J-E03004-23

2024 PA Super 171

COMMONWEALTH OF PENNSYLVANIA

v.

KEVIN R. PETERS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2591 EDA 2021

Appeal from the Judgment of Sentence Entered October 15, 2021

In the Court of Common Pleas of Bucks County

Criminal Division at CP-09-CR-0003901-2020

BEFORE: PANELLA, P.J., LAZARUS, J., STABILE, J., DUBOW, J., 

KUNSELMAN, J., NICHOLS, J., MURRAY, J., McLAUGHLIN, J., and 

KING, J.

OPINION BY MURRAY, J.: FILED AUGUST 7, 2024

Kevin R. Peters (Appellant) appeals from the judgment of sentence 

imposed after a jury convicted him of two counts each of third-degree murder, 

aggravated assault – serious bodily injury (aggravated assault), recklessly 

endangering another person, homicide by vehicle while driving under the 

influence (DUI), aggravated assault by vehicle while DUI, homicide by vehicle, 

and aggravated assault by vehicle.1 The trial court separately convicted 

Appellant of DUI – general impairment, DUI – high rate of alcohol, and the 

summary offenses of driving within single lane, following too closely, driving 

vehicle at safe speed, and reckless driving (collectively, the non-jury 

____________________________________________

1 18 Pa.C.S.A. §§ 2502(c), 2702(a)(1), 2705; 75 Pa.C.S.A. §§ 3735(a)(1)(i), 

3735.1(a), 3732(a), 3732.1(a).
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offenses).2 Appellant challenges the sufficiency of the evidence supporting

the jury’s finding of malice, the mens rea required for his convictions of thirddegree murder and aggravated assault. After careful consideration, we 

conclude the Commonwealth established the high degree of recklessness 

required for a finding of malice, and therefore, we affirm.

The trial court detailed the underlying facts:

Shortly after midnight on Friday, December 6, 2019, 

Nicholas Hafto called 911 police emergency and reported that he 

was driving on Interstate 95 (I-95) North, and that “there is a 

white Mazda SUV, swerving, almost sideswiped me, he came 

flying right by me.” At trial, Mr. Hafto further explained that the 

SUV erratically changed speeds, back and forth from fast to slow. 

He stated that the SUV made an abrupt exit off I-95 at the Route 

29 New Jersey exit, noting that while exiting, the operator of the 

SUV slammed on his brakes.

Another motorist, Scott Emrick, also called 911. He 

reported that he was also traveling on I-95 and observed a white 

Mazda SUV “swerving left and right.” He also reported erratic 

acceleration, deceleration, and a sharp exit off I-95 and noted that 

the vehicle’s headlights were not on. 

Surveillance cameras captured images of the SUV as it 

exited I-95 into New Jersey. Approximately one minute later, the 

vehicle reentered [I-95] and proceeded South. 

At approximately 1:00 a.m., Edmonde Sestini, Jr., a driver 

working for Clarion Ambulance, was driving South on I-95 at a 

speed between 50 and 60 miles per hour when a white Mazda SUV 

passed him at a high rate of speed. Mr. Sestini testified that the 

SUV “came flying past me on the left-hand side.” Approximately 

half a minute later, and approximately [a] half-mile further down 

I-95, Mr. Sestini came upon the SUV stopped behind a second 

vehicle[,] which was facing north in the southbound lane of traffic 

and was completely engulfed in flames. One man had already 

____________________________________________

2 75 Pa.C.S.A. §§ 3802(a)(1), 3802(b), 3309(1), 3310(a), 3361, 3736(a).
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been able to get out of [the burning] vehicle, [and] another man 

was trying to get out. Mr. Sestini and his partner removed 

[Appellant] from behind the wheel of the SUV, and, due to 

[Appellant’s] complaints of hip pain, placed him on the ground and 

dragged him away from the fire. 

The collision occurred near the Ford Road overpass in Bristol 

Township, Bucks County. At approximately 1:05 a.m., the

[Pennsylvania] State Police [(PSP)] were dispatched. Upon arrival 

at the scene, police found a van fully engulfed in flames and a 

2016 Mazda CX-5 SUV ... with heavy front-end damage. ... 

[Appellant] was transported from the scene to Jefferson 

Torresdale Hospital in Northeast Philadelphia.

Two men involved in the collision, ... Juan Tavarez 

[(Tavarez)], and his son, Charlys Tavarez Santelises 

[(Santelises),] were able to extricate themselves from the burning 

vehicle and make their way to Jefferson Torresdale Hospital. The 

bodies of [Tavarez’s other son, Juan Jose Tavarez Santelises,] and 

Claribel Dominguez were removed from the rear seat of the van. 

Later that same day, forensic pathologist Dr. Ian Hood autopsied 

the bodies and determined to a reasonable degree of medical 

certainty that thermal burns caused the death of both individuals. 

The survivors, [] Tavarez and [] Santelises, suffered 

permanent injuries and testified at length to the extent of their 

injuries and the treatment they received. ...

