Commonwealth v. CatheyCommonwealth v. Cathey
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- Before:
- Cirillo
This is an appeal from a judgment of sentence entered in the Court of Common Pleas of Erie County. We affirm.
While operating his motor vehicle in the westbound lane of Route 20, appellant David Cathey fell asleep, crossed over into the eastbound lane, and struck another vehicle operated by Joseph Sirak. Officer James Carson of the Fairview Borough Police questioned Cathey concerning the incident. Cathey told Officer Carson that he had two jobs. He arrived home from one job between midnight and 1:00 a.m., decided to stay awake throughout the night, and then proceeded to drive to his second job at 6:30 a.m. The accident occurred at 7:00 p.m. that evening, while Cathey was returning home from his second job. As a result of the accident, Officer Carson charged Cathey with reckless driving. Following a summary trial, Judge Stephanie Domitrovich acquitted *164 Cathey of the charge of reckless driving, but found him guilty of the “lesser included offense of careless driving.” This appeal followed. Cathey raises the following two issues:
1. Whether the trial court erred in convicting the appellant of careless driving when the facts merely show that the appellant fell asleep at the wheel, causing an accident?
2. Whether the trial court erred in convicting the appellant of careless driving as a lesser included offense of reckless driving?
“Any person who drives a vehicle in careless disregard for the safety of persons or property is guilty of careless driving, a summary offense.”
Cathey first contends that driving while asleep is conduct which merely equates to ordinary negligence and, thus, does not meet the “careless disregard” standard under
While Cathey correctly notes that Commonwealth v. Bloom, 15 Pa.D. & C.3d 221 (1980) supports his contention, Bloom is not binding upon this court. Furthermore, in examining the Bloom court’s decision, we find its application of relevant Pennsylvania law misplaced.
The learned judge in Bloom interpreted Bernosky v. Greff, 350 Pa. 59, 38 A.2d 35 (1944) as standing for the principle that driving while asleep equates to conduct manifesting only an “absence of ordinary care.” A closer examination of the Greff decision does not support this interpretation.
In Greff, the plaintiff/passenger had brought suit against the defendant/driver for injuries sustained when the automobile in which they were traveling left the highway and collided with a pole. Upon review, the only issue before our Supreme Court was whether the fact that the driver had fallen asleep immediately prior to the accident was, in itself, proof of ordinary *165 negligence, i.e., “absence of ordinary care,” necessary to sustain the plaintiffs tort claim. As such, the Greff court did not decide whether the driver’s actions rose to conduct constituting “careless disregard.”
Thus, when the Greff court found that driving while asleep was enough, in itself, to constitute an “absence of ordinary care,” the court cannot be said to have further found that such conduct constituted only “absence of ordinary care” and nothing beyond. Failing to perceive this critical subtlety is where the Bloom court’s analysis of Greff falls short.
Further, language contained within the Greff decision suggests that driving while asleep is, indeed, conduct which goes beyond mere ordinary negligence. In quoting the Massachusetts case of Blood v. Adams, 269 Mass. 480,169 N.E. 412, 413 (1929), our Supreme court wrote:
Voluntarily to drive on a public street at any time of day or night with eyes closed, or to yield to sleep while operating such kind of dangerous machine as an automobile on a public highway, is to be guilty of a degree of negligence exceeding lack of ordinary care, and is a manifestation of recklessness which may be found by judge or jury to be gross negligence within any reasonable definition of that phrase.
Finally, the case of Commonwealth v. Fisher, 184 Pa.Super. 75, 132 A.2d 739 (1957) is helpful in our inquiry. In Fisher, the driver had fallen asleep and did not awake until after his vehicle had left the highway and knocked down several guard posts and guard rails. Consequently, he was charged with reckless driving under the Vehicle Code. 1
*166 In holding that driving while asleep constituted “careless disregard” under the Vehicle Code, we stated that “[i]t is impossible to conceive how anyone operating a motor vehicle on a public highway while asleep, and thus incapacitated to drive, could be anything less than a menace to other users of the highway and guilty of reckless driving as defined by the Code.” Id. at 82, 132 A.2d at 743.
Today we reaffirm this reasoning. It is impossible to fathom how one who falls asleep while operating an automobile, thus blindly propelling thousands of pounds of steel and glass at tens of miles per hour, cannot be guilty of a degree of negligence beyond mere “absence of ordinary care.”
As our Supreme Court stated in Greff, supra:
In a normal human being sleep does not come without warning. Before sleep there is drowsiness and before drowsiness there is usually great fatigue or at least a desire to sleep. Human affairs would be in a precarious state if locomotive engineers, aviators, chauffeurs, motormen and others in charge of machinery in motion were liable to “fall asleep” at any time without first becoming consciously aware of sleep’s approach and taking immediate steps to bring to a stop the mechanism under their control or placing it in the hands of one who is completely awake and alert. The Creator wisely provided that sleep does not come upon human beings unannounced.
Id. at 60-1, 38 A.2d at 36.
In light of the above, we find that falling asleep while operating an automobile, in itself, clearly manifests a “careless disregard for the safety of persons or property” under
Cathey next argues that the trial court improperly found him guilty of an offense for which he was not charged. Cathey was originally charged with reckless driving.
In
Commonwealth v. Cunningham,
380 Pa.Super. 177, 551 A.2d 288 (1988), the defendant was charged with driving while under suspension (DUI related).
See
On appeal, Cunningham argued that the trial court did not have the authority to convict him of the lesser included offense of driving while under suspension,
It is well settled that a defendant may be convicted of a lesser included offense even if that lesser offense was not charged in the original indictment:
Whether a conviction for a less culpable or less serious offense may lie on an indictment for another more serious or more culpable crime is principally a question of whether the indictment will fairly put the defendant on notice of the charges against him so that he may prepare an adequate defense.
Id. at 180, 551 A.2d at 289 (quoting Commonwealth v. Stots, 227 Pa.Super. 279, 281 n. 3, 324 A.2d 480, 481 n. 3 (1973)). Essentially, if the elements of the lesser offense are included in the elements of the greater offense, “[t]he defendant has then been put on notice of the charges against him.” Cunningham, 380 Pa.Super. at 181, 551 A.2d at 290.
Under the greater offense, reckless driving, it must be proven that: the defendant was driving, and that he was driving in “willful or wanton” disregard of the safety of persons or property.
Each statute contains only the elements of the
actus reus
and the
mens rea.
Since the
actusireus
of driving a vehicle is identical for both statutes, our sole inquiry remains whether the
mens rea
of “careless” disregard, required under
In Commonwealth v. Wood, 327 Pa.Super. 351, 475 A.2d 834 (1984), we were asked to determine whether reckless driving 2 was a lesser included offense of recklessly endangering. 3 In finding in the affirmative, we stated:
The mens rea required for recklessly endangering is recklessness — described in18 Pa.C.S.A. § 302(b)(3) as “conscious disregard” of a substantial and unjustifiable risk, whereas the mens rea for reckless driving is “careless disregard.” We believe this distinction between “conscious” and “careless” connotes a definite difference in the intent requirement, with a lesser intent required to establish reckless driving. Therefore, with respect to mens rea, reckless driving is a lesser included offense of recklessly endangering.
327 Pa.Super. at 356, 475 A,2d at 836.
With respect to
mens rea
for determining lesser included offenses,
Wood
is on point for our current inquiry. In
Wood,
we found that the
mens rea of
“careless disregard” was necessarily included in the
mens rea of
“conscious disregard.” As we now find that the “conscious disregard”
mens rea,
as in
Wood,
is synonymous with the “willful or wanton disregard”
*169
mens rea
currently required under
As such, each element of
Judgment of sentence affirmed.
Notes
. Reckless driving, as discussed in
Fisher,
was essentially the same offense as careless driving under current
. The reckless driving statute examined in
Wood
has become the current careless driving statute.
. Section 2705 of the Crimes Code provides: “A person commits a misdemeanor of the second degree if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury.‘’