Commonwealth v. Urbanski

BROSKY, Judge,

concurring.

I agree with the majority’s opinion except for the finding that the evidence should be regarded as sufficient to prove the element of malice necessary for a conviction of third degree murder. However, as there are cases which tend to support the proposition, I must acknowledge them and concur.

I should state initially that I do not condone or think lightly of driving while under the influence. The dangers of such conduct are well documented, and this case is a testimonial to it as well. However, I do not favor the practice of “squeezing” criminal conduct to fit into definitions of crimes for which it was unlikely meant. Murder, of any degree, is among the most egregious and serious offenses found in our crimes code, and, as the name of that offense suggests, ordinarily encompasses either intent to kill or malicious design. The word “malice” generally connotes evil disposition and a desire to injure or harm, something greater than carelessness or recklessness. When one reviews the definition of malice in the dictionary this general connotation is reinforced. In Webster’s New Collegiate Dictionary, 1980, malice is defined as a “desire to see another suffer that may be fixed and unreasonable ... intent to commit an unlawful act or cause harm without legal justification or excuse.” The legal dictionary provides only a slightly broader definition. There you find phrases like “with an intent to inflict an injury,” “the condition of mind which prompts one to take a life of another without just cause or provocation. A willful or corrupt intention of the *516 mind. It includes not only anger, hatred and revenge, but also every other unlawful and unjustifiable motive.” Black’s Law Dictionary, Fifth Edition p. 862. Although appellant’s actions in driving in his state of intoxication smacks of belligerent stubbornness and a disregard for safety, I do not believe the record in the present case bears out an intent to injure, a desire to see another suffer or a revenge, anger or hatred motivation. Rather, as is usually the case in DUI related homicides, the fatal accident is more likely a function of extremely poor exercise of judgment.

This is not to say that such conduct should go unpunished, the conduct of appellant is clearly criminal under our law, and should be punished according to law. However, there are crimes delineated in the vehicle code and crimes code which more properly encompass the conduct which took place in the present case. Indeed, perhaps in response to a growing concern for DUI related fatalities and a perceived “hole” in the classification of crimes, the legislature created the offense of homicide by vehicle while driving under the influence. 75 Pa.C.S.A. § 3735, enacted December 15, 1982. That section would seem to have been designed to cover the conduct which occurred here and to create a more serious classification of homicide by vehicle than that which previously existed. In contrast, we stated in Commonwealth v. Pigg, 391 Pa.Super. 418 , 571 A.2d 438 (1990), that “it is rare for a death caused by vehicular incident to give rise to a conviction of third-degree murder, ...” Yet, if the present case represents a third degree murder then it would seem that a great many if not virtually all DUI related fatalities could qualify for such treatment.

Despite the majority’s attempt to make this accident appear as a more serious incident of driving under the influence, it does not figure to rise to a level of conduct designed to injure or kill the occupants of the vehicle. Indeed, since appellant remained in the vehicle it seems highly unlikely that he had a malicious intent towards his passengers unless he was also attempting to injure or kill himself. Absent this inference the cause of the fatality more probably appears to be an intoxicated individual who displays the kind of impaired judgment and *517 driving ability unfortunately often displayed by such intoxicated individuals.

The majority’s opinion suggests that it is “recklessness of consequences, a mind regardless of social duty” for appellant to have driven in his state of intoxication. However, this argument could be made, to varying degrees, as to any individual who drives after having ingested alcohol and would seem to have been factored into the offense of homicide by vehicle while driving under the influence. In fact, it is most likely the belief that a homicide by vehicle which is caused by one’s intoxication is more reprehensible than a non-DUI related homicide by vehicle which led the legislature to create the offense in the first place and provide for a greater punishment.

The other theme present in the opinion is a suggestion that the degree of one’s intoxication might influence whether one has committed only homicide by vehicle while DUI or third degree murder. However, in so doing, the majority’s position holds the appellant, or one in the same position as the appellant, to a standard of consciousness, conscientiousness and judgment that a sober individual would be held to. Although ideally an intoxicated individual would be able to assess his degree of intoxication and its probable effect on his driving ability, this is somewhat unreasonable given that the individual placed in this position is admittedly intoxicated. Generally speaking, the greater one’s state of intoxication the greater the impairment to one’s ability to exercise rational judgment. Thus, although it is probably true that the greater a person’s level of intoxication the greater the threat he will pose to others, it is probably just as true that his ability to recognize this fact and act accordingly will be diminished as well. Since malice is a question of one’s state of mind it does not necessarily follow that simply because the risk of a fatality increases with the degree of a driver’s intoxication that the driver feels any malice at all towards those placed at risk. Instead the greater the intoxication the less likely the driver will exercise sound judgment or appreciate fully the risk he is creating. This seems directly contrary to the state of mind of malice.

*518 It is notable that the cases which originated this theory for third degree murder occurred I believe when the present crime of homicide by vehicle while driving under the influence was not available. 1 It is entirely possible that these cases would not have surfaced had that option been available to the prosecutors or the courts. Absent that offense it is possible that a more culpable or egregious incident of driving under the influence created a desire to treat those incidents more severely. To accomplish that goal in the absence of § 3735 those incidents would have to be squeezed into a more serious classification of crime, like third degree murder. 2

This is not to suggest that there are no incidents of homicide by vehicle while DUI that could and should be punishable with a third degree murder conviction. For instance if a drunken driver knowingly sped headlong into a group of pedestrians the gross disregard for almost certain injury or fatality would be sufficient, in my opinion, to satisfy the element of malice. The same would be true if the drunken driver engaged in highly dangerous “daredevil” driving or playing a dangerous game such as “chicken,” (driving straight at another vehicle to see who would “chicken out” and veer away first), which resulted in a fatality. However, those are cases of a much higher degree of disregard for the risk of more certain injury or death than is presented here.

In contrast to the facts of this case are the examples given in Commonwealth v. Mayberry, 290 Pa. 195 , 138 A. 686, 688 (1927), which appears to be one of the first cases discussing a murder conviction for a vehicular homicide. The court said there “[h]ad the appellant at bar dashed down Highland avenue and wantonly, recklessly and in disregard of the consequences hurled his car against another, or into a crowd *519 or over a person on sidewalk or street....” then he should be punished as if he had accomplished death by wantonly and wickedly firing a gun. While the above quote rings true, it seems to me that to find the evidence presented here sufficient for a third degree murder conviction, particularly under the rationale provided, is to negate the need for the crime of homicide by motor vehicle while driving under the influence altogether. Any incident which would satisfy those elements would appear to also satisfy those required for third degree murder, or involuntary manslaughter. Since it is contrary to rules of statutory construction to presume that the legislature is creating a wholly superfluous crime, I believe that third degree murder in a vehicular context requires a showing of malice more similar to the definitions quoted above. Malice, as the term implies, should be defined as an actual desire to injure or kill or cause suffering to another or conduct that suggests a disregard for almost certain death or injury such that it is tantamount to the same. I do not think the evidence here established such malice. However, I cannot argue with the fact that certain cases, most notably Commonwealth v. Taylor, 461 Pa. 557 , 337 A.2d 545 (1975) and Commonwealth v. Pigg, 391 Pa.Super. 418 , 571 A.2d 438 (1990), would appear to support the majority’s holding. Consequently, I must concur.

. Commonwealth v. Taylor, 461 Pa. 557, 337 A.2d 545 (1975), appears to be one of the first cases where a murder conviction was upheld in the DUI related fatality scenario.

. Involuntary manslaughter might be regarded as more appropriate than third degree murder. Commonwealth v. Aurick, 342 Pa. 282 , 19 A.2d 920 (1940), allowed a conviction for involuntary manslaughter in a vehicular fatality situation which did not involve an intoxicated driver.