1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-18-1997

Orban v. Vaughn

Precedential or Non-Precedential:

Docket 96-2116

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1997

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 1997 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Orban v. Vaughn" (1997). 1997 Decisions. Paper 195.

http://digitalcommons.law.villanova.edu/thirdcircuit_1997/195
iled August 18, 1997 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 96-2116 

ATTILA ORBAN 

v. 

DONALD T. VAUGHN; DISTRICT ATTORNEY FOR 

PHILADELPHIA COUNTY; THE ATTORNEY GENERAL OF 

THE STATE OF PENNSYLVANIA, 

Appellants

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

(D.C. Civ. No. 95-05962) 

Argued June 26, 1997 

BEFORE: GREENBERG and MCKEE, Circuit Judges, 

and GREENAWAY,* District Judge

(Filed: August 18, 1997) 

Jeffrey M. Miller 

Carmen C. Nasuti (argued) 

Nasuti & Miller 

21 South 5th Street 

The Bourse Building 

Suite 860 

Philadelphia, PA 19106 

 Attorneys for Appellee

_________________________________________________________________ 

*Honorable Joseph A. Greenaway, Jr., Judge of the United States 

District Court for the District of New Jersey, sitting by designation. 
Donna G. Zucker (argued) 

Chief, Federal Litigation 

Ronald Eisenberg 

Deputy District Attorney 

Law Division 

Arnold H. Gordon 

First Assistant District Attorney 

Lynne Abraham 

District Attorney 

1421 Arch Street 

Philadelphia, PA 19102-1582 

 Attorneys for Appellant

OPINION OF THE COURT 

GREENBERG, Circuit Judge. 

Respondents, Donald T. Vaughn, the District Attorney of 

Philadelphia County, and the Attorney General of 

Pennsylvania, whom we will call collectively the 

Commonwealth of Pennsylvania, appeal from an order 

entered November 6, 1996, in the district court in favor of 

petitioner, Attila Orban. The district court order granted 

Orban's petition for a writ of habeas corpus to the extent of 

vacating his convictions and sentences entered in state 

court following a nonjury trial for aggravated assault and 

recklessly endangering another person (two counts on each 

charge) arising out of a motor vehicle accident in which 

three people were killed and two others injured. The district 

court predicated its order on its conclusion that the vacated 

convictions were not supported by sufficient evidence. The 

order in all other respects denied Orban's petition. It also 

directed that he be released from custody unless the state 

court resentenced him on his remaining convictions arising 

from the accident. We reject the district court's conclusion 

that the convictions were not supported by sufficient 

evidence. Therefore, we will reverse the order of the district 

court to the extent that it granted Orban habeas corpus 

relief. 

 2 
I. JURISDICTION AND STANDARD OF REVIEW 

Orban brought this action under 28 U.S.C. § 2254. We 

have jurisdiction under 28 U.S.C. §§ 1291 and 2253. On 

this appeal, we exercise plenary review over the district 

court's legal conclusions. Alston v. Redman, 34 F.3d 1237, 

1242 (3d Cir. 1994). Furthermore, inasmuch as the district 

court relied on the state court record in concluding that the 

evidence was insufficient to support the convictions, we will 

exercise plenary review of that conclusion. See Jackson v.

Byrd, 105 F.3d 145, 147 (3d Cir.), cert. denied, 117 S.Ct. 

2442 (1997). 

II. FACTUAL HISTORY 

On Sunday, April 20, 1990, Orban was traveling north in 

his truck on Interstate 95 in Philadelphia. He drove his 

vehicle across three lanes of traffic and then hit and 

crossed the guardrail and struck a car heading south. 

Three occupants of the car hit by Orban were killed and the 

other two were injured seriously. 

Several eyewitnesses testified at the nonjury trial in this 

case. Edmond F. McGowan, who also was driving north on 

Route 95, observed Orban's truck rapidly approaching from 

his rear, traveling at approximately 65-70 miles per hour. 

When McGowan observed Orban "going back and forth" 

within the right hand lane and even crossing the dotted line 

into the next lane, he changed lanes to avoid Orban's 

vehicle. After Orban passed McGowan, McGowan saw 

Orban proceeding in the right hand lane for one quarter 

mile without weaving. Then McGowan saw Orban suddenly 

make a 90-degree turn across all lanes of traffic and into 

and over the guardrail. Frank Sprangle and Steven Siegel 

testified that they observed Orban weaving in traffic and 

suddenly hit and jump over the guardrail. 

