HomeMy WebLinkAboutCP-21-CR-0003120-2015
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v. :
:
STEVEN VAN SMITH RICH : CP-21-CR-0003120-2015
\\IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
Peck, J., August 16, 2016.
On January 21, 2016 Defendant was charged with one count each of the
following: 1) DUI- General Impairment, 2) DUI- General Impairment with
Refusal to Submit to Blood Alcohol Test, 3) DUI- General Impairment with
Accident Involving Death or Personally Injury, 4) Accidents Involving Death or
Personal Injury, 5) Failure to Stop and Give Information and Render Aid, 6)
Failure to Notify Police of an Accident Involving Damage, 7) Careless Driving, 8)
Failure to Stop at a Traffic Control Signal, 9) Disregarding a traffic Lane (Single),
1
and 10) Recklessly Endangering Another Person. Trial was scheduled for May
16, 2016, with counts 1-3 and the summary offenses to be decided by non-jury
2
trial and counts 4 and 10 to be decided by criminal jury trial. On May 16, 2016
3
Defendant filed a Motion in Limine to exclude certain evidence. This Court held
4
a hearing on the Motion on May 16 and 17, 2016. On May 17, 2016 after a
hearing upon Defendant’s Motion in Limine and Commonwealth’s Motion to
1
Information, Criminal Action No. CP-21-CR-0003120-2015, filed January 21, 2016 & Criminal
Complaint. This Court took judicial notice of the Police Criminal Complaint, Filed July 6, 2015;
see Transcript of Proceedings: In Re: Motion in Limine & In Re: Motion to Amend Information,
May 16-17, 2016 (Peck, J.) (Hereinafter “N.T. at __”).
2
Counts 5-9 are summary offenses, carrying fines of $25 each.
3
Defendant’s Motion in Limine, filed May 16, 2016.
4
N.T. at 1; Order of Court, In re: Motion in Limine & In Re: Motion to Amend Information (May
20, 2016).
1
Amend the Information, this Court issued an order partially granting and partially
5
denying the Motion in Limine and denying the Motion to Amend the Information.
6
On June 1, 2016, the Commonwealth filed an appeal. The Commonwealth
raises the following issues:
1) Whether the trial court abused its discretion in granting
defendant’s motion to exclude evidence of his refusal to submit to a
blood alcohol test when such a refusal may be considered as
consciousness of guilt of DUI and, in turn, evidence of DUI may be
considered as consciousness of guilt for recklessly endangering
another person?
2) In a\[n\] Accidents Involving Death or Personal Injury and
Recklessly Endangering Another Person case, did the trial court
abuse its discretion in excluding evidence of the death of Victim
Webb, who was attempting to assist Victim Hudson, the woman that
the defendant crashed into while DUI and fled the crash scene from,
regardless of the grading of the Accidents offense and fact that the
7
Criminal Information does not specify the name of the victims?
This Court’s opinion in support of our Order of Court, In Re: Motion in
Limine & Motion to Amend the Information, is written pursuant to Pennsylvania
Rule of Appellate Procedure 1925(a).
RELEVANT FACTS & PROCEDURAL HISTORY
Around midnight on May 23, 2015, Defendant was driving on State Route
8
114, a multi-lane divided road. Driving at some speed, he failed to stop at a red
light and struck the rear of a vehicle driven by Ms. Mary Hudson as she made a
9
left turn through the intersection. Ms. Hudson’s vehicle spun around and came to
rest against the curb on the side of the road closest to where she had begun her
5
Order of Court, In re: Motion in Limine & In Re: Motion to Amend Information (May 20,
2016).
6
Commonwealth’s Concise Statement of Matters Complained of on Appeal in Accordance with
Pa.R.A.P. 1925(a), filed June 1, 2016.
7
Id.
8
N.T. at 14.
9
N.T. at 32-35.
2
10
left-hand turn. Defendant continued driving, eventually coming to rest some
11
distance away from where he had struck Ms. Hudson’s vehicle. Another driver
pulled up behind Ms. Hudson’s vehicle and activated her emergency flashers to
12
increase the visibility of Ms. Hudson’s car. Within two to three minutes after the
impact, a third party, a Mr. Adam Webb, crossed the highway on foot, coming
13
from the parking lot of the Pizza Hut on the opposite side of the highway. Mr.
