defined as “intentionally, knowingly, recklessly or negligently caus[ing] the death of another human being,” and includes “murder, voluntary . . . [and] involuntary manslaughter.”
It must be noted further that included in the “cluster of ideas” attached to criminal homicide is the specific idea of unlawful act or misdemeanor manslaughter. Under section 4703 of the 1939 Penal Code13 it appeared that a conviction of involuntary manslaughter could be obtained without regard to the defendant‘s negligence or recklessness if the death resulted from the defendant‘s unlawful act. See Commonwealth v. Aurick, 138 Pa.Super. 180, 10 A.2d 22 (1940), rev‘d, 342 Pa. 282, 19 A.2d 920 (1941). However, in vehicular manslaughter cases the courts have interpreted the term “unlawful act” as requiring proof that in committing the unlawful act, e. g., violating a traffic ordinance, the defendant acted with recklessness or criminal negligence. See Commonwealth v. Aurick, 342 Pa. 282, 19 A.2d 920 (1941), rev‘g, 138 Pa.Super. 180, 10 A.2d 22 (1940); Commonwealth v. Clowser, supra. Thus, in Clowser, Judge HOFFMAN, after discussing a number of authorities from this and other jurisdictions, concluded that “the unlawful act, that is, the infraction, must be done in such a manner as to more than constitute a mere thoughtless omission or slight deviation from the norm of prudent conduct. . . . Were we to hold otherwise, the Commonwealth might obtain a conviction for manslaughter based upon a violation of a regulatory statute, where the conduct involved might not support a civil suit.” Id. 212 Pa.Super. at 213-14, 239 A.2d at 873 (citation omitted). Under the Crimes Code, “a person is guilty of involuntary manslaughter when as a direct result of the doing of an unlawful act in a reckless or grossly negligent manner . . . , he causes the death of another person.”
Third, and finally, one aspect of legislative history also supports the conclusion that the legislature did not intend to create strict criminal liability. In enacting The Vehicle Code of 1976, of which section 3732 is a part, the legislature decided not to create the crime of careless driving. Under House Bill No. 1817 there was a proposal to retain the crime of reckless driving and to create a new crime of careless driving. After extensive debate, however, the careless driving section was defeated.14 In support of removing the careless driving section from the Bill, Representative Eckensberger stated:
Now may I respectfully submit to the members of this House that we do not need to create a new crime identified as careless driving. It shocks my conscience that we should say that it henceforth will be a crime if you drive carelessly. Now that amounts to ordinary negligence. Can you imagine the number of cases that would flow through a magistrate‘s office if we were to identify ordinary negligence as a crime? It would proliferate the number of cases, clog up the courts unnecessarily. We are doing well now without it.
Mr. Bonetto suggests that careless drivers should not be on the highway. I suggest to you that at some point in time every one of us has been careless in the manner of operating a vehicle—not intentionally so, depending, of course, on how you interpret the word “careless“—and that he and the rest of us would probably not be on the highway, as well as the rest of the general public, if we
are going to say that every careless act should be a crime. I am not advocating that carelessness should not be accounted for. We have the civil courts that take care of the careless operation of vehicles. Legislative Journal—House, at pp. 4072-73 (1976).
Later, when the matter was being considered for the third time Representative Eckensberger stated:
Very briefly, the amendment would seek to delete a new crime, being that of careless driving. I believe that we should remove this section in House bill No. 1817 because we will retain the concept of reckless driving as an offense; there will still be civil liabilities attached to careless driving. To subject our citizens to being arrested for committing what I consider to be ordinary negligence would be unfair to our citizenry in the Commonwealth who operate their motor vehicles in good faith.
I find no need for the section. I hope that all of the members do recall the debate of yesterday. I am not going to try to go into all of those things now, but merely hope that all the members will support this amendment.
Id. at p. 4160.
In support of Representative Eckensberger‘s amendment, Representative Manderino, stated:
Mr. Speaker, very briefly, I think some of the points that I intended to make were made by Mr. Hutchinson. I think Mr. Eckensberger‘s and Mr. Hutchinson‘s point of view is entirely correct. I see no reason to introduce into the statutes of Pennsylvania a new concept in the violation of the Motor Vehicle Code wherein ordinary negligence, carelessness, can be the reason for a citation.