At the scene of the accident Orban offered three different 

explanations for his behavior. He said that someone had 

struck his truck from behind, a friend had been driving the 

truck, and he must have fallen asleep at the wheel. Orban, 

however, later abandoned these explanations. At trial, he 

stated that his truck may have been hit from behind

causing his head to hit the windshield, and he may have 

 3 
experienced a diabetic seizure which rendered him 

unconscious and unable to control the vehicle. 

III. PROCEDURAL HISTORY 

Based on these facts, the state trial judge convicted 

Orban of three counts of homicide by vehicle, two counts of 

aggravated assault, and two counts of recklessly 

endangering another person. Commonwealth v. Orban, Nos. 

1698-1707, Feb. Term, 1991 (Phil. C.P. 1991). The court 

sentenced Orban to a total sentence of 7 to 15 years for the 

aggravated assault and homicide by vehicle convictions, but 

suspended his sentence on the reckless endangerment

counts. On July 3, 1992, the trial judge filed a 

comprehensive opinion explaining why its verdict should 

not be disturbed. 

Orban appealed to the Pennsylvania Superior Court 

where he claimed that the verdict was against the weight of 

the evidence and that the evidence was insufficient to 

support the verdict. He further contended that his counsel 

ineffectively represented him at trial because he failed to 

present a defense of unconsciousness brought about by 

diabetic seizure. In January 1993, the Superior Court filed 

an opinion affirming Orban's convictions. The court

concluded that Orban waived his argument with respect to 

the weight of the evidence, which in any event was 

meritless, and that the ineffective assistance of counsel 

claim failed for lack of specificity. Commonwealth v. Orban, 

626 A.2d 648 (Pa. Super. Ct. 1993) (table). The court did 

not make a specific disposition of Orban's insufficiency of 

evidence argument, though it plainly rejected that 

argument, indicating that the trial court's post-trial opinion 

"properly and adequately" addressed the issues he raised. 

In that opinion, the trial court found that the 

Commonwealth proved Orban's guilt beyond a reasonable 

doubt. Of course, the Superior Court's conclusion that the 

verdict was not against the weight of the evidence 

necessarily meant that it concluded that the evidence was 

sufficient to support the verdict. Orban then filed a petition 

for allocatur with the Pennsylvania Supreme Court which 

that court denied. Orban v. Commonwealth, 627 A.2d 180 

(Pa. 1993) (table). 

 4 
In February 1994, Orban filed an action in the common 

pleas court under the Pennsylvania Post-Conviction Relief 

Act ("PCRA"), 42 Pa. Cons. Stat. Ann. § 9541 (West Supp. 

1997), seeking relief from his convictions, but the common 

pleas court dismissed that action. Commonwealth v. Orban, 

No. 1698-1707, Feb. Term, 1991 (Phil. C.P. 1994). In June 

1994, Orban appealed to the Pennsylvania Superior Court, 

claiming that: (1) the trial judge should have ordered PCRA 

counsel to amend the petition to state a claim other than 

the previously litigated ineffectiveness claim; (2) trial 

counsel was ineffective for failing to call Orban's physician 

as a witness to testify regarding his diabetic condition; and 

(3) post-verdict counsel was ineffective for failing to present 

his physician and trial counsel at the hearing on the postverdict motions. On March 8, 1995, the Superior Court 

affirmed the denial of PCRA relief. Commonwealth v. Orban, 

No. 2387 Phil. 1994 (Pa. Super. Ct. 1995). 

Orban then filed a petition for allocatur with the 

Pennsylvania Supreme Court. While that petition was

pending he also filed a petition in the Supreme Court 

seeking leave to supplement his petition for allocatur so 

that he could rely on Commonwealth v. O'Hanlon, 653 A.2d 

616 (Pa. 1995), which the Supreme Court decided shortly 

before the Superior Court affirmed the order denying him 

PCRA relief. Orban understandably wanted to rely on

O'Hanlon as that case defined recklessness in an 

aggravated assault case in a rather confined manner. The 

Supreme Court denied both the petition to supplement and 

the petition for allocatur on July 26, 1995. Commonwealth

v. Orban, No. 0251 E.D. Alloc. Docket (Pa. 1995). 

