J-E03004-23

2024 PA Super 171

COMMONWEALTH OF PENNSYLVANIA

v.

KEVIN R. PETERS 

Appellant

:

:

:

:

:

:

:

:

:

 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 

No(s): 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.

DISSENTING OPINION BY LAZARUS, J.: FILED AUGUST 7, 2024

I respectfully dissent from the learned Majority’s conclusion that the 

Commonwealth presented sufficient evidence to establish the requisite malice 

for Peters’ convictions of third-degree murder and aggravated assault –

serious bodily injury. In my view, the Commonwealth failed to present 

sufficient evidence of malice under our case law and, accordingly, I would 

vacate those convictions.

The Majority accurately represented the factual and procedural history 

of this case. See Majority, at 1-7. However, I disagree with the Majority’s 

stated standard of review, particularly with regard to the manner in which the 

Majority defines and applies malice in the context of third-degree murder and 

aggravated assault – serious bodily injury. See Majority, at 8-24.
J-E03004-23

- 2 -

A person commits aggravated assault – serious bodily injury when he 

“attempts to cause serious bodily injury to another, or causes such injury 

intentionally, knowingly[,] or recklessly under circumstances manifesting an 

extreme indifference to the value of human life.” 18 Pa.C.S.A. § 2702(a)(1).

The Crimes Code defines third-degree murder as “[a]ll other kinds of 

murder” other than first- and second-degree murder and classifies it as “a 

felony of the first degree.” Id. at § 2502(c). To sustain a conviction of thirddegree murder, the Commonwealth must prove that the defendant killed 

another person with malice. Commonwealth v. Hardy, 918 A.2d 766, 774 

(Pa. Super. 2007). “Third[-]degree murder occurs when a person commits a 

killing [that] is neither intentional nor committed during the perpetration of a 

felony, but contains the requisite malice.” Commonwealth v. Truong, 36 

A.3d 592, 597 (Pa. Super. 2012) (en banc) (citation omitted). Malice is a 

legal term, which encompasses “not only a particular ill-will, but every case 

where there is a wickedness of disposition, hardness of heart, cruelty, 

recklessness of consequences, and a mind regardless of social duty, although 

a particular person may not be intended to be injured.” Commonwealth v. 

Packer, 168 A.3d 161, 168 (Pa. 2017) (citation omitted). A fact-finder may 

find malice not only in an intentional killing, “but also in an unintentional 

homicide where the perpetrator consciously disregarded an unjustified and 

extremely high risk that his actions might cause death or serious bodily 
J-E03004-23

- 3 -

injury.” Commonwealth v. Ludwig, 874 A.2d 623, 632 (Pa. 2005) 

(quotation and citation omitted).

The malice requirements for aggravated assault and third-degree 

murder are the same. Packer, 168 A.3d at 168. The malice required to 

sustain a third-degree murder or aggravated assault conviction exists “where 

the accused acts in gross deviation from the standard of reasonable care, 

failing to perceive that such actions might create a substantial and 

unjustifiable risk of death or serious bodily injury.” Commonwealth v. 

Mercado, 649 A.2d 946, 955 (Pa. Super. 1994) (citation omitted). “In view 

of this heightened mens rea, motor vehicle crashes seldom give rise to proof 

of the malice needed to sustain a conviction for third[-]degree murder[.]” 

Commonwealth v. Kling, 731 A.2d 145, 148 (Pa. Super. 1999). “However, 

in some circumstances, the malice requirement has been met, and this [C]ourt 

has not hesitated to uphold an aggravated assault or a third[-]degree murder 

charge depending on the particular facts of a motor vehicle crash.” 

Commonwealth v. Riggs, 68 A.3d 780, 785 (Pa. Super. 2012).

