J-S16037-24 

 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA 

 Appellant 

 v. 

BRIAN M. BLACK 

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 IN THE SUPERIOR COURT OF 

 PENNSYLVANIA 

 No. 1601 EDA 2023 

Appeal from the Order Entered May 11, 2023 

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): MC-51-CR-0017788-2022 

BEFORE: STABILE, J., LANE, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED JULY 22, 2024

 The Commonwealth of Pennsylvania appeals from the order entered by 

the Court of Common Pleas of Philadelphia County which denied its petition to 

refile charges of aggravated assault by vehicle while driving under the 

influence (DUI) and aggravated assault by vehicle against Appellee Brian M. 

Black. We reverse the trial court’s order and remand for trial. 

 Appellee was initially charged with aggravated assault by vehicle while 

DUI, aggravated assault by vehicle, DUI (general impairment), recklessly 

endangering another person (REAP), and reckless driving. These charges 

were filed in connection with an October 11, 2022 motor vehicle accident in 

which Appellee drove his car into two parked vehicles and caused extensive 

injuries to the victim, Johanna Gonzalez (“the victim”). 

____________________________________________ 

*

 Former Justice specially assigned to the Superior Court. 
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At the January 6, 2023 preliminary hearing held in the Philadelphia 

Municipal Court, the Commonwealth presented the testimony of one of the 

Philadelphia police officers that responded to the accident. The prosecution 

presented photo exhibits of the accident scene and the parties stipulated that 

Appellee’s blood test results showed he had a blood alcohol concentration 

(BAC) of .138 and 30 nanograms of cannabinoids in his system, both of which 

were above the legal limit. However, the municipal court judge dismissed all 

charges based on a lack of evidence. 

The Commonwealth then filed a motion in the Court of Common Pleas 

to refile the charges. On May 11, 2023, the trial court held a hearing at which 

the prosecution presented the notes of testimony from the preliminary 

hearing, the accident scene photos, and the parties’ stipulation to Appellee’s 

blood test results. Notes of Testimony (N.T.), 5/11/23, at 18-19. 

In addition, the Commonwealth presented the testimony of the victim 

and her boyfriend, Juan Bennett. The victim indicated that on the day in 

question, at approximately 11:35 p.m., she was standing behind Bennett’s car 

that was parked in front of their residence located at 3341 North Kensington 

Road in Philadelphia. N.T. at 5. North Kensington Road has two lanes of 

opposing traffic and bicycle lanes that separate the traffic lanes from the 

shoulder of the road where vehicles are parallel parked near the curb. Exhibit 

C-1, C-2. 

At that time, Appellee drove his vehicle into Bennett’s parked car, 

propelling it forward and pinning the victim between Bennett’s car and the 
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vehicle parked behind it. N.T. at 6. The victim testified that she sustained 

injuries to her femur, ankles, and ribs, such that she requires the use of a 

wheelchair, attends physical therapy, sees a psychiatrist, and has been unable 

to work. N.T. at 6-7. The accident also caused mental and emotional trauma 

to the victim and her son, who was six years old at that time and witnessed 

the accident. N.T. at 7. 

Bennett testified that at the time of the accident, he was on the sidewalk 

and the victim was getting something out of the trunk of his vehicle. N.T. at 

9-13. Bennett claimed that Appellee’s vehicle crossed the opposing lane of 

traffic on Kensington Avenue and hit his truck which was parked on the other 

side of the street. N.T. at 15. Bennett indicated that there was no traffic at 

that time and there were no other cars on the road beside the vehicles parked 

on the side of the street. N.T. at 14-15. 

Bennett indicated that he rushed over to Appellee’s car as Appellee 

appeared to be asleep at the wheel and had not removed his foot from the 

gas pedal even after the vehicle had crashed. N.T. at 11. Bennett attempted 

to wake Appellee up, but Appellee did not respond. N.T. at 11, A crowd 

gathered around Appellee’s vehicle and an unidentified individual removed 

Appellee’s foot from the gas pedal. N.T. at 11. 

When Appellee eventually awoke or regained consciousness, he was 

combative and disoriented as he accused Bennett of hitting his car and asked 

“Why y’all’s car in the middle of the street?” N.T. at 11. Despite Bennett’s 

efforts to try to explain that Appellee had caused the accident, Appellee kept 
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asking to talk to the police. N.T. at 11-12. Bennett remained with Appellee 

until the police arrived. 