Webb came over to where Ms. Hudson stood on the side of the road near her
14
vehicle and spoke with her as she was on the phone with 911. After briefly
speaking to her, Mr. Webb then stepped back into the roadway, apparently moving
15
towards where he believed the defendant’s car had come to rest. Almost
16
immediately, Mr. Webb was struck by an oncoming tractor trailer. He was
17
pronounced dead at the scene. Ms. Hudson was mobile at the scene and waved
off EMS care, but sought medical treatment several days later for stiffness,
18
soreness, bruising, pain, and anxiety.
The defendant was subsequently charged with one count each of the
following: 1) DUI- General Impairment, 2) DUI- General Impairment with
Refusal to Submit to Blood Alcohol Test, 3) DUI- General Impairment with
Accident Involving Death or Personally Injury, 4) Accidents Involving Death or
Personal Injury, 5) Failure to Stop and Give Information and Render Aid, 6)
Failure to Notify Police of an Accident Involving Damage, 7) Careless Driving, 8)
Failure to Stop at a Traffic Control Signal, 9) Disregarding a Traffic Lane
19
(Single), and 10) Recklessly Endangering Another Person. Counts 5-9 are
10
N.T. at 35.
11
N.T. at 35-36.
12
N.T. at 36.
13
N.T. at 37.
14
N.T. at 36-37.
15
N.T. at 37.
16
N.T. at 37. The truck driver was not charged in relation to the incident. N.T. at 40-44.
17
Police Criminal Complaint, Filed July 6, 2015 at 8.
18
N.T. at 5.
19
Information, filed January 21, 2016.
3
20
summary offense, carrying fines of $25 each. Counts 1-3, the general DUI
charges, carry a maximum six months imprisonment and therefore were set for
21
non-jury trial. The remaining two charges were set for jury trial; Count 5,
Accidents Involving Death or Personal Injury, which was charged as a
misdemeanor in the first degree, and Count 10, Recklessly Endangering Another
22
Person, which was charged as a misdemeanor in the second degree. Defendant
23
waived his pre-trial conference.
Defendant filed a Motion in Limine on May 16, 2016, stating he had been
informed by the Commonwealth that the Commonwealth intended to introduce
evidence concerning the death of Mr. Webb and seeking the exclusion of that
evidence as not relevant to the charges as they had been made by the
24
Commonwealth.
At a hearing on the Motion in Limine held on May 17, 2016, Defendant
argued the death of Mr. Webb was not relevant to the charges against Defendant,
25
because the Commonwealth had not alleged any charges for Mr. Webb’s death.
Furthermore Defendant argued any evidence of Mr. Webb’s death would be
26
unfairly prejudicial to the Defendant. Defendant’s counsel stated that he had
only been informed of the Commonwealth’s intent to introduce the evidence of
Mr. Webb’s death in the week before the criminal jury trial and non-jury trials
27
were to commence. Defense counsel stated that if he had notice that Mr. Webb’s
death was to be an issue or if the charges were to proceed as felony charges
instead of misdemeanor charges, he would have prepared significantly different
20
Id.
21
Id.
22
Id.
23
N.T. at 9-10.
24
The evidence the Commonwealth sought to introduce included photos of the scene of the
accident, a photo of the dead body of Mr. Webb under a tarp, and the transcript of the 911 call
made by Ms. Hudson, which includes statements by Ms. Hudson that someone (Mr. Webb) had
been hit by a truck. N.T. at 19, 30.
25
N.T. at 3-8.
26
N.T. at 50.
27
N.T. at 27.
4
28
evidence and witnesses for trial. For example, Defense counsel stated he was in
possession of a toxicology report showing Mr. Webb was intoxicated at the time
29
he entered the roadway. Defense counsel credibly stated that had he known Mr.
Webb’s death was to enter into the trial, he would have prepared an expert to
testify in support of the toxicology report and prepared other additional
30
witnesses.
Defense counsel and Commonwealth counsel both described discussions
they had about possible additional charges regarding Mr. Webb that occurred prior
to the previous criminal trial term; counsel had different understandings of the
intent of those conversations and defense counsel stated he was never definitively
notified that the Commonwealth intended to pursue charges for the death of Mr.
Webb, but that he deduced the Commonwealth’s intent from discovery he received
on the Wednesday and Friday afternoon before the trial was scheduled to start on
31
Monday morning. The Commonwealth argued that Defendant had been on
notice that evidence of the death of Mr. Webb might be introduced since the date
the complaint was made on July 6, 2016, because Mr. Webb’s death was noted in
32
the affidavit of probable cause to the complaint. The Commonwealth also made
a Motion to Amend the Information to include a higher grading of the offense of
Reckless Endangerment of Another Person, but at the same time argued the
28
N.T. at 7.
