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HomeMy WebLinkAboutCP-21-CR-1901-2006 COMMONWEALTH : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, PENNSYLVANIA : : V. : : : DANIEL JOSEPH SCHMOHL : CP-21-CR-1901-2006 IN RE: PETITION FOR WRIT OF HABEAS CORPUS MEMORANDUM OPINION AND ORDER OF COURT Bayley, J., June 22, 2007:-- 1 Defendant, Daniel Joseph Schmohl, is charged with driving under the influence, 2 aggravated assault by vehicle while driving under the influence, recklessly 34 endangering another person, and reckless driving. He filed a motion for a writ of habeas corpus to the counts of aggravated assault by vehicle while driving under the influence, recklessly endangering another person, and reckless driving. A hearing was conducted on June 21, 2007. Evidence was presented that on March 30, 2006, three young men, Raymon Deihl, Brant Cromer and Kyle Myers, were walking in the dark at approximately 9:00 p.m. along the right side of a long straight stretch of Sandbank Road in Cumberland __________ 1 75 Pa.C.S. § 3802(a)(1) and (b). 2 75 Pa.C.S. § 3735.1. 3 18 Pa.C.S. § 2705. 4 75 Pa.C.S. § 3736(a). CP-21-CR-1901-2006 County. Raymon Deihl was walking in the grass, Kyle Myers was walking behind him, and Brant Cromer was walking about four inches to the left of Diehl which would put him close to the right hand fog line. Defendant was operating a Chevrolet Blazer approaching the back of the three men. The right front of the Blazer struck Cromer with a force sufficient to leave his sneaker on the road, just to the left of the fog line. Cromer was propelled into the windshield of the Blazer and subsequently landed in a field on the right of the road approximately 101 feet from the point of impact. He suffered serious bodily injury. Defendant stopped approximately 440 feet from the point of impact. Defendant told the Pennsylvania State Trooper at the scene that he struck the victim but he did not realize it until after it happened. The blood alcohol content of defendant at 10:42 p.m. was .128. The elements of aggravated assault by vehicle while driving under the influence are that defendant while driving under the influence negligently caused serious bodily injury to another person. Negligence is a separate element of the offense along with Commonwealth v. Miller, driving under the influence. See 810 A.2d 178 (Pa. Super. Commonwealth v. Mastromatteo, 2002); 719 A.2d 1081 (Pa. Super. 1998). A person acts negligently when he should know of a substantial and unjustifiable risk that his conduct will cause serious bodily injury. The risk must be of such a nature and degree that the defendant’s failure to perceive it, considering the nature and intent of defendant’s conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the defendant’s -2- CP-21-CR-1901-2006 situation. As to recklessly endangering another person, a person acts recklessly in endangering another person with respect to serious bodily injury if he consciously disregards a substantial and unjustifiable risk that serious bodily injury will result from his conduct. The risk must be of such a nature and degree that considering the nature and intent of defendant’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 defendant’s situation. The offense of reckless driving requires driving in willful or wanton disregard for the safety of persons or property, which is synonymous Commonwealth with a conscious disregard for the safety of persons or property. See v. Bullick, 830 A.2d 998 (Pa. Super. 2003). The evidence of the failure of defendant to see the victim Cromer along the right side of Sandbank Road, thus failing to perceive the risk of striking him, and then striking him with such force as to propel him into the windshield with his body winding up in a field on the right side of the road approximately 101 feet from the point of impact, and to then stop approximately 440 feet from the point of impact not realizing that he struck the victim until after it happened, constitutes sufficient evidence of the elements of criminal negligence, reckless conduct and the conscious disregard for the safety of another sufficient for a prima facie case of aggravated assault by a vehicle while driving under the influence, recklessly endangering another person, and reckless driving. -3- CP-21-CR-1901-2006 ORDER OF COURT AND NOW, this day of June, 2007, the petition of defendant for a writ IS DENIED. of habeas corpus, By the Court, Edgar B. Bayley, J. Matthew Smith, Esquire For the Commonwealth Michael O. Palermo, Jr., Esquire For Defendant :sal -4- COMMONWEALTH : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, PENNSYLVANIA : : V. : : : DANIEL JOSEPH SCHMOHL : CP-21-CR-1901-2006 IN RE: PETITION FOR WRIT OF HABEAS CORPUS ORDER OF COURT AND NOW, this day of June, 2007, the petition of defendant for a writ IS DENIED. of habeas corpus, By the Court, Edgar B. Bayley, J. Matthew Smith, Esquire For the Commonwealth Michael O. Palermo, Jr., Esquire For Defendant :sal