HomeMy WebLinkAbout00-1640 CriminalCOMMONWEALTH
KIMBERLY RUDY
OTN: E 936029-3
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
00-1640 CRIMINAL TERM
00-0396 MISCELLANEOUS TERM
CHARGES:
(A) INVOLUNTARY MANSLAUGHTER;
(B) CORRUPTION OF MINORS;
(C) FURNISHING ALCOHOL TO MINORS;
(D) CRIMINAL CONSPIRACY
IN RE: DEFENDANT'S PETITION FOR WRIT OF HABEAS CORPUS
BEFORE OLER, J.
ORDER OF COURT
AND NOW this Z*! ~/~
day of October, 2000, upon consideration of Defendant's
petition for writ of habeas corpus, following a hearing, and for the reasons stated in the
accompanying opinion, the petition is granted and the charge of involuntary manslaughter
is dismissed.
BY THE COURT,
John A. Abom, Esq.
Assistant District Attorney
Vesley Oler, ~/J.
Karl E. Rominger, Esq.
Rominger Law Offices
155 South Hanover Street
Carlisle, PA 17013
Attorney for Defendant
COMMONWEALTH
KIMBERLY RUDY
OTN: E 936029-3
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
00-1640 CRIMINAL TERM
00-0396 MISCELLANEOUS TERM
CHARGES:
(A) INVOLUNTARY MANSLAUGHTER;
(B) CORRUPTION OF MINORS;
(C) FURNISHING ALCOHOL TO MINORS;
(D) CRIMINAL CONSPIRACY
IN RE: DEFENDANT'S PETITION FOR WRIT OF HABEAS CORPUS
BEFORE OLER, J.
OPINION and ORDER OF COURT
Oler, J., October 24, 2000.
This tragic case presents the legal issue of whether a person who knowingly acts
as a source of beer for a party that will involve persons under 21 can be, without more,
guilty of criminal homicide when an intoxicated participant, after leaving the party, walks
to his residence with another underage participant, takes his mother's automobile without
securing her permission, is joined in the ride by the companion, and, during the ride, due
to his intoxication, causes an accident in which his companion dies. After a careful
review of the record, the briefs submitted by the Commonwealth and Defendant, and the
present state of the law on the subject, the court is of the view that the question must be
answered in the negative.
Defendant, Kimberly Rudy, has been charged with Involuntary Manslaughter,
Corruption of Minors, Furnishing Alcohol to Minors, and Criminal Conspiracy To
Furnish Alcohol to Minors. The Commonwealth contends that Defendant purchased a
half keg of beer that was taken to a party at the residence of Ben Ocker, a friend of her
son, where several minors were present, and that minors drank some of this 'beer. The
Commonwealth contends that one minor at the party who drank from the keg was Evan
Spencer, who then left the party, went to his residence, took his mother's car, and went
for a ride with a friend, Eric Stum, who had also been at the party. Finally, the
Commonwealth contends that Evan Spencer hit another car head-on and caused the death
of his passenger, Eric Stum.
Involuntary manslaughter and corruption of minors are both misdemeanors of the
first degree,~ punishable by terms of imprisonment of up to five years and fines of up to
$10,000.00.2 Furnishing alcohol to minors is a misdemeanor of the third degree,
punishable by a term of imprisonment of up to one year and a fine of up to $2,500.00.3
Conspiracy to commit the latter crime is also a misdemeanor of the third degree,
punishable by a term of imprisonment of up to one year and a fine of up to $2,500.00.4
A preliminary hearing in this matter was held on July 28, 2000, at which time the
Commonwealth presented evidence regarding the crimes charged. At the conclusion of
the preliminary hearing, the charges were bound over for court. On August 28, 2000,
Defendant was formally arraigned and was directed to appear for trial during the October
2000 term of court.
For disposition at this time is a petition for writ of habeas corpus filed by
Defendant, challenging the existence of a prima facie case as to the charge of involuntary
manslaughter. A hearing on Defendant's petition was held by the court on September 26,
2000.
For the reasons stated in this opinion, Defendant's petition will be granted and the
charge of involuntary manslaughter will be dismissed.
STATEMENT OF FACTS
The Commonwealth contends that, on July 10, 1999, Ben Ocker, who was 20
years old at the time, hosted a party at his home in Newville, Pennsylvania, while his
parents were away on vacation.5 Ben Ocker testified that at some time prior to the party
on July 10, 1999, he asked John Rudy to get his mother, Kimberly Rudy, to purchase beer
~ 18 Pa. C.S.A. §2504(b); 18 Pa. C.S.A. §6301(a).
2 18 Pa. C.S.A. §1104(1); 18 Pa. C.S.A. §1101(4).
3 18 Pa. C.S.A. §6310.1(a); 18 Pa. C.S.A. §1104(3); 18 Pa. C.S.A. §1101(6).
4 18 Pa. C.S.A. §903; 18 Pa. C.S.A. §1104(3); 18 Pa. C.S.A. §1101(6).
5 N.T. 42, Preliminary Hearing, July 28, 2000 (hereinafter P.H. ~.
2
for the party, knowing that she had bought beer for them in the past.6 Ben Ocker testified
that John Rudy told him he would get his mother to buy the beer and accepted one
hundred dollars in cash from Ben Ocker to pay for the beer.7 Ben Ocker testified that
John Rudy brought the half keg of beer to the party around 3:00 p.m. on July 10, 1999.s
Ben Ocker testified that the keg was Killian's Irish Red Beer and that John Rudy gave
him a receipt and change from the money provided for the beer.9 Ben Ocker testified that
approximately twenty-five persons were at the party at its height, including Evan
Spencer.~° Ben Ocker testified that the keg was finished around dusk and that at some
point later that evening he also noticed bottles and cans of beer.TM Finally, Ben Ocker
testified that he and the other persons at his party received news of a car crash involving
Eric Stum and Evan Spencer, and that Eric Stum was dead. ~2
Evan Spencer, who was seventeen years old at the time of the party, testified that
he arrived at the party at Ben Ocker's between 3:00 p.m. and 5:00 p.m. on July 10,
1999.13
Evan Spencer testified that he walked to the party because he lived on the same
6 P.H. 42-43.
7 P.H. 43.
8 P.H. 43-44. Ben Ocker testified that John Rudy brought the keg in the back of his truck and then left
because he had to go to work. He was alone in the truck when he dropped off the keg. See P.H. 43-44.
9 P.H. 46. The Commonwealth produced a receipt from Suds & Soda, in Carlisle, for the purchase of a
half keg of Killian's Irish Red, at 1:56 p.m. on July 10, 1999. The purchaser was listed as Kim Rudy,
1667 Walnut Bottom Road, Newville, Pennsylvania. See Commonwealth Exhibit 3.
l0 P.H. 47. Ben Ocker testified that he remembered seeing Evan Spencer drinking from the keg, but not
any other kind of alcoholic beverages. Ben Ocker could not remember, however, who drank the
additional beer present at the party, but found numerous empty cans and jugs when cleaning up. See P.H.
47-62.
~ P.H. 48. Ben Ocker testified that a lot of beer was at his party including, Natural Ice, jugs of beer, and
a case of Moosehead, all of which were brought by persons arriving at the party throughout the evening.
See P.H. 48-62. Eli Daniel Diven, who was present at the party on July 10, 1999 at Ben Ocker's, testified
that he bought two gallons of alcohol and brought it to the party. See N.T. 11 Hearing, September 26,
2000. (hereinafter N.T..~). Steven Spagnola, who was present at Ben Ocker's party on July 10, 1999,
also testified that he brought a case of beer with him. See N.T. 2 I.
~2 P.H. 49.
~3 P.H. 12.
3
street as Ben Ocker. 14 Evan Spencer testified that he remembered drinking from the keg
of beer, but not from any of the cans of beer at the party;~5 he was very drunk, however,
and could not say with certainty that he drank from the keg only, according to his
testimony.~6 He testified that he left the party around 9:00 p.m. with Eric Stum,
sometimes referred to as Ed Stum, who was also seventeen years old at the time of the
party.~7 Evan Spencer testified that he and Eric Stum walked to Evan's house, that his
(Evan's) parents were not at home, and that he took his mother's Dodge Stealth so that
the two of them could go for a ride.~8 Evan Spencer testified that, while intoxicated, he
drove the car on Route 11 toward Shippensburg and hit another car, which resulted in the
death of Eric Stum. ~9
DISCUSSION
Statement of Law
Burden of Proof At a preliminary hearing the Commonwealth has the burden of
establishing a prima facie case that a crime has been committed and that the accused is
probably the one who committed it. Commonwealth v. Wojdak, 502 Pa. 359, 367, 466
A.2d 991, 995 (1983). To sustain that burden, the Commomvealth must produce
evidence that, if accepted as true, would warrant a trial judge in permitting the case to go
to a jury. Id. at 367-68, 466 A.2d at 995-96. The prima facie standard requires the
Commonwealth to produce evidence of the existence of each element of the crime
charged; the absence of a material element will deprive the prosecution of its validity as
14 P.H. 12.
25 P.H. 13.
26 See P.H. 28-29. A blood alcohol level was drawn at 11:30 p.m., the night of the accident, which
revealed a BAC of .089% for Evan Spencer. P.H. 37, 77.
27 P.H. 13-14.
~8 P.H. 13-14.
~9 P.H. 16-18. Garry Boyd, the driver of the car that was hit by Evan Spencer at approximately 9:30 p.m.
on July 10, 1999, testified that the car that hit him and his family was on the wrong side of the road and
hit his car head on.
4
to that charge. Commonwealth v. Moyer, 436 Pa. Super. 442, 450, 648 A.2d 42, 45
(1994).
Involuntary Manslaughter. The statute on involuntary manslaughter provides that
"[a] person is guilty of involuntary manslaughter when as a direct result of the doing of
an unlawful act in a reckless or grossly negligent manner, or the doing of a lawful act in a
reckless or grossly negligent manner, he causes the death of another person." 18 Pa. C.S.
§2504(a).
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. 18 Pa. C.S. §302(b)(3). The risk must be of such a nature
and degree that, considering the nature and intent of the actor's conduct and
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. Id.
Criminal negligence occurs when a person acts negligently with respect to a
material element of an offense when he should be aware of a substantial and unjustifiable
risk that the material element exists or will result from his conduct. 18 Pa. C.S.
§302(b)(4). The risk must be of such a nature and degree that the actor's failure to
perceive it, considering the nature and intent of his conduct and the circumstances known
to him, involves a gross deviation from the standard of care that a reasonable person
would observe in the actor's situation. Id.
To support a conviction for involuntary manslaughter, the Commonwealth must
prove a direct causal relationship between the acts of a defendant and the victim's death.
Commonwealth v. Long, 425 Pa. Super. 170, 176, 624 A.2d 200, 203 (1993), appeal
denied 535 Pa. 645, 633 A.2d 150 (1993). A person is not guilty of involuntary
manslaughter unless his unlawful and reckless conduct was the legal cause of the injury
and death. Commonwealth v. Levin, 184 Pa. Super. 436, 439, 135 A.2d 764, 7~6 (1957).
In this regard, the Pennsylvania Superior Court has established a two part test
requiring that (1) defendant's conduct must be an antecedent but for which the result in
question would not have occurred, or that the victim's death was not entirely attributable
to other factors, and (2) the results of defendant's actions cannot be so extraordinarily
remote or attenuated that it would be unfair to hold the defendant criminally responsible.
Commonwealth v. Rementer, 410 Pa. Super. 9, 19-20, 598 A.2d 1300, 1304-05 (1991),
appeal denied 533 Pa. 599, 617 A.2d 1273 (1992); Commonwealth v. Long, 425 Pa.
Super. 170, 176, 624 A.2d 200, 203-04 (1993), appeal denied 535 Pa. 645,633 A.2d 150
(1993).
While criminal responsibility is not confined to a sole or immediate cause of
death, a more direct causal connection than tort proximate cause is required.
Commonwealth v. Rementer, 410 Pa. Super. 9, 10-11, 598 A.2d 1300, 1304 (1991),
appeal denied 533 Pa. 599, 617 A.2d 1273 (1992); Commonwealth v. Long, 425 Pa.