29
N.T. at 7. Such evidence would have supported a defense theory of superseding intervening
causes, where Mr. Webb’s intoxication was the superseding intervening cause that broke the
causal chain between Defendant’s actions and Webb’s death.
30
N.T. at 7.
31
N.T. at 26-28.
32
N.T. at 23. The Commonwealth also admitted one reason they did not change the grading of the
charge was because the one year-clock imposed by Rule 600 would have run out before the next
criminal trial term. N.T. at 9. At another point, the Commonwealth also conceded that after the
period for pre-trial conferences for the instant term had passed, it would be fair of defense
counsel to assume that they were not going to file, for example, homicide charges, but that there
should have been no corresponding assumption that the Commonwealth was “not going to try to
hold \[defendant\] accountable for Mr. Webb’s death in a lesser way.” N.T. at 29.
5
charges in the original complaint did encompass the death of Mr. Webb and
33
therefore the evidence of his death was relevant.
At the hearing, Defendant also requested to exclude from the jury trial
evidence that he was driving under the influence, as the jury was not deciding the
34
DUI charge and the evidence would be unfairly prejudicial. The Commonwealth
argued evidence of Defendant’s intoxication was relevant, probative, and not
unfairly prejudicial with regards to the charge of Reckless Endangerment of
35
Another Person.
At the conclusion of the hearing, this Court ruled that the Commonwealth
could present to the jury evidence that Defendant was driving while intoxicated;
that the Commonwealth could not present evidence to the jury of the Defendant’s
refusal to submit to a blood alcohol test; excluded evidence of the death of Mr.
Webb; and denied the Commonwealth’s Motion to Amend the Information to
include a higher grading of the offense of Accidents Involving Death or Personal
Injury so as to move forward with the higher charge and to introduce evidence of
36
Mr. Webb’s death. On the last point, this Court cited to Pa.R.Crim.P. 564, which
conditions that the Court may not allow an amendment of the information if the
new charge the Commonwealth seeks to add adds an additional or different
offense. This Court noted that the case law found in Commonwealth v. Sinclair,
897 A.2d 1218 (Pa. Super 2006), Commonwealth v. DeSumma, 559 A.2d 521
(1989), and Commonwealth v. Herstine, 399 A.2d 1118 (Pa. Super 1979) provide
that a change in the grading of the offense charged is a substantive amendment for
the purposes of Rule 564.
33
See N.T. at 29.
34
N.T. at 26.
35
N.T. at 55-56.
36
Order of Court, In re: Motion in Limine & In Re: Motion to Amend Information (May
20, 2016).
6
On June 1, 2016, the Commonwealth filed an interlocutory appeal. This
opinion is filed in support of this Court’s Order In Re: Motion in Limine &
Motion to Amend the Information pursuant to Pa.R.C.P. 1925.
DISCUSSION
I.This Court Finds Interlocutory Appeal Improper
Pa.R.A.P. 311(d) provides, “In a criminal case, under the circumstances
provided by law, the Commonwealth may take an appeal as of right from an order
that does not end the entire case where the Commonwealth certifies in the notice
of appeal that the order will terminate or substantially handicap the prosecution.”
Pa.R.A.P. 311(d). This Court believes the Commonwealth’s case will not be
terminated or substantially handicapped by this Court’s Order dated May 20, 2016
and therefore the Commonwealth’s interlocutory appeal is improper.
a.The Commonwealth’s Case Will not Be Terminated or Substantially
Handicapped if Evidence of Defendant’s Refusal to Submit to Blood
Alcohol Testing is Excluded from the Jury Trial
The first issue presented by the Commonwealth relates to this Court’s order
to exclude from the jury trial portions of the case evidence of Defendant’s refusal
to submit to a blood alcohol test. The Commonwealth argues evidence of
Defendant’s consciousness of guilt that he was driving under the influence is
relevant to the charge of Recklessly Endangering Another Person, because
consciousness of guilt may be considered when determining that charge. The
Commonwealth’s argument is that the jury should hear evidence that may show
Defendant knew he was Driving while intoxicated, because that will support the
Commonwealth’s argument that he was conscious of recklessly endangering
another person.
