The opinion
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2021 PA Super 163
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KATRINA A. SANDERS :
:
Appellant : No. 3562 EDA 2017
Appeal from the Judgment of Sentence July 17, 2017
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0003929-2016
BEFORE: PANELLA, P.J., BENDER, P.J.E., LAZARUS, J., STABILE, J.,
DUBOW, J., NICHOLS, J., MURRAY, J., McLAUGHLIN, J., and KING,
J.
DISSENTING OPINION BY McLAUGHLIN, J.: FILED AUGUST 16, 2021
Katrina A. Sanders admitted at trial that she was well aware of the
significant risk that she could hit a pedestrian when driving a bus, especially
a tandem bus such as she was driving on the day in question. N.T, 1/3/17, at
215, 217, 222. Yet on-board cameras captured her distractedly fiddling with
papers for 45 seconds while stopped at the subject intersection, and not
looking for traffic or pedestrians, until shortly before she struck and killed the
victim. Id. at 99. Sanders conceded that the victim was clearly visible during
that 45 seconds in recordings taken by the on-board cameras but said she did
not see him on the day in question until he was directly in front of her bus.
Id. at 219, 221. The prosecution’s expert made it clear that Sanders’ view
from the driver’s seat was unobstructed and those 45 seconds gave her ample
opportunity to look for pedestrians, such as the victim. Yet despite knowing
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the risk and having plenty of time to look, she instead was examining the
papers in her hand. Id. at 98, 100.
Sanders also admitted on the record that at the time of the victim’s
death, she was fully aware of a safety rule requiring her to stop and look for
a full four seconds before making a left turn. She conceded that the rule
existed because of the heightened risk that the driver of a tandem bus would
not see a pedestrian in a crosswalk when executing a left turn. Id. at 225-
226. Yet once again, the videos document her failure to obey that rule, which
was in place specifically to protect against hitting a pedestrian in a crosswalk,
when she turned left and hit and killed the victim.
Based on this record, I believe the evidence was enough to establish
that Sanders consciously disregarded a substantial and unjustifiable risk. The
trial judge saw the videos and heard all the testimony. He could reasonably
conclude that although Sanders knew the significant risks of hitting and even
killing pedestrians when turning a tandem bus left, she nonetheless was
looking at papers, and not into the intersection, for 45 seconds while stopped
at the intersection. Once the light turned green, the evidence shows, Sanders
failed to wait long enough to ensure there were no pedestrians in the path of
her bus before she turned, despite knowing the risk. As a result of her failures,
she struck and killed the victim. I therefore respectfully dissent.
The Majority accurately sets forth the law as to sufficiency of the
evidence. To support a conviction for homicide by vehicle, the Commonwealth
must prove that the defendant caused the death of another, recklessly or with
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gross negligence, while violating a law or municipal ordinance “applying to the
operation or use of a vehicle or to the regulation of traffic except [75 Pa.C.S.A.
§] 3802,” and that the violation caused the death. 75 Pa.C.S.A. § 3732(a);
Commonwealth v. Pedota, 64 A.3d 634, 636 (Pa.Super. 2013). Further,
because prior precedent interpreting the homicide by vehicle statute has found
that “[t]he concept of gross negligence is encompassed within the concept of
recklessness as set forth in [§ 302(b)(3)],” I agree with the Majority’s
discussion of recklessness and gross negligence. See, e.g., Commonwealth
v. Moyer, 171 A.3d 849, 853 (Pa.Super. 2017) (citing Commonwealth v.
Matroni, 923 A.2d 444, 448 (Pa. Super. 2007)). Here, there is no dispute
that Sanders violated vehicle or traffic laws, or that the collision caused the
victim’s death. The Majority, however, finds the Commonwealth failed to
establish that Sanders recklessly or with gross negligence caused the victim’s
death. I disagree.
Here, the trial court explained why it believed the evidence was
sufficient to prove that Sanders acted recklessly or with gross negligence:
[T]he evidence showed that the Defendant operated her bus
in a grossly negligent or reckless manner. Specifically, the
evidence adduced at trial indicated that: 1) [Sanders] was
a professional driver with 20-30 years’ experience; 2)
[Sanders] was aware of the risks involved in driving
professionally, especially a 62 foot tandem bus; [3])
[Sanders] stopped her bus in the cross walk perpendicular
to where the victim was crossing; [4]) she was looking at
route paperwork while stopped at the light for
approximately 45 seconds, during which time nothing
impeded her view of the victim waiting the cross the street;
[5]) she briefly checked the intersection before moving, in
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violation of written SEPTA policy requiring a four second
hesitation before turning; and [6]) she failed to see the
pedestrian, who had the right of way and was in a marked
crosswalk, until she struck him. [Sanders] was a
professional driver and grossly deviated from the standard
of conduct that a similarly qualified driver would have
exercised. Therefore, the evidence was sufficient to support
her conviction for homicide by vehicle.
Trial Court Opinion, filed 5/29/18, at 8-9 (“1925(a) Op.”).
The evidence was sufficient to support the trial court’s conclusion.