In the context of a DUI, the decision to drive while under the influence 

of alcohol and/or a controlled substance, standing alone, does not constitute 

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

type of 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 
J-E03004-23

- 4 -

disregard of danger[.]” Id. “For th[is] degree of recklessness . . . to occur, 

the offensive act must be performed under circumstances [that] almost 

assure that injury or death will ensue.” Id. (emphasis added). “The 

recklessness must, therefore, be such that life threatening injury is 

essentially certain to occur.” Id. (emphasis added). “This state of mind 

is, accordingly, equivalent to that which seeks to cause injury.” Id. This mens 

rea requirement is met only 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 that] consequence was 

ignored.” Packer, 168 A.3d at 170-71 (reaffirming distinction between 

ordinary recklessness and malice).

Pennsylvania courts have frequently had occasion to address the 

concept of “malice” as applied in the context of DUI-related motor vehicle 

accidents. Our Supreme Court previously announced the requisite degree of 

malice and recklessness, described above, in O’Hanlon, supra, and 

Commonwealth v. Comer, 716 A.2d 593 (Pa. 1998), and recently reaffirmed 

the standard in Packer, supra. In Packer, our Supreme Court addressed 

this “notice,” or “warning,”1requirement of malice with respect to motor 

vehicle accidents, noting:

____________________________________________

1

I use “notice” or “warning” as shorthand to refer to the malice standard 

which, as stated throughout this opinion, is met when a perpetrator 

consciously disregards an unjustified or extremely high risk that his actions 

(Footnote Continued Next Page)
J-E03004-23

- 5 -

Packer huffed [Dust-Off, containing] DFE [(difluoroethane)] 

immediately prior to and while operating a vehicle on a public 

highway. She knew, from the clearly marked label and the 

bittering agent added to the Dust-Off, that this product was not 

intended to be ingested. She further knew, from her numerous 

prior experiences with huffing, that the effects of DFE on 

her were immediate, debilitating[,] and persisted for ten to 

fifteen minutes following inhalation. Moreover, she knew 

that huffing had caused her to lose consciousness on other 

occasions in the past.

With all of this knowledge of DFE and the immediate and 

overwhelming effects it had on her, she nonetheless made the 

conscious and informed decision to huff four or five bursts of DFE, 

inhaling the chemical for a total of fourteen to twenty-four seconds 

within a five-minute timespan. She inhaled immediately before 

driving on a public roadway and again while temporarily stopped 

[at] a red light. Precisely what had previously occurred after 

huffing happened to her again on the night in question—after 

inhaling her final bursts of DFE at the red light and proceeding to 

drive her vehicle on the public highway, she lost consciousness. 

Predictably, without control of her vehicle, she killed [the victim].

Viewing the evidence, as we must, in the light most favorable to 

the Commonwealth, her awareness of the particular dangers her 

conduct posed is further demonstrated by her behavior before and 

after the accident. The record reflects that after huffing in the 

Walmart parking lot, but before driving, she paused to ask [her 

fiancé] how much he trusted her. . . . [I]mmediately following 

the accident (after she regained consciousness), she lied about 

what happened, asked about the detectability of DFE in her 

bloodstream, and repeatedly asked if she was going to jail.

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

someone chooses to drive while intoxicated. Packer consciously 

disregarded an unjustified and extremely high risk that her chosen 

course of action might cause a death or serious bodily injury. 

Because of Packer’s history of losing consciousness after 

huffing and her knowledge of the immediacy of the effects 

____________________________________________

are almost certain to cause death or serious bodily injury. See 

Commonwealth v. Young, 431 A.2d 230, 232 (Pa. 1981); see also 

O’Hanlon, 653 A.2d at 618; Packer, 168 A.3d at 170-71.
J-E03004-23

- 6 -

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.”

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

In Comer, the defendant drove after drinking and ingesting “muscle 

relaxers.” See Comer, 716 A.2d at 595. The defendant was observed, just 

prior to the crash, scraping his right tire against the curb, exceeding the speed 

limit, veering off the road, and crashing through a bus stand and into a brick 

wall. Id. He struck two pedestrians in the process, killing one and seriously 

injuring the other. Id. 