Under 75 Pa.C.S. §1547, evidence of a Defendant’s refusal to submit to a
chemical blood test may be submitted into evidence where the defendant is
charged with violations of 75 Pa.C.S. §3802, the DUI statute, or “any other
7
violation of this title arising out of the same action.” The trial court has discretion
to decide whether the evidence should be admitted. Commonwealth v. Flamer, 53
A.3d 82, 86 (Pa.Super. 2012). Furthermore, though evidence may be relevant,
“The court may exclude relevant evidence if its probative value is outweighed by a
danger of one or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Pa.R.E. 403.
The trial courts have broad discretion in deciding whether to admit or deny
evidence, and a trial court will only be overturned on showing that the trial court
clearly abused its discretion. “An abuse of discretion is not merely an error in
judgment, but an overriding misapplication of the law, or the exercise of judgment
that is manifestly unreasonable, or the result of bias, prejudice, ill-will or
partiality, as shown by the evidence or the record.” Flamer, 53 A.3d at 86 (internal
citations and quotation marks omitted).
In the instant case, the Commonwealth was attempting to admit this
evidence not in regard to the DUI charges, which were handled in a non-jury
portion of trial, but on a charge of Reckless Endangerment of Another Person, 18
Pa.C.S. §2705, which falls under a different statutory title than the DUI charges.
As such, the evidence of the Defendant’s refusal to submit was not specifically
admissible under 75 Pa.C.S. §1547. Therefore, this Court weighed the
admissibility of the evidence under Pa.R.E. 403, the general rule for admissibility.
This Court found that the probative value of the evidence of defendant’s refusal to
submit would be outweighed by its unfairly prejudicial effect and the risk of
confusing the issue.
Again, the Commonwealth wanted to use the evidence of Defendant’s
refusal to submit to blood alcohol testing to support its contention that Defendant
knew he was driving while intoxicated and therefore was conscious of his guilt in
the charge of recklessly endangering another person. Evidence of refusal to
submit to blood testing is highly prejudicial. The Commonwealth was able to
8
present other evidence that Defendant was driving while intoxicated or otherwise
conscious of his guilt of driving under the influence, including the Defendant’s
own statements that he had been drinking and testimony from multiple
37
eyewitnesses. Therefore, because the Commonwealth is still able to go forward
on the charges, with other significant evidence to support their allegations, the
Commonwealth’s case with regards to proving consciousness of guilt of DUI as
related to consciousness of guilt of Recklessly Endangering Another Person would
not be terminated or substantially handicapped.
b.The Commonwealth’s Case Will not Be Terminated or Substantially
Handicapped if Evidence of the Death of Mr. Webb is Excluded
from the Jury Trial
The second issue presented by the Commonwealth is whether this Court
abused its discretion granting the Defendant’s Motion to exclude evidence of the
death of Mr. Webb. As discussed below, this Court finds the evidence of Mr.
Webb’s death irrelevant to the charges made by the Commonwealth, and this
Court does not have the authority, or it is not an abuse of discretion for this Court
to exclude the evidence. The Commonwealth is able to proceed on the charges as
they were alleged in the information and its case is not terminated or substantially
handicapped.
This Court finds the evidence of Mr. Webb’s death irrelevant to the charges
as contained in the Complaint and Information. Under Pa.R.E. 402, irrelevant
evidence is not to be admitted. Pa.R.E. 402. The Commonwealth argues two of
the charges pertain to the death of Mr. Webb: Accidents Involving Death or
Personal Injury, charged under 75 Pa.C.S. §3742(A) as a misdemeanor in the first
degree; and Recklessly Endangering Another Person, charged under 18 Pa.C.S.
37
Furthermore, this Court reasoned that evidence of refusal to submit would confuse the issue for
the jury where the charges in front of the jury were not DUI charges, but charges of Accidents
Involving Injury or Death and Reckless Endangerment of Another Person. The Commonwealth
would essentially be asking the jury to find on the DUI charge, which is not for consideration of
the jury. This Court did rule the evidence of refusal to submit was entirely appropriate in the non-
jury trial for the charge of Driving Under the Influence, 75 Pa.C.S. §3802.
9
38
§2705 as a misdemeanor in the second degree. This Court notes that Defendant
was charged with one count of each charge.