* * *

Subsequent investigation into the cause of the collision 

revealed that the occupants of the van were driving on I-95 

South[,] returning from working an 11-hour shift at a New Jersey 

package sorting plant. [] Tavarez, the driver of the van, drove at 

a speed of between 50 and 55 miles per hour as a precautionary 

measure due to a slight whistling sound in the van. Because of 

their reduced speed, ... Tavarez[] activated his emergency flashers 

and moved into the right lane of traffic. The first indication that 

he had of what was about to occur was what Mr. Tavarez described 

to be like a bomb going off, immediately followed by an engulfing 

fire. 

Trial Court Opinion, 3/4/22, at 1-3, 5 (citations to record omitted).
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The trial court further summarized the evidence of Appellant’s activities 

prior to the collision:

[Appellant] had spent the evening at an open bar social 

event before proceeding to two separate bars. The open bar event 

was held in a private room at Ruth’s Chris Steak House in 

Philadelphia and ran from 5:00 p.m. through 8:00 p.m. During 

these hours[, Appellant] was drinking vodka. He and his coworkers then moved to the public bar[ at Ruth’s Chris,] where 

[Appellant] consumed bourbon. Co-worker Jaquelyn Smith 

testified she had offered [Appellant] a ride home shortly after 

10:00 p.m., but he declined, instead [] asking to be taken to 

another bar, the “Rogue’s Gallery,” with one of his co-workers. 

The other co-workers used private transport services. A receipt 

from the Rogue’s Gallery indicated three drinks were ordered in 

total: one “Love City Lager” and two “Neshaminy 2X IPAs.” 

[Appellant] testified that he consumed two of these drinks. The 

bill was paid at 12:18 a.m. Shortly thereafter, a video from the 

parking garage of [Appellant’s] workplace showed that he was 

unable to operate the automated payment machine. [Appellant] 

physically lifted the gate to leave the garage[, damaging it]. Once 

he left the garage, surveillance cameras captured images of 

[Appellant] driving through a stop sign. Video surveillance 

footage from the Scudder-Falls Bridge area ... shows [Appellant] 

changing lanes and exiting the highway without using turn signals. 

On December 6, 2019, at 1:45 a.m., an employee of 

Jefferson Torresdale Hospital drew a blood sample from 

[Appellant]. Police seized a serum plasma sample from 

[Appellant] pursuant to a search warrant executed on December 

18, 2019. That sample was later submitted to National Medical 

Services for analysis. ... [Appellant] had a whole blood alcohol 

concentration (BAC) of .151 percent. Toxicologist Donna Papsun 

offered her expert opinion that an individual with a BAC of .151 

percent is incapable of safe driving.3

[PSP] Corporal Brianne Glad, an accident reconstruction 

expert, testified that she downloaded information from the event 

____________________________________________

3 Toxicologist Papsun further testified that an individual with a BAC of .151% 

would have delayed reaction time, delayed perception, and impaired 

judgment. N.T., 9/15/21, at 149-51.
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data recorder, or “black box,” from [Appellant’s] vehicle. That 

information established [Appellant] was traveling at a speed of 

113 miles per hour [(mph)4] five seconds prior to the collision with 

the victims’ van. ... Half a second prior to the collision[,

Appellant] was traveling at 115 miles per hour. [Corporal 

Glad testified Appellant] did not apply [his vehicle’s] brakes until, 

at most, four-tenths of a second before impact. 

Id. at 5-6 (emphasis and footnote added; citations to record omitted).

Appellant testified at trial and admitted to consuming multiple alcoholic 

beverages over several hours. See N.T., 9/16/21, at 72, 85-86. Appellant 

stated that he nevertheless “felt fine to drive.” Id. at 78. Immediately prior 

to the collision, Appellant testified, he attempted to retrieve his cell phone to 

utilize its GPS function, despite driving over 100 mph. Id. at 81; see also 

id. at 80-81 (Appellant stating he was lost and had missed his intended exit

on I-95). Appellant conceded he (1) unbuckled his seatbelt; (2) took his eyes 

off of the road; (3) reached over to a backpack located on the passenger’s 

side floorboard; and (4) grabbed his phone from inside the backpack. Id. at 

81, 91; see also id. at 91 (Appellant stating on cross-examination he 

“thought it would be okay to reach down for a moment.”). The collision ensued 

immediately thereafter. Id. at 81-82.

After the close of evidence, the trial court issued its charge to the jury. 

The court instructed as follows with respect to malice:

____________________________________________

4

It is undisputed that (1) the posted speed limit was 55 mph; and (2) there 

were no weather, mechanical, or roadway conditions that caused or

contributed to the collision. 
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There’s no one definition of malice because it can involve so 

many different circumstances and so many different factors....

And I am going to give you three separate explanations[.] ... 

Malice is a shorthand way of referring to ... particular mental states 

... of a defendant [] that the law regards as being bad enough to 

make the killing murder.

