PA Superior Court Upholds Homicide by Vehicle Conviction for Failure to Come to a Complete Stop at Busy Intersection

Commonwealth v. Moyer

The Pennsylvania Superior Court has just decided the case of Commonwealth v. Moyer, upholding the defendant’s conviction and state prison sentence for Homicide By Vehicle, Recklessly Endangering Another Person (“REAP”), and Driving Under the Influence (“DUI”). On appeal, Moyer challenged the sufficiency of the evidence against her as well as the admissibility of the blood results for the DUI charge under Birchfield v. North Dakota. Unfortunately for Moyer, the Superior Court held both that the Commonwealth produced sufficient evidence to convict the defendant of homicide by vehicle and that the Birchfield claim that police should have obtained a warrant prior to the blood draw was waived for failure to raise the issue prior to or during trial.

"Rolling Stops" and Homicide by Vehicle 

In Moyer, the record showed that the defendant approached a stop sign at an intersection which she had driven through on many prior occasions. The defendant failed to come to a complete stop at the intersection. She characterized the stop as a “rolling stop,” but the trial court found that she had traveled through the intersection at around twelve miles per hour and had not attempted to activate her brakes prior to the ensuing collision. As she went through the intersection, a box truck crashed into her car, crossed the double yellow line, and then crashed into a tow truck, killing the driver of the box truck. The evidence produced at trial also suggested that it would be difficult to see traffic coming from the side due to the presence of a building at the edge of the intersection.

Criminal Charges for Car Accidents

Moyer was arrested and charged with Homicide by Vehicle, REAP, Homicide by Vehicle while DUI, DUI, and various summary offenses relating to reckless driving. The jury convicted her of homicide by vehicle and REAP, but it acquitted her of Homicide by Vehicle while DUI because the levels of marijuana and Xanax in her system were extremely low and unlikely to cause actual impairment or inability to drive. The trial court found her guilty of DUI and the summary traffic offenses. Notably, there is no right to a jury trial for a first-offense DUI charge or for summary traffic offenses. Therefore, the jury decided whether to convict on the more serious judges, and the trial judge made the ruling on the DUI and summaries.

The Criminal Appeal

Moyer raised two issues on appeal. First, she challenged the use of the blood results against her because police had warned her that she would face more severe criminal penalties if she refused to consent to chemical testing in violation of Birchfield v. North Dakota. In Birchfield, the United States Supreme Court held that states many not criminalize the refusal to submit to warrantless blood testing even where police have probable cause to believe that the driver was driving under the influence. However, Birchfield, was decided after the defendant was convicted in the trial court. Although she sought a new trial by filing post-sentence motions prior to taking the appeal, the trial court denied the post-sentence motions.

The Superior Court upheld the trial court’s decision, agreeing that Birchfield is not retroactive and that the defendant should have known the case was on appeal in the United States Supreme Court and raised the issue prior to trial in order to preserve it for appeal. Pennsylvania’s appellate waiver doctrine is extremely demanding. If claims are not properly preserved by filing motions or objections at the trial level, those claims may be waived forever.

Second, Moyer argued that the evidence was insufficient to convict on Homicide by Vehicle because she had done nothing more than roll through the intersection. Homicide by Vehicle is defined in the Motor Vehicle Code. Section 3732 of the Motor Vehicle Code defines Homicide by Vehicle as:

Any person who recklessly or with gross negligence 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 exception section 3802 (relating to driving under influence of alcohol or controlled substance) is guilty of homicide by vehicle, a felony of the third degree, when the violation is the cause of death.

Thus, in order to convict a defendant of Homicide by Vehicle, the Commonwealth must show that the defendant’s traffic violation caused a death and that the defendant acted either recklessly or with gross negligence. Pennsylvania law defines criminal recklessness as follows:

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.

The statute may also be satisfied by a showing of gross negligence. Gross negligence is more than ordinary civil negligence. Instead, it requires that the defendant’s conduct “evidenced a conscious disregard of the substantial and unjustified risk that he would be involved in a traffic accident causing death.” Accordingly, appellate courts have equated gross negligence with recklessness.

