J-A27021-18

2020 PA Super 20

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellee

v.

KATRINA A. SANDERS

Appellant No. 3562 EDA 2017

Appeal from the Judgment of Sentence imposed July 17, 2017

In the Court of Common Pleas of Montgomery County

Criminal Division at No: CP-46-CR-0003929-2016

BEFORE: BOWES, STABILE, and McLAUGHLIN, JJ.

OPINION BY STABILE, J.: FILED FEBRUARY 3, 2020

Appellant, Katrina A. Sanders, a bus driver, appeals from her judgment 

of sentence of five years’ probation for homicide by vehicle, careless driving, 

careless driving-unintentional death, failure to yield the right-of-way, and

improper turning movement.

1 While driving a bus in the scope of her 

employment with Southeastern Pennsylvania Transportation Authority

(“SEPTA”), Appellant struck and killed a 93-year-old pedestrian as he crossed 

the street. We hold that the evidence is insufficient to sustain Appellant’s 

conviction for homicide by vehicle because the evidence does not support a 

finding of recklessness or gross negligence. Accordingly, we reverse 

Appellant’s conviction for homicide by vehicle and remand for resentencing on 

all remaining convictions.

____________________________________________

1 75 Pa.C.S.A. §§ 3732, 3714(a), 3714(b), 3112, and 3334, respectively.
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The trial court recounted the evidence as follows:

On April 2, 2016, Officer Floriendo of the Cheltenham Police 

Department responded to the report of a fatal accident at the 

intersection of Glenside Avenue and Limekiln Pike in Cheltenham, 

Montgomery County. Upon arriving at the scene, the officer 

observed the ninety-three year old victim underneath []a SEPTA 

bus. Another motorist, who was behind the SEPTA bus in the 

westbound lane of Glenside Avenue at the time of the accident, 

testified that as the bus began to make a left-hand turn onto 

Limekiln Pike, she observed an elderly man begin to cross Limekiln 

Pike from west to east. The man put his hand up, and then 

vanished from her sight. She testified that the bus was making a

slow, methodical turn. While she was stopped at the light, prior 

to the bus moving, she did not see the man standing on the 

corner.

Officer Joseph Morrisey, Jr., was in charge of the investigation and 

of the crash scene. Morrisey also testified as an expert in crash

reconstruction. On the day of the accident, he observed the victim

under the SEPTA bus. He testified that in the area of the crash, 

Limekiln Pike runs north and sou[th], and Glenside Avenue runs 

east and west. The intersection of these roads is controlled by a 

traffic signal and there are four designated, marked crosswalks. 

He was present for the autopsy of the victim, which indicated that 

the 93 year old man died of multiple injuries to the trunk and 

related fractures. Morrisey was present for a mechanical 

inspection of the bus, which revealed no defects or issues that 

could have contributed to the crash. As a result of his 

investigation, Officer Morrisey determined that speed, roadway

conditions, weather, or obstructed vision were not contributing 

factors in the crash. 

Officer Morrisey reviewed the Rules Manual for the Surface

Transportation and Bus Division from SEPTA, as well and 

surveillance video taken from inside of the bus. The surveillance 

video, which depicts the driver’s view looking out the front 

windshield of the bus as well as a view of the driver taken from 

behind, shows [Appellant] picking up and looking at papers as she 

is stopped at the light. As a result of this distraction, she stopped 

over the white stop line, in the crosswalk. As a result, Officer 

Morrisey opined, she may not have been able to see the victim on 

the diagonal corner waiting to cross. The video shows that 
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[Appellant] had an unobstructed view of the intersection for 45 

seconds, at which time the victim is visible in the video. During 

those 45 seconds, [Appellant] was preoccupied with the papers in 

her hand and did not scan the intersection for pedestrians or other 

traffic hazards. At the time she begins the turn, there are no other 

vehicles or pedestrians in the intersection. Before beginning her 

turn, [Appellant] hesitated approximately 2.33 seconds, in 

contravention of SEPTA’s policy requiring drivers to wait a full four

seconds before entering an intersection. Additionally, she turns 

the wheel with one hand instead of two, while still holding the 

route paperwork. The victim was in the crosswalk for 

approximately 6.75 seconds before being struck and made it 

approximately 32 feet across the intersection. Officer Morrisey 

was able to determine this by examining the tire marks and body 

slide marks leading to the bus’s final stop which indicated that 

[Appellant] applied the brakes after she struck the victim. The 

pedestrian had the right of way. Officer Morrisey testified that in 

his expert opinion, [Appellant] operated her bus in a reckless, 

careless and negligent manner, which caused the crash. 

[Appellant] testified at trial. She testified that she had been 

driving for SEPTA for approximately 18 years. She had experience 

driving an articulating bus off and on for nine years. The day of 

the crash, she was shuttling passengers between Regional Rail 

stations. This was her first time on that route. At the end of her 

route, all passengers disembarked at Glenside station and she was 

required to travel down Glenside Avenue and make a left onto 

Limekiln Pike to get back on the route and return the bus to 

Midvale station. The designated route was outlined in the 

paperwork she can be seen reading in the surveillance video. She 

testified that when she reached the intersection, she looked at the 

corner and didn’t see anyone so she began to read the instructions 

for the route. If she did not follow the designated route, she would 

be considered off-route, which could lead to termination. When 

the light turned green, she looked left, forward and right before 

moving to make sure there was no oncoming traffic. She did not 

see the victim at any point prior to moving. At the time of impact, 

she was travelling approximately 8 miles per hour. She testified 

that as a professional driver, especially of a tandem bus, there is 

a significant risk of hitting another vehicle or a pedestrian, causing 

damage or injury. 

Following a bench trial, [Appellant] was convicted of Homicide by

Vehicle, Careless Driving, Careless Driving-Unintentional Death, 
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Improper Movement and Failure to Signal. The Court found her 

not guilty of Improper Left Turn and Reckless Driving.

Trial Ct. Op., 5/29/18, at 1-5 (citations and footnotes omitted). On July 7, 

2017, the trial court sentenced Appellant to five years’ probation. Following 

sentencing, Appellant filed timely post-sentence motions, which the trial court 

denied. Appellant filed a timely notice of appeal, and both Appellant and the 

trial court complied with Pa.R.A.P. 1925. 

Appellant raises three issues in this appeal, but we find dispositive her 

challenge to the sufficiency of the evidence of her conviction for homicide by 

vehicle. In reviewing the sufficiency of the evidence, we must determine 

whether the evidence admitted at trial and all reasonable inferences drawn 

therefrom, viewed in the light most favorable to the Commonwealth as verdict 

winner, were sufficient to prove every element of the offense beyond a 

reasonable doubt. Commonwealth v. Diamond, 83 A.3d 119, 126 (Pa. 

2013). “[T]he facts and circumstances established by the Commonwealth 

need not preclude every possibility of innocence.” Commonwealth v. ColonPlaza, 136 A.3d 521, 525–26 (Pa. Super. 2016). It is within the province of 

the fact-finder to determine the weight to be accorded to each witness’s 

testimony and to believe all, part, or none of the evidence. Commonwealth 

v. Tejada, 107 A.3d 788, 792–93 (Pa. Super. 2015). The Commonwealth 

may sustain its burden of proving every element of the crime by means of 

wholly circumstantial evidence. Commonwealth v. Crosley, 180 A.3d 761, 

767 (Pa. Super. 2018). As an appellate court, we may not re-weigh the 
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evidence and substitute our judgment for that of the fact-finder. 

Commonwealth v. Rogal, 120 A.3d 994, 1001 (Pa. Super. 2015).

The Vehicle Code defines homicide by vehicle as follows:

Any person who recklessly or with gross negligence causes the 

death of 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 homicide by vehicle, a felony of 

the third degree, when the violation is the cause of death.