 At the conclusion of the hearing, the trial court granted the 

Commonwealth’s request to reinstate the charges of DUI, reckless driving, 

and REAP, but denied the Commonwealth’s motion to reinstate the charges of 

aggravated assault by vehicle while DUI and aggravated assault by vehicle. 

The Commonwealth filed a timely appeal, certifying that the trial court’s 

order substantially handicaps and/or effectively terminates prosecution of 

Appellee on the specified charges.1,2 The Commonwealth complied with the 

trial court’s direction to file a concise statement of errors complained of on 

appeal pursuant to Pa.R.A.P. 1925(b). 

The Commonwealth presents the following issues for our review: 

____________________________________________ 

1

 The Commonwealth indicated in its notice of appeal that the trial court’s 

order denying its request to reinstate the relevant charges was “presently 

unavailable.” Pennsylvania Rule of Appellate Procedure 301 (“Requisites of 

an Appealable Order”) provides that generally “no order of a court shall be 

appealable until it has been entered upon the appropriate docket in the trial 

court.” Pa.R.A.P. 301(a)(1). Rule 301 also specifically requires that “[e]very 

order shall be set forth on a separate document.” Pa.R.A.P. 301(b). 

As a result, we remanded this case with directions for the trial court to 

ensure that the certified record was complete with a copy of the order denying 

the Commonwealth’s request to refile the applicable charges. The trial court 

submitted a supplemental certified record to comply with this Court’s order. 

2 This challenge to the trial court’s order denying the prosecution’s request to 

refile the relevant charges is an interlocutory appeal as of right pursuant to

Pa.R.A.P. 311(d). See also Commonwealth v. Free, 902 A.2d 565 

(Pa.Super. 2006) (citing Commonwealth v. Karetny, 880 A.2d 505, 513 

(Pa. 2005) (concluding that “the Commonwealth is entitled to appeal from an 

order quashing some, but not all, of the charges filed against a criminal 

defendant”). 
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Did the lower court err in ruling that the evidence was 

insufficient to establish a prima facie case that [Appellee] 

committed aggravated assault by vehicle while DUI and 

aggravated assault by vehicle, where the evidence showed that 

[Appellee], while above the legal limit for alcohol and under the 

influence of marijuana, drove his car into the opposite lane of 

traffic and hit a parked car, and then kept his foot on the gas 

pedal following the crash, all of which caused the victim’s 

multiple, serious injuries? 

Commonwealth’s Brief, at 3. 

Our standard of review is as follows: 

“In reviewing a trial court's order granting a defendant's petition 

for writ of habeas corpus, we must generally consider whether the 

record supports the trial court's findings, and whether the 

inferences and legal conclusions drawn from those findings are 

free from error.” Commonwealth v. Hilliard, 172 A.3d 5, 10 

(Pa.Super. 2017) (internal citations and quotation marks 

omitted). Further, “the evidentiary sufficiency, or lack thereof, of 

the Commonwealth's prima facie case for a charged crime is a 

question of law,” and the appellate court's review is plenary. 

Commonwealth v. Karetny, 583 Pa. 514, 528, 880 A.2d 505, 

513 (2005). 

Commonwealth v. Little, 305 A.3d 38, 43–44 (Pa.Super. 2023). 

 Our courts have held that: 

[t]he basic principles of law with respect to the purpose of a 

preliminary hearing are well established. The preliminary hearing 

is not a trial. The principal function of a preliminary hearing is to 

protect an individual's right against an unlawful arrest and 

detention. ... At this hearing the Commonwealth bears the burden 

of establishing at least a prima facie case that a crime has been 

committed and that the accused is probably the one who 

committed it. 

Commonwealth v. Perez, 249 A.3d 1092, 1102–1103 (Pa. 2021) (quoting 

Commonwealth v. McBride, 595 A.2d 589, 591 (Pa. 1991) (citation 

omitted) (emphasis in original)). 
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The Commonwealth establishes a prima facie case when it 

produces evidence that, if accepted as true, would warrant the 

trial judge to allow the case to go to a jury. [T]he Commonwealth 

need not prove the elements of the crime beyond a reasonable 

doubt; rather, the prima facie standard requires evidence of the 

existence of each and every element of the crime charged. 