With regards to the count of Accidents Involving Death or Personal Injury,
the statute reads as follows:
(a)General rule. — The driver of any vehicle involved in an
accident resulting in injury or death of any person shall
immediately stop the vehicle at the scene of the accident or as
close thereto as possible but shall then forthwith return to and
in every event shall remain at the scene of the accident until he
has fulfilled the requirements of section 3744 (relating to duty
to give information and render aid). Every stop shall be made
without obstructing traffic more than is necessary.
(b) Penalties.
(1) Except as otherwise provided in this section, any person
violating this section commits a misdemeanor of the first
degree.
(2) If the victim suffers serious bodily injury, any person
violating subsection (a) commits a felony of the third degree,
and the sentencing court shall order the person to serve a
minimum term of imprisonment of not less than 90 days and a
mandatory minimum fine of $ 1,000, notwithstanding any
other provision of law.
(3)(i) If the victim dies, any person violating subsection (a)
commits a felony of the second degree, and the sentencing
court shall order the person to serve a minimum term of
imprisonment of not less than three years and a mandatory
minimum fine of $ 2,500, notwithstanding any other
provision of law.
75 Pa.C.S.A. §3742. Significantly, notwithstanding the provisions of
paragraphs (b)(2)-(3), the Commonwealth charged the offense as a misdemeanor
in the first degree, which as outlined in paragraph (b)(1), is the section appropriate
when the Commonwealth does not allege serious bodily injury or death. In the
description for this charge in the criminal complaint, the description is merely that
39
“Def \[sic\] did not stop at the scene of the accident, or check on the victim”. This
38
See, Information, filed January 21, 2016.
39
Police Criminal Complaint, Filed July 6, 2015 at 3.
10
describes one victim, not two. Defense counsel argued that, had the
Commonwealth intended the charge to relate to Mr. Webb’s death, the charge
should have been graded as a felony of the third degree under (b)(3), the
40
subsection applied in cases where the accident involves death.
With regards to the charge for Reckless Endangerment, the statute reads:
A person commits a misdemeanor of the second degree if he
recklessly engages in conduct which places or may place another
person in danger of death or serious bodily injury.
18 Pa.C.S §2705. The Commonwealth argued at the hearing that because
the statute covers “death or serious bodily injury”, the charge could reasonably be
interpreted to apply to both Ms. Hudson’s injuries and Mr. Webb’s death.
However, in the original police criminal complaint, the officer’s description of
why Defendant should be charged is that “Def \[sic\] did place victim in danger of
death or serious injury via driving intoxicated and driving into the side of victims
41
\[sic\] vehicle.” This description clearly refers to Ms. Hudson, as Defendant drove
into the side of her vehicle, while making no mention of Mr. Webb. It is true, as
the Commonwealth argues, that the Affidavit of Probable Cause explicitly
mentions the officer was aware that a male was killed after being struck by a
tractor trailer, and both parties were aware the Commonwealth knew of the
42
underlying fact of Mr. Webb’s death. The Commonwealth argues therefore
Defendant could have assumed charges related to Mr. Webb’s death could be
brought at any time. However, taken together, the grading and descriptions of
each charge contained in the Complaint did not give notice that the
Commonwealth’s charges were intended to extend to the death of Mr. Webb. As
discussed, infra, Section III, this Court did not have the authority to allow the
40
N.T. at 5. This Court further notes that the Commonwealth may have chosen to charge two
counts of Accidents Involving Death or Personal Injury, one for Ms. Hudson’s injuries and
another for Mr. Webb’s death. Defense counsel took the fact the Commonwealth did not to
mean the Commonwealth did not intend to pursue a charge for Mr. Webb’s death.
41
Police Criminal Complaint, Filed July 6, 2015 at 6.
42
Id. at 8; N.T. at 26.
11
Commonwealth to amend the charges or add charges. Therefore, this Court found
the criminal jury trial should proceed on the understanding that the
Commonwealth’s charges were based on the injuries caused only to Ms. Hudson.
In this light, evidence of the death of Mr. Webb would have been both
irrelevant and highly prejudicial, and therefore was properly excluded. The
Commonwealth has not been limited in any other way with regards to the evidence
it wishes to introduce concerning the injuries to Ms. Hudson. The
Commonwealth’s case has not been terminated or substantially handicapped, and
therefore interlocutory appeal is improper.
II.This Court Did Not Abuse Its Discretion in Granting the Defense’s
Motion to Exclude Evidence of His Refusal to Submit to a Blood
Alcohol Test from the Jury Portions of Defendant’s Trial
Although this Court does not believe the Commonwealth is entitled to
interlocutory appeal, this Court will address the Commonwealth argument in case
the honorable appeals court should find they are in fact entitled to an interlocutory
appeal.
As discussed, supra, the Commonwealth wished to admit evidence of
Defendant’s refusal to submit to blood alcohol testing to support its contention that
Defendant knew he was driving while intoxicated and therefore was conscious of
his guilt in the charge of recklessly endangering another person. The court has
broad discretion in deciding whether to allow relevant evidence to be admitted.
Commonwealth v. Claypool, 495 A.2d 176 (1985). Relevant evidence may be
excluded if its probative value is outweighed by a danger of unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence. Pa.R.E. 403. A trial court’s ruling on the
admissibility of evidence should only be disturbed where there has been an abuse
of discretion. Commonwealth v. Albrecht, 720 A.2d 693, 704 (1999) (affirmed in
part, vacated on other grounds). An abuse of discretion has been defined as
12
“manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack
of support so as to be clearly erroneous.” Id.
This Court recognizes that evidence that a defendant was driving while
intoxicated does not establish legal recklessness per se for the purposes of the
Reckless Endangerment of Another Person statute, but may be considered among
a body of indicia of such recklessness. See Commonwealth v. Mastromatteo, 719
A.2d 1081 (Pa. Super. 1998); Commonwealth v. Sullivan, 864 A.2d 1264 (Pa.
Super. 2004). Accordingly, this Court ruled that evidence of Defendant’s
intoxication could be submitted to the jury (see Order of Court, In re: Motion in
Limine & In Re: Motion to Amend Information (May 20, 2016), at ¶1), while
excluding from the jury, however, evidence of Defendant’s refusal to submit to
blood alcohol testing. This Court found in this instance the probative value of the
evidence of Defendant’s refusal to submit to blood alcohol testing would be
outweighed by the danger of unfair prejudice or confusing the issues. Because the
Commonwealth can present other evidence of Defendant’s consciousness of guilt,
such as his own statement that he had been drinking, the probative value of the
evidence is mitigated. At the same time, evidence of refusal to submit is highly
prejudicial. Furthermore, this Court notes a high probability that admitting the
evidence would confuse the issue for the jury; the jury is not charged with
deciding whether the Defendant was in fact guilty of DUI, the charge for which
§
refusal to submit to blood alcohol testing is specifically admissible under 75
43
Pa.C.S. 1547. That charge is left to this Court to decide. The jury is to decide
whether or not Defendant was conscious of his guilt in the charge of Recklessly
Endangering Another Person. Essentially, the Commonwealth is seeking to admit
43
We recognize that Section 1547 provides that refusal evidence is admissible when a Defendant
is charged with any violation of the Vehicle Code. 75 Pa. C.S. §1547(e). The Commonwealth
does not contend in its statement of errors that the refusal evidence should have been admitted
under the Accidents Involving Death or Personal Injury charge, despite such charge being a
Vehicle Code violation. 75 Pa. C.S. §3742. Regardless, this Court’s analysis is the same in that
we find the probative value of the refusal evidence is outweighed by the danger of unfair
prejudice and confusion to the jury.
13
to the jury highly prejudicial, minimally probative evidence which is not directly
relevant to a charge actually before the jury, because that evidence indirectly
supports the Commonwealth’s argument on a different charge that actually is
before the jury. This Court finds that, in this particular instance, such evidence is
44
properly excluded.
III.This Court Did not Abuse Its Discretion in Excluding the Evidence of
the Death of a Passerby from Defendant’s Jury Trial
Again, although this Court does not believe the Commonwealth is entitled
to interlocutory appeal, this Court will address the Commonwealth’s argument in
case the honorable appeals court should find they are in fact entitled to an
interlocutory appeal. This Court finds the evidence of Mr. Webb’s death properly
excludable.
As a threshold matter, this Court notes it ruled the Commonwealth could
not add additional charges or amend the charges to explicitly refer to the death of
45
Mr. Webb. According to Pa. R. Crim. P. 564, “The court may allow an
information to be amended when there is a defect in form, the description of the
offense(s), the description of any person or any property, or the date charged,
provided the information as amended does not charge an additional or different
offense.” Pa. R. Crim. P. 564 (emphasis added). Furthermore, “‘A substantive
amendment is one that changes the nature or grade of the offense charged.’...‘It is
well-settled than an indictment cannot be amended in a substantial or material way
so as to broaden or change the charges.’” (citations omitted)). Commonwealth v.