The Superior Court rejected Moyer’s argument that she had not acted recklessly. Although the small amounts of marijuana and Xanax in her system had likely not caused the accident, the Court found that her failure to stop at the intersection as required by Pennsylvania’s traffic laws was reckless enough to support a conviction for Homicide by Vehicle. First, the Court found that traveling at twelve miles per hour is different than simply failing to come to a complete stop and “rolling” through an intersection. Second, the Court noted that the stop sign preceded a busy intersection and that a building obscured the view of one lane of the cross traffic. Third, the Court considered the fact that the evidence showed Moyer had failed to brake prior to the collision. Finally, the Court recognized that Moyer was familiar with the intersection and had driven through it numerous times. Therefore, she should have known the risks of driving through it without stopping. Although the decedent failed to wear a seatbelt and was driving with his passenger door open, the Court still found that it was Moyer’s reckless conduct that caused his death. Therefore, the Court upheld the convictions against Moyer.

Award-Winning Philadelphia Criminal Defense Lawyers

Defense Attorneys Demetra Mehta and Zak Goldstein

Homicide by Vehicle charges are extremely serious, and there are often defenses to these charges. In general, it is not enough for the Commonwealth merely to show that there was a car accident and someone died. Instead, the Commonwealth must show that the defendant acted with more than just negligence; that is that the defendant acted recklessly, which is more difficult to show. Here, the evidence showed that the defendant was traveling twelve miles per hour into a busy intersection without stopping, which apparently satisfied the standard. In many cases, it may be possible to challenge Homicide by Vehicle charges both by attacking the prosecution’s proof as it relates to the defendant’s mens rea and by challenging whether the defendant’s actions actually caused the death of the victim. If you are facing criminal charges, we can help. Our award-winning Philadelphia criminal defense lawyers have successfully defended thousands of cases. Call 267-225-2545 for a free criminal defense strategy session.

Read the Case: Commonwealth v. Moyer

DUI Defense Update: Challenge to Blood Draw Refusal Evidentiary Presumption Waived by Failure to Raise Issue in Trial Court

DUI Litigation Following Birchfield v. North Dakota

The United States Supreme Court’s decision in Birchfield v. North Dakota created a number of issues in DUI litigation which have not yet been resolved. The Birchfield Court held that at a minimum, states may not impose criminal penalties on motorists who refuse to consent to a blood draw unless police first obtain a search warrant. As a result, much of Pennsylvania’s DUI law has been thrown into disarray, and there are a number of legal issues which still need to be resolved. These issues include the types of warnings and advice that police must provide to DUI suspects prior to requesting consent to a blood draw, whether a suspect’s refusal to consent to a blood draw without a warrant may be used against them as evidence of consciousness of guilt, and whether the police may draw blood from an unconscious Driving Under the Influence suspect.

Evidentiary Consequences of a Blood Draw Refusal

The Pennsylvania Superior Court has just declined to address one of these issues on appeal, finding that a DWI defendant who had not raised an evidentiary issue at trial could not raise it for the first time on appeal. Prior to Birchfield, it was well-accepted that the prosecution could use evidence of a motorist’s refusal to consent to a blood draw against them as evidence of consciousness of guilt. Although the refusal alone would not be enough to convict a criminal defendant, the trial judge or jury could infer from the defendant’s refusal that the defendant believed that evidence of intoxication would show up in the blood results. Thus, a refusal combined with other factors such as poor driving, an odor of alcohol or marijuana, and other evidence of that nature could combine to provide evidence of drunk driving or drugged driving beyond a reasonable doubt.

The Effect of Birchfield

Now that the United States Supreme Court (and Pennsylvania appellate courts) have held that blood draw refusals may not be used to increase the penalties or create new criminal penalties for DUI defendants, there have been a number of challenges to whether the previously mentioned evidentiary presumption of a refusal complies with the requirements of the United States and Pennsylvania Constitutions. In the case of Commonwealth v. Napold, the Pennsylvania Superior Court declined to decide this issue. The Court found that the issue was waived because Napold had not raised the issue by filing a motion in limine prior to trial or objecting to the evidence at trial. Thus, the Superior Court found that Napold had waived the issue by failing to properly preserve it by asking the trial judge to rule on the issue first.