Our Supreme Court concluded that the evidence in Comer did not

support a finding of malice. The Court stated that “[w]hile [a]ppellant’s 

actions are clearly criminal, they do not constitute aggravated assault.” Id.

at 596. Notably, the Court determined that after examining the defendant’s 

behavior before and after the accident, there was no evidence “that he was 

aware of his reckless conduct” or that he “considered, then disregarded, the 

threat to the life of the victim.” Id. at 596-97. 

After our Supreme Court decided Comer, this Court, in 

Commonwealth v. Dellavecchia, 725 A.2d 186 (Pa. Super. 1998), 

addressed a similar scenario. In Dellavecchia, the defendant, with a blood 

alcohol content (BAC) of .194%, drove his truck at excessive speeds while 

weaving in and out of city traffic. Id. at 189. The defendant’s truck collided 

with a parked Chevrolet Camaro at such a high speed that the defendant’s 

truck went airborne and landed on a nearby Toyota Camry, flipped over, and 
J-E03004-23

- 7 -

landed on its roof. Id. at 186. The defendant was charged with aggravated 

assault – serious bodily injury. Id.

This Court determined that the Commonwealth had failed to present 

sufficient evidence to sustain the malice requirement of aggravated assault –

serious bodily injury. See id. at 188-89. We stated:

Notwithstanding the Commonwealth’s efforts, we are not 

persuaded that the facts presented here are materially 

distinguishable from those presented in Comer so as to compel a 

different result. Like 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 [BAC] 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. Appellant, 

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

Id. at 189 (emphasis added, footnotes and citations omitted).

Since Comer and Dellavecchia, this Court has repeatedly emphasized 

that, in order to satisfy the heightened mens rea requirement of third-degree 

murder and aggravated assault – serious bodily injury, there must be 

additional factors present. See, e.g., Commonwealth v. Dunphy, 20 A.3d 

1215 (Pa. Super. 2011) (malice found when defendant, driving intoxicated at 

close to twice posted speed limit, saw pedestrians in crosswalk but sped up to 

“make the light,” struck and killed pedestrian, and fled after impact); 

Commonwealth v. Allen, 833 A.2d 800 (Pa. Super. 2003) (malice present 

where defendant hit guardrail before accident but kept driving for two miles 
J-E03004-23

- 8 -

with victim impaled on defendant’s car and continued for five more miles after 

body rolled off).

As noted above, malice, in the DUI context, requires that the 

recklessness exhibited must involve an awareness that the conduct is

essentially certain to cause the death or serious bodily injury. See 

O’Hanlon, supra; Packer, supra. It is insufficient to prove that someone’s 

bad decisions could have, may have, or likely would result in death or 

serious bodily injury. O’Hanlon, supra; Packer, supra. Instantly, the trial 

court’s opinion omits mention of this essential requirement, and the 

Commonwealth appears to ignore it as well, encouraging this Court to view 

the facts under an inappropriate standard of malice. See Trial Court Opinion, 

3/4/22, at 1-12; Commonwealth’s Brief, at 25-27.2 

Additionally, I observe that Peters’ decision to drive his vehicle instead 

of taking a train or taxi, and to use a highway rather than a local road, is of 

no moment. Indeed, our law is clear that the mere decision to drive 

intoxicated does not satisfy the malice requirement. If these factors met the 

requirement of malice, then every DUI homicide would result in a third-degree 

murder conviction. I emphasize that driving drunk in and of itself does not 

____________________________________________

2 The Commonwealth suggests that the proper analysis of malice is whether 

Peters’ actions “might” create a risk of death or serious bodily injury and that 

Peters should have “reasonably anticipate[d]” that death or serious bodily 

injury would “likely” result” from his actions. See id. at 26. In my view, this 

interpretation of the law is incorrect and represents a significant departure

from the heightened burden that Pennsylvania courts have routinely required. 

See Packer, supra; O’Hanlon, supra.
J-E03004-23

- 9 -

meet the heightened mens rea requirement outlined in O’Hanlon and Comer

and reaffirmed in Packer. 