Sanders testified at trial that she was acutely aware of the heightened risk of
hitting a pedestrian when turning a tandem bus left and that the four-second
rule served to mitigate that risk. The potential for such a large vehicle to kill
a pedestrian is obvious. Yet the videos nevertheless showed Sanders
reviewing the papers instead of being alert to her surroundings, failing to scan
the area fully before turning, and failing to follow a rule designed to ensure
no pedestrians were in her path. The evidence here was sufficient to establish
her conscious disregard of a substantial and unjustifiable risk, i.e., criminal
recklessness. See Moyer, 171 A.3d at 854 (concluding evidence supported
homicide by vehicle conviction premised on failure to stop at stop sign, where
defendant only slowed to 12 miles per hour for two seconds prior to impact,
stop sign preceded a busy cross street, building obscured view of one lane of
cross traffic, and defendant was familiar with the intersection and had driven
through it many times).
I respectfully submit that the Majority Opinion improperly reweighs the
evidence in concluding otherwise. Respectfully, in my view, the Majority’s
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approach violates our standard of review. When considering a sufficiency
challenge, what we may not do is re-weigh the evidence and substitute our
judgment for that of the fact-finder. Commonwealth v. Rogal, 120 A.3d
994, 1001 (Pa.Super. 2015). Rather, if the Commonwealth has presented
evidence of each element of the crime, the evidence is sufficient unless it is
“so weak and inconclusive that as a matter of law no probability of fact may
be drawn from the combined circumstances.” Commonwealth v. Bradley,
69 A.3d 253, 255 (Pa.Super. 2013).
While the Majority acknowledges our standard of review, respectfully, in
my view, it fails to abide by it. It does not conclude that the evidence was “so
weak and inconclusive that as a matter of law no probability of fact may be
drawn from the combined circumstances.” In my view, it also fails to view the
evidence in the light most favorable to the Commonwealth, as verdict winner,
and instead improperly evaluates the evidence and assigns it the importance
it deems proper. Instead, the Majority reviews the evidence and assigns it the
significance the Majority finds appropriate. For example, it concludes that
Sanders’ waiting 2.33 seconds, instead of the full four seconds, was “[a]t most
. . . ordinary criminal negligence,” not recklessness or gross negligence.
Majority Opinion at 16.
I cannot say that I, as an appellate judge, know better than the fact-
finder the significance of the driver of a tandem bus waiting and looking for
pedestrians for only 2.33 seconds, instead of four seconds. Nor is it for me,
as an appellate judge, to decide whether doing so amounts to recklessness or
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an ordinary deviation from the standard of conduct. Rather, when confronted
on appeal with a sufficiency challenge, we ask whether there was evidence
beyond a reasonable doubt to support the fact-finder’s determination that the
evidence met every element of the crime charged. See Bradley, 69 A.3d at
255.
With respect, the Majority’s conclusion that Sanders “simply did not see
the victim at any point before moving” the bus demonstrates the Majority’s
error. Majority Opinion at 15. Respectfully, the issue is why Sanders failed to
see the victim in time. Here, the prosecution put evidence before the trial
court that Sanders did not see him until it was too late because she violated
safety rules that she admitted she not only knew existed, but also was aware
served to prevent just the sort of tragedy that occurred here. It is not for this
Court to review the evidence and decide for ourselves if Sanders “simply” and
faultlessly “did not see the victim[.]” Id. Instead, as long as the prosecution
presented evidence of every element of the crime, we affirm unless the
evidence was too insubstantial to support any finding of fact. See Bradley,
69 A.3d at 255.
Tellingly, the Majority does not conclude that the evidence here was “so
weak and inconclusive that as a matter of law no probability of fact may be
drawn from the combined circumstances,” and I do not see how such a
conclusion would be supportable. SEPTA safety rules in evidence here require
the driver of a stopped bus “to follow the four-second rule that gives the
operator/employee an opportunity to scan the area in front of the bus before
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moving.” Commonwealth Ex. 8. Sanders admitted on the stand that she knew
not only of the rule, but also of its purpose of protecting against her not seeing
a pedestrian in the crosswalk, and thus hitting the pedestrian while turning
left. Yet she also admitted that she failed to follow the rule when executing a
left turn. That was enough evidence to prove recklessness or gross negligence.
The Majority counters that “[e]very motor vehicle driver—bus, truck, car
and motorcycle—knows that there is a risk of hitting a pedestrian while driving
a vehicle and knows that she must look carefully before turning into an
intersection to reduce the risk of striking a pedestrian, yet failure to follow
these principles does not automatically constitute homicide by vehicle.”
Majority Opinion at 19. That response reveals a fundamental
misunderstanding of my position.
Respectfully, it goes without saying that hitting and killing a pedestrian
in such commonplace circumstances as the Majority describes does not
automatically constitute homicide by vehicle. My difference with the Majority
relates to the specific evidence in this case. That evidence includes the expert
testimony that Sanders could have seen the victim if she had only looked into
the intersection during the 45 seconds she was stopped. It also includes
Sanders’ testimony about her awareness of the particular risk of striking
pedestrians while driving a tandem bus and of SEPTA safety rules intended to
mitigate that risk, and that she knowingly failed to abide by those rules.
In this case, there was affirmative evidence that Sanders consciously
disregarded a substantial and unjustifiable risk. Sanders herself testified that
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she knew of the marked risk of death to pedestrians while turning a tandem
bus, and that she was aware of safety rules that she admitted were designed
to reduce that risk. The risk of death to the pedestrian in such an accident is
patent. Yet the evidence nonetheless showed her disregarding that risk and
disobeying the safety rules. That is plain evidence of criminal recklessness and
is sufficient to support a conviction for homicide by vehicle. I respectfully
dissent.
President Judge Panella and Judge Murray join this Dissenting Opinion.
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