75 Pa.C.S.A. § 3732(a). To prove this offense, the Commonwealth must prove 

beyond a reasonable doubt that the defendant violated a provision of the

Motor Vehicle Code, and that this violation was a cause of the victim’s death. 

Commonwealth v. Cheatham, 615 A.2d 802, 804-05 (Pa. Super. 1992).

Causation occurs when the Motor Vehicle Code violation is a direct and 

substantial factor in the victim’s death, and the fatal result is not extraordinary 

or remote. Commonwealth v. Rementer, 598 A.2d 1300, 1306 (Pa. Super. 

1991). 

Further, and of significance, the defendant’s conduct must either be 

reckless or grossly negligent. 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.
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18 Pa.C.S.A. § 302(b)(3). Gross negligence is not the equivalent of criminal 

negligence set forth in 18 Pa.C.S.A. § 302(b)(4). Instead, “the concept of 

gross negligence is encompassed within the concept of recklessness set forth 

in Section 302(b)(3).” Commonwealth v. Matroni, 923 A.2d 444, 448 (Pa. 

Super. 2007). Thus, recklessness “implicates knowledge in two ways: (1) the 

actor must consciously (i.e., with knowledge) disregard a substantial and 

unjustifiable risk; and (2) the risk that the actor disregards is measured by 

the circumstances known to the actor.” Commonwealth v. Sittler, 144 A.3d 

156, 164 (Pa. Super. 2016). “Conscious disregard” of a risk, in turn, “involves 

first becoming aware of the risk and then choosing to proceed in spite of the 

risk.” Commonwealth v. Huggins, 836 A.2d 862, 865 (Pa. 2003). See 

also Commonwealth v. Vogelsong, 90 A.3d 717, 719 (Pa. Super. 2014)

(recklessness requires conscious action or inaction that creates substantial 

risk of harm to others, whereas negligence suggests unconscious 

inadvertence). In other words, to be guilty of reckless driving, a person must 

be aware that there exists a substantial risk that injury will result from their 

driving and yet continue to drive in such a manner callously disregarding the 

risk created by their own reckless driving. Commonwealth v. Bullick, 830 

A.2d 998 (Pa. Super. 2003).

As these definitions make clear, homicide by vehicle does not apply to 

most vehicle fatalities, tragic though they all are. To lose sight of this truth is 

to risk “blur[ring] the lines of criminal liability based upon negligence, ordinary 
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recklessness and the form of recklessness encompassed in malice, that 

reflects extreme indifference to the value of human life.” Commonwealth v. 

Moyer, 171 A.3d 849, 854 (Pa. Super. 2017). 

In the present case, the evidence, viewed in the light most favorable to 

the Commonwealth, satisfies the first element of homicide by vehicle, violation 

of a provision of the Vehicle Code. The record establishes that Appellant 

violated multiple Vehicle Code provisions: failure to yield the right of way, 

improper turning movement and two subsections of the careless driving 

statute.

Section 3112, relating to traffic-control signals, provides in relevant 

part: 

Vehicular traffic facing a green arrow signal, shown alone or in 

combination with another indication, may enter the intersection 

only to make the movement indicated by the arrow, or such other 

movement as is permitted by other indications shown at the same 

time. Such vehicular traffic shall yield the right-of-way to 

pedestrians lawfully within an adjacent crosswalk and to other 

traffic lawfully using the intersection.

75 Pa.C.S.A. § 3112(a)(1)(ii). Here, at the time of the collision, the victim 

was crossing the street in a lawfully designated crosswalk. As Appellant made 

a left-hand turn onto the street the victim was crossing, she was required to 

yield the right-of-way to the victim. She failed to do so. She thus violated 

Section 3112(a)(1)(ii).

The improper movement statute provides in relevant part: “Upon a 

roadway no person shall turn a vehicle or move from one traffic lane to another 

. . . unless and until the movement can be made with reasonable safety nor 
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without giving an appropriate signal in the manner provided in this section.” 