Moreover, the weight and credibility of the evidence are not 

factors at this stage, and the Commonwealth need only 

demonstrate sufficient probable cause to believe the person 

charged has committed the offense. Inferences reasonably drawn 

from the evidence of record which would support a verdict of guilty 

are to be given effect, and the evidence must be read in the light 

most favorable to the Commonwealth's case. 

Little, 305 A.3d at 45 (quoting Commonwealth v. Marti, 779 A.2d 1177, 

1180 (Pa.Super. 2001) (internal citations and quotation marks omitted)). “A 

judge at a preliminary hearing is not required, nor is he authorized to 

determine the guilt or innocence of an accused; his sole function is to 

determine whether probable cause exists to require an accused to stand trial 

on the charges contained in the complaint.” Perez, 249 A.3d at 1102. 

First, the Commonwealth claims the trial court erred in denying its 

request to refile the charge of aggravated assault by vehicle while DUI when 

the prosecution had presented a prima facie case of Appellee’s guilt.3 

Specifically, the Commonwealth asserts that the trial court incorrectly 

determined that the prosecution failed to present evidence that Appellee acted 

with the required mens rea of criminal negligence and that the accident was 

caused by Appellee’s consumption of alcohol or marijuana. 

____________________________________________ 

3

 Defense counsel, the Defender Association of Philadelphia, did not present 

any argument in its brief, to challenge the Commonwealth’s assertion that the 

dismissal of the aggravated assault by vehicle while DUI charge was improper. 
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The Motor Vehicle Code relevantly provides as follows: 

§ 3735.1. Aggravated assault by vehicle while driving 

under the influence 

(a) Offense defined.—Any person who negligently causes serious 

bodily injury to another person as the result of a violation of 

section 3802 (relating to driving under the influence of alcohol or 

controlled substance) and who is convicted of violating section 

3802 commits a felony of the second degree when the violation is 

the cause of the injury. 

75 Pa.C.S.A. § 3735.1(a) (bold in original). 

Thus, in order to sustain a conviction for aggravated assault by vehicle 

while DUI, the Commonwealth must show that the defendant negligently 

caused serious bodily injury to another individual as result of a DUI related 

offense. 75 Pa.C.S.A. § 3735.1(a). The Crimes Code defines negligence as a 

mens rea exhibited “when [a person] should be aware of a substantial and 

unjustifiable risk ... [that is] of such a nature and degree that the actor's 

failure to perceive it ... involves a gross deviation from the standard of care 

that a reasonable person would observe in that actor's situation.” 18 

Pa.C.S.A. § 302(b)(4) (emphasis added). 

 In this case, the trial court concluded that there was “no evidence that 

[Appellee] caused the accident through a gross deviation from a standard of 

care.” Trial Court Opinion (T.C.O.), date at 6. The trial court reasoned that: 

[n]either [the victim] nor Bennet[t] saw the manner in which 

Black operated his motor vehicle before the impact. Bennet[t] 

first became aware of the accident when he heard the collision 

with the first car. There was no evidence as to the manner of 

Black’s operation of the motor vehicle prior to the collision such 

as driving at a high rate of speed, swerving into the opposite lane 

or disregarding stop signs, red lights or other indicia of erratic 
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driving. The evidence that was presented when viewed in a light 

most favorable to the Commonwealth, indicated that [Appellee] 

crossed into the opposite lane of travel, striking parked vehicles, 

and that he was “asleep” or unconscious after the collisions. This 

court cannot speculate as to the cause of the accident or that the 

consumption of alcohol or cannabis caused [Appellee’s] 

unconsciousness. It is equally likely that the collision caused his 

unconsciousness. The Commonwealth failed to present evidence 

that [Appellee’s] consumption of alcohol or the presence of 

cannabinoids was the cause of the accident and [the victim’s] 

injuries. 

T.C.O. at 6-7. 

 First, we do not agree with the trial court’s determination that no one 

witnessed Appellee driving erratically. Bennett testified several times that he 

observed Appellee’s vehicle cross into the opposing lane and hit the parked 

cars. The trial court placed emphasis on the fact that on cross-examination, 

when defense counsel asked Bennett if his back was turned to oncoming 

traffic, Bennett said “yeah.” N.T. at 13. However, the following exchange 

occurred when Bennett was asked to clarify if he saw the accident happen: 

[Trial court:] Sir, did you actually see [Appellee] operating the 

vehicle? 

[Bennett:] Yeah. Her [sic] was behind the wheel and his foot was 

still on the pedal, and my girlfriend was pinned between two cars. 

[Trial court:] And how far away were you when you saw this? 

[Bennett:] How far? I was, like, maybe from here to where the 

DA is. 

[Trial court to defense counsel:] Any other questions based on 

that? 

[Defense counsel:] Yes, Your Honor. When you first became 

aware of the accident, it was because you heard the noise; is that 

correct? 
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[Bennett:] (nodding) 

[Defense counsel:] Answer audibly, please. 

[Bennett:] Yes. 

[Defense counsel:] And then at that point, you turned to observe 

who -- 

[Bennett:] No. I’m standing right there and I could see 

everything. All I seen was him coming down, boom, boom, boom. 

First I checked on my girlfriend. She looked like she was dead. 

That was scary. Then I went all around, and my truck -- 

[Trial court:] Sir, just answer the question. Did you actually see 

[Appellee] driving prior to the impact with your girlfriend[?] 

[Bennett:] I seen him hit my truck, yes. 

N.T. at 16 (emphasis added). As the trial court was required to view the 

evidence in the light most favorable to the Commonwealth, the trial court 

should have accepted Bennett’s testimony that he did witness Appellee’s 

driving before the impact. 

Second, we disagree with the trial court’s finding that the 

Commonwealth failed to present a prima facie case that Appellee was 

criminally negligent. While the trial court noted that the evidence did not 

clearly show whether Appellee was asleep before the accident or whether the 

collision caused his unconsciousness, we do not find this distinction to be 

controlling. 

To the extent that the evidence shows that Appellee was conscious at 

the time of impact, this Court has found that driving a vehicle on the wrong 

side of the roadway is sufficient to permit an inference of criminal negligence. 

Commonwealth v. Eichelberger, 528 A.2d 230, 232 (Pa.Super. 1987). In 
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Eichelberger, this Court found that there was sufficient evidence to show the 

defendant acted with negligence when his vehicle crossed the center line of 

the roadway and collided with oncoming vehicles. Id. This Court noted that 

the factfinder was free to consider the defendant’s alcohol consumption and 

lack of sleep in determining whether he was guilty of criminal negligence. Id. 

To the extent that the evidence shows Appellee was asleep or 

unconscious at the time of impact, our courts have “deemed the act of falling 

asleep at the wheel alone to be enough to raise a jury question of negligence 

in the tort arena.” Commonwealth v. Huggins, 836 A.2d 862, 869 (Pa. 

2003). 

A motor vehicle can be a dangerous instrumentality. Driving is a 

correspondingly heavily regulated privilege, both as to licensure 

and the rules of the road, the regulation being a necessary 

concomitant of the dangers to self and others inherent in driving. 

The danger increases with the speed at which a vehicle is 

operated, since speed both reduces reaction times and heightens 

the consequences of any collision. The danger also may increase 

if other safety measures are ignored-whether those measures 

involve vehicle maintenance, internal safety features such as 

seating capacity or restraints, or the rules of the road. No driver 

can get behind the wheel without an acute awareness of the 

“responsible post of duty,” he is assuming. 

Losing consciousness at the wheel differs in kind from the acts of 

momentary inadvertence or inattention that often occasion car 

accidents and are commonly encompassed in the term 

“negligence” in the tort arena. A momentary lapse leaves the 

driver unprepared for the unexpected or extraordinary. A loss of 

consciousness, on the other hand, leaves one totally unprepared 

even for the ordinary requirements for safe driving. Drivers have 

an unflagging duty either to remain vigilant and awake or to 

immediately desist from driving. 

Id. (quoting Bernosky v. Greff, 38 A.2d 35, 36 (Pa. 1944)). 
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 In finding that evidence that a driver fell asleep at the wheel is sufficient 

to support an inference of prima facie negligence, our Supreme Court has 

recognized that it is “common knowledge that sleep is preceded by some 

internal warning.” Huggins, 836 A.2d at 869. 

Any individual who falls asleep naturally, does so either willingly 

or through exhaustion. If he falls asleep willingly while driving an 

automobile he is, of course, negligent. If he drives an automobile 

while he is in such a state of exhaustion that he falls asleep though 

he does not will to do so, he is equally negligent, for he is 

chargeable with knowledge that an individual in a state of 

exhaustion is likely to fall asleep. 

In a normal human being sleep does not come without warning. 

Before sleep there is drowsiness and before drowsiness there is 

usually great fatigue or at least a desire to sleep. Human affairs 

would be in a precarious state if locomotive engineers, aviators, 

chauffeurs, motormen and others in charge of machinery in 

motion were liable to “fall asleep” at any time without first 

becoming consciously aware of sleep's approach and taking 

immediate steps to bring to a stop the mechanism under their 

control or placing it in the hands of one who is completely awake 

and alert. The Creator wisely provided that sleep does not come 

upon human beings unannounced. Therefore when a driver of an 

automobile falls asleep while driving, it is a legitimate inference 

that he was negligent either (1) in permitting himself to fall asleep 

while at such a responsible post of duty, or (2) if he possessed no 

such will power as would enable him to keep awake under the 

circumstances in not ceasing to drive the vehicle. 

Id. at 869–70 (quoting Bernosky, 38 A.2d at 36). 

In this case, Appellee chose to operate his vehicle while under the 

influence of alcohol and drugs, drove into the opposing lane of traffic, hit two 

parked cars on the other side of the road, and never took his foot off the gas 

pedal. There is also evidence to allow the factfinder to infer that Appellee may 

have fallen asleep or lost consciousness before the accident. The parties 
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stipulated to Appellee’s blood test results revealed a BAC of .138 and 30 

nanograms of cannabinoids, both of which were above the legal limit. 

At a minimum, the record demonstrates Appellee acted with criminal 

negligence; however, as discussed infra, in our analysis of the non-DUI 

aggravated assault by vehicle charge, the evidence also supports an inference 

of recklessness, which is a higher level of culpability than criminal negligence. 

 Further, while the trial court determined that it could not speculate to 

the cause of the accident, it was not required to do so. The undisputed 

evidence would allow a factfinder to reasonably conclude that Appellee was 

intoxicated to the point that either he fell asleep or was so impaired that he 

crossed into the opposing lane of traffic and hit parked cars on the berm of 

the road without ever applying his brakes. In addition, there was no evidence 

that any other driver contributed to the crash or that road or weather 

conditions presented driving hazards. 

We conclude that that the Commonwealth did present a prima facie case 

that Appellee negligently caused the accident and the victim’s extensive 

injuries as a result of his driving under the influence of alcohol or marijuana.4 

As such, the trial court erred in denying the Commonwealth’s request to refile 

the charge of aggravated assault by vehicle while DUI. 

Similarly, the Commonwealth claims the trial court erred in refusing to 

allow it to refile the charges of aggravated assault by vehicle when the 

____________________________________________ 

4

 The trial court did not find that the Commonwealth failed to meet its burden 

to show that Appellee caused the victim serious bodily injury. 
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prosecution had properly presented a prima facie case of Appellee’s guilt on 

this charge. Specifically, the Commonwealth asserts that the trial court 

incorrectly determined that the prosecution failed to present evidence that 

Appellee acted with the required mens rea of recklessness. The Motor Vehicle 

Code relevantly provides as follows: 

§ 3732.1. Aggravated assault by vehicle 

(a) Offense. -- Any person who recklessly or with gross 

negligence causes serious bodily injury to another person while 

engaged in the violation of any law of this Commonwealth or 

municipal ordinance applying to the operation or use of a vehicle 

or to the regulation of traffic, except section 3802 (relating to 

driving under influence of alcohol or controlled substance), is 

guilty of aggravated assault by vehicle, a felony of the third degree 

when the violation is the cause of the injury. 

75 Pa.C.S.A. § 3732.1(a). 

The Crimes Code defines the culpability for recklessness as follows: 

A person acts recklessly with respect to a material element of an 

offense when he consciously disregards a substantial and 

unjustifiable risk that the material element exists or will result 

from his conduct. The risk must be of such a nature and degree 

that, considering the nature and intent of the actor's conduct and 

the circumstances known to him, its disregard involves a gross 

deviation from the standard of conduct that a reasonable person 

would observe in the actor's situation. 