Waiver Doctrine in Pennsylvania Criminal Appeals

Napold provides an illustration of Pennsylvania’s punishing waiver doctrine. Under Pennsylvania law, if the defense fails to object to something or have an issue resolved by the trial court either prior to trial or during trial, then the issue will be forever waived on appeal regardless of how patently inadmissible the evidence may have been. For example, if the prosecution attempts to introduce inadmissible hearsay testimony and the defense fails to object, the defendant cannot then argue that he or she was prejudiced by inadmissible hearsay on appeal. This is because the issue was not raised in the trial court, so the trial judge had no opportunity to correct the error. Most other jurisdictions provide some leeway in terms of an appellate court’s ability to review obvious or clear errors, but Pennsylvania does not.

Notably, the decision in Napold finding that the issue had been waived is different from many of the other Birchfield-related cases which dealt with sentencing. The issue of an illegal sentence may always be raised on appeal regardless of whether the issue was raised in the trial court. Therefore, challenges to Pennsylvania’s statutory mandatory minimum scheme for blood draw refusals were permitted despite the failure to raise those issues in the trial court.

As illustrated by Napold, evidentiary issues must be properly preserved, and whether or not the blood draw refusal can be used as evidence against a defendant will not be resolved by the appellate courts until a later date. Napold illustrates why it is critical even for criminal defense lawyers who only handle trials to be aware of what is happening in the appellate courts so that the defense attorneys can preserve issues in case the appellate courts rule in favorable ways for the defense.

Award-Winning Philadelphia Criminal Defense Attorneys and DUI Defense Lawyers

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esq.

If you are facing DUI charges or under investigation for any criminal defense, you need the assistance of one of our award-winning Philadelphia criminal defense lawyers. We have successfully represented thousands of clients, and we will use our skill and experience to help you achieve the best possible result. Call 267-225-2545 for a free criminal defense strategy session with one of our top-rated defense attorneys today.    

PA Superior Court: Summary Traffic Offenses May Be Charged Separately From Serious Offenses in Philadelphia

For many years, it was the routine practice of the Philadelphia Police Department to charge summary traffic offenses and more serious charges like DUI or possessory offenses separately. For example, if police pulled a car over for speeding and ultimately found a gun in the car or ended up charging the driver with DUI, then the Commonwealth would bring the summary speeding charge in Philadelphia Traffic Court and the more serious gun charge or DUI charge in either the Municipal Court or the Court of Common Pleas. Thus, a defendant who wished to challenge the traffic citation would be required to attend twice as many court dates and hire a defense attorney twice.

This practice arguably violates Pennsylvania's compulsory joinder statute. Pennsylvania has a compulsory joinder statute which is codified at 18 Pa C.S. § 110. At its most basic level, a compulsory joinder statute requires the prosecution to bring charges which arise out of the same incident together in a single prosecution. This spares the defendant the additional time, expense, and stress of defending against two separate cases, and in this sense, compulsory joinder is very similar and related to the idea of Double Jeopardy – that a defendant may not be prosecuted for the same crime twice. Pennsylvania appellate courts had repeatedly ruled that under a prior version of Section 110 (the joinder statute), summary offenses were just different and did not count because the Court of Common Pleas held jurisdiction over misdemeanors and felonies and the Magisterial District Courts had jurisdiction over summaries. Therefore, the prosecution and police could bring summary traffic prosecutions in traffic court and misdemeanor and felony prosecutions in the Municipal Court and Court of Common Pleas.

