Philadelphia Criminal Defense Blog

Zak Goldstein 5/5/26 Zak Goldstein 5/5/26

PA Supreme Court: “Malice Is Malice” — No Heightened Standard for Third-Degree Murder in DUI Cases

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Peters, affirming the defendant’s convictions for third-degree murder and aggravated assault arising out of a fatal DUI crash on Interstate 95 and rejecting the argument that DUI cases are governed by a heightened, “essentially certain to occur” standard for malice. The Court held, in the words of Justice Dougherty’s majority opinion, that “malice is malice,” meaning the same long-standing standard from Commonwealth v. Taylor applies regardless of whether the defendant drove drunk, fired a gun, or engaged in some other reckless conduct.

The Facts of Commonwealth v. Peters

The defendant attended an office holiday party at Ruth’s Chris Steak House in Philadelphia on December 5, 2019. The open bar started at 5:00 p.m., and the defendant drank vodka in a private room until around 8:00 p.m., when he and his coworkers moved to the public bar and he switched to bourbon. Around 10:00 p.m., a coworker offered the defendant a ride home. He declined, and instead asked her to drop him at another bar called Rogue’s Gallery, where he continued drinking beer until midnight.

The defendant had driven his Mazda SUV to work that day. Surveillance footage from the parking garage showed that he had trouble operating the payment kiosk and could not exit the garage normally — when the mechanical arm did not lift, he got out, manually forced one of the arms up, and broke it in the process before driving away with the broken arm dangling behind him.

Once on Interstate 95, the defendant straddled the fog line, exited into New Jersey without using a turn signal, then turned around and re-entered Pennsylvania. Two motorists called 911 to report that the Mazda was passing at high speed, alternating between excessive speeds and speeds well below the limit, and that the taillights were off. Around 1:00 a.m., the defendant crashed into the rear of a Mazda driven by Juan Tavarez, who was driving home from work in the right lane at or just below the 55 mile-per-hour limit, with his flashers on, with three passengers in the car. Tavarez’s car hit a concrete wall and burst into flames. Tavarez and his son Charlys escaped. His other son, Juan Jose Tavarez Santelises, and his coworker, Claribel Dominguez, did not. Both died from thermal burns.

Black box data showed the defendant was driving 113 miles per hour five seconds before the crash and accelerated to 115 miles per hour half a second before impact. He braked, at most, four-tenths of a second before the crash. His blood alcohol concentration was .151, nearly twice the legal limit of .08. At trial, the defendant testified that he had unbuckled his seatbelt and reached for his phone in his backpack on the passenger-side floor because he wanted to check the GPS, and only looked up in time to see the other car.

A Bucks County jury convicted the defendant of fourteen offenses, including two counts each of third-degree murder and aggravated assault. The trial court sentenced him to an aggregate term of 19½ to 39 years in state prison. An en banc Superior Court affirmed, with three judges dissenting.

The Issue: Is There a Different “Malice” Standard for DUI Cases?

The defendant argued on appeal that the Supreme Court’s decisions in Commonwealth v. O’Hanlon and Commonwealth v. Packer had effectively created a DUI-specific malice standard requiring proof that death or serious bodily injury was not just likely, but “essentially certain to occur.” On his reading, the Superior Court majority improperly relied on the more general formulation — a conscious disregard for an unjustified and extremely high risk that the defendant’s actions might cause death or serious bodily injury — which, in his view, only applied to non-DUI cases.

The Commonwealth, by contrast, argued that the Pennsylvania Supreme Court has never created two separate malice standards. There is one definition of malice, drawn from Commonwealth v. Drum and refined in Taylor, and it does not change based on whether the underlying conduct happened to involve alcohol.

The Supreme Court’s Holding: One Standard

A six-Justice majority of the Supreme Court agreed with the Commonwealth and affirmed. Justice Dougherty wrote the opinion, which Chief Justice Todd and Justices Donohue, Wecht, Mundy, and Brobson joined. Justice McCaffery did not participate.

The Court traced the malice standard back to Drum and through Taylor, where a four-Justice majority held that the defendant consciously disregarded an unjustified and extremely high risk that his actions might cause death or serious bodily harm to another, and therefore acted maliciously. The Court then catalogued more than half a century of Supreme Court and Superior Court decisions repeating the same formulation, in both DUI and non-DUI cases.

The Court rejected the defendant’s reading of O’Hanlon. The “essentially certain to occur” language in O’Hanlon, the Court explained, was not a new test for DUI cases; it was simply O’Hanlon’s way of distinguishing ordinary recklessness from the heightened recklessness required for aggravated assault, a statute that has nothing to do with DUI. The Court also pointed out that just four years after O’Hanlon, it relied on the same language in Commonwealth v. Thompson, a shooting case, which would not have made sense if O’Hanlon had really created a DUI-only standard.

The Court read Packer the same way. Although Packer used the “essentially certain to occur” phrase in summarizing O’Hanlon, the Court emphasized that Packer itself ultimately defined malice as a “conscious disregard for an unjustified and extremely high risk that a chosen course of conduct might cause a death or serious personal injury,” and applied that standard, not a separate one, to find malice on Packer’s facts.

The Court therefore restated the rule in plain terms: malice is present if the defendant consciously disregarded an unjustified and extremely high risk that his actions might cause death or serious bodily harm. That standard is the same regardless of whether the defendant drove drunk, fired a gun, or engaged in any other reckless conduct.

Application to the Facts

Applying that standard, the Court held the evidence was sufficient to support the third-degree murder and aggravated assault convictions.

The Court emphasized several pieces of evidence beyond the simple fact that the defendant drove drunk, which the Court reaffirmed is not, standing alone, enough to establish malice. The defendant had been drinking heavily for roughly seven hours. He turned down a coworker’s offer of a ride home. His difficulty operating the payment machine and his decision to break the parking garage gate to get out should have alerted him that he was in no condition to drive. On I-95, he straddled the fog line, alternated between excessive and unusually slow speeds, drove with his taillights off, nearly sideswiped one motorist, and missed his exit twice even though he had lived in the area for six years. Two different motorists found his driving alarming enough to call 911.

Most significant to the Court was the defendant’s decision, while driving 113 miles per hour with a BAC of .151, to unbuckle his seatbelt and rummage on the passenger-side floor for his phone in order to check the GPS. He could have pulled over instead. He did not even slow down. The black box data showed he actually accelerated to 115 miles per hour half a second before the crash. The Court agreed with the Superior Court majority that this conduct virtually guaranteed an accident would occur.

The Court rejected several mitigating arguments. The fact that the defendant tapped the brake at most four-tenths of a second before impact did not break the chain of malice. At 115 miles per hour, the Court observed, the defendant was traveling roughly 168 feet per second, and braking that late was, in the Court’s words, “just as futile as trying to catch a fired bullet.” The defendant’s argument that no one had verbally warned him he was too drunk to drive was also unpersuasive; the Court held that the absence of an explicit warning does not free a defendant to ignore obvious signs that it is unsafe to keep driving. The lack of post-crash belligerence or flight likewise meant little, because the defendant had to be removed from the vehicle and taken to the hospital for a week.

Why This Decision Matters

Peters settles a question that has been bouncing back and forth between the Superior Court and the Supreme Court for years: whether DUI homicide and aggravated assault cases get a heightened mens rea standard. The answer is no. Going forward, the Commonwealth needs to prove the same Taylor-style malice in a fatal DUI case that it would prove in a shooting or beating case — a conscious disregard for an unjustified and extremely high risk of death or serious bodily injury.

That said, the decision should not be read as turning every DUI fatality into a third-degree murder case. The Court reaffirmed that the choice to drive while intoxicated, by itself, does not establish malice. The Court’s analysis of the facts, which included turning down a ride, breaking the garage gate, sustained reckless driving for nearly an hour, near-misses, ignoring 911-worthy warning signs from his own driving, and finally taking his eyes off the road at 113 miles per hour to look for his phone, is what carried the day. Those are the kinds of aggravating, sustained-recklessness facts that the Superior Court has long required for a malice finding in a DUI case under decisions like Commonwealth v. Kling. The result in a more typical impaired-driving fatality, without that level of additional aggravating conduct, may still come out the other way, as in Commonwealth v. Comer, where the impaired defendant’s car rubbed the curb and the accident immediately followed.

Practically, this means that in serious DUI cases, defense counsel needs to focus less on whether there was an explicit verbal “warning” or other formal notice, and more on whether the totality of the conduct really shows the kind of sustained, conscious disregard for risk that the Court found here. Charging decisions, plea negotiations, jury instructions, and sufficiency challenges in vehicular homicide cases will all be shaped by Peters going forward.

Facing Criminal Charges? We Can Help.

If you or a loved one are facing criminal charges, serving a state sentence in Pennsylvania, or exploring a direct appeal or PCRA petition, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey, and we have won criminal appeals and PCRAs in state and federal court — including the successful direct appeal of a first-degree murder conviction and the exoneration of a client who spent 33 years in prison for a murder he did not commit. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Zak Goldstein 1/18/26 Zak Goldstein 1/18/26

PA Superior Court Affirms Homicide by Vehicle while DUI Conviction Despite Inconsistent Verdicts

Commonwealth v. Kling

Criminal Lawyer Zak Goldstein — Philadelphia Criminal Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Kling, affirming a defendant’s conviction for Homicide by Vehicle while Driving Under the Influence ("DUI") and Homicide by Vehicle.

The decision is significant for Pennsylvania DUI defense because it addresses “inconsistent verdicts.” Specifically, it addresses whether a defendant can be convicted of causing death while under the influence even if a jury acquits them of the specific DUI charge that involves being “impaired.”

The Facts of the Case

On April 20, 2023, the defendant was operating a motorcycle with a passenger on High Street in Limerick Township. At a red light, a Honda Accord driven by a third person pulled up beside him. When the light turned green, both vehicles accelerated rapidly toward a merge point about a quarter-mile away.

Witnesses and surveillance video established that neither driver would yield. As they approached the merge point, the Honda Accord overtook the motorcycle and merged into the left lane. The defendant struck the back of the Honda, causing the motorcycle to crash. His passenger was thrown from the bike and killed.

Police and EMS arrived and noted that the defendant appeared dazed, had pinpoint pupils, and was in pain. The defendant admitted he did not have a motorcycle license and the bike was unregistered. Toxicology reports later revealed fentanyl, amphetamine, and methamphetamine in the defendant’s blood.

The Inconsistent Verdicts

At trial, the Commonwealth charged the defendant with multiple counts of DUI. Notably, the jury acquitted him of DUI under 75 Pa.C.S. § 3802(d)(2), which requires proof that the defendant was under the influence to a degree that impaired their ability to safely drive.

However, the jury convicted him of DUI under § 3802(d)(1), which prohibits driving with any amount of a Schedule I controlled substance (or metabolite) in the blood, regardless of actual impairment. They also convicted him of Homicide by Vehicle while DUI. The conviction under § 3802(d)(1) did not require actual impairment. He received a lengthy state prison sentence.

The Appeal

The defendant appealed, arguing that the evidence was insufficient to support the Homicide by Vehicle while DUI conviction.

His argument was based on causation. To be convicted of Homicide by Vehicle while DUI, the Commonwealth must prove that the death was the "result of" the DUI violation. The defendant argued that because the jury acquitted him of the impairment charge (§ 3802(d)(2)), the Commonwealth failed to prove that he was actually impaired or that his intoxication caused the crash. He relied on Commonwealth v. Magliocco, arguing that an acquittal on a predicate offense should invalidate the greater offense.

The Superior Court's Decision

The Superior Court rejected the defendant’s arguments and affirmed the judgment of sentence.

1. Inconsistent Verdicts Are Permitted: The Court explained that inconsistent verdicts are generally allowed in Pennsylvania. The jury may have acquitted the defendant of the impairment DUI for reasons of leniency rather than a factual finding that he was sober. As long as the defendant was convicted of a violation of Section 3802 (in this case, having drugs in his system), the statutory requirement for the Homicide by Vehicle while DUI charge was met. The acquittal on the (d)(2) charge did not negate the elements of the homicide charge as a matter of law.

2. Evidence of Causation Was Sufficient: Even without a conviction on the impairment count, the Court found sufficient evidence that the defendant’s drug use caused the death. The Commonwealth presented expert testimony that high doses of methamphetamine can cause aggressive, impulsive, and risky driving.

The Court distinguished this case from Commonwealth v. Lenhart, where a driver with a high BAC crashed but there was no evidence of how the accident happened. Here, there was ample evidence of reckless driving. Specifically, the "deadly race" to the merge point. The Court concluded the jury could infer that the drugs in the defendant’s system contributed to this aggressive behavior, thereby causing the crash.

3. Recklessness Established: The Court also upheld the separate conviction for Homicide by Vehicle (which requires recklessness but not necessarily DUI). The Court held that the defendant’s decision to race another car to a merge point while unlicensed, driving an unregistered bike, and carrying a passenger without a helmet showed a conscious disregard for the value of human life.

Conclusion

This case reinforces that Pennsylvania courts will often uphold serious felony convictions even when jury verdicts appear logically inconsistent. It also highlights the danger of per se DUI charges (based solely on the presence of drugs in the blood) serving as the basis for Homicide by Vehicle convictions, provided the Commonwealth can link the drug presence to the driving behavior.