A killing is [committed] with malice if the defendant’s 

actions show his wanton and willful disregard of an unjustified and 

extremely high risk that his conduct would result in death or 

serious bodily injury to another person. In this form of malice, 

the Commonwealth need not prove that the defendant specifically 

intended to kill anybody. The Commonwealth must prove, 

however, that the defendant took action or engaged in conduct [] 

consciously; that is, knowingly[] disregarding the serious risk that 

his conduct was creating[,] and that ... his disregard of that risk 

demonstrates an extreme indifference to the value of human life.

The second way malice is described is a wickedness of 

disposition, hardness of heart, cruelty, recklessness of 

consequences, a mind regardless of social duty that indicates an 

unjustified disregard for the probability of death or great bodily 

harm and an extreme indifference to the value of human life. ...

... [T]he third way that the courts have defined malice is that 

the defendant consciously disregarded ... an unjustified and 

extremely high risk that his actions might cause the death of 

another person or ... [cause] serious bodily injury to another 

person.

N.T., 9/17/21, at 32-34 (formatting modified).

5

The trial court additionally instructed: “[I]n deciding, you may not rely 

on evidence that [Appellant] became intoxicated of his own volition in order 

____________________________________________

5 The trial court’s charge is consistent with the Pennsylvania Standard Criminal 

Jury Instructions. See Pa. SSJI (Crim) 15.2502C (third-degree murder); see

also Commonwealth v. Chmiel, 30 A.3d 1111, 1184 (Pa. 2011) (“The law 

presumes that the jury will follow the instructions of the court.” (citation 

omitted)).
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to conclude that he was so intoxicated that he lacked the mental state required 

for the crime to be committed.” Id. at 59; see also Commonwealth v.

Hutchinson, 25 A.3d 277, 312 (Pa. 2011) (“A defense of ... voluntary 

intoxication[] is an extremely limited defense available only to those 

defendants who admit criminal liability but contest the degree of culpability 

based upon an inability to formulate the specific intent to kill.”). 

During deliberations, the jury asked the trial court for clarification with 

respect to the “three definitions of malice[.]” N.T., 9/17/21, at 72. The trial

court then re-issued the same definitions detailed above. Id. at 72-74.

The jury found Appellant guilty of the aforementioned offenses,

including third-degree murder and aggravated assault. The trial court 

convicted Appellant of the non-jury offenses. On October 15, 2021, the trial 

court sentenced Appellant to an aggregate 191⁄2 - 39 years in prison. 

Appellant filed a motion for reconsideration of sentence, which the trial 

court denied on November 9, 2021. This timely appeal followed. Appellant 

and the trial court have complied with Pa.R.A.P. 1925.

Appellant presents the following issue:

Was the evidence insufficient as a matter of law to sustain the 

verdicts for Third Degree Murder and Aggravated Assault Causing 

Serious Bodily Injury where the prosecution proof showed that 

Appellant, intoxicated, caused a tragic accident resulting in deaths 

and injuries but did not establish the requisite mens rea of malice?

Appellant’s Brief at 5.
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Appellant challenges the sufficiency of the evidence. This claim

“presents a question of law, for which our standard of review is de novo and 

our scope of review is plenary.” Commonwealth v. Packer, 168 A.3d 161, 

166 (Pa. 2017). 

[O]ur standard of review of sufficiency claims requires that we 

evaluate the record in the light most favorable to the verdict 

winner[,] giving the prosecution the benefit of all reasonable 

inferences to be drawn from the evidence. Evidence will be 

deemed sufficient to support the verdict when it establishes each 

material element of the crime charged and the commission thereof 

by the accused, beyond a reasonable doubt.

Commonwealth v. Sebolka, 205 A.3d 329, 336-37 (Pa. Super. 2010)

(citation omitted).

In applying the above test, we may not weigh the evidence 

and substitute our judgment for that of the fact-finder. In 

addition, we note that the facts and circumstances established by 

the Commonwealth need not preclude every possibility of 

innocence. Any doubts regarding a defendant’s guilt may be 

resolved by the fact-finder unless the evidence is so weak and 

inconclusive that as a matter of law no probability of fact may be 

drawn from the combined circumstances.

Commonwealth v. Dunphy, 20 A.3d 1215, 1219 (Pa. Super. 2011) (citation 

omitted).

Appellant claims the Commonwealth failed to present sufficient evidence 

to support a finding of malice, which is necessary to sustain his convictions of

third-degree murder and aggravated assault. See Appellant’s Brief at 18-27. 

Appellant emphasizes the Pennsylvania Supreme Court has stated, “the 

decision to drive while under the influence of alcohol and/or a controlled 

substance does not, standing alone, constitute malice.” Id. at 19 (emphasis 
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added) (quoting Packer, 168 A.3d at 170). According to Appellant, “[i]t is 

only when additional factors not present here are proved that malice can be 

found.” Id. at 24 (citations omitted). Appellant avers his convictions 

contradict established precedent, which we discuss further below. Id. at 18 

(Appellant claiming, “every precedential decision from the Pennsylvania 

Supreme Court and this Court confirm the insufficiency of the evidence as to 

malice”); see also id. at 27 (Appellant alleging the trial court, in its Pa.R.A.P. 