Consequently, Peters’ decisions throughout the day, including, his 

decision to drive to work when there was a work event involving alcohol, his 

decision not to take the train home, his decision not to find a hotel or motel 

to spend the night, and his failure to call for a ride, are merely decisions that 

coincide with drunk driving. See O’Hanlon, supra. Those decisions, while 

reckless and ill-advised, do not demonstrate the type of malice that our law 

requires the Commonwealth to prove.

In my view, the facts of this case reveal that the Commonwealth failed 

to present sufficient evidence of the “warning” requirement of malice 

necessary for third-degree murder and aggravated assault in the DUI context. 

Peters’ inability to operate the parking garage kiosks is not a “warning” 

contemplated by our case law. See Commonwealth v. Urbanski, 627 A.2d 

789, 793 (Pa. Super. 1993) (concluding appellant’s wife’s repeated reminders 

of danger of drunk driving and repeated requests he let her drive instead, 

conveyed sufficient warning for malice). Additionally, the record is silent on 

whether Peters had a history of drunk driving. See Packer, supra

(defendant’s personal knowledge that inhaling DFE caused defendant to black 

out previously while driving and asking if fiancé “trusted her,” exhibited 

conscious disregard for almost certain death or serious bodily injury). 

Moreover, the Commonwealth’s urging that the malice requirement is satisfied 
J-E03004-23

- 10 -

because “every adult” knows the dangers of alcohol is similarly unavailing.3 

Indeed, as I stated and emphasize above, driving while intoxicated by itself 

does not create the requisite malice for third-degree murder or aggravated 

assault serious bodily injury. See Packer, supra; Comer, supra; O’Hanlon, 

supra.

Additionally, the two 911 reports of Peters’ driving are meaningless 

under the facts of this case. Neither of those phone calls communicated the 

warning to Peters himself, and neither driver testified that he warned Peters. 

Indeed, Hafto, the first 911 caller, testified that he observed Peters’ vehicle 

pass him at a high rate of speed. See N.T. Jury Trial Day 1, 9/13/21, at 139-

40. In response, Hafto stayed behind the Mazda and gave it a wide berth. 

Id. Hafto testified that as he traveled behind the Mazda, it drove both over 

and under the posted speed limit of 65 miles per hour. Id. at 152-53. Hafto 

drove in such a way that kept the Mazda in front of him at all times. Id. at 

151-53 (Hafto testifying that he would decrease speed to avoid passing 

____________________________________________

3 Merely knowing the dangers of consuming alcohol and driving does not 

satisfy the malice requirement of third-degree murder and aggravated assault 

– serious bodily injury. Our Supreme Court’s recent decision in Packer is 

enlightening in this regard. As I emphasized above, it was not Packer’s 

general knowledge that inhaling DFE was harmful or dangerous that caused 

her mens rea to rise to that of malice. See Packer, supra. Rather, it was 

Packer’s personal knowledge of the specific effect DFE had on her due 

to her prior experiences with DFE and the immediate and debilitating 

effect it had on her. Id. Similarly, merely knowing that consuming alcohol 

and driving is dangerous does not satisfy the heightened malice requirement 

for third-degree murder and aggravated assault – serious bodily injury. See 

O’Hanlon, supra; Packer, supra.
J-E03004-23

- 11 -

Mazda). Emrick, the second 911 caller, initially testified that the Mazda was 

driving erratically and, in the 911 phone call recording, stated that the 

vehicle’s lights were off. See N.T. Jury Trial Day 2, 9/14/21, at 7-8; id. at 13 

(Commonwealth Exhibits 3 and 4, Emrick’s 911 call, admitted into evidence).4 

However, Emrick also testified that the Mazda exited the highway safely. Id.

at 10. These phone calls certainly portrayed Peters’ driving as negligent, 

careless, and reckless at times. Nevertheless, I emphasize that neither of 

these drivers attempted to communicate to Peters that he was driving 

erratically. See N.T. Jury Trial Day 1, 9/13/21, at 138-55 (Hafto’s testimony); 

N.T. Jury Trial Day 2, 9/14/21, at 5-26 (Emrick’s testimony); see also 

Commonwealth v. Pigg, 571 A.2d 438, 442 (Pa. Super. 1990) (finding of 

malice supported where defendant, operating 18-wheeler, drove other drivers 

off road and ignored requests of fellow driver to stop driving).