Super. 170, 176, 624 A.2d 200, 203-04 (1993), appeal denied, 535 Pa. 645, 633 A.2d 150
(1993).
In the context of a death following the furnishing of alcohol to a person, the
Pennsylvania Superior Court has made clear its disinclination to accept the proposition
that the furnishing of alcohol to a minor, or even to a visibly intoxicated person, in
contravention of law, without more, will support a prosecution for involuntary
manslaughter. Commonwealth v. Penn Valley Resorts, Inc., 343 Pa. Super. 387, 494
A.2d 1139 (1985).
In suggesting that a greater degree of causation and scienter on the part of the
actor will be required for a criminal homicide prosecution than is implicit in such a
situation, the Superior Court has stated that:
[w]e must clarify that the serving of intoxicating beverages to a minor or
visibly intoxicated person alone may not constitute involuntary
manslaughter .... It [is] the serving of alcohol coupled with [other] crucial
elements known to [the actor] which establishe[s] causation, and therefore
the [crime herein]?
On the other hand, where egregious additional circumstances as to causation and
scienter can be shown, a prosecution for involuntary manslaughter will be upheld. Thus,
20 Commonwealth v. Penn Valley Resorts, Inc., 343 Pa. Super. 387, 397, 494 A.2d 1139, 1144 (1985).
in Commonwealth v. Penn Valley Resorts, Inc., 343 Pa. Super. 387, 494 A.2d 1139
(1985), the Superior Court affirmed a conviction for involuntary manslaughter arising out
of a bartender's service of alcohol to a visibly intoxicated minor.
The facts which permitted a conviction for criminal homicide in Penn Valley
Resorts, Inc., were summarized by the Superior Court as follows:
The deceased [ie., the victim], William Edward Frazer, Jr., a 20-
year-old Alfred Tech student, attended [a] dinner dance [at which the
bartender was serving alcohol]. He consumed sufficient alcohol during the
affair to cause him to stagger, slur his speech, quickly alternate his moods
and ultimately cause a fatal automobile accident.
At the end of the evening, several of Frazer's friends, notably Philip
Knapp, tried extensively to prevent Frazer from driving his vehicle on the
45-minute return trip to Alfred Tech. Eventually, Knapp was alone with
Frazer in the parking lot of appellant's resort. Knapp held Frazer's car keys
and waited for the arrival of state police who were summoned by two ...
patrons who lived nearby. At one point, Knapp had to wrestle and strike
Frazer to resist his attempts to grab the car keys.
Before the police arrived, Frazer went to his car and told Knapp that
he was looking for a gun to force Knapp to release the keys. Fearing for his
safety, Knapp reluctantly released the keys, and Frazer drove away.
Shortly thereafter, Mrs. Gavitt and her daughter, the aforementioned
neighbors/patrons, returned and offered to drive Knapp back to campus. En
route some six and one-half miles from [the] facility, Knapp and the Gavitts
came across Frazer's overturned vehicle on Route 19 just across the state
border into New York. Frazer's body was trapped inside.
It was ascertained that Frazer had operated his vehicle into the
opposite, southbound lane and struck a bridge abutment, causing said
vehicle to flip and become airborne for 75 feet. It landed on its roof, slid
400 feet and came to rest in mid-highway. Frazer was dead at the scene,
having suffered massive head injuries. A blood alcohol analysis disclosed
blood alcohol content of .23.
[T]here was sufficient evidence that [the bartender] served alcoh$1 to
a visibly intoxicated person in William Frazer. From 7:00 P.M. until the
open bar closed at 10:30 P.M., Frazer drank double shots of whiskey and a
sloe gin fizz. It was not known how many drinks he consumed from the
7
open bar tended by [the bartender]; nevertheless, Frazer's behavior
reflected significant drinking.
Frazer danced to fast music, something his friends rarely observed.
While sitting at the dinner table as the band played until 1 ;00 A.M., Frazer
would alternate between depression and gaiety. He was also seen
staggering to the men's room.