1925(a) opinion, “cited to no decisional law that governs facts such as these”). 

Appellant further argues, 

“Recklessness,” by its nature, requires a “conscious” disregard of 

a substantial risk. 18 Pa.C.S. § 302. Because our Supreme Court 

has made clear that knowing one is drunk and then choosing to 

drive is not sufficient to establish this mens rea, see [] Packer,

supra, there had to be something more that gave the driver[,] 

here, Appellant[,] the awareness “notice” that driving while 

inebriated that death was “essentially certain to occur.”

Appellant’s Reply Brief at 9-10 (brackets omitted); see also Appellant’s Brief 

at 25 (claiming the notice or “‘warning’ could come from the defendant’s own 

past, from the words of others, or from the circumstances of a particular case 

– it just had to be more than driving while intoxicated” alone). 

The Commonwealth counters the evidence, viewed in the light most 

favorable to it as the verdict-winner, was sufficient for the jury to find 

Appellant acted with the mens rea necessary to sustain his convictions of

third-degree murder and aggravated assault. Commonwealth Brief at 23, 30. 

The Commonwealth explains it
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is not contending that drinking and driving “standing alone” 

constitutes malice, because the caselaw clearly demonstrates

otherwise. Rather, it is the overwhelming and rampant instances 

of sustained recklessness[,] coupled with [Appellant’s] drinking 

and ignoring the risks to the victims[,] that combined to 

demonstrate malice.

Id. at 31-32. 

The Commonwealth further claims Appellant improperly “repeatedly 

attempts to impute [a] ‘notice’ or ‘warning’ requirement” to establish the mens 

rea necessary for both offenses. Id. at 49; see also id. at 46 (asserting “any 

sort of creation of a ... requirement on third parties to take affirmative and 

overt actions to stop a defendant to establish the requisite malice is irrational 

and against established caselaw.” (citations omitted)). According to the 

Commonwealth, “Appellant had repeated opportunities to stop and reflect 

upon his choices.” Id. at 45.

We begin by considering Packer, where the appellant, shortly before a

fatal vehicle crash, repeatedly “huffed” (i.e., inhaled) aerosol dust cleaner, 

which caused her to become unconscious and lose control of her car. Packer, 

168 A.3d at 163-64. Importantly, the appellant had a “history of losing 

consciousness after huffing and [] knowledge of the immediacy of the effects 

of huffing on her....” Id. at 171; see also id. (stating appellant “knew, from 

her numerous prior experiences with huffing, that the effects ... on her were 

immediate, debilitating and persisted for ten to fifteen minutes following 

inhalation.”). A jury convicted the appellant of third-degree murder and 

aggravated assault, among other offenses. Id. at 165. 
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The appellant appealed her judgment of sentence, challenging, in 

relevant part, the sufficiency of the evidence to support a finding of malice to 

sustain her convictions of third-degree murder and aggravated assault. Id.

at 165-66. This Court affirmed. Id. at 166 (citing Commonwealth v.

Packer, 146 A.3d 1281, 1285 (Pa. Super. 2016)). The appellant petitioned

for allowance of appeal, which the Pennsylvania Supreme Court granted. Id.

at 166.

Before addressing the appellant’s sufficiency challenge, the Packer

Court observed that “an impaired driver who causes the death of another does 

not typically act with the requisite malice to support convictions of thirddegree murder and aggravated assault.” Id. at 166 (citing Commonwealth

v. Kling, 731 A.2d 145, 148 (Pa. Super. 1999) (“motor vehicle crashes seldom 

give rise to proof of the malice needed to sustain a conviction for third degree 

murder or aggravated assault.”)); see also Packer, 168 A.3d at 170 (“the 

mens rea generally associated with the decision to drive under the influence 

is ordinary recklessness and does not constitute malice.”). However, the

Packer Court recognized that “each case must be analyzed on its own 

facts against the standard established by this Court.” Id. at 167-68

(emphasis added).
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Packer discussed the requisite mens rea to sustain convictions of thirddegree murder and aggravated assault:

6

[O]ur courts have consistently held that malice is present under 

circumstances where a defendant did not have an intent to kill, 

but nevertheless displayed a conscious disregard for an unjustified 

and extremely high risk that his actions might cause death or 

serious bodily harm.

Id. at 168 (citations and quotation marks omitted); see also id. at 172 

(stating the “standard for malice ... requires recklessness of consequences and 

the conscious disregard for an unjustified and extremely high risk that a 

chosen course of conduct might cause a death or serious personal injury.”). 

The Court elaborated,

[i]n the DUI context, this Court has held that the decision to drive 

while under the influence of alcohol and/or a controlled substance 

does not, standing alone, constitute malice. ... O’Hanlon, 653 

A.2d at 618. We observed that neither “ordinary negligence” nor

“mere recklessness” is sufficient to satisfy the mens rea of

aggravated assault. Id. at 617-18. Instead, we found that the

crime “requires a higher degree of culpability, i.e., that which

considers and then disregards the threat necessarily posed to

human life by the offending conduct,” and entails “an element of

deliberation or conscious disregard of danger.” Id. at 618.

For the degree of recklessness contained in the 

aggravated assault statute to occur, the offensive act must 

be performed under circumstances which almost assure 

that injury or death will ensue. The recklessness must, 

therefore, be such that life threatening injury is 

____________________________________________

6 “There is no distinction between the malice essential to third degree murder

and that necessary for aggravated assault.” Kling, 731 A.2d at 147; see also

Commonwealth v. O’Hanlon, 653 A.2d 616, 618 (Pa. 1995) (aggravated 

assault is the functional equivalent of a murder in which, for some reason, 

death fails to occur).
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essentially certain to occur. This state of mind is, accordingly, 

equivalent to that which seeks to cause injury. Id.

The O’Hanlon Court found that the requisite mens rea is 

only met in circumstances where “the defendant could reasonably 

anticipate that serious bodily injury or death would be the likely 

and logical consequence of his actions ... [but] the consequence 

was ignored.” Id.

Packer, 168 A.3d at 170 (emphasis added; formatting modified).

The Packer Court held the totality of the evidence was sufficient to 

sustain the appellant’s convictions, where she huffed “both immediately prior 

to and while operating a vehicle on a public highway”; knew from warning 

labels that “this product was not intended to be ingested”; and had a known 

history of becoming unconscious from huffing. Id. at 171. The Supreme 

Court stated,

This is not a typical case of ordinary recklessness that arises when

someone chooses to drive while intoxicated. See O’Hanlon, 653

A.2d at 618.... [Appellant] consciously disregarded an

unjustified and extremely high risk that her chosen course

of conduct might cause a death or serious bodily injury. 

See id. Because of [appellant’s] history of losing consciousness

after huffing and her knowledge of the immediacy of the effects

of huffing on her, she “could reasonably anticipate that

serious bodily injury or death would be the likely and

logical consequence of [her] actions ... [but] the

consequence was ignored.” Id.

Packer, 168 A.3d at 171 (emphasis added; some citations omitted; some 

citations modified); see also id. at 172 (“There is a significant difference 

between deciding to drive while intoxicated and deciding to drive with 

knowledge that there is a strong likelihood of becoming unconscious.”). 
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In Kling, this Court rejected the appellant’s sufficiency challenge to his 

third-degree murder and aggravated assault convictions. Kling, 731 A.2d at 

150. While the appellant was not intoxicated, we held he maliciously exhibited 

sustained recklessness prior to a fatal car crash, despite an obvious risk of 

harm to others, while “racing” another driver at a high rate of speed on a 

dangerous mountain road. Id. The Kling Court stated:

Appellant was deliberately racing his high-powered car at speeds 

of 75-80 m.p.h. on a two and one-half mile stretch of a curvy 

mountain road. He was familiar with this road, having traveled it 

two to three times per week for over a year prior to the crash. He 

passed five cautionary signs warning him to slow down around the 

treacherous curves. In spite of these warnings, appellant 

proceeded at high rates of speed and, cutting the curves in order 

to negotiate the turns, he nearly hit [a motorist] driving in the 

opposite lane of travel. Without a doubt, the aggregate of these 

circumstances plainly warned appellant his conduct was nearly 

certain to result in a serious or fatal disaster. Nevertheless, he 

consciously disregarded this awareness and continued his race for 

eight-tenths of a mile after running [a motorist] off the road. 

Illegally passing two pick-up trucks, sustaining his reckless and 

malicious conduct, appellant sped into a dangerous double blind 

curve[,] where he smashed into the victims.

Id. (emphasis added).

The Kling Court observed that motor vehicles “still outdistance firearms 

as the most dangerous instrumentality in the hands of irresponsible persons 

in our society today.” Id. Importantly, we held, “a conviction based on malice 

is appropriate where evidence demonstrates the element of sustained
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recklessness7 by a driver in the face of an obvious risk of harm to his 

victims.” Id. at 149 (footnote added; emphasis in original).

In Dunphy, the appellant drove after consuming a large amount of 

alcohol and struck and killed a pedestrian attempting to cross the street. 

Dunphy, 20 A.3d at 1216-17. This Court rejected the appellant’s sufficiency 

challenge to his third-degree murder conviction, and upheld the jury’s finding 

that he acted with the requisite malice. Id. at 1219-20. We stated, “[m]alice 

may be inferred by considering the totality of the circumstances.” Id.

at 1219 (emphasis added) (citing Commonwealth v. Thomas, 656 A.2d 

514, 516 (Pa. Super. 1995)). The Dunphy Court held malice existed under 

the totality of the circumstances, comprised of the following factors: 

• “The intoxicated condition of appellant[] and the excessive 

rate of speed he was traveling on a street where pedestrians 

were present”;

• “The absence of any testimony that there was a physical or 

climatic condition that would explain his failure to stop before 

or after the accident”; 

____________________________________________

7 Kling defined “sustained recklessness” as a pattern supported by the facts

and circumstances of the case, which exhibits

the sustained, purposeful recklessness necessary to prove a

knowing and conscious disregard that death or serious bodily

injury was reasonably certain to occur. Indeed, these

circumstances are facts which allow a [factfinder] to find the

[accused] had time and reason to calculate and reflect upon a

deadly condition taking place, such that recklessness and malice

exist.

Kling, 731 A.2d at 150 (quotation marks omitted).
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• Appellant admitted “that although he saw pedestrians in front 

of him, he speeded up to make the [red traffic] light”; and

• Appellant’s flight after striking a pedestrian.

Id. at 1219-20 (some capitalization altered). 

Finally, in Commonwealth v. Urbanski, 627 A.2d 789, 793 (Pa. Super. 

1993), this Court found the Commonwealth presented sufficient evidence to 

support the jury’s finding of malice for a third-degree murder conviction, 

where the intoxicated appellant drove and struck an oncoming vehicle, 

causing the death of the appellant’s passenger. Id. at 791, 793-94. The 

appellant drove after consuming large amounts of alcohol; appellant ignored 

his passenger’s repeated pleas to stop driving erratically; and there were no 

weather or road conditions to explain the accident. Id. at 793-94. We held 

that the appellant, under the totality of the circumstances, “was or should 

have been aware of the danger that could result from driving so fast 

and so recklessly, especially after having had so much to drink.” Id.

at 794 (emphasis added).

Instantly, the trial court found the totality of the evidence established 

the requisite malice to sustain Appellant’s third-degree murder and 

aggravated assault convictions:

Upon review of the record in this matter, this [c]ourt finds 

the evidence to be sufficient to support the jury’s finding of malice. 

The evidence established that [Appellant], a Bucks County 

resident, attended an open bar holiday party in Philadelphia after 

work the evening before the collision. Rather than taking the 

train, which was his habit when traveling back and forth from 
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work, [Appellant] chose to drive into Philadelphia. N.T., 9/16/21, 

at 49-51, 57-58, 83-84. He stayed at the party for approximately 

three hours, where he consumed vodka. Rather than proceeding 

home, he went to the public bar[,] where he remained for another 

two hours, this time drinking bourbon. Shortly after 10:00 p.m., 

approximately five hours after consuming his first drink, he 

rejected an offer of a ride home, instead choosing to go to yet 

another bar where he continued to drink. He stopped consuming 

alcohol sometime shortly before 12:18 a.m., approximately seven 

hours after he began to drink. Despite the availability of hotels 

and other transportation options, and knowing that he was 

substantially impaired, he chose to drive home. That decision 

remained unaltered even though he could not manage to get out 

of the [parking] garage without forcing his way out.

[Appellant’s] decision-making continued to 

demonstrate a conscious disregard for the safety of others. 

... On I-95, while intoxicated, he traveled without 

headlights, at high rates of speed, [and] alternated his 

speed from fast to slow. He did not use his turn signals and 

continuously changed lanes and passed other vehicles too 

closely, all of which created such a dangerous situation that two 

drivers felt compelled to take evasive action and call 911. N.T., 

9/13/21, at 138-40, 151, 153; N.T. 9/14/21, at 7, 9. At the time 

[Appellant] rear-ended the victims’ vehicle, he was driving 

at a speed of 115 mph. By his admission, [Appellant] did 

not have his eyes on the highway[,] since he was reaching 

down into a backpack on the passenger floor to retrieve his 

phone.... N.T., 9/16/21, at 81-82, 91. As a result, he did not 

apply his brakes until less than half a second before impact. 

After drinking continuously for at least six hours, 

[Appellant’s] decision to drive at extreme speeds while weaving 

through traffic on a high-speed interstate highway “is not a typical 

case of ordinary recklessness that arises when someone chooses 

to drive while intoxicated.” [] Packer, 168 A.3d at 171. To 

continue to drive in that fashion after nearly sideswiping two other 

vehicles who were forced to take evasive action demonstrates “a 

conscious disregard for ‘an unjustified and extremely high risk that 

[Appellant’s] actions might cause death or serious bodily harm.’” 

Id. at 168. Under all these circumstances, [Appellant’s]

decision to attempt to retrieve his phone ..., drawing his 

attention from the roadway for such a long time that he did 

not perceive a clearly visible vehicle in front of him and 
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failed to apply his brakes until less than half of a second 

before the collision, “brought about a situation so 

unnecessarily dangerous to human life” it all but 

“assure[d] that injury or death [would] ensue.” Id. at 170. 

Therefore, there is sufficient evidence to support the jury’s finding 

of malice.

Trial Court Opinion, 3/4/22, at 10-12 (emphasis added). 

Our review confirms the trial court’s foregoing reasoning is supported 

by the record and the law. See id. This case is factually distinct from Packer, 

wherein the appellant was intoxicated from huffing and had a history of 

becoming unconscious from huffing. See, e.g., Packer, 168 A.3d at 171-72 

(“There is a significant difference between deciding to drive while intoxicated 

and deciding to drive with knowledge that there is a strong likelihood of 

becoming unconscious.”). Nevertheless, like Packer, we conclude “[t]his is 

not a typical case of ordinary recklessness that arises when someone chooses 

to drive while intoxicated.” Id. at 171; see also id. at 167-68 (stating that 

“each case must be analyzed on its own facts”).

Moreover, upon careful review, we find the cases upon which Appellant 

relies are distinguishable. Appellant argues this case is governed by 

Commonwealth v. Comer, 716 A.2d 593 (Pa. 1998), superseded by 

statute on other grounds. See Appellant’s Brief at 22-23; Appellant’s Reply 

Brief at 6. The appellant in Comer drove while intoxicated (after consuming

alcohol8 and prescription muscle relaxers), and struck two people waiting for 

____________________________________________

8 The appellant’s BAC was 0.33%. Comer, 716 A.2d at 595. 
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a bus, killing one and seriously injuring the other. Comer, 716 A.2d at 595. 

The appellant was driving at an excess speed (approximately 10-20 mph over 

the speed limit), and his vehicle left the road after one of the tires struck a 

curb. Id. Additionally, “there was no [] evidence indicating that [a]ppellant 

quickly applied his brakes,” nor any “obstruction on the roadway at the time 

of the accident.” Id. The Comer Court held that the evidence was insufficient 

to prove the appellant acted with malice necessary to sustain his conviction of 

aggravated assault, id. at 596-97, finding that the “Commonwealth did not 

establish that [a]ppellant possessed the state of mind equivalent to that which 

seeks to cause injury.” Id. at 596. 

We find Comer distinguishable. As this Court stated in Kling: 

Unlike Comer, the crash here did not ensue immediately after

the driver became aware of his life-threatening conduct. To the 

contrary, [A]ppellant had adequate time to calculate and 

reflect upon the consequences of his reckless conduct, thus 

rendering the choice to continue it malicious.

Kling, 731 A.2d at 150 (emphasis added). 

Appellant also relies on another distinguishable case, Commonwealth

v. McHale, 858 A.2d 1209 (Pa. Super. 2004). Appellant’s Brief at 24; 

Appellant’s Reply Brief at 6-7. In McHale, the appellant drove his car after 

consuming a significant amount of alcohol, despite lacking a driver’s license 

and insurance coverage. Id. at 1211. An off-duty police officer observed the 

appellant get into his car and leave a parking spot; he “revved the engine and 

then sped through the driveway adjacent to the bar prior to turning onto the 
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road.”9 Id. Immediately thereafter, the officer watched appellant’s car 

“come into contact with a car parked on the side of the road and then collide 

with two people who had been standing near the car....” Id. The appellant

“continued to drive away from the scene over [the officer’s] shouts to stop.” 

Id. On appeal, this Court agreed with appellant that the evidence was 

insufficient to establish the malice necessary to sustain his convictions of 

aggravated assault, stating his “actions do not rise to the requisite level of

mens rea to show malice. [The appellant] was clearly negligent, but his

actions did not rise to the level of recklessness required to support a conviction

for aggravated assault.” Id. at 1214.

Appellant also relies upon Commonwealth v. Dellavecchia, 725 A.2d 

186 (Pa. Super. 1999) (en banc). Appellant’s Brief at 23; Appellant’s Reply 

Brief at 7-8. There, the appellant, who had a BAC of .194%, drove his truck 

in the parking lane of a highway, well in excess of the speed limit, and collided 

with another vehicle, causing injuries to multiple people. Id. at 187. On 

appeal, the appellant challenged the sufficiency of the evidence supporting his 

convictions for aggravated assault, claiming the mens rea element was 

absent, as his conduct was not malicious. Id. at 188. This Court agreed, 

relying primarily upon Comer, supra. Id. (“Pursuant to ... Comer, we are 

constrained to conclude that the evidence here is insufficient to establish the 

____________________________________________

9 The posted speed limit of the relevant section of road was 35 mph; the 

appellant was driving between 35 – 50 mph. McHale, 858 A.2d at 1211.
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mens rea element needed to sustain [a]ppellant’s convictions for aggravated 

assault.”). 

The Dellavecchia Court held,

[l]ike Comer, [a]ppellant drove at an excessive rate of speed over 

congested city streets, weaving in and out of traffic, prior to the 

crash. Also like the defendant in Comer, [a]ppellant was under 

the influence of intoxicating substances, as he stipulated at trial 

to the fact that he had a blood alcohol content of .194%. If

anything, the conduct in Comer was more egregious in that

Comer made no attempt to apply his brakes or reduce his speed

prior to striking the pedestrians. Comer, ... 716 A.2d at

595. Appellant, however, did apply his brakes in an effort to avoid 

impact.

As an intermediate appellate court, we are bound to apply 

the decisions of our Supreme Court absent a legally relevant 

distinction. Because the facts of this case are substantially similar 

to those presented in Comer, we conclude that the evidence was 

insufficient to establish that [a]ppellant possessed a state of mind 

equivalent to that which seeks to cause injury. We therefore

reverse [a]ppellant’s aggravated assault convictions.

Id. at 189 (citations to record and footnote omitted).

We conclude McHale and Dellavecchia, like Comer, are primarily 

distinguishable from the instant case because “the crash here did not ensue 

immediately after the driver became aware of his life-threatening conduct.” 

Kling, 731 A.2d at 150 (distinguishing Comer). To the contrary, Appellant

had ample opportunity to reflect upon and cease his reckless conduct, yet he 

persisted over a considerable period of time. See, e.g., Kling, 731 A.2d at 

150 (“appellant had adequate time to calculate and reflect upon the 

consequences of his reckless conduct, thus rendering the choice to continue it 
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malicious.”). Moreover, Appellant was speeding at an excessive rate that was 

drastically higher than the situation in Comer, McHale, and Dellavecchia. 

The evidence showed that Appellant, after drinking to excess over 

several hours, attempted to exit his parking garage, but could not operate the 

garage’s payment machine. See N.T., 9/15/21, at 182-83, 191-93; N.T., 

9/16/21, at 73-74. Appellant then damaged the gate when he forcibly opened 

it to exit. See N.T., 9/15/21, at 185; N.T., 9/16/21, at 76. Appellant’s 

difficulties in exiting the garage certainly alerted him that he was too 

intoxicated to drive safely. Yet he was not deterred.

After Appellant began driving, numerous instances alerted him that 

continuing to drive, while significantly impaired, posed an extremely high and 

unjustifiable risk to others. Indeed, Appellant violated numerous traffic laws, 

drove recklessly for nearly an hour before the collision, and narrowly avoided

hitting two other motorists on I-95 (prompting both motorists to call 911 to 

report Appellant’s hazardous driving). See N.T., 9/13/21, at 138-41, 151; 

N.T., 9/14/21, at 7, 10; N.T., 9/15/21, at 90. Appellant twice missed his 

intended exit on I-95, despite having lived in the area for six years. See N.T., 

9/15/21, at 203-04; N.T., 9/16/21, at 47, 79-81, 89-90. Immediately before

the collision, the intoxicated Appellant admittedly took his eyes off the 

road while driving over 100 mph, and reached over to the passenger-side 

floorboard to retrieve his phone. See N.T., 9/16/21, at 81-82, 91. 
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Under the totality of the circumstances, the evidence was sufficient to 

demonstrate Appellant “displayed a conscious disregard for an unjustified and 

extremely high risk that his actions might cause death or serious bodily harm.” 

Packer, 168 A.3d at 168 (citations omitted). Appellant’s extremely reckless

conduct, especially by continuing to speed excessively after two near

collisions, and taking his eyes off the road while significantly intoxicated,

“virtually guarantee[d] some manner of accident w[ould] occur through the

intentional doing of an uncalled-for act in callous disregard of its likely harmful

effects on others.” Id. at 171 (citations omitted). Appellant maliciously 

exhibited sustained recklessness over a considerable period of time

prior to the fatal crash, despite an obvious risk of harm to other motorists and 

the general public. See Kling, 731 A.2d at 149 (“a conviction based on malice 

is appropriate where evidence demonstrates the element of sustained

recklessness by a driver in the face of an obvious risk of harm to his 

victims.” (emphasis in original)).

We acknowledge this case presents a close call. Nevertheless, we 

cannot conclude that the totality of the evidence with respect to malice “is so

weak and inconclusive that, as a matter of law, no probability of fact can be

drawn from the combined circumstances.” Dunphy, 20 A.3d at 1219. We 

will not usurp the province of the jury. See Commonwealth v. Sanchez, 82 

A.3d 943, 972 (Pa. 2013) (in reviewing a sufficiency challenge, we “may not 

substitute our own judgment for the jury’s, as it is the fact-finder’s province 
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to weigh the evidence, determine the credibility of witnesses, and believe all, 

part, or none of the evidence submitted.”). Viewing the evidence, as we must, 

in the light most favorable to the Commonwealth, we conclude the record 

supports the jury’s finding that Appellant acted with the requisite malice to 

sustain his convictions of third-degree murder and aggravated assault. See

Packer, 168 A.3d at 169-71; Kling, 731 A.2d at 149-50; Urbanski, 627 A.2d 

at 793-94. Accordingly, we affirm Appellant’s judgment of sentence.

Judgment of sentence affirmed.

P.J. Panella, Judge Nichols, and Judge King join the Opinion.

Judge Stabile joins the Opinion and files a Concurring Opinion in which

P.J. Panella, Judge Murray and Judge King join.

 Judge Lazarus files a Dissenting Opinion in which Judge Dubow, Judge 

Kunselman and Judge McLaughlin join.

Date: 8/07/2024