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HomeMy WebLinkAboutCP-21-CR-365-2008 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : MICHAEL DEAN LASH : CP-21-CR-0365-2008 IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1925 Bayley, J., April 3, 2009:-- November 13, 2008 On , defendant, Michael Dean Lash, was convicted by a jury of homicide by vehicle in violation of 75 Pa.C.S. Section 3732. He was found guilty by the court of the summary offense of unlawful activities in violation of 75 Pa.C.S. Section February 17, 2009 4107(b)(2). On , defendant was sentenced for homicide by vehicle to pay the costs of prosecution, undertake a DNA sample, make restitution to the Cumberland County Coroner in the amount of $1,408.34, and undergo imprisonment in the Cumberland County Prison for a term of not less than nine months or more than twenty-three months. For unlawful activities, he was sentenced to pay the costs of prosecution and a fine of $25. Defendant filed a direct appeal from the judgment of sentence to the Superior Court of Pennsylvania. In a statement of matters complained of on appeal, he avers: The evidence was insufficient as a matter of law to sustain Appellant’s conviction for Homicide by Vehicle and Unlawful Activities, as it failed to establish that appeal [sic] beyond a reasonable doubt in his duties concerning pre and post trip inspection of the tractor and trailer. CP-21-CR-0365-2008 The Commonwealth presented the following evidence. On July 12, 2006, at approximately 5:20 p.m., defendant was driving a 74,250 pound eighteen wheel tractor trailer east on Route 581 in Cumberland County. There were two eastbound lanes on the divided highway. The speed limit was 55 miles an hour. Defendant was traveling in the passing lane and came upon vehicles that were stopped during the rush hour. Defendant struck the rear of a vehicle in the passing lane. He then crossed into the right hand lane striking a vehicle operated by Samuel Maravich. The tractor trailer jammed that vehicle against a three foot wall of a bridge dragging it approximately sixty feet until it careened over the top and dropped to a road below, killing Maravich. The tractor then struck the rear of another vehicle in the right lane which pushed that vehicle into the rear of a vehicle in front of it. Defendant told a state trooper at the scene that he had come over a rise in the highway, traffic was stopped in front of him, his brakes locked up, his tractor stalled, and he was unable to stop before the series of collisions. An accident reconstructionist examined the engine computer program on the tractor and recreated the sequence of events on the highway leading to the accident. While traveling at 56.3 miles an hour, defendant applied his brakes 464 feet before he came to a stop. If the brakes on his tractor trailer met minimum standards he could have stopped within 242 feet in which case there would either have been a fender bender or he would not have struck the vehicle operated by Maravich. The brakes on -2- CP-21-CR-0365-2008 defendant’s unit did not lock up and the tractor did not stall until two seconds before it stopped. Lawrence Byrd, a Pennsylvania State Police Commercial Vehicle Enforcement th Officer, examined the logbooks of the tractor trailer from June 26, 2006, until July 12. Defendant had driven the tractor trailer on most of those days. On each day the unit is driven the driver must do a pre-trip and post-trip inspection for which a log is filled out. The logbooks for the tractor trailer between June 26 and July 11 showed no deficiencies. On July 12, defendant’s logbook showed a pre-trip inspection starting at 9:45 a.m., which lasted fifteen minutes. There were no deficiencies. Defendant then drove from Mechanicsburg to eastern Maryland and returned to Mechanicsburg at 4:00 p.m. He left Mechanicsburg for Lawrence, Massachusetts, and drove approximately three miles before the accident occurred. The tractor and trailer had last been officially inspected in May 2006. Byrd inspected the tractor trailer and found that its ten airbrakes had not been damaged in the accident. There were three axles on the tractor, numbers one, two and three, and two axles on the trailer, numbers four and five. There was a right and left brake on each axle. On the rear axle of the trailer, number five, both brakes were disconnected. They did not work at all because the pins were missing causing the slack adjusters to be disconnected. A simple visual inspection by looking underneath the trailer without having to physically get underneath would have disclosed that the brakes were disconnected. These two deficiencies require that the trailer be put out-of-service. -3- CP-21-CR-0365-2008 Additionally, on the right side of the tractor the brakes on axles two and three were not making full contact with the drums. This lack of contact was evidenced by rust on the drums that could not have accumulated between the time of the accident and the 1 inspection of the brakes. These two visible deficiencies required that the unit be put out of service. The summary offense of unlawful activities is defined in the Vehicle Code at 75 Pa.C.S. Section 4107(b): It is unlawful for any person to do any of the following . . . (2) Operate . . . on any highway in this Commonwealth any vehicle or combination which is not equipped as required under this part or under department regulations or when the driver is in violation of department regulations or the vehicle or combination is otherwise in an unsafe condition or in violation of department regulations. Federal regulations of the Federal Motor Carrier Safety Administration, Department of Transportation, at 49 C.F.R. Section 396.13 provide: Before driving a motor vehicle, the driver shall: (a) Be satisfied that the motor vehicle is in safe operating condition. (Emphasis added.) The regulations provide at 49 C.F.R. Section 392.7: No commercial motor vehicle shall be driven unless the driver is satisfied that the following parts and accessories are in good working order , nor shall any driver fail to use or make use of such parts and accessories when and as needed: Service brakes, including trailer brake connections . __________ 1 Byrd also testified that on the left side, axle three’s push rod was a quarter inch out of adjustment, resulting in less than full braking power on the drum. -4- CP-21-CR-0365-2008 (Emphasis added.) The Vehicle Code at 75 Pa.C.S. Section 4107(b.1), provides: Out-of-service criteria.