In 2002, the Pennsylvania Legislature amended the statute to change language requiring compulsory joinder where the offenses occurred within courts of the same jurisdiction to offenses which occurred within the same judicial district. This language arguably has a dramatic impact. Instead of summaries being different due to the differing jurisdictions of the courts, the question became whether the offense occurred in the same judicial district. This issue became even more important approximately ten years later when the Philadelphia Traffic Court became enmeshed in scandal and was abolished. After the court was abolished, its functions were merged into the Philadelphia Municipal Court – Traffic Division. Thus, any argument that summary offenses were not within the same judicial district or that the Municipal Court did not have jurisdiction became extremely weak, and defense lawyers began to successfully move for cases to be dismissed due to the fact that summary traffic cases arising out of the same stop had already been resolved.

In the vast majority of cases, the traffic ticket would be resolved much faster than the criminal case. The traffic court hearings were scheduled more quickly, and if a defendant failed to appear for court, the defendant would be found guilty in absentia. Further, many defendants pay their traffic tickets online, by phone, or through the mail rather than going to court to fight them. This meant that a traffic court case could be disposed of within a month or two, and the defense could then move to dismiss the criminal case as violating the compulsory joinder rule. Once prosecutions realized they had a potential problem, Philadelphia Police quickly changed their procedures and stopped issuing traffic tickets in cases where they also intended to charge the defendant with a more serious crime. However, many existing cases were successfully dismissed because the traffic tickets had already been resolved.

Although this issue is not as prevalent today because a large number of the cases in which this happened have already been resolved, the Superior Court has just held that the unique rules establishing the Philadelphia Municipal Court – Traffic Division trump the compulsory joinder rule and allow the traffic citations to be issued separately from the criminal charges.   

On August 30, 2017, the Pennsylvania Superior Court issued its decision in Commonwealth v. Perfetto. The Superior Court overturned the trial court’s decision granting Mr. Perfetto’s Motion to Dismiss. Although this decision is limited to Philadelphia, it could potentially affect a large number of defendants who are charged with Driving Under The Influence (“DUI.”)

Commonwealth v. Perfetto

In July 2014, Mr. Perfetto was arrested in Philadelphia and charged with three counts of “DUI.” Mr. Perfetto was also charged with the summary offense of driving without lights as required, a traffic citation. Although traffic citations are not considered very serious, they are still summary offenses, and all summary offenses are crimes under Pennsylvania law. In September 2014, Mr. Perfetto was found guilty of the traffic citation by the Philadelphia Municipal Court – Traffic Division. In June 2015, Mr. Perfetto filed a motion to dismiss in his DUI case, arguing that § 110 barred the prosecution. The trial court agreed with Mr. Perfetto and dismissed the DUI case. The court granted the motion because Mr. Perfetto’s case satisfied the four requirements of § 110. Shortly thereafter, the Commonwealth filed an appeal, arguing that Mr. Perfetto’s subsequent DUI prosecution was not barred by § 110. 

What is Double Jeopardy and § 110?

Double Jeopardy is mentioned in both the United States Constitution (5th Amendment) and the Pennsylvania Constitution (Article 1, Section 10). Double Jeopardy is the rule that the same government cannot put you on trial for the same charges twice. For example, let’s say a defendant is accused of punching a complainant in the face and is charged with Simple Assault and Recklessly Endangering Another Person (REAP). If the defendant was acquitted of these charges, the same government could not put that defendant on trial again for those charges because Double Jeopardy would forbid it. This rule does not always apply against other levels of government. For example, a federal prosecution will prevent the Commonwealth of Pennsylvania from bringing a subsequent prosecution, but a Pennsylvania prosecution will not prevent the United States from bringing a federal prosecution.     