18 Pa.C.S.A. § 302(b)(3) (emphasis added). Our courts have clarified that 

the “concept of gross negligence is encompassed within the concept of 

recklessness as set forth in Section 302(b)(3).” Commonwealth v. Karner, 

193 A.3d 986, 992 (Pa.Super. 2018) (citing Commonwealth v. Huggins, 86 

A.2d 862, 868 (Pa. 2003) (generally indicating that “grossly negligent” is 

equivalent state of mind to “recklessness”)). 
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To the extent that the evidence shows that Appellant was awake when 

he caused the accident, this Court has held that driving in the opposite lane 

of traffic may sufficiently establish the mens rea of recklessness. In 

Commonwealth v. Smoker, 203 A.2d 358, 360 (Pa.Super. 1964), this Court 

determined that the jury was justified in inferring that the defendant acted 

recklessly when he drove on the wrong side of the road without any visible 

reason or compulsion to do so and caused a deadly head-on collision. This 

Court noted that “[n]othing appeared in the evidence to show that he was 

forced off the road, that he was faced with a sudden emergency or that any 

other fact existed which might have relieved him of responsibility.” Id. See 

also Commonwealth v. Setsodi, 450 A.2d 29, 32 (Pa.Super. 1982) (finding 

that defendant’s failure to observe approaching vehicles in opposing lane of 

traffic before making a left turn into a private driveway may have constituted 

recklessness or criminal negligence in supporting a prima facie case of 

involuntary manslaughter). 

We also note that a defendant’s failure to apply the brakes of his vehicle 

or to attempt to avoid an accident is an additional factor to support an 

inference of recklessness. This Court has concluded that “a motorist's conduct 

is more egregious if he does not apply his brakes or attempt to slow down 

before a collision than if he attempts to stop.” Commonwealth v. Miller, 

955 A.2d 419, 423 (Pa.Super. 2008) (citing Commonwealth v. 

Dellavecchia, 725 A.2d 186, 189 (Pa.Super. 1998)). 
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We acknowledge the trial court relied on this Court’s precedent in 

Karner which suggests that the commission of a summary offense under the 

Vehicle Code alone does not, by itself, establish the mens rea of recklessness. 

See Commonwealth v. Karner, 193 A.3d 986, 993 (Pa.Super. 2018). 

However, we agree with the Commonwealth that the factual circumstances in 

Karner can be distinguished from the instant case. 

In Karner, this Court concluded that the trial court did not err in finding 

the Commonwealth failed to present a prima facie case of evidence of Karner’s 

recklessness or gross negligence to support charges of non-DUI homicide by 

vehicle and non-DUI aggravated assault by vehicle. The arresting officer 

suspected Karner was under the influence of Xanax at the time he ran into the 

back of a vehicle containing two victims, one of which sustained severe injuries 

and the other died. This Court noted that the victims’ vehicle was traveling 

at a substantially reduced speed of nearly 20 miles per hour below the speed 

limit, which also could have contributed to the collision. This Court noted that 

while Karner was traveling 8-12 miles per hour over the speed limit, this speed 

limit violation in that area was not reckless or grossly negligent. 

In comparison, in this case, the prosecution presented evidence that 

Appellee had committed more than just a simple traffic violation. It is 

undisputed that before the crash, Appellee drove across the opposing lane of 

traffic where there were no cars coming toward him and collided with two 

parked cars while Appellee’s gas pedal was fully engaged. The record contains 
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no evidence of any circumstances that Appellee had any reason or compulsion 

to leave his lane of traffic. 

Further, as noted above, even assuming that Appellee fell asleep before 

the accident occurred, such conduct can also be probative of recklessness. 

“[B]y continuing to drive after receiving the warning signs of sleep, a person 

does indeed consciously disregard a substantial risk of death on our highways. 

The risk of death posed by a sleeping driver of an automobile is obvious. It is 

a risk that any driver must appreciate before getting behind the wheel or 

continuing to drive.” Huggins, 836 A.2d at 870. 

In Huggins, our Supreme Court reversed the dismissal of a defendant’s 

charge of involuntary manslaughter and found that the trial court erred in 

determining that the Commonwealth failed to establish a prima facie case of 

recklessness. In that case, the defendant was driving a fifteen-passenger van 

containing twenty-one children and three adults, none of whom were wearing 

seatbelts. Id. at 863. The defendant was traveling approximately twentytwo m.p.h. over the speed limit when he admittedly fell asleep at the wheel 

and awoke just before the van collided with the back end of another vehicle, 

causing his van to flip and come to rest on the passenger side. Id. Two 

children were killed in the accident and several others required medical care 

for their injuries at a hospital. Id. 

The Supreme Court emphasized that it did not need to consider whether 

the act of falling asleep while driving may alone constitute recklessness as 

there were additional factors that revealed the defendant consciously 
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disregarded a serious risk which was a gross deviation from the standard of 

care a reasonable person would observe under the circumstances. Id. at 870. 

The Supreme Court noted that the defendant was responsible for driving a 

van full of children which would cause a reasonable person to be “extracautious.” Id. In spite of these circumstances, the defendant did not act 

cautiously in filling the van to overcapacity with children who were not secured 

with safety belts, choosing to speed excessively, and allowing himself to fall 

asleep. Id. The Supreme Court concluded that “viewed in their totality, the 

circumstances [] reveal[ed] a pattern of conscious disregard for circumstances 

that placed the lives of these children in increasing danger.” Id. at 871. 

In Commonwealth v. Pedota, 64 A.3d 634 (Pa.Super. 2013), this 

Court affirmed the judgment of sentence of a defendant who was convicted of 

involuntary manslaughter and homicide by vehicle in connection with the 

deadly accident the defendant caused after he admittedly fell asleep while 

driving a tractor-trailer. This Court determined that the defendant’s 

“stipulation to having fallen asleep while driving an eighteen-wheel tractortrailer along busy Interstate 78 supplied evidence of the gross negligence or 

recklessness required to convict in this case.” Id. at 640. As a result, the 

Supreme Court reasoned that it was the defendant’s burden to “rebut this 

proof with evidence that the classic signs of sleep eluded him so as to deprive 

him of the opportunity to stop his truck safely before sleep began.” Id. This 

Court in Pedota clarified that 
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so long as the evidence shows a driver fell asleep and caused 

death amidst circumstances demonstrating a reckless disregard of 

human life, these signs will be implied and the Commonwealth will 

have met its burden of proof as a matter of law. The burden of 

production then shifts to the defendant driver to appeal to the 

finder of fact that he was deprived of both warning signs and an 

opportunity to act on them. 

Id. at 640–41. 

In the instant case, the trial court never considered that the fact that 

Appellee fell asleep while driving could have been probative of recklessness. 

However, the Commonwealth presented evidence of Appellee’s conduct that 

would sustain an inference of recklessness as Appellee’s intoxication at the 

time of the collision suggested that he had knowledge of an increased 

likelihood of the sudden onset of sleep. A factfinder could determine that 

Appellee did not merely fall asleep, but demonstrated that he had knowledge 

that he was likely to fall asleep due to his intoxication and was on notice of 

the danger this conduct posed to nearby drivers and bystanders. The warning 

that Appellee was likely to fall sleep would have given Appellee the opportunity 

to stop driving to prevent the potential harm that could result from his 

conduct. 

Appellee’s decision to drive, despite having notice that he would likely 

fall asleep due to his intoxication, demonstrated a conscious disregard of the 

danger of causing a collision, injury, and even death. Appellant’s disregard of 

this danger resulted in extensive injuries to the victim, a bystander who was 

unexpectedly and forcefully pinned between two vehicles from the impact of 

the crash. We find that the Commonwealth met its burden to show that the 
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instant circumstances would allow a factfinder to determine that Appellee 

disregarded a substantial and unjustifiable risk which constituted “a gross 

deviation from the standard of conduct that a reasonable person would 

observe in the actor's situation.” 18 Pa.C.S.A. § 302(b)(3). Accordingly, we 

conclude that the Commonwealth presented a prima facie case of aggravated 

assault by vehicle to allow the charge to go to trial. 

For the foregoing reasons, we reverse the trial court’s order, reinstate 

the charges of aggravated assault by vehicle while DUI and aggravated assault 

by vehicle, and remand for further proceedings consistent with this decision. 

Jurisdiction is relinquished. 

Date: 7/22/2024