After the open bar was closed, Frazer went to the public bar. When
he complained about the amount of whiskey poured into a double shot glass
at 1:00 A.M., [the bartender] intervened. In an effort to temper Frazer, [the
bartender] poured more whiskey into the glass. Immediately thereafter,
[the bartender] allowed Frazer to order another drink. As Frazer drank, [the
bartender] remarked that Frazer obviously had a problem with excessive
alcohol consumption.
Frazer would not leave, so [the bartender] presented a challenge in
hope of compelling him to leave. The challenge was [the bartender's]
placing a cocktail on the bar and instructing Frazer that if he were not an
alcoholic, Frazer could leave without drinking the cocktail. Frazer drank it
and finally walked to the parking lot with his friends.
Once outside, Frazer's friends pleaded with him to allow someone to
drive his car. When Frazer locked himself in the car, James Corriveau
returned to appellant's facility to call the police. [The bartender] prevented
Corriveau from calling the police; instead, [the bartender] tried to settle the
matter himself. He walked to the parking lot and challenged Frazer to a
fight to get Frazer to step from his car. When Frazer emerged, two friends
locked the car doors, and [the bartender] retreated to his facility instructing
the friends to resolve the problem themselves.
As the parking lot confrontation continued, Frazer's friends left,
except Philip Knapp, who remained to prevent Frazer from driving. When
Knapp wrestled the car keys from him, Frazer ran to appellant's facility,
where [the bartender] and other employees were preparing to leave. Knapp
followed and attempted to call the police.
[The bartender] prevented Knapp from calling by pushing .him
outside. [The bartender] then acquired the keys from Knapp and promptly
handed them to Frazer. This evidence supports the inference that [the
bartender] had grown weary of Frazer's temper and obstreperOus conduct.
Fearing dire consequences to his business and liquor license if the police
were summoned, [the bartender] subdued Frazer by opting for the only
available alternative of giving him his car keys.
After [the bartender] and his employees departed, Knapp was left
alone with Frazer. As discussed above, Knapp wrestled the keys from
Frazer a second time, Frazer searched his car for a gun and Knapp released
the keys. Frazer then drove away and was killed shortly thereafter.
[The bartender] knew that Frazer was continuously entertained at
Penn Valley from 7:00 P.M. until after 1:00 A.M. [The bartender]
observed Frazer's highly inebriated condition, commented on his drinking
problem, observed his violent resistance to his friends' attempts to prevent
his driving, refused to call the police, grabbed the keys from Knapp and
handed them to Frazer and drove away ridding himself ... of the
confrontation. This evidence supports a finding that [the bartender's]
serving of alcohol to Frazer, and subsequent encouragement of Frazer's
driving his automobile, placed Frazer in danger of death.21
Application of Law to Facts
In the present case, factors similar to those in Penn Valley Resorts, beyond the
unlawful provision of alcohol, are lacking. Defendant did not deal directly with Evan
Spencer, did not know that he was intoxicated, and did not encourage or facilitate his
driving. Spencer did not use a vehicle for purposes of transportation from the party or
otherwise in connection with it. He subsequently drove a car owned by his mother
~vithout securing her permission, with a third party who joined him notwithstanding his
condition. The third party was killed. Without in any way suggesting that the alleged
conduct of Defendant would not render her criminally liable, the court is unable to
conclude that the direct causative and scienter factors which could sustain a conviction of
Defendant for criminal homicide are in evidence in this case.
In reaching this conclusion, the court is also mindful of the existence of other
charges against Defendant, including a second misdemeanor of the first degree, as to
2t Commonwealth v. Penn Valley Resorts, Inc., 343 Pa. Super. 387 392-98, 494 A.2d 1139, 1141-46
(1985).
which the grave consequences of the conduct alleged would be appropriately considered
in the imposition of punishment. For the foregoing reasons, the following order will be
entered:
.ORDER OF COURT
AND NOW this 24th day of October, 2000, upon consideration of Defendant's
petition for writ of habeas corpus, following a hearing, and for the reasons stated in the
accompanying opinion, the petition is granted and the charge of involuntary manslaughter
is dismissed.
BY THE COURT,
s/J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
John A. Aborn, Esq.
Assistant District Attorney
Karl E. Rominger, Esq.
Rominger Law Offices
155 South Hanover Street
Carlisle, PA 17013
Attorney for Defendant
10