Furthermore, Jacquelyn Smith’s offer of a ride home also fails to satisfy 

the warning requirement of malice. Smith testified that she offered a ride to 

every co-worker at the party. See N.T. Jury Trial Day 2, 9/14/21, at 114-15. 

Smith also testified that, although she arrived late to the work party, she too 

was drinking alcohol. Id. at 108-13 (Smith testifying that between her 

arrival at 6:30 p.m. and her departure at 10:00 p.m., everyone ordered at 

least three drinks). Additionally, even though Smith offered Peters a ride, she 

____________________________________________

4 Emrick’s 911 call was divided into two exhibits because, during Emrick’s 

phone call, he crossed over the state line into New Jersey and his call was 

transferred to New Jersey’s 911 service. See id. at 11-12.
J-E03004-23

- 12 -

did not caution Peters that he had consumed too much alcohol or warn him 

not to drive. Id. at 114-16 (Smith testifying she offered Peters a ride because 

they both lived in Bucks County and she did not offer to drop him off at train 

station or any other alternative). Under these facts, I cannot conclude that 

Smith’s actions warned Peters of his inability to drive.5 See Urbanski, supra.

Further, Corporal Glad, the Commonwealth’s accident reconstruction 

expert, testified that Peters applied his brakes before the collision. See

N.T. Jury Trial Day 3, 9/15/21, at 40-123 (Commonwealth expert testifying 

regarding speed of vehicles and “black box” recordings). Corporal Glad 

testified that the Mazda’s “black box” recorded speeds in excess of 100 miles 

per hour just prior to the crash. Id. at 90-91 (Mazda approached speed of 

115 miles per hour approximately one second before impact). Approximately 

four-tenths of a second prior to the crash, the Mazda’s “black box” also 

recorded “weight” being released from the accelerator pedal and “weight” 

being applied to the brake pedal. Id. at 91-92. Corporal Glad explained that 

____________________________________________

5

I note that this “warning” or “notice” requirement is not limited to one form. 

Indeed, it can arise from the defendant’s own past experience, see Packer, 

supra, from the words of others, see Urbanski, supra; Pigg, supra, or from 

the circumstances of the particular case, see Dunphy, supra; Allen, supra. 

I observe that, in Dunphy, despite the Majority’s contentions to the contrary, 

this “warning” or “notice” requirement took the form of the appellant seeing 

pedestrians crossing the street in front of him. Despite having been 

warned of the presence of people in the roadway, he sped up and struck a 

pedestrian. See Dunphy, 20 A.3d at 1217. 

The facts of the instant case simply do not support a finding of malice as 

detailed supra and infra.
J-E03004-23

- 13 -

this data indicates that the brakes were applied just prior to the crash. Id. 

Thus, it is clear from the evidence that Peters applied the brakes, albeit, quite 

literally, at the last second. See Dellavecchia, 725 A.2d at 189 

(Commonwealth presented insufficient evidence of mens rea element of 

recklessness for aggravated assault where defendant drove at excessive 

speeds, wove in and out of congested city traffic, had BAC of .194%, but 

applied brakes prior to accident “in an effort to avoid impact”).6, 7

____________________________________________

6

I would echo this Court’s prior statement in Dellavecchia that, 

notwithstanding the Commonwealth’s efforts, there is simply no evidence in 

this case to overcome the heightened mens rea malice requirement for thirddegree murder and aggravated assault – serious bodily injury. See id. (“As 

an intermediate appellate court, we are bound to apply the decisions of our 

Supreme Court absent a legally relevant distinction.”). In my view, this Court 

should leave it up to our Supreme Court or the legislature to review the issue 

of drunk driving deaths and injuries for a determination of whether a change 

in the definition of malice is warranted, as it relates to such behavior. Simply 

put, this Court cannot disregard Peters’ application of the brakes as one fact 

that disproves the requisite malice to sustain his convictions. See 

Dellavecchia, supra.

