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.

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