Orban then filed this habeas corpus action in the district 

court in September 1995, claiming that: 

1. the evidence was insufficient to sustain his 

convictions for aggravated assault and reckless 

endangerment; 

2. the trial court deprived him of due process by 

inferring that petitioner was driving in a reckless

manner;

3. trial counsel was ineffective in failing to call a 

physician who could have testified in support of 

 5 
petitioner's defense that petitioner's diabetic condition 

was a possible cause of the accident; and 

4. PCRA counsel was ineffective because he presented 

in the collateral action a claim of ineffective counsel 

that had been resolved on direct appeal. 

The district court referred the petition to a magistrate 

judge, who issued a report on February 5, 1996, 

recommending its denial. On November 6, 1996, the district 

court granted the petition in part, based on itsfinding that 

the evidence was insufficient to support the aggravated 

assault and reckless endangerment convictions. The court, 

however, rejected Orban's claims regarding the homicide by 

vehicle counts and ineffective assistance of counsel, and he 

has not cross-appealed to advance those claims before us. 

The district court stayed execution of its order to give the 

Commonwealth an opportunity to appeal, which it did, on 

December 6, 1996.1 

IV. DISCUSSION 

For Orban to raise a claim in federal court, he must have 

presented the claim at each level of the state courts. See

Doctor v. Walters, 96 F.3d 675, 678 (3d. Cir. 1996). In his 

federal habeas corpus action, Orban raised the applicability 

of the definition of recklessness in an aggravated assault 

action as set forth in Commonwealth v. O'Hanlon, 653 A.2d 

616. But the first time Orban specifically raised the 

applicability of O'Hanlon in the state courts was when he 

sought to supplement his second petition for allocatur in 

the Supreme Court. However, Orban could not have raised 

O'Hanlon much earlier because the Supreme Court decided 

O'Hanlon less than two months before the Superior Court 

affirmed the order denying Orban's PCRA motion. The

district court entertained Orban's O'Hanlon argument as it 

_________________________________________________________________ 

1. The district court order was procedurally defective because it "vacated" 

Orban's conviction and dismissed the charges against him with 

prejudice. The court could not grant such relief in a proceeding under 28 

U.S.C. § 2254. See Fay v. Noia, 372 U.S. 391, 430-31, 83 S.Ct. 822, 844 

(1963); Barry v. Brower, 864 F.2d 294, 300-01 (3d Cir. 1988); Rimmer v.

Fayetteville Police Dep't, 567 F.2d 273, 276-77 (4th Cir. 1977). 

 6 
found the argument to be substantially the same as the 

legal theory Orban argued throughout his state 

proceedings, i.e., that his actions " `lack[ ] the indicators of 

deliberate . . . disregard found necessary by the 

Pennsylvania Supreme Court in O'Hanlon.' " While the 

Commonwealth challenges this conclusion by the district 

court, we will assume without deciding that it was correct 

and we will consider O'Hanlon in deciding this case.2 

Orban contends that the Commonwealth's evidence was

insufficient to sustain his convictions for aggravated 

assault and recklessly endangering another person because 

the Commonwealth did not prove that he possessed the 

requisite mental state to be guilty of those offenses. Thus, 

in his view, his convictions on these charges denied him 

due process of law. See Jackson v. Virginia, 443 U.S. 307, 

315-16, 99 S.Ct. 2781, 2787 (1979). On this appeal we 

determine "whether, after viewing the evidence in the light 

most favorable to the prosecution, any rational trier of fact 

could have found the essential elements of the crime 

beyond a reasonable doubt." Id. at 319, 99 S.Ct. at 2789. 

We must apply the above standard "with explicit reference 

to the substantive elements of the criminal offense as 

defined by state law." Id. at 324 n.16, 99 S.Ct. at 2792 

n.16. 

Under Pennsylvania Law, a person is guilty of aggravated 

assault if he "attempts to cause serious bodily injury to 

another, or causes such injury intentionally, knowingly or 

recklessly under circumstances manifesting extreme 

indifference to the value of human life." 18 Pa. Cons. Stat. 