The idea of compulsory joinder is similar and arises out of many of the same concerns of Double Jeopardy. As previously explained, Section 110 provides Pennsylvania’s compulsory joinder rule. § 110 is similar to the Double Jeopardy clauses of the Pennsylvania and U.S. Constitutions, but more nuanced. § 110 is the codification of the rule announced in the Pennsylvania Supreme Court decision of Commonwealth v. Campana, 304 A.2d 432 Pa. 1973). In Campana, the Court held that ‘the Double Jeopardy Clause requires a prosecutor to bring, in a single proceeding, all known charges against a defendant arising from a single criminal episode.” Id. at 374. This is known as compulsory joinder. Using the same example above, let’s say that in addition to punching the complaining witness, the defendant also told said this person that he was going to kill him (arguably a Terroristic Threat), however the government only charged him with Simple Assault and REAP. Assuming this defendant is acquitted again, the defendant could not subsequently be tried for the crime of Terroristic Threats. The reason is because the “terroristic threat” came from the same criminal episode as the assault. Again, this would only prevent Pennsylvania from bringing a second prosecution; the federal government may still be able to bring federal charges.  

In order to be successful when bringing a § 110 motion to dismiss, the defense must show four things: 1) the former prosecution resulted in an acquittal or conviction; 2) the current prosecution was based on the same criminal conduct or arose from the same criminal episode; 3) the prosecutor in the subsequent trial was aware of the charges before the first trial; and 4) all the charges are within the same judicial district as the former prosecution. The key issue in Mr. Perfetto’s case was the fourth prong of this analysis because it was the fourth prong that changed in the 2002 amendment to the compulsory joinder rule.

The Pennsylvania Superior Court Holds that Philadelphia’s Traffic Division of Municipal Court is a Separate Judicial District

In overturning the trial court’s decision, the Pennsylvania Superior Court made a very technical finding. First, the Court looked to 42 Pa C.S.A. § 1302, a statute which addresses traffic courts. In analyzing the statute, the Court held that when a traffic offense is resolved in a jurisdiction with a traffic court, there is no violation of § 110 if the more serious criminal charges are filed separately. In other words, if a jurisdiction does not have a traffic court, then § 110 would apply if a defendant resolved the traffic offense prior to their criminal offense, but the same is not true when the jurisdiction has a traffic court.

Unfortunately, Philadelphia is different than other jurisdictions in Pennsylvania because its traffic court is specifically mentioned in § 1302. In 2013, Philadelphia’s traffic court merged with Philadelphia’s Municipal Court. This created two divisions: the General Division and the Traffic Division. Therefore, the Municipal Court has jurisdiction over both traffic and criminal offenses. Thus, prior to Perfetto, defense attorneys would argue that because Philadelphia does not have a separate traffic court, §110 applied for traffic offenses.

The Superior Court has now rejected this argument at least as it applies to Philadelphia courts. The Superior Court noted that the Pennsylvania Supreme Court has the power to create rules for the general practice and procedure of the Courts. With this in mind, the Superior Court focused on a May 2014 comment to Pennsylvania Rule of Criminal Procedure 1001(D) which addresses Philadelphia Municipal Court.  The comment stated:

This rule, which defines “Municipal Court case,” is intended to ensure that the Municipal Court will take dispositive action, including trial and verdict when appropriate, in any criminal case that does not involve a felony, excluding summary cases under the Vehicle Code. The latter are under the jurisdiction of the Municipal Court Traffic Division, the successor of the Philadelphia Traffic Court.

Pa.R.Crim.P. 1001(D), cmt.

As such, the Superior Court held that the Supreme Court’s intent was for the traffic division of the Municipal Court to exclusively hear the traffic offenses. Thus, the Superior Court held that, in essence, Philadelphia’s Municipal Court traffic division is analogous to a jurisdiction with its own separate traffic court. Consequently, the Superior Court held that § 110 does not bar subsequent prosecution of a criminal offense when there has been a prior disposition of a traffic offense in Philadelphia. The Superior Court reversed the ruling of the trial court, and Mr. Perfetto’s case was remanded back to the Philadelphia Municipal Court for trial.

DUI Cases     

At this point, the impact of Perfetto is relatively limited. For a number of years, unpublished opinions of the Pennsylvania Superior Court reached the opposite conclusion, so a large number of cases have already been dismissed and cannot be reinstated. For those cases which were on appeal and awaiting the decision in Perfetto, the defendants will now face prosecution once again. However, the Philadelphia Police Department stopped issuing separate traffic citations a number of years ago due to this rule, so the decision is not likely to substantially affect newly charged defendants. Certainly, Perfetto will likely be appealed to the Pennsylvania Supreme Court, and the issue may not be resolved. 