Herstine, 399 A.2d 1118, n.2 (Pa. Super. 1979)
44
This Court notes that the recent U.S. Supreme Court decision Birchfield v. North Dakota, 136
S. Ct. 2160 (2016) may alter the parties’ arguments and analysis of the matter. However,
Birchfield was decided after the hearing at issue here and after the Commonwealth’s Concise
Statement of Errors Complained of on Appeal was filed. As such, Birchfield’s analysis is not
properly before the Court in the instant appeal.
45
Order of Court, In re: Motion in Limine & In Re: Motion to Amend Information (May 20,
2016).
14
In light of Rule 564, this Court could not allow the Commonwealth to add
additional counts to the information related to the death of Mr. Webb. Nor could
§
it have allowed the Commonwealth to amend the grading of the charge for
Accidents Involving Death or Personal Injury under 75 Pa.C.S. 3742 because
such a change would constitute a different offense. In the instant case, the
§
Commonwealth charged the offense of Accidents Involving Death or Personal
Injury under 75 Pa.C.S. 3742(A), where section (A) is the general offense, but
the grading was listed as “M1”, a first degree misdemeanor. The Commonwealth
requested to change the grading of the charge from a first degree misdemeanor to a
second degree felony, which carries a minimum of three years imprisonment and a
mandatory minimum fine of $2500. Such a change in the grade is considered a
substantive offense. It would broaden or change the charge, from referring to one
victim who suffered significant but not fatal bodily injuries, to referring to an
entirely different victim who died. The court refused to allow a similar change in
46
DeSumma. Commonwealth v. DeSumma, 559 A.2d 521 (Pa. 1989). Even if the
requested amendment had not been a substantial change under the principles
discussed above, this Court found the change at such a late stage before trial
47
would be prejudicial to the defendant.
46
In DeSumma, the defendant was initially charged with one count each of simple assault and
reckless endangerment against the driver of another car after a road rage incident where he
brandished a loaded handgun at the other vehicle. DeSumma at 522. When the other driver
disappeared before trial, the Commonwealth moved to add charges or amend the information to
reflect simple assault and reckless endangerment of the car’s four passengers. Id. The trial court
allowed the amendment to the information but refused to allow additional counts to be added. Id.
The defendant was convicted of the count of simple assault, but the Supreme Court overturned
the conviction, reasoning that a charge of attempting to put the driver in fear of bodily injury was
a different offense than attempting to put the driver and four additional people in fear of bodily
injury, and that the latter actually constituted five separate offenses. DeSumma at 522.
47
If the requested change is not a substantial change, the court has the discretion to allow the
amendment or not. Sinclair provides six factors for the Court to consider. Commonwealth v.
Sinclair, 897 A.2d 1218, 1223, (Pa. Super. 2006). Specifically relevant to this case, the courts
have held that because “the purpose of the information is to apprise the defendant of the charges
against him so that he may have a fair opportunity to prepare a defense,” relief will be warranted
in cases where an allowed amendment creates a “variance between the original and new charges”
that prejudices the defendant by changing the defenses available to him. Id. at 1223. In Sinclair,
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On appeal, the Commonwealth does not contest the issue of whether they
should have been able to amend the information. Instead, the Commonwealth
argues the charges as written should encompass both the injuries to Ms. Hudson
and the death of Mr. Webb. This Court disagrees. As such, evidence of Mr.
Webb’s death should only be admitted if it is 1) relevant to the injuries to Ms.
Hudson and 2) the probative value of such evidence is not unfairly outweighed by
its prejudicial effect. Trial courts have broad discretion when ruling on the
admissibility of evidence. Claypool, 495 A.2d at 178. Rulings on admissibility of
evidence should only be overturned where there is an abuse of discretion, which
has been defined as “manifest unreasonableness, or partiality, prejudice, bias, or
ill-will, or such lack of support so as to be clearly erroneous.” Albrecht, 720 A.2d
at 704.
As discussed above, this Court found the grading of the offenses and
defendant’s alleged conduct as described in the complaint reflect charges relating
only to the injuries to Ms. Hudson and not for the death of Mr. Webb. The fact
that the Commonwealth proceeded on only one count of each charge is significant.