For every accident that would occur, there would be a criminal citation. I think that we should not do that. I think that Mr. Eckensberger, upon reflection of yesterday‘s vote, and many others have realized this, and I would ask for a vote sustaining the position of Mr. Eckensberger and pulling out the designation of careless driver as a violation of the Vehicle Code.
Id.
Representative Scirica stated:
Mr. Speaker, I cannot think of any other area in the law where ordinary negligence carries with it a criminal penalty. We should leave this as a civil matter and I think it is important that we support Mr. Eckensberger‘s amendment.
Id. at p. 4161.
After this third debate on the House floor, the House voted to remove the careless driving section from the Bill.
This history manifests a desire on the part of the legislature not to make citizens subject to criminal sanctions for mere carelessness. Accordingly, it provides a strong argument that the legislature would also not intend to subject appellee to a misdemeanor charge for what was, at most, mere carelessness.15
2
Despite the foregoing considerations, I have concluded that in creating the crime of homicide by vehicle, the legislature did intend to create strict criminal liability. My principal reason for this conclusion is the history of section 3732.
There appears to have been no debate in the House or Senate specifically concerned with section 3732. That section, however, has a history of its own, which is relevant to the issue before us. It was derived from section 11-903(a) of the Uniform Vehicle Code, which provides:
(a) Whoever shall unlawfully and unintentionally cause the death of another person while engaged in the violation of any state law or municipal ordinance applying to the operation or use of a vehicle or to the regulation of traffic shall be guilty of homicide when such violation is the proximate cause of said death.
Uniform Vehicle Code § 11-903(a).
Until 1962, the Uniform Vehicle Code described the crime created by section 11-903(a) as “negligent homicide“; and the section read as follows:
(a) When the death of any person ensues within 1 year as a proximate result of injury received by the driving of any vehicle in reckless disregard of the safety of others, the person so operating such vehicle shall be guilty of negligent homicide.
Uniform Vehicle Code section 11-903(a) (1956 version).
In 1962, however, the present version was adopted. When the 1956 version (“reckless disregard“) is compared with the present version (“violation of any state law or municipal ordinance“), it is clear that the drafters of the Uniform Vehicle Code intended to change the character of the crime, and to make it into a strict liability crime, requiring proof of no more than a mere violation of any traffic ordinance that resulted in the death of another. See Commentary, Homicide by Vehicle 1 (1978).
Many states have enacted statutes similar to section 11-903(a). Most of these states, however, have either added or retained some requirement that the defendant act negligently or recklessly. See National Committee on Uniform Traffic Law Ordinances, Traffic Laws Annotated, § 11-903 (1972). North Carolina enacted section 11-903(a) without any significant alterations, and it has been interpreted in that state as requiring no proof of criminal intent. State v. Freeman, 31 N.C.App. 93, 228 S.E.2d 516 (1976). When the same thing happened in Ohio, State v. Kotapish, 171 Ohio St. 349, 171 N.E.2d 505 (1960), the Ohio legislature repealed the statute and enacted a new statute that required proof of recklessness or negligence. See Traffic Laws Annotated, supra.
We must assume, I believe, that when the Pennsylvania legislature enacted section 3732, it was aware of the history
It is true that section 3732 was only one section among many that were included in the massive piece of legislation passed as The Vehicle Code of 1976. This fact, plus the fact that there was no legislative debate concerning section 3732, might suggest that the section simply slipped through the legislature without being noticed, and that if it had been noticed, the legislature would not have created strict criminal liability, just as it did not create the crime of careless driving. This suggestion, however, cannot be accepted, for section 3732 did not slip through unchanged. In the course of enacting it, the legislature removed the words “unlawfully” and “proximate” from section 11-903(a) of the Uniform Vehicle Code, and added the phrase, “a misdemeanor of the first degree.”
In addition to this history, it is important to note that if the legislature had intended to limit criminal violations under section 3732 to reckless or negligent defendants, it need not have enacted the section at all, for those defendants were already subject to prosecution for involuntary manslaughter under section 2504 of the Crimes Code. See
The number of deaths resulting from the operation of motor vehicles on the highways has increased to an alarming extent. Indictment for the common law crime of manslaughter has proved ineffective as a means of repressing the negligence in motor vehicle operation causing death upon the public thoroughfares. The motorist is generally a reputable citizen, and the wrong committed by him which brings someone to his death is most often an unintentional violation of a prohibitory statute or ordinance, unaccompanied by recklessness or possible consequences of a dangerous nature, when tested by the rule of reasonable prevision. Thus it is apparent that the intention of the legislature in enacting [homicide by vehicle] was to define a crime of lesser degree of manslaughter wherein criminal responsibility for death by vehicle is not dependent upon the presence of culpable or criminal negligence.