Philadelphia Criminal Defense Lawyers

Philadelphia Criminal Defense Attorneys

As always, DUI cases can be very technical and there are a number of ways to beat them.  If you are charged with DUI, you need an attorney who has the knowledge and expertise to fight your case. Our award-winning Philadelphia criminal defense lawyers have successfully fought countless cases at trial and on appeal. We offer a 15-minute criminal defense strategy session to any potential client. Call 267-225-2545 to discuss your case with an experienced and understanding criminal defense attorney today.  

DUI Update: PA's New Ignition Interlock Law Takes Effect

Pennsylvania’s new Driving Under the Influence (“DUI”) Ignition Interlock Law took effect on Friday, August 25, 2017. We have written about the pros and cons of the new law previously, but prior to taking effect, the Pennsylvania Legislature modified the law so that it would bring many of the same advantages and disadvantages to recipients of the Accelerated Rehabilitative Disposition (“ARD”) Program. Unfortunately, the changes to make ARD defendants eligible for the Ignition Interlock License will not go into effect until October 2018. Additionally, most defense lawyers believed that the law would be applied retroactively to motorists who were already serving their suspensions when the law took effect. Based on recent guidance from PennDOT, it now seems clear that the DUI Ignition Interlock Statute will apply retroactively. This means that many motorists who are already serving DUI-related suspensions will be immediately eligible to obtain an Ignition Interlock device and have their driver’s licenses reinstated.

Pros and Cons of the New DUI Ignition Interlock Law

There are some significant pros and cons to the new law. In general, the law makes Driving Under the Influence Convictions more expensive by requiring even some first-time offenders to install ignition interlock devices on their vehicles. These devices can be costly, but the law does allow for subsidized interlock installations upon a showing of financial hardship. At the same time, the law provides many motorists with a way to keep their licenses or serve shorter driver’s license suspensions than those statutorily required in the absence of the law.

One of the biggest problems with Pennsylvania’s DUI statute is that it requires a one year driver’s license suspension for many first-time offenders, and Pennsylvania does not really offer the kinds of work licenses offered in other states. This means that a DUI would ordinarily cause many people to lose their jobs if they drive for a living or need to drive to and from work. This is a problem even for criminal defendants who are accepted into the ARD program as even ARD requires a sixty day driver’s license suspension for a motorist who blew above a .16 or had drugs in their system. The law solves some of these problems by allowing many drivers to keep their licenses while at these are time protecting the public from drunk drivers by requiring them to obtain ignition interlock devices. 

Changes to the DUI Statute

Now, even first-time offenders in the highest tier (meaning they had a BAC above .16 or drugs in their system while driving) can obtain a special Ignition Interlock license which will permit them to keep driving during the period of suspension. This will result in many DUI defendants being able to keep their jobs. At the same time, it makes the roads safer by requiring those convicted of DUI to obtain these ignition interlock devices. The devices prevent a car from starting if the device detects the presence of alcohol in the driver’s breath. Notably, the devices have no way of detecting the presence of any kind of drugs. Additionally, the legislature recently amended the statute so that defendants who are diverted into the ARD program will be eligible for ignition interlock licenses. This portion of the statute will not go into effect until October 2018, so ARD currently still requires the license suspension. The law also does not help criminal defendants who have had their driver's licenses suspended due to convictions for drug possession or possession with the intent to deliver.  

We Can Help With DUI Cases and Ignition Interlock Licenses

Goldstein Mehta LLC - Philadelphia Criminal Defense Lawyers

You can learn more about the law and its benefits on PennDOT’s website. If you have questions about your eligibility for an ignition interlock license or the procedure for applying for this type of license, call one of our award-winning Philadelphia criminal defense lawyers at 267-225-2545 for a free consultation. We can also help with DUI and driving with a suspended license charges in Philadelphia and the surrounding counties.