Ann. § 2702 (a)(1)(West Supp. 1997). Inasmuch as the 

Commonwealth does not argue that Orban acted 

intentionally or knowingly, our inquiry is whether the 

_________________________________________________________________ 

2. As in Johnson v. Rosemeyer, 117 F.3d 104 (3d Cir. 1997), the parties 

have briefed the case and the district court decided the case without 

reference to the Antiterrorism and Effective Death Penalty Act of 1966, 

Pub. L. No. 104-132, 110 Stat. 1214 (1996), even though the district 

court decided the case after the effective date of the act, April 24, 1996. 

They may have been prescient in that regard. See Lindh v. Murphy, 117 

S.Ct. 2059 (1997). We, too, will decide the case without reference to that 

Act which certainly cannot have strengthened Orban's position. See

Johnson, slip op. at 9. 

 7 
evidence supported a conclusion that Orban acted 

recklessly in circumstances manifesting extreme 

indifference to the value of human life. The statutory 

definition of recklessness is that: 

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 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 a 

reasonable person would observe in the actor's 

situation. 

18 Pa. Cons. Stat. Ann. § 302(b)(3)(West 1983). 

O'Hanlon sets forth the degree of recklessness required to 

support an aggravated assault conviction under 

Pennsylvania law: 

[M]ere recklessness is insufficient to support a 

conviction for aggravated assault, which requires a

higher degree of culpability, i.e., that which considers 

then disregards the threat necessarily posed to human 

life by the offending conduct. There must be an 

element of deliberation or conscious disregard of 

danger not present to the same extent in, e.g., either 

reckless endangerment . . . or driving while intoxicated. 

O'Hanlon, 653 A.2d. at 618. For a defendant to act with the

degree of recklessness required for an aggravated assault 

conviction, the offensive act must be performed under 

circumstances which "almost insure that injury or death 

will ensue . . . . This state of mind is, accordingly, 

equivalent to that which seeks to cause injury . . . only one 

step short of murder. Aggravated assault is, indeed, the 

functional equivalent of a murder in which, for some 

reason, death fails to occur." Id. at 618. In O'Hanlon, the 

defendant ran a red light while he was driving drunk and 

hit another vehicle, seriously injuring the other driver and 

himself. The Pennsylvania Supreme Court found that the 

defendant's behavior was not so egregious to be considered 

the equivalent of homicide. Id. at 618. 

 8 
The O'Hanlon court discussed a number of cases in 

which defendants had the state of mind required under 18 

Pa. Cons. Stat. Ann. § 2702(a)(1) to be guilty of aggravated 

assault. See Commonwealth v. Daniels, 354 A.2d 538 (Pa. 

1976) (defendant fired a gun into crowd killing one man 

and injuring another); Commonwealth v. Laing, 456 A.2d 

204 (Pa. Super. Ct. 1983) (defendant drove car into a crowd 

after having aimed it at one individual and then hit two 

people). 

Most similar to this case is Commonwealth v. Scofield, 

521 A.2d 40 (Pa. Super. Ct. 1987). In Scofield, the 

defendant's car "scrap[ed] up against the left front bumper 

[of a car] that was parked on the east side of Broad Street 

. . . . [The car] traveled another ten feet in this manner 

before swerving onto to the sidewalk and striking a

building." Id. at 41. During this incident, the defendant ran 

over and severely injured a pedestrian. Afterwards, the 

defendant attempted to put his car in reverse and drive 

away. Id. at 41. The court found that Scofield's erratic 

driving prior to the accident established that he was 

reckless, and his actions in leaving the scene showed that 

he was fully aware of what had occurred. Id. at 42. 

A reasonable fact finder could conclude that Orban's 

actions were even more egregious than the actions of the 

defendant in Scofield. After driving unpredictably in a much 

longer distance than the distance involved in Scofield, 

Orban drove his truck across three lanes of traffic and hit 

the guardrail. The truck then flew through the air, landing 

on top of a car. Orban's erratic driving prior to the accident, 

which caused McGowan to take steps to avoid him, and his 

inexplicable driving at the time of the accident, show that 

he exhibited the conscious disregard of danger required by 

O'Hanlon to sustain the conviction for aggravated assault. 