It remains true, however, that evidence of a DUI and a death is not enough for a homicide by vehicle while DUI conviction. Instead, the Commonwealth must show that the DUI actually caused the death. Here, the Court found that there was sufficient evidence. And even though the homicide by vehicle while DUI statute requires a DUI conviction and the defendant was acquitted of the DUI section that requires impairment, the Court affirmed the conviction because he was still convicted of a DUI. The Superior Court simply found no requirement that the defendant be convicted of any particular subsection and refused to draw any factual inferences from the jury’s acquittal.

The inconsistent verdict rule is hard to reconcile with common sense, and it is often inconsistently applied as there are some cases where it has been rejected. But in most cases, the courts will disregard an inconsistency verdict and instead look only at evidentiary sufficiency.

Facing Criminal Charges? We Can Help.

Goldstein Mehta LLC Criminal Defense Attorneys — Goldstein Mehta LLC Criminal Defense

Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Zak Goldstein 11/8/25 Zak Goldstein 11/8/25

PA Supreme Court: Prosecution May Not Remove Defendant from ARD for Truthful Answers

Criminal Defense Attorney Zak T. Goldstein, Esquire

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Jenkins, ruling that a judge cannot revoke a defendant’s Accelerated Rehabilitative Disposition (ARD) status simply for failing to mention an uncharged arrest on their ARD application where the prosecution never asked about uncharged arrests on the application itself. The decision limits the idea of “deception by omission” and makes clear that ARD participants can only be removed for violating actual, written conditions of the program, not for conduct that merely offends the “spirit” of rehabilitation.

The Facts of the Case

The defendant was arrested for DUI in May 2021 and later applied for ARD in Adams County. Before charges were filed for a second DUI arrest that summer, the defendant truthfully completed his ARD application, which required him to disclose any pending criminal charges but said nothing about uncharged arrests.

He was accepted into ARD, but when prosecutors later learned of the earlier uncharged arrest, they moved to revoke his participation, arguing that he violated ARD “Rule #1” prohibiting violations of the law and that omitting the arrest “defeated the spirit of ARD.” Both the trial court and the Superior Court agreed with the District Attorney. The defendant appealed the order kicking him out of ARD to the Pennsylvania Supreme Court.

The Supreme Court Reverses

Chief Justice Debra Todd, writing for a unanimous Court, rejected that reasoning. The justices held that the defendant had not violated any ARD condition. He didn’t commit a new crime after admission, and his application contained no misrepresentation because he simply was not asked about uncharged arrests.

The Court emphasized that ARD revocation must rest on a violation of specific conditions found in statute or rule, not on implied ones. Citing Commonwealth v. Foster and Commonwealth v. Rosario, the Court refused to invent an “implied condition” that defendants must self-report uncharged arrests. The ARD statute, 75 Pa.C.S. § 3807, and Rule 318 allow removal only if a participant commits a new offense or violates an enumerated condition, and neither applied here. In other words, a defendant must answer the questions asked truthfully, but they do not have to answer questions that are not asked.

Rejecting the Commonwealth’s “Spirit of ARD” Argument

The Commonwealth urged the Court to follow older cases like Boos and Jones, which allowed revocation when applicants concealed disqualifying convictions or lied on their forms. The Court distinguished those cases: the defendant’s application was truthful, and the ARD paperwork never asked about uncharged arrests. That was the Commonwealth’s problem, not his.

Justice Todd wrote that if prosecutors want such information, they must ask for it explicitly, not rely on defendants to guess what’s relevant. In her words, “We find no basis on which to expect an applicant to guess at what information he is expected to disclose.”

Takeaway

This decision restores clear limits on when ARD can be revoked. Courts cannot terminate a defendant’s participation based on uncharged conduct that occurred before admission or on vague notions of “deception by omission.”

If an ARD application doesn’t ask about arrests, an applicant has no duty to volunteer them. The opinion also suggests that counties should update their ARD forms if they want that information in the future. The ruling is an important reminder that the ARD process is governed by written rules, not by unchecked prosecutorial discretion or moral intuitions about candor.

Facing criminal charges or appealing a criminal case in Pennsylvania or New Jersey?

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. We have also won criminal appeals and PCRAs in state and federal court. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Zak Goldstein 6/17/25 Zak Goldstein 6/17/25

PA Supreme Court Finds Statute Allowing Police to Tell Hospital Staff to Draw Blood Without Warrant in Potential DUI Cases Unconstitutional

Pennsylvania Supreme Court Strikes Down Section 3755 as Facially Unconstitutional in DUI Blood Draw Case

Criminal Defense Attorney Zak T. Goldstein, Esquire

In Commonwealth v. Hunte, the Pennsylvania Supreme Court affirmed a trial court ruling finding that 75 Pa.C.S. § 3755, the “emergency room blood draw” statute, violates both the Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution. The Court found the statute facially unconstitutional because it authorizes warrantless blood draws from DUI suspects in the absence of a valid exception to the warrant requirement.