75 Pa.C.S.A. § 3334(a). Appellant failed to turn her vehicle with reasonable 

safety by making a left-hand turn without yielding to the victim in the adjacent 

crosswalk, thus committing a second violation of the Vehicle Code. 

The careless driving statute provides in relevant part:

(a) General rule.--Any person who drives a vehicle in careless 

disregard for the safety of persons or property is guilty of careless 

driving, a summary offense.

(b) Unintentional death.--If the person who violates this 

section unintentionally causes the death of another person as a 

result of the violation, the person shall, upon conviction, be 

sentenced to pay a fine of $500.

75 Pa.C.S.A. § 3714. “The mens rea requirement applicable to Section 3714, 

careless disregard, implies less than willful or wanton conduct but more than 

ordinary negligence or the mere absence of care under the circumstances.” 

Commonwealth v. Gezovich, 7 A.3d 300, 301 (Pa. Super. 2010) (internal 

quotations and citations omitted). 

The evidence satisfies Section 3714(a) and (b). Appellant had an 

unobstructed view of the intersection for at least 45 seconds before beginning 

to turn her vehicle. Nevertheless, she failed to notice the victim because she 

was preoccupied with reading paperwork while stopped at a red light. By 

striking and killing the victim, she drove her vehicle in careless disregard for 

the victim’s safety and, in so doing, unintentionally caused the victim’s death. 

The second element of homicide by vehicle requires proof that the 

Vehicle Code violation caused the victim’s death. The evidence demonstrates 
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a direct and substantial nexus between Appellant’s traffic violations and the 

fatal collision an instant later. Thus, the causation element is satisfied.

The third element of homicide by vehicle requires proof that the 

defendant acted recklessly or with gross negligence. It is here that the 

Commonwealth’s case fails for lack of sufficiency, for while the evidence 

establishes Appellant’s guilt for careless driving, it falls short of demonstrating 

recklessness or gross negligence. The evidence simply does not support 

a finding that Appellant was conscious that her driving created a 

substantial and unjustifiable risk that would cause injury, but that she 

nonetheless proceeded to drive in a reckless manner causing the 

victim’s death.

On the day of the fatal accident, Appellant was not driving her usual 

route. Fearing she would be terminated if she went off-route, Appellant picked 

up and looked at papers to ascertain her designated route as she was stopped 

at the traffic light. Her lack of attentiveness caused her to overshoot the stop 

bar and come to rest in the crosswalk. Officer Morrissey, the investigating 

officer and crash reconstruction expert, opined that by stopping over the white 

stop line in the crosswalk, Appellant may not have been able to see the victim 

on the diagonal corner waiting to cross. While Appellant claimed not to have 

seen the victim until after she hit him, she had ample opportunity to observe 

him while stopped for 45 seconds at the intersection. The bus’s surveillance 

video demonstrates that from Appellant’s vantage point, the victim was visible 
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on the opposite corner and no other pedestrians or traffic would have 

obstructed her view. When the light turned green, SEPTA regulations required 

Appellant to check for pedestrians and scan the intersection for four seconds 

before making the left turn. She waited only 2.33 seconds before turning. 

While turning, she violated SEPTA regulations by not gripping the steering 

wheel with both hands. She rested the palm of one hand on the wheel instead 

of gripping it, while still holding the route paperwork in her other hand. When 

struck, the victim was in the crosswalk for approximately 6.75 seconds and 

approximately 32 feet across the intersection. At impact, Appellant was 

traveling approximately 8 miles per hour. Officer Morrissey testified that no

mechanical defects or failures caused the collision. He also excluded speed, 

weather, roadway conditions, glare and obstruction of vision as possible 

contributors to the crash. The victim was legally within the crosswalk and 

remained clearly visible as Appellant made the turn. It was Appellant’s 

testimony that when the light turned green, she looked left, forward and right 

before moving to make sure there was no oncoming traffic. She simply did 

not see the victim at any point prior to moving.