Furthermore, unlike the defendant in O'Hanlon who was 

drunk at the time of the accident, there was no explanation 

for Orban's conduct that might negate the required mens 

rea for recklessness under the statute. As the state trial 

court said in its July 3, 1992 opinion, "[Orban] offered no 

plausible reason for this criminally negligent and reckless 

behavior." The evidence is therefore sufficient to establish 

Orban's guilt beyond a reasonable doubt, and thus his 

 9 
conviction for aggravated assault was proper even under 

O'Hanlon. In short, we see no reason why the state court 

could not judge the character of Orban's act, i.e., his 

reckless disregard of human life, by what he did even 

though there is no explanation for why he did it. 

We recognize that in a motor vehicle collision case it 

would be expected that a driver rarely would have the state 

of mind necessary to sustain a conviction for aggravated 

assault. After all, completely noncriminal driving can bring 

about the most disastrous consequences. Nevertheless, 

there is no question but that a driver can commit an 

aggravated assault. In this unusual case, the absence of 

circumstances sufficient to negate the required mens rea 

justified the trial court in concluding that Orban acted with 

the state of mind required by O'Hanlon to be guilty of 

aggravated assault. 

Orban also contends that his convictions for recklessly 

endangering another person were based upon insufficient 

evidence in violation of due process. Reckless 

endangerment consists of "recklessly engag[ing] in conduct 

which places or may place another person in danger of 

death or serious bodily injury." 18 Pa. Cons. Stat. Ann. 

§ 2705 (West 1983). Unlike aggravated assault, however, a 

conviction for recklessly endangering another person does 

not require that the prosecution show that the defendant 

acted in "circumstances manifesting extreme indifference to 

the value of human life." 

Orban's actions justified his convictions for reckless 

endangerment. Pennsylvania courts frequently have found 

that motor vehicle drivers exhibited the required level of 

recklessness while driving to justify a conviction for 

recklessly endangering another person. In In Interest of

Becker, 536 A.2d 1370 (Pa. Super. Ct. 1988), the defendant 

and his friend were in separate cars traveling either side by 

side or closely following one another. Id. at 1372-73. While 

the friend's car ran a red light and killed the driver of a 

different car, the defendant stopped at the light and was in 

the correct driving lane. Id. at 1371. However, the evidence 

of the defendant's uncontrolled driving prior to the accident 

 10 
was sufficient to support a finding that the defendant 

recklessly endangered other drivers on the road. 3 

In Commonwealth v. Henck, 478 A.2d 465 (Pa. Super. Ct. 

1984), a police officer stopped the defendant for driving 

straight through an intersection rather than turning right 

as the road required. Then, as the officer returned to his 

vehicle, the defendant sped away, ran a stop sign, and cut 

off several other vehicles. The court found that the evidence 

of the defendant's running through a stop sign and 

blocking the path of other drivers while fleeing from a police 

officer was sufficient to sustain a conviction for recklessly 

endangering another person even though no one was 

injured. See also Commonwealth v. Peer, 684 A.2d 1077 

(Pa. Super. Ct. 1996) (possessing and brandishing a

weapon, combined with a struggle over control of the 

weapon and a threat to kill two people, was sufficient to 

convict the defendant for recklessly endangering another 

person). 

The facts in this case were more dramatic than those in 

the cases we discuss above and demonstrate that Orban's 

convictions for recklessly endangering another person were 

proper. Orban was in his truck cutting across multiple 

lanes of traffic just prior to the accident, and in doing so he 

posed an extremely dangerous threat to other drivers. 

Orban's erratic driving which resulted in the death of three 

people and injury to two others establishes that the 

evidence justified the convictions for recklessly endangering 

another person. 

V. CONCLUSION 

We are satisfied that Orban's actions justify his 

convictions for aggravated assault and for recklessly 

endangering another person. The district court's order 

entered November 6, 1996, to the extent it granted Orban's 

petition for habeas corpus and vacated his convictions for 

aggravated assault and recklessly endangering another 

_________________________________________________________________ 

3. The Superior Court nevertheless reversed his adjudication of 

delinquency on the ground that he had not been charged properly with 

the offense of which he was convicted. 

 11 
person will be reversed. Thus, we will remand the case to 

the district court to enter an order reinstating the judgment 

of conviction and sentence entered in the state court. 

A True Copy: 

Teste: 

Clerk of the United States Court of Appeals

for the Third Circuit

 12