I recognize, and have earlier in this opinion emphasized, that the intent to impose strict criminal liability must “plainly appear[ ].” Here, however, I have concluded that the intent does plainly appear; that conclusion, it seems to me, is required by the history of section 11-903(a) as the model for section 3732, and by a recognition of the legislature‘s probable purpose to broaden liability beyond that
It has been argued that as a matter of policy, it would be most unwise to impose strict criminal liability for conduct such as appellee‘s. I entirely agree;17 but I may not permit my opinion on a matter of policy to affect my decision here, for so long as the legislature acts lawfully, it is entitled to decide matters of policy. See Lurie v. Republican Alliance, 412 Pa. 61, 65, 192 A.2d 367, 370 (1963), quoting Commonwealth ex rel. Fox v. Swing, 409 Pa. 241, 186 A.2d 24 (1962).
B
When construed to create strict criminal liability, does section 3732 violate due process?
In testing the constitutionality of a statute creating strict criminal liability, the two most important considerations are the severity of the possible punishment and the moral stigma that may be attached to a conviction. As the Sixth Circuit stated in United States v. Heller, supra, “Certainly if Congress attempted to define a [strict liability] offense that placed an onerous stigma on an offender‘s reputation and that carried a severe penalty, the Constitution would be offended.” 579 F.2d at 994. And see Morissette v. United States, supra, (strict criminal liability may be upheld where “penalties commonly are relatively small, and conviction does no grave damage to an offender‘s reputation“); Holdridge v. United States, supra (“where the penalty is relatively small; where conviction does not gravely besmirch“).
1
Appellee‘s conviction under section 3732 of homicide by vehicle places a most onerous stigma on her reputation.
The Commentary, Homicide by Vehicle, supra, states that the use of the term “homicide by vehicle,” as compared with the term “manslaughter,” “lessen[s] the stigma attached to convictions.” Id. at 13. If this be so, the stigma attached nevertheless remains most onerous. As Henry Hart has observed, one cannot truthfully say to any defendant that there is nothing wrong with being labeled a criminal. Hart, The Aims of the Criminal Law, 23 Law & Contemp. Prob. 401, 423 n. 57 (1958). Especially is this so when the crime is “homicide by vehicle.” Labels may not be ignored. To be labeled a rapist or murderer places a far more onerous stigma on a person than to be labeled as someone convicted
While there apparently has been no case holding what type of a conviction does such grave damage to reputation as to violate the federal due process clause, it must be noted that the stigma attached to “homicide by vehicle” is different from, and far more serious than, the stigma attached to such crimes as the fishing violation considered in United States v. Ayo-Gonzalez, supra, or the trespass violation considered in Holdridge. This court has been extremely concerned with the unfair effects that a criminal record may have upon a defendant‘s future. See Commonwealth v. Iacino, 270 Pa.Super. 350, 411 A.2d 754 (1979) (expunction of criminal record); Commonwealth v. Malone, 244 Pa.Super. 62, 366 A.2d 584 (1976) (same).18 Indeed, it is not an over-
2
The remaining question is whether section 3732 carries a penalty that is “severe,” United States v. Heller, supra, or “relatively small,” Morissette v. United States, supra; Holdridge v. United States, supra. The penalty under section 3732 may be imprisonment for a maximum term of five years.
Most commentators agree that no sentence of imprisonment is ever proper in a strict criminal liability case. The basis for this conclusion is that strict liability crimes, or what have been termed public welfare offenses, are distinct from true crimes, or infamous crimes, which involve moral culpability. Thus Mr. Justice BRANDEIS has stated that it is “the imprisonment in a penitentiary which now renders a crime infamous.” United States v. Moreland, 258 U.S. 433, 477-78, 42 S.Ct. 368, 373, 66 L.Ed. 700 (1921) (BRANDEIS, J., dissenting, joined by TAFT, C. J., and HOLMES, J.). See J. FEINBERG, DOING AND DESERVING, 111-13 (1970). The Official Comment to the Model Penal Code states that strict liability crimes “are indefensible in principle, unless reduced to terms that insulate conviction from the type of moral condemnation that is and ought to be implicit when a sentence of imprisonment may be imposed.” Model Penal Code, Comment to Tentative Draft No. 4 at 140.19 Herbert
Id. at 72.If [the punishment] be serious, particularly if the offense be punishable by imprisonment, the individual interest of the defendant weighs too heavily to allow conviction without proof of guilty mind. To subject defendants entirely free from moral blameworthiness to the possibility of prison sentences is revolting to the community sense of justice; and no law which violates this fundamental instinct can long endure.
Similarly, Herbert Packer has stated:
Packer, Mens Rea and the Supreme Court,20 1962 Sup.Ct. Rev. 107, 150.The relevant distinctions may perhaps be found in the consequences of a ‘criminal conviction.’ While we have few clues about the indirect consequences of a judgment formally denominated ‘criminal’ with respect to relatively minor infractions, the direct consequence is easily assessable. The combination of stigma and loss of liberty involved in a conditional or absolute sentence of imprisonment sets that sanction apart from anything else the law imposes. Here at the very least the line should be drawn. No one should be sentenced to imprisonment or its equiva-
lent without being afforded the opportunity to litigate the issue of mens rea . . . .
See Zweibon v. Mitchell, 516 F.2d 594, 679 n. 13 (D.C. Cir. 1975) (BAZELON, J., concurring and dissenting) (distinguishes judicial concern where the sanction for strict liability is loss of property as opposed to physical incarceration); People ex rel. Price v. Sheffield Farms Co., 225 N.Y. 25, 32-33, 121 N.E. 474, 477 (1918) (CARDOZO, J.) (strict liability may be proper for petty offense but reserves judgment on propriety of imprisonment for strict and vicarious liability crimes).21
Given the fact that strict liability crimes involve no moral culpability, imprisonment for their commission can serve no proper penal purpose. Thus the National Commission on Reform of Federal Criminal Laws states in Volume 1 of its Working Papers:
Working Papers, supra at 129The justification for imposing criminal liability where there is no fault has been that enforcement of society‘s demands requires it. * * * If a person‘s conduct has
been truly without fault, however, the threat of punishment will not favorably affect his conduct. The imposition of punishment is not needed to “reform” or “rehabilitate” him; no fault requiring correction has been identified. Punishment, if it takes the form of detention, will prevent him from engaging in the conduct while he is detained. It may also satisfy the community‘s (irrational) demand for retribution for the harm which the conduct caused. These slight functions which can be served are manifestly inadequate justifications for criminal liability without fault. Preventive detention of the kind involved here has no place in the criminal law. It is unlikely that the community will feel strongly about offenses of this kind (although it may strongly support regulation of the activity involved), particularly when there is no culpability, and unlikelier still that, if the community has such feelings, they will be so strong that they should be recognized for the sake of the community, despite their irrationality.
Accordingly, the imposition of a prison sentence for a strict liability crime has been condemned by the Commission and by the legal commentators as “irrational,”22 and “incompatible with the basic requirements of our Anglo-American, and indeed, any civilized jurisprudence,” Wasserstrom, Strict Liability in the Criminal Law, 12 Stan.L.Rev. 730 (1960).23
I acknowledge that despite the foregoing scholarly commentary, the federal courts have held that a sentence of imprisonment may be imposed for conviction of a strict liability crime. United States v. Balint, supra (five years);24
How the federal courts would decide such a case need not concern us, for under the decisions of our Supreme Court and of this court, it is settled that imposition of imprisonment upon conviction of a strict liability crime does constitute a violation of due process under our State constitution.
In Commonwealth v. Koczwara, supra, the defendant was convicted of violating the Pennsylvania Liquor Code by serving alcohol to minors. The evidence established that an employee of the defendant served the minors when the defendant was not present and without the defendant‘s knowledge. Nevertheless the defendant was convicted, fined, and sentenced to three months imprisonment. On appeal the Supreme Court noted that the crime was a violation of a mere “regulatory provision,” “generally enforceable by light penalties, and although violations are labelled crimes, the considerations applicable to them are totally different from those applicable to true crimes, which involve moral delinquency and which are punishable by imprisonment or another serious penalty.” 397 Pa. at 580, 155 A.2d at 827. Although concluding that the legislature could create such strict criminal liability,25 the Court held that to imprison the defendant violated due process under the Pennsylvania Constitution. In so holding the Court stated:
Id., 397 Pa. at 585, 155 A.2d at 830 (emphasis added).The Courts of the Commonwealth have already strained to permit the legislature to carry over the civil doctrine of respondeat superior and to apply it as a means of enforcing the regulatory scheme that covers the liquor trade. We have done so on the theory that the Code established petty misdemeanors involving only light monetary fines. It would be unthinkable to impose vicarious criminal responsibility in cases involving true crimes. Although to hold a principal criminally liable might possibly be an effective means of enforcing law and order, it would do violence to our more sophisticated modern-day concepts of justice. Liability for all true crimes, wherein an offense
carries with it a jail sentence, must be based exclusively upon personal causation.
While Koczwara involved vicarious liability, it is nevertheless controlling on the issue presented in this case because of the distinction made by the Court between, on the one hand, true crimes, and on the other hand, strict liability (including vicarious liability) crimes. The Court made it clear that to imprison someone for anything other than a true crime was unconstitutional; and it defined a true crime as one that involves both “moral delinquency” and “personal causation.” From this distinction the conclusion followed that since strict liability (including vicarious liability) crimes are not true crimes, they may not constitutionally be punished by imprisonment. Thus in Koczwara our Supreme Court went beyond Balint, and the federal cases following it, and gave judicial recognition to the views of Sayre26 and the other commentators, that since strict liability crimes are not true crimes they should not be punished like true crimes.27
This principle has been applied by this court in cases arising after Koczwara. For instance, in Commonwealth v. Bready, supra, this court cited Koczwara, stated that a punishment of 60 days imprisonment was too harsh, and therefore interpreted the statute in question as one that did not impose strict liability. Similarly, in Commonwealth v. Black, supra, in deciding whether the statute in question imposed strict liability, this court again cited Koczwara, and held that prison terms of two to five years were “too heavy” to permit the statute to be construed as one imposing strict liability. And see Government of Virgin Islands v. Rodri-guez, 423 F.2d 9, 13 n. 12 (3d Cir. 1970) (discussing strict liability; Koczwara represents a “restriction of the doctrine to public welfare offenses punishable by fines rather than by imprisonment.“)
C
Is it possible to save section 3732?
Since, when construed to create strict criminal liability, section 3732 violates due process, both because conviction too gravely besmirches the defendant‘s reputation and because the punishment is too severe, it is necessary to proceed to the third, and final, step of the Morissette--Holdridge analysis, and re-examine the section to determine whether after all it may be construed so that it will not violate due process. Two possible constructions suggest themselves.
1
The first possible construction would be to construe section 3732 as not imposing strict criminal liability. That is what the Sixth Circuit did in United States v. Heller, supra, and this court, in Commonwealth v. Bready, supra, and Commonwealth v. Black, supra; it would not be an unworthy result here, given the force of the factors previously discussed in part II of this opinion as favoring the conclusion that strict liability was not intended. Nevertheless, the difficulty, which I find insuperable, would be that then we should have to answer the question, If section 3732 does not create strict criminal liability, what sort of conduct does it make culpable? By its own terms section 3732 does not refer to intentional conduct. The only remaining forms of culpable conduct would seem to be either recklessness or negligence. However, if section 3732 is construed to require proof of either of these, it becomes a duplicate of section 2504 of the Crimes Code, which defines involuntary manslaughter as a crime:
It would be to some extent absurd to have two different criminal statutes apply to the same conduct.29 Apart from the possibility that problems would probably be created by the “more specific offense” doctrine, see Commonwealth v. Brown, 269 Pa.Super. 150, 409 A.2d 108 (1979), it seems clear, as already discussed, that in enacting section 3732, the legislature intended to avoid the difficulties of proof encountered in involuntary manslaughter cases, that is, intended that homicide by vehicle should not duplicate but should be easier to prove than involuntary manslaughter.(a) General rule.--A person is guilty of involuntary manslaughter when as a direct result of the doing of an unlawful act in a reckless or grossly negligent manner, or
the doing of a lawful act in a reckless or grossly negligent manner, he causes the death of another person.
18 Pa.C.S. § 2504 .28
2
The second possible construction would be to construe section 3732 as creating strict criminal liability, but to save it by removing that part or parts that result in a violation of due process. That is what the Supreme Court did in Commonwealth v. Koczwara, supra, where instead of striking down the section of the Liquor Code involved, the Court merely removed from the section the sanction of imprisonment. To save section 3732, however, one would have to remove from it not only the sanction of imprisonment but also the label “homicide by vehicle“; for as discussed above, what renders the section a violation of due process is the
3
I am thus left with the conclusion that rather than attempt to save section 3732, it should be declared unconstitutional. The legislature would then be free to produce a constitutional version of the section, if it should so desire.
I should affirm the decision of the lower court.30
HOFFMAN, J., joins in this concurring opinion.
WIEAND, Judge, dissenting:
I respectfully dissent.
On September 14, 1977, at or about 8:00 o‘clock, A.M., Theresa Barone was operating a motor vehicle northwardly on Bethel Grant Road in Upper Gwynedd Township, Montgomery County. When she came to the intersection of Bethel Grant Road and Morris Road, she stopped as she was commanded to do by a stop sign. Because traffic was heavy, she waited several minutes for traffic to pass. When she believed the roadway to be clear of traffic, she started through the intersection. While still in the intersection, her vehicle was struck on the side by a motorcycle which she did not see prior to impact. The driver of the motorcycle died from injuries received in the collision. Ms. Barone was charged with homicide by vehicle for failing to yield the right of way to the motorcycle on the through street as required by
Homicide by vehicle is defined in Section 3732 of the Vehicle Code,
The offense, thus defined, includes three express elements: (1) a violation of a law or ordinance relating to the operation of motor vehicles; (2) the death of another person; and (3) a causal connection between the violation and the death. Proof of further culpability is not mandated by the statute. Specifically, the statutory language does not require conduct which is reckless or grossly negligent. In this respect it is distinct from the crime of involuntary manslaughter which, by definition, requires the doing of an act in a ‘reckless or grossly negligent manner.”“Any person who unintentionally 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 is guilty of homicide by vehicle, a misdemeanor of the first degree, when the violation is the cause of death.”
The legislature may define a crime so that proof of criminal intent is not necessary. Commonwealth v. Black, 251 Pa.Super. 539, 542, 380 A.2d 911, 913 (1977); Commonwealth v. Grant, 235 Pa.Super. 357, 364-65, 341 A.2d 511, 515 (1975). Whether criminal intent is a necessary ingredient of a statutory offense is a matter of construction, to be determined from the language of the statute and from its manifest purpose and design. Commonwealth v. Koczwara, 397 Pa. 575, 155 A.2d 825 (1959); Commonwealth v. Black, supra; Commonwealth v. Grant, supra; Commonwealth v. Bready, 220 Pa.Super. 157, 286 A.2d 654 (1971). “When the words of a statute are clear and free from all possible ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.”
The language of the section defining homicide by vehicle is precise and unambiguous. As it pertains to the facts of the instant case, the only culpability required is a violation of a law “applying to the operation or use of a vehicle or to the regulation of traffic.” Highway safety and the means for achieving it are legitimately, even uniquely, within the legislature‘s area of concern. Maurer v. Boardman, 336 Pa. 17, 7 A.2d 466 (1939), affirmed in Maurer v. Hamilton, 309 U.S. 598, 60 S.Ct. 726, 84 L.Ed. 969 (1940); Commonwealth v. Funk, 323 Pa. 390, 186 A. 65 (1936). Because automobiles are potentially hazardous instrumentalities, the legislature, in the public interest, may adopt traffic regulations and rules of the road reasonably calculated to promote care on the part of those who use its highways. Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091 (1927). Apparently alarmed by the deplorable carnage on our highways, the legislature determined that potential prosecution for involuntary manslaughter was an inadequate response. Motorists are generally reputable citizens. When one of them is involved in an automobile accident resulting in death to another person, the cause frequently is a negligent violation of a rule of the road or speed limit. A reckless disregard for the safety of others is frequently absent, and when it is present, it is often difficult to prove beyond a reasonable doubt. Therefore, the legislature determined to make criminal responsibility dependent upon violation of a traffic law and not necessarily on culpable or criminal negligence.4
Comparable statutes adopted in other jurisdictions have been similarly construed to eliminate a requirement for wanton or reckless conduct. See: State v. Freeman, 31 N.C.App. 93, 228 S.E.2d 516 (1976), cert. denied, 291 N.C. 449, 230 S.E.2d 766 (1976); Pribyl v. State, 165 Neb. 691, 87 N.W.2d 201 (1957); State v. Kotapish, 171 Ohio St. 349, 171 N.E.2d 505 (1960).5 This court also, by a footnote in Commonwealth v. Trainor, 252 Pa.Super. 332, 337 n. 4, 381 A.2d 944, 947 n. 4 (1977), has acknowledged the legislature‘s intent to reduce the degree of culpability necessary to convict for homicide by vehicle.6
The language for Section 3732 of the Vehicle Code and similar statutory provisions in other states was derived from the Uniform Vehicle Code, Section 11-903(a), which provided as follows:
“Whoever shall unlawfully and unintentionally cause the death of another person while engaged in the violation of any state law or municipal ordinance applying to the operation or use of a vehicle or to the regulation of traffic shall be guilty of homicide when such violation is the proximate cause of death. . . .”
This interpretation of Section 3732 is consistent with the recent decision of a panel of this Court in Commonwealth v. Danchision, 270 Pa.Super. 112, 410 A.2d 1274 (1979). (Opinion by Van der Voort, J., joined by Hester and Wieand, JJ.). The panel there held that the issue of homicide by vehicle had to be submitted to a jury where the Commonwealth‘s evidence reasonably supported a finding that defendant had violated a provision of the Vehicle Code and, as a result, had caused the death of another person.
Although the legislature has wide latitude in the enactment of strict liability statutes, its power to create such crimes is limited by due process requirements. Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959); Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957). Nevertheless, where the statute involves what is basically a matter of policy, where the standard imposed is, under the circumstances, reasonable, and where adherence thereto can properly be expected of a person, a statute may validly eliminate the requirement of criminal intent. United States v. Balint, 258 U.S. 250, 42 S.Ct. 301, 66 L.Ed. 604 (1922); Shevlin-Carpenter Co. v. Minnesota, 218 U.S. 57, 30 S.Ct. 663, 54 L.Ed. 930 (1910). See also: Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952).
Homicide by vehicle, as I have observed, is the legislature‘s response to a high fatality rate on the public highways. The standard adopted to define the offense, i. e., a violation of a traffic law that causes a death, is not unrea-
I express no opinion, of course, concerning the wisdom of the legislature‘s decision to provide criminal responsibility without recklessness or gross negligence. Neither do I express an opinion concerning the legislature‘s decision to classify homicide by vehicle as a criminal offense equal in seriousness to involuntary manslaughter.8
Secondly, a statute is deemed unconstitutionally vague if persons of “common intelligence must necessarily guess at its meaning and differ as to its application. . . .” Heinbaugh, supra, 467 Pa. at 5, 354 A.2d at 245, quoting Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322, 328 (1926). The statutory language of Section 3732 is neither vague nor ambiguous. To the contrary, the offense is defined in clear, intelligent and unmistakable terms: If a traffic law is violated and a death results, criminal responsibility follows.
The learned trial judge sustained a demurrer to the Commonwealth‘s evidence because there was no showing that appellee‘s traffic violation had been reckless or grossly negligent. By adding this requirement of culpability the court rewrote the applicable provision of the statute. The Commonwealth‘s evidence revealed that appellee had committed a stop sign violation which caused the death of a motorcyclist on the through street. This evidence should have been submitted to the jury. It was sufficient, if believed, to constitute the statutory offense of homicide by vehicle. See: Commonwealth v. Danchision, supra.
PRICE and HESTER, JJ., join in this dissenting opinion.
Notes
(b) Kinds of culpability defined.—
(1) A person acts intentionally with respect to a material element of an offense when:
(i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and
(ii) if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist.
(2) A person acts knowingly with respect to a material element of an offense when:
(i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and
(ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.
(3) A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and intent of the actor‘s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor‘s situation.
(4) A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor‘s failure to perceive it, considering the nature and intent of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor‘s situation.
(a) Bigamy.—A married person is guilty of bigamy, a misdemeanor of the second degree, if he contracts or purports to contract another marriage, unless at the time of the subsequent marriage:
(1) the actor believes that the prior spouse is dead;
(2) the actor and the prior spouse have been living apart for two consecutive years throughout which the prior spouse was not known by the actor to be alive; or
(3) a court has entered a judgment purporting to terminate or annul any prior disqualifying marriage, and the actor does not know that judgment to be invalid.
(b) Other party to bigamous marriage.—A person is guilty of bigamy if he contracts or purports to contract marriage with another knowing that the other is thereby committing bigamy.
Whoever is convicted of involuntary manslaughter, happening in consequence of an unlawful act, or the doing of a lawful act in an unlawful way, is guilty of a misdemeanor, and shall be sentenced to pay a fine not exceeding two thousand dollars ($2,000), or to undergo imprisonment not exceeding three (3) years, or both.
18 P.S. § 4703.Hogan, Crime, Punishment and Responsibility, Giannella Memorial Lecture, April 5, 1979, reprinted in 24 Vill.L.Rev. 690, 693 (1979).The assumption seems to be that we have done something about a problem if we make a crime of it, and clearly this is an illusion that legislators would like us all to share. They can satisfy their customers by telling them that something which they disapproved has now been made a crime as though that was that. No customer is ever bold enough to ask whether making a crime of it will make it disappear. The legislator is thus spared the exacting task of devising a policy that might be effective to cure the evil.
244 Pa.Super. at 68-69, 366 A.2d at 587, quoting Menard v. Mitchell, 430 F.2d 486, 490-91 (D.C.Cir.1970).The harm ancillary to an arrest record is obvious: “Information denominated a record of arrest, if it becomes known, may subject an individual to serious difficulties. Even if no direct economic loss is involved, the injury to an individual‘s reputation may be substantial. Economic losses themselves may be both direct and serious. Opportunities for schooling, employment, or professional licenses may be restricted or nonexistent as a consequence of the mere fact of an arrest, even if followed by acquittal or complete exoneration of the charges involved. An arrest record may be used by the police in determining whether subsequently to arrest the individual concerned, or whether to exercise their discretion to bring formal charges against an individual already arrested. Arrest records have been used in deciding whether to allow a defendant to present his story without impeachment by prior convictions, and as a basis for denying release prior to trial or an appeal; or they may be considered by a judge in determining the sentence to be given a convicted offender,”
It has been argued, and the argument undoubtedly will be repeated, that absolute liability is necessary for enforcement in a number of the areas where it obtains. But if practical enforcement can not undertake to litigate the culpability of alleged deviation from legal requirements, we do not see how the enforcers rightly can demand the use of penal sanctions for the purpose. Crime does and should mean condemnation and no court should have to pass that judgment unless it can declare that the defendant‘s act was wrong. This is too fundamental to be compromised. The law goes far enough if it permits the imposition of a monetary penalty in cases where strict liability has been imposed.
Id. at 14, 220 S.E.2d at 541-42 (emphasis added).The bases for the inclusion of violations of motor vehicle and traffic laws within the scope of [the above] rule are [sic] that (1) the requirement of proving intent or guilty knowledge would make it impossible to enforce such laws in view of the tremendous numbers of petty offenses growing out of the host of motor vehicles upon our roads and (2) the punishments for such violations are usually a small fine. We would not extend the rationale of this rule beyond petty offenses involving light punishment nor would we extend its operation to any crime involving moral delinquency.
43 Harv.L.Rev. at 722. See Commonwealth v. Wolfe, 433 Pa. 141, 143, 249 A.2d 316, 317 (1969).To hold the master liable if he fails to prevent his servant from committing the prohibited conduct will have a powerful deterrent effect. On the other hand, to require from the state actual and positive proof of specific authorization or actual knowledge and acquiescence in a matter lying peculiarly within the secret knowledge of the two concerned in the offense, will effectually block most convictions and open the way for successful evasion through secret instructions and covert understandings. The protection of important social interests may thus be sacrificed to a too-zealous concern for individual interests of only trifling importance. Since in such cases deterrence is the essential objective, the present tendency of the law to hold the master criminally liable even for the unauthorized and unknown acts of his servant seems justified, and indicates a direction of sound growth. As long as courts are careful not to permit respondeat superior to creep into the true crime cases, masters and principals should be held criminally liable for the petty misdemeanors of their servants and agents which involve no moral delinquency or severe punishment and which are committed in the course of the master‘s business.