We hold, as a matter of law, that this case constitutes careless driving

but not recklessness or gross negligence. Absent from the proof in this case 
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is any evidence that Appellant was consciously aware of a substantial and 

unjustifiable risk created by her conduct that would cause injury to the victim.2

Appellant stopped the bus (albeit past the stop bar) and remained 

stationary for little more than two seconds after the traffic light turned green 

before proceeding into the intersection, too short a time under SEPTA 

regulations, but not a conscious disregard of a substantial and unjustifiable 

risk. Had Appellant’s bus barreled through the red light without stopping and 

collided with the victim, this would have been a conscious disregard of a 

substantial and unjustifiable risk, the essence of recklessness or gross 

negligence. See Moyer, 171 A.3d at 854 (evidence demonstrated conscious 

disregard of substantial and unjustified risk of fatal accident in prosecution for 

homicide by vehicle, where defendant drove past stop sign going 12 miles per 

hour, stop sign preceded busy street, building obscured view of one lane of 

cross traffic, defendant was familiar with intersection, so she knew it was busy 

street with obscured view). It is simply out of proportion to classify this 

relatively minor infraction (waiting 2.33 seconds as opposed to 4 seconds) as 

recklessness or gross negligence. 

____________________________________________

2 Among the reasons given by the trial court finding Appellant guilty of 

homicide by vehicle, was its conclusion that she grossly deviated from the 

standard of care for a similarly-situated bus driver, a conclusion also reached 

by the Dissent. Dissenting Op. at 4. We find that we need not address the 

standard of care for a professional bus driver under the facts of this case, 

since we have concluded there was no evidence Appellant was consciously 

aware of a substantial and unjustifiable risk created by her conduct that would 

have caused injury to the victim. 
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The Commonwealth also notes that Appellant should have seen the 

victim during the 45 seconds that the bus was stopped at the red light, but 

Appellant failed to notice him because she was reading documents. It might 

be reckless or grossly negligent for a driver to read while her vehicle is in 

motion, but not when, as here, Appellant was stopped at a red light. Taken 

to its logical extreme, the Commonwealth’s position would characterize any 

activity while stopped in traffic, such as checking one’s GPS, as reckless or 

grossly negligent conduct. 

The Commonwealth further observes that when the bus moved, 

Appellant clutched the documents with one hand and rested the palm of her 

other hand on the steering wheel, violating SEPTA regulations to keep both 

hands on the wheel. Once again, while Appellant violated SEPTA rules, these 

acts did not constitute conscious disregard of a substantial and unjustifiable 

risk. Moreover, there is no suggestion that turning the steering wheel with 

one hand caused loss of control over the bus or the accident itself.

Had the collision occurred because Appellant was speeding, tailgating,

erratically changing lanes, crossing double yellow lines, or racing another 

vehicle, we would have no objection to a verdict of recklessness or gross 

negligence. See Commonwealth v. Matroni, 923 A.2d 444, 448 (Pa. Super. 

2007) (defendant was speeding, tailgating and erratically changing lanes);

Commonwealth v. Grimes, 842 A.2d 432, 433 (Pa. Super. 2004) (crossing 

center line into victim’s lane and striking victim’s car); Commonwealth v. 
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Bowser, 624 A.2d 125, 129 (Pa. Super. 1993) (crossing double yellow lines); 

Commonwealth v. Jackson, 744 A.2d 271, 274 (Pa. Super. 1999) (high 

speed race with another vehicle). Appellant’s misconduct simply was not as

egregious. She did not engage in any of these reckless acts. Although she 

did not step on her brakes until after the collision, this was simply because 

she did not see the victim. The circumstances of this case do not suggest the 

level of brazenness or hard-heartedness characteristic of acts of recklessness. 

The evidence in this case simply does not support a finding that there was a 

conscious disregard of a risk to establish recklessness, as opposed to a simple 

lack of awareness of the risk that would suffice to establish criminal 

negligence. See Commonwealth v. Heck, 491 A.2d 212 (Pa. Super. 1985)

(while both criminal negligence and recklessness involve “gross” deviations 

from reasonable conduct, recklessness includes conscious disregard of a risk 

whereas criminal negligence is accompanied by a lack of awareness of the 

risk).