The Facts of Hunte

Police officers responded to a single-vehicle crash in Cumberland County in which the defendant and a passenger were ejected from the vehicle. The passenger died, and the defendant was unconscious when the police arrived. The scene contained alcohol containers and fentanyl patches, and first responders reported that the defendant admitted to drinking. At the hospital, without obtaining a warrant or consent, a Pennsylvania State Trooper invoked Section 3755 and directed medical personnel to draw the defendant’s blood.

Although a separate blood sample had already been taken for medical purposes, the blood tested by the Commonwealth was drawn specifically at the trooper’s request under Section 3755. The hospital even used a special form tailored to that statute. Of course, the police had not obtained a warrant authorizing them to order that blood draw. Accordingly, the defendant later moved to suppress the blood results, challenging the constitutionality of the statute.

Section 3755

The statute allows the police to direct medical personnel to conduct a warrantless blood draw in certain circumstances. It provides:

§ 3755.  Reports by emergency room personnel.
(a)  General rule.--If, as a result of a motor vehicle accident, the person who drove, operated or was in actual physical control of the movement of any involved motor vehicle requires medical treatment in an emergency room of a hospital and if probable cause exists to believe a violation of section 3802 (relating to driving under influence of alcohol or controlled substance) was involved, the emergency room physician or his designee shall promptly take blood samples from those persons and transmit them within 24 hours for testing to the Department of Health or a clinical laboratory licensed and approved by the Department of Health and specifically designated for this purpose. This section shall be applicable to all injured occupants who were capable of motor vehicle operation if the operator or person in actual physical control of the movement of the motor vehicle cannot be determined. Test results shall be released upon request of the person tested, his attorney, his physician or governmental officials or agencies.
(b)  Immunity from civil or criminal liability.--No physician, nurse or technician or hospital employing such physician, nurse or technician and no other employer of such physician, nurse or technician shall be civilly or criminally liable for withdrawing blood or obtaining a urine sample and reporting test results to the police pursuant to this section or for performing any other duty imposed by this section. No physician, nurse or technician or hospital employing such physician, nurse or technician may administratively refuse to perform such tests and provide the results to the police officer except as may be reasonably expected from unusual circumstances that pertain at the time of admission.

The Statute Is Unconstitutional

Writing for the majority, Justice Wecht held that Section 3755 violates the Fourth Amendment and Pennsylvania’s analogous constitutional provision because it authorizes warrantless blood draws without fitting into any recognized exception to the warrant requirement such as consent or exigency.

The Court reasoned that:

Implied consent statutes cannot serve as an independent exception to the warrant requirement. The Court rejected the notion that drivers implicitly consent to blood draws simply by operating a vehicle in Pennsylvania.
Blood draws are searches under the Fourth Amendment and Article I, Section 8. Because they are invasive and reveal sensitive personal information, they require a warrant or a valid exception.
No categorical exigency exists in DUI cases. The Court followed United States Supreme Court precedent (Missouri v. McNeely) in which the US Supreme Court held that the natural dissipation of alcohol in the bloodstream does not create per se exigency.
Section 3755 is unconstitutional on its face because it authorizes searches in situations where the Constitution requires individualized inquiry and a warrant, and probable cause alone is not enough.

The Commonwealth’s Arguments

The Commonwealth argued that exigent circumstances justified the blood draw and that a subsequent search warrant for testing the blood cured any defect. The Pennsylvania Supreme Court dismissed these arguments, emphasizing that the initial draw—i.e., the search—occurred without a warrant or recognized exception.

The Court also rejected the Commonwealth's attempt to salvage the statute by arguing that it merely facilitates lawful conduct or does not prohibit obtaining a warrant. The Court noted that Section 3755 affirmatively requires blood draws without a warrant or consent.

Accordingly, the statute is unconstitutional. Police must obtain a search warrant prior to directing a blood draw or be able to establish exigent circumstances which make getting a warrant impractical. They may not convert medical personnel into state actors in order to get around the Fourth Amendment’s warrant requirement.

Facing criminal charges or appealing a criminal case in Pennsylvania?

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, Violations of the Uniform Firearms Act, and First-Degree Murder. We have also won criminal appeals and PCRAs in state and federal court, including the successful direct appeal of a first-degree murder conviction and the exoneration of a client who spent 33 years in prison for a murder he did not commit. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.