7 Moreover, I observe that, although not relied upon expressly by the Majority, 

the Commonwealth argues that because Peters’ vehicle lights were off, he was 

consciously disregarding a known risk to other drivers. See Commonwealth 

Brief, at 37-38, 41, 43, 47-48, 56. This contention has no bearing on a 

determination of malice in this case. It is clear, from my review of the record, 

that Peters was never alerted to any issues with his lights. After the accident, 

Trooper Robert Ace investigated Peters’ Mazda and concluded that the 

headlight switch was in the “on” position, and that the damage from the 

accident prevented an accurate assessment of whether the brake lights were 

operable. See N.T. Jury Trial Day 3, 9/15/21, at 22-28. Before the accident, 

while both Hafto and Emrick testified that at various points it appeared as 

though Peters’ headlights were off, neither warned Peters. See N.T. Jury Trial 

Day 1, 9/13/21, at 138-55; N.T. Jury Trial Day 2, 9/14/21, at 5-26. 

Additionally, in every video the Commonwealth presented of Peters’ driving, 

(Footnote Continued Next Page)
J-E03004-23

- 14 -

Thus, based upon this Court’s prior decision in Dellavecchia, I would 

conclude that Peters’ application of the brakes prior to the accidents tends to 

show that he was trying to avoid a collision, unlike virtually every other 

DUI-related third-degree murder. See Dellavecchia, supra; Dunphy, 

supra; Packer, supra; Allen, supra. In other words, Peters’ application of 

the brakes shows that he lacked the requisite malice to sustain these 

convictions. Consequently, even if Peters’ prior actions and decisions 

somehow amounted to the requisite malice, which I maintain they do not, 

then Peters’ application of his brakes should certainly break that chain of 

“sustained recklessness.” See Kling, supra.

____________________________________________

his headlights were on and illuminated. See N.T. Jury Trial Day 3, 9/15/21, 

at 182-88, 196-97 (Trooper Brandon Corby testifying regarding contents of 

videos recovered); Commonwealth Exhibits 43 and 44 (surveillance videos 

from parking garage, depicting Mazda’s headlights on); Commonwealth 

Exhibit 42 (security video from exterior of parking garage depicting Mazda’s 

headlights on, but brakes lights off); Commonwealth Exhibit 48 (Philadelphia 

street surveillance video depicting Mazda’s headlights on, but brake lights off); 

Commonwealth Exhibits 49 and 50 (Philadelphia street surveillance stills 

depicting Mazda’s headlights on, but brake lights off); see also N.T. Jury Trial 

Day 3, 9/15/21, at 197-200 (Trooper Corby testifying regarding Scudder-Falls 

Bridge videos); Commonwealth Exhibit 52 (Scudder-Falls Bridge video 

depicting Mazda’s headlights on, but brake lights off). At best, this evidence 

demonstrates that Peters believed his brake lights and headlights were 

operable, and on, at least some of the time leading up to the accident. 

However, this evidence does not demonstrate Peters’ awareness or conscious 

disregard of the failing brake lights. Accordingly, the Commonwealth’s 

arguments regarding the brake lights does not support Peters’ conviction for 

third-degree murder or aggravated assault – serious bodily injury.
J-E03004-23

- 15 -

The Majority urges that this case demonstrates that Peters “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 Majority, at 23. In reaching its conclusion, the Majority 

relies upon Dunphy and Kling. See Majority, at 14-16, 22-24. In my view, 

as discussed supra, the facts of Dunphy support my conclusion that the 

Commonwealth failed to present sufficient evidence of the heightened mens 

rea malice requirement. To reiterate, in Dunphy, the defendant, who was 

already driving at twice the speed limit, saw the pedestrians in the 

crosswalk and then sped up. See Dunphy, supra. After the defendant 

in Dunphy collided with the victim, the victim “fl[ew] into the air, land[ed] on 

the hood of his truck, fl[ew] of[f of] the truck, and then land[ed] on the 

street,” after which the defendant fled the scene. See id. at 1217. The 

facts of Dunphy are clearly distinguishable from the instant case. As 

highlighted above, there is evidence that Peters was traveling below the speed 

limit at times, and above the speed limit at other times. Furthermore, the 

Commonwealth presented evidence that Peters attempted to apply the 

brakes, which tends to indicate that Peters saw the victims and tried to 

avoid a collision. See Dellavecchia, supra. Moreover, Peters did not 

attempt to flee the scene.