We also find that our holding in Commonwealth v. Gilliland, 422 A.2d 

206 (Pa. Super. 1980), supports the conclusion we reach in this case. In 

Gilliland the defendant was found guilty of involuntary manslaughter and 

recklessly endangering another person as a result of a boating accident. The 

accident occurred at night while the defendant and his family were boating on 

a lake. Due to impending darkness, defendant proceeded on the lake at 

approximately 20 to 25 miles per hour. His boat was closely observed at a 
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substantial distance by the decedent, McGill, who, with his family, also was 

boating on the lake. The two boats collided. A few moments before impact, 

occupants on McGill’s boat screamed to steer away from the defendant’s 

oncoming boat. The decedent, McGill, did not blow his horn or move out of 

the path of the defendant’s boat. Immediately prior to impact, both the 

defendant and decedent steered their boats to the right. A collision occurred 

at which time the defendant’s boat went over McGill’s boat fatally injuring 

McGill. Significantly, the defendant stated that he did not see McGill’s boat in 

a sufficient amount of time to prevent the collision. We concluded that this 

evidence was insufficient to rise to the level of gross negligence necessary to 

sustain a criminal conviction. The defendant simply failed to see the boat that

the decedent was operating. There was no conscious realization of a 

substantial risk that was subsequently disregarded. Rather, there only was a 

general lack of awareness of the situation on the part of the defendant. 

Instantly, there is no evidence in the record before us to demonstrate that 

Appellant consciously was aware of a substantial risk that she disregarded. 

To the contrary, Appellant simply did not see the victim, thus evidencing only 

a general lack of awareness of the situation.

The Dissent, while forcefully stated, does not convince us that Appellant 

acted recklessly. The Dissent argues that Appellant was well aware of the 

significant risk she could have hit a pedestrian while driving a bus, especially 

a tandem bus, and was “fully aware of a safety rule,” a SEPTA regulation,
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“requiring her to stop and look for a full four seconds before making a left 

turn.” Dissenting Op. at 1-2. This rationale is too generalized to support 

criminal liability under the homicide by vehicle statute. Every driver 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. Our precedents make clear that 

this crime requires something more egregious. Prosecuting drivers simply for 

failing to guard against the risks identified by the Dissent would transform

every fatal accident into a homicide by vehicle case, thus “blur[ring] the lines 

of criminal liability based upon negligence, ordinary recklessness and the form 

of recklessness encompassed in malice, that reflects extreme indifference to 

the value of human life.” Moyer, 171 A.3d at 854. 

Singly or in combination, and without minimizing the seriousness of 

Appellant’s actions, her errors do not satisfy the element of recklessness or 

gross negligence. We reach this decision solely by evaluating the sufficiency 

of the evidence in relation to the homicide by vehicle statute and relevant 

appellate decisions. We agree with the trial court’s verdict of careless driving. 

At the same time, however, we recognize that the legislature has erected a 

firm boundary between careless driving and the reckless or grossly negligent 

conduct required for homicide by vehicle. Appellant did not cross this line. 
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Because we reverse Appellant’s conviction for homicide by vehicle, we 

remand for resentencing on all remaining convictions to give the trial court 

the opportunity to restructure its entire sentencing scheme. Commonwealth 

v. Goldhammer, 517 A.2d 1280, 1283–84 (Pa. 1986); Commonwealth v. 

Williams, 871 A.2d 254, 266 (Pa. Super. 2005) (if trial court errs in its 

sentence on one count in a multi-count case, all sentences for all counts will 

be vacated so court can restructure its entire sentencing scheme).

Judgment of sentence on homicide by vehicle reversed. Case remanded 

for resentencing on all remaining convictions. Jurisdiction relinquished.

Judge Bowes files a concurring opinion in which Judge Stabile concurs

in the result.

Judge McLaughlin files a dissenting opinion.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/3/20