The courts have held that where a statute defines a crime as a harm against an
individual person, such as simple assault, reckless endangerment, or criminal
homicide, the number of offenses depends on the number of victims rather than on
the number of acts committed by the defendant. DeSumma at 522, citing
Commonwealth v. Williams 522 A.2d 1095 (1987) (an attempt to murder three
people by a single act of arson would constitute three separate offenses of
attempted murder because criminal homicide is defined as causing the death of
“another human being”); Commonwealth v. Frisbie, 485 A.2d 1098,110) (1984)
(18 Pa.C.S. § 2705, recklessly endangering another person, is defined "with
respect to an individual person being placed in danger of death or serious bodily
injury, and...a separate offense is committed for each individual person placed in
when the Commonwealth's request for an amendment came on the day of trial, it “did not allow
for ‘ample time’ to prepare a defense against the amended charges.” Id. at 1223.
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such danger.”) (emphasis added). Applied to the instant case, this principle
supports our finding that the charges of reckless endangerment and accidents
involving death or bodily injury applied to only one victim. Again, the
descriptions in the information clearly referred only to the harms to Ms. Hudson.
The Commonwealth could have moved to amend the charges or add charges to
reflect the harms done to Mr. Webb in the months before trial, or even at the pre-
trial conference. It did not, choosing to proceed on single counts based on
descriptions referring to only one victim.
Where the charges only related to the injuries to Ms. Hudson, the evidence
of the death of Mr. Webb was irrelevant. Under Pa.R.E. 402, irrelevant evidence
should be excluded. The Commonwealth argued that even if the charges related
only to Ms. Hudson, Mr. Webb’s death was relevant because his knowledge or
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what he should have known was relevant to the charges against him. The
Commonwealth argued that because the area where the crash took place is
populated by late-night and 24-hour businesses, Defendant should have known it
was possible that “Good Samaritans” would come to the aid of an injured driver
such as Ms. Hudson, and then be injured. This Court is not convinced by the
Commonwealth’s argument. First, the Commonwealth presented no evidence that
Defendant was familiar with the area and would have known about the nature of
the nearby businesses. Secondly, the Commonwealth’s argument assumes that if
a defendant knows Good Samaritans might be present, they should also assume
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those Good Samaritans are at risk of bodily injury or death from third parties.
This Court finds the Commonwealth’s reasoning on this point attenuated.
Furthermore, under rule Pa.R.E. 403, relevant evidence may be excluded if
its probative value is outweighed by a danger of unfair prejudice or confusing the
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N.T. at 39. It is unclear from the transcript to which charge the Commonwealth believes the
defendant’s awareness that Good Samaritans might appear is relevant.
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It appears that Mr. Webb had reached a place of safety, on the side of the road near Ms.
Hudson, before stepping back into the road. N.T. at 37. The Commonwealth has not argued that a
Good Samaritan would have had to place himself in unavoidable danger to assist Ms. Hudson
under the circumstances of the incident that night.
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issues. The probative value of evidence of Mr. Webb’s death is reduced by its
indirect connection to the Commonwealth’s argument that defendant is
responsible for the injuries to Ms. Hudson. Evidence of Mr. Webb’s death would
certainly be prejudicial. The courts have held evidence may be prejudicial where
it has “a tendency to suggest decision on an improper basis or to divert the jury's
attention away from its duty of weighing the evidence impartially." Pa.R.E. 403.
(Cmt). In the instant case, evidence of Mr. Webb’s death is likely to divert the
jury’s attention away from its task, which is to decide if Defendant is criminally
liable for injuries done to Ms. Hudson. For the same reason, evidence of the death
of Mr. Webb is likely to confuse the issues before the jury. While Mr. Webb’s
death is terribly tragic and unfortunate, it appears from the record that the
Commonwealth sought not to charge the defendant for Mr. Webb’s death, and
never attempted to change that charging decision or bring in evidence of that death
until a few days before trial. As the information as charged did not allow such
evidence, and this Court found that such would be prejudicial to the defendant
given all the timelines of the aforesaid discussion, this Court ruled against the
entry of such evidence.
CONCLUSION
This Court finds the issues raised by Appellant on appeal are without merit.
For the reasons articulated in the above opinion, this Court respectfully requests
the Superior Court of Pennsylvania to affirm this Court’s order excluding the
evidence as discussed above.
BY THE COURT,
____________________________
Christylee L. Peck, J.
Charles J. Volkert, Jr., Esq.
Senior Assistant District Attorney
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F. Clay Merris, IV, Esq.
Senior Assistant District Attorney
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