In Kling, this Court addressed whether extremely reckless street racing 

rose to the requisite level of malice for third-degree murder. See Kling, 731 

A.2d at 146-47. In Kling, the defendant began racing a fellow driver at 
J-E03004-23

- 16 -

speeds in excess of 80 mph. See id. Both drivers crested over a hill and 

continued to accelerate downhill towards a series of “substantial curves [with] 

cautionary speed signs.” Id. “Nevertheless, appellant maintained his 

excessive speeds, pulling away from the [other driver] and disappearing into 

the blind curves.” Id. On the second blind curve, appellant was in the wrong 

lane of traffic and nearly struck a minivan. See id. Yet, the appellant 

continued to accelerate and “neither slowed down nor took action to mitigate 

the obvious danger from his racing.” Id. The appellant then entered a nopassing zone, almost striking two pickup trucks, before traveling into a “sharp 

double curve at nearly 70 mph, crossed the center line again, and struck a 

vehicle,” killing the driver instantly and rupturing the 10-year-old passenger’s 

artery. Id. The collision occurred less than one mile after appellant’s near 

miss with the minivan. See id. While Kling interpreted and applied the 

holdings of Comer, Dellavecchia, Urbanski, Pigg, and O’Hanlon, it was 

not a DUI. See Kling, 731 A.2d at 147-51. Nevertheless, this Court 

concluded that the appellant’s driving was akin to playing “Russian roulette 

with the other drivers.” See id. at 150. 

In my view, the only relevance Kling has to the instant case is the 

purported “near misses” of Peters driving near the witnesses Hafto and 

Emrick. The “sustained recklessness” described in Kling is distinguishable 

from the facts of the case before this Court. Indeed, Peters: was reported 

driving at speeds both below and above the posted speed limit; was seen 
J-E03004-23

- 17 -

exiting the highway safely; and, both Hafto and Emrick reported driving in a 

way to avoid Peters. Consequently, these interactions cannot satisfy the 

“sustained recklessness by a driver in the face of an obvious risk of harm

to his victims,” id. at 149 (emphasis in original), like that exhibited by the 

appellant in Kling. I note that the appellant in Kling, engaged in a highspeed street race for almost one mile along a series of blind-switchback turns. 

See id. at 147-48. He did not, at any point, exhibit a concern for others or 

attempt to slow down. See id. It is clear that the behavior exhibited in Kling

demonstrated the requisite malice. Accordingly, in my view, Kling is factually 

distinguishable from the present circumstances, and I am unpersuaded by the 

Majority’s contentions to the contrary.

For all the foregoing reasons, I conclude that the Commonwealth 

presented insufficient evidence to sustain the malice requirement of either 

third-degree murder or aggravated assault – serious bodily injury. Smith, 

supra. Even considering the totality of the circumstances, I would find this 

Court is constrained to reverse these convictions. While the facts of this case 

are horrific and heartrending, they simply do not support a finding of malice 

under the precedent by which this Court is bound. Further, because this case 

is substantially similar to Dellavecchia, I would further conclude that the 

evidence was insufficient to establish that Peters possessed a state of mind 

equivalent to that which seeks to cause serious bodily injury or death. 

Accordingly, I respectfully dissent, and would reverse and vacate Peters’ 
J-E03004-23

- 18 -

convictions of third-degree murder and aggravated assault – serious bodily 

injury. 

Judges Dubow, Kunselman, McLaughlin join Dissenting Opinion.