— No person shall operate a motor carrier vehicle . . . in violation of driver out-of-service criteria or standards periodically adopted by the United States Department of Transportation . . . . The jury was charged: homicide by vehicle, the sole charge that is ... going out to you, defendant is charged with this crime. It is a Vehicular Code crime. The crime as alleged in this case requires that defendant be in violation of some section of the Pennsylvania Vehicle Code related to the operation of a motor vehicle when the death of the victim occurs. The Commonwealth alleges that defendant failed to make an adequate visual inspection of the tractor trailer he operated, which inspection would have disclosed that the brakes made it unsafe to operate the vehicle and that he then operated that vehicle in that unsafe condition. The federal requirement of a visual inspection of a tractor trailer is incorporated into the Pennsylvania Vehicle Code. Therefore, in order to find defendant guilty of homicide by vehicle, you must be satisfied that the Commonwealth has proven the following four elements of that crime beyond a reasonable doubt. that defendant committed a violation of the First, Pennsylvania Vehicle Code by failing to follow federal incorporated requirements of a visual inspection of this tractor trailer that would have disclosed that the vehicle was not safe to operate because of defective brakes. Second, that defendant acted recklessly or, it's an either/or, recklessly or with gross negligence by engaging in such conduct and operating the tractor trailer with defective brakes. Third, that Samuel Maravich is dead. Fourth, that defendant's violation is a direct cause of the death; in other words, he caused the accident which is a direct cause of the death. In this case, recklessly for purposes of homicide by vehicle requires that defendant engaged in conduct that violated the state incorporated federal visual inspection requirements by consciously -5- CP-21-CR-0365-2008 disregarding a substantial and unjustifiable risk that his conduct would cause death, the nature and degree of the risk being such that it was grossly unreasonable for him to disregard it. That's the one type, reckless. It's either/or. In the case grossly negligent, the other type, slightly different, for purposes of homicide by vehicle requires the defendant engaged in conduct that violated the state incorporated federal visual inspection requirements when he would have been aware of a substantial and unjustifiable risk that his conduct would cause death, the nature and degree of the risk being that it was grossly unreasonable for him to fail to recognize the risk. In deciding whether defendant's conduct was recklessly or grossly negligent, you should consider all of the relevant facts and circumstances including the manner and intent of defendant's conduct and the circumstances known to him. Let's put that together a little bit. The requirements in this case that must be proven beyond a reasonable doubt for the The brakes on this defendant to be convicted of homicide by vehicle. unit must have been defective so that the tractor trailer should not have been driven. An adequate visual inspection of the tractor trailer by defendant would have disclosed that the brakes were defective so that it could not be safely driven. He then drove the vehicle with defective brakes. That defendant's conduct regarding the visual inspection and the operation of his tractor trailer with defective brakes was either reckless conduct or grossly negligent conduct, as I have described it. Samuel Maravich is dead, and defendant's violation was a direct cause of his death. (Emphasis added.) The test for determining the sufficiency of the evidence, viewing the evidence in a light most favorable to the verdict winner, is whether the jury reasonably could have concluded that all of the elements of the crime were established beyond a reasonable Commonwealth v. Robinson, doubt. 721 A.2d 344 (Pa. 1998). On July 12, 2006, the day Samuel Maravich died as a result of defendant’s conduct, defendant wrote in his log that he did a pre-trip inspection of the tractor and trailer and that there were no -6- CP-21-CR-0365-2008 deficiencies. There was evidence that the two brake deficiencies on the trailer and two brake deficiencies on the tractor would have been visible during a pre-trip inspection and that with those deficiencies the tractor and trailer could not be safely driven. Therefore, there was sufficient evidence to establish beyond a reasonable doubt that defendant failed in his duties of inspection in that he failed to make an adequate visual inspection of the tractor trailer that would have disclosed that the condition of the brakes made it unsafe to operate the vehicle and that he then operated the vehicle in an unsafe condition. Defendant challenges the sufficiency of evidence to convict him of the summary offense of unlawful activities on the same basis as he challenges the sufficiency of the evidence to convict him of homicide by vehicle. For the same reasons, his position has no merit. (Date) Edgar B. Bayley, J. Michelle Sibert, Esquire Assistant District Attorney Shane B. Kope, Esquire For Defendant :sal -7-