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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 U nited States District Court for the District of New Jersey, sitt ing 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 Attorne y 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 s tate court following a nonjury trial for aggravated assa ult and recklessly endangering another person (two counts o n each charge) arising out of a motor vehicle accident in which three people were killed and two others injured. Th e district court predicated its order on its conclusion that t he vacated convictions were not supported by sufficient eviden ce. The order in all other respects denied Orban's petition . It also directed that he be released from custody unless th e state court resentenced him on his remaining convictions arising from the accident. We reject the district court's c onclusion that the convictions were not supported by sufficie nt evidence. Therefore, we will reverse the order of t he district court to the extent that it granted Orban habeas co rpus relief.

2I. JURISDICTION AND STANDARD OF REVIEW

Orban brought this action under 28 U.S.C. § 2254. W e have jurisdiction under 28 U.S.C. §§ 1291 and 2253. On this appeal, we exercise plenary review over the di strict court's legal conclusions. Alston v. Redman , 34 F.3d 1237, 1242 (3d Cir. 1994). Furthermore, inasmuch as the d istrict
court relied on the state court record in concludin g that the evidence was insufficient to support the conviction s, we will exercise plenary review of that conclusion. See Jac kson 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 nort h in his truck on Interstate 95 in Philadelphia. He drov e his
vehicle across three lanes of traffic and then hit and crossed the guardrail and struck a car heading sout h. 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 approachin g from his rear, traveling at approximately 65-70 miles pe r hour. When McGowan observed Orban "going back and forth" within the right hand lane and even crossing the do tted 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 qua rter mile without weaving. Then McGowan saw Orban sudden ly make a 90-degree turn across all lanes of traffic a nd into and over the guardrail. Frank Sprangle and Steven S iegel testified that they observed Orban weaving in traff ic and suddenly hit and jump over the guardrail.

At the scene of the accident Orban offered three di fferent explanations for his behavior. He said that someone had struck his truck from behind, a friend had been dri ving the truck, and he must have fallen asleep at the wheel. Orban, however, later abandoned these explanations. At tri al, he stated that his truck may have been hit from behind causing his head to hit the windshield, and he may have

3experienced a diabetic seizure which rendered him

unconscious and unable to control the vehicle.

III. PROCEDURAL HISTORY

Based on these facts, the state trial judge convict ed Orban of three counts of homicide by vehicle, two c ounts 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 c ourt sentenced Orban to a total sentence of 7 to 15 year s for the aggravated assault and homicide by vehicle convicti ons, but suspended his sentence on the reckless endangerment counts. On July 3, 1992, the trial judge filed a comprehensive opinion explaining why its verdict sh ould
not be disturbed.

Orban appealed to the Pennsylvania Superior Court where he claimed that the verdict was against the w eight 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 f ailed to present a defense of unconsciousness brought about by diabetic seizure. In January 1993, the Superior Cou rt filed an opinion affirming Orban's convictions. The court concluded that Orban waived his argument with respe ct to the weight of the evidence, which in any event was meritless, and that the ineffective assistance of c ounsel claim failed for lack of specificity. Commonwealth v. Orban , 626 A.2d 648 (Pa. Super. Ct. 1993) (table). The cou rt did not make a specific disposition of Orban's insuffic iency of evidence argument, though it plainly rejected that argument, indicating that the trial court's post-tr ial opinion "properly and adequately" addressed the issues he r aised. In that opinion, the trial court found that the Commonwealth proved Orban's guilt beyond a reasonab le doubt. Of course, the Superior Court's conclusion t hat the verdict was not against the weight of the evidence necessarily meant that it concluded that the eviden ce was sufficient to support the verdict. Orban then filed a petition for allocatur with the Pennsylvania Supreme Court w hich
that court denied. Orban v. Commonwealth , 627 A.2d 180 (Pa. 1993) (table).

4In February 1994, Orban filed an action in the comm on

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). I n June 1994, Orban appealed to the Pennsylvania Superior C ourt, claiming that: (1) the trial judge should have orde red PCRA counsel to amend the petition to state a claim othe r 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 cond ition; and (3) post-verdict counsel was ineffective for failin g to present his physician and trial counsel at the hearing on t he postverdict motions. On March 8, 1995, the Superior Cou rt
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 Cou rt seeking leave to supplement his petition for alloca tur so that he could rely on Commonwealth v. O'Hanlon , 653 A.2d 616 (Pa. 1995), which the Supreme Court decided sho rtly before the Superior Court affirmed the order denyin g 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 supplemen t and the petition for allocatur on July 26, 1995. Common wealth
v. Orban , No. 0251 E.D. Alloc. Docket (Pa. 1995).

Orban then filed this habeas corpus action in the d istrict 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

5petitioner's defense that petitioner's diabetic con dition

was a possible cause of the accident; and

4. PCRA counsel was ineffective because he presente d
in the collateral action a claim of ineffective cou nsel that had been resolved on direct appeal.

The district court referred the petition to a magis trate judge, who issued a report on February 5, 1996, recommending its denial. On November 6, 1996, the d istrict court granted the petition in part, based on itsfin ding that the evidence was insufficient to support the aggrav ated assault and reckless endangerment convictions. The court, however, rejected Orban's claims regarding the homi cide by
vehicle counts and ineffective assistance of counse l, and he has not cross-appealed to advance those claims befo re 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 mus t have presented the claim at each level of the state cour ts. See
Doctor v. Walters , 96 F.3d 675, 678 (3d. Cir. 1996). In his federal habeas corpus action, Orban raised the appl icability 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 t he applicability of O'Hanlon in the state courts was when he sought to supplement his second petition for alloca tur in the Supreme Court. However, Orban could not have ra ised

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

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1. The district court order was procedurally defect ive because it "vacated" Orban's conviction and dismissed the charges agains t 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).

6found 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 dist rict 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 aggrava ted assault and recklessly endangering another person b ecause the Commonwealth did not prove that he possessed th e requisite mental state to be guilty of those offens es. Thus, in his view, his convictions on these charges denie d 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 t he light most favorable to the prosecution, any rational tri er of fact
could have found the essential elements of the crim e beyond a reasonable doubt." Id . at 319, 99 S.Ct. at 2789. We must apply the above standard "with explicit ref erence 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 aggra vated assault if he "attempts to cause serious bodily inj ury to another, or causes such injury intentionally, knowi ngly or recklessly under circumstances manifesting extreme
indifference to the value of human life." 18 Pa. Co ns. Stat. Ann. § 2702 (a)(1)(West Supp. 1997). Inasmuch as th e Commonwealth does not argue that Orban acted intentionally or knowingly, our inquiry is whether the

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2. As in Johnson v. Rosemeyer , 117 F.3d 104 (3d Cir. 1997), the parties
have briefed the case and the district court decide d the case without
reference to the Antiterrorism and Effective Death Penalty Act of 1966, Pub. L. No. 104-132, 110 Stat. 1214 (1996), even th ough 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 Li ndh v. Murphy , 117 S.Ct. 2059 (1997). We, too, will decide the case wi thout reference to that Act which certainly cannot have strengthened Orban' s position. See

Johnson , slip op. at 9.

7evidence supported a conclusion that Orban acted

recklessly in circumstances manifesting extreme
indifference to the value of human life. The statut ory definition of recklessness is that:

A person acts recklessly with respect to a material element of an offense when he consciously disregard s a substantial and unjustifiable risk that the mater ial
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 th e 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 cons iders then disregards the threat necessarily posed to hum an 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., eit her reckless endangerment . . . or driving while intoxi cated.

O'Hanlon , 653 A.2d. at 618. For a defendant to act with the degree of recklessness required for an aggravated a ssault conviction, the offensive act must be performed und er circumstances which "almost insure that injury or d eath will ensue . . . . This state of mind is, according ly, 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 som e reason, death fails to occur." Id. at 618. In O'Hanlon , the defendant ran a red light while he was driving drun k and hit another vehicle, seriously injuring the other d river and himself. The Pennsylvania Supreme Court found that the defendant's behavior was not so egregious to be con sidered the equivalent of homicide. Id . at 618.

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

which defendants had the state of mind required und er 18 Pa. Cons. Stat. Ann. § 2702(a)(1) to be guilty of a ggravated
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 hi t two people).

Most similar to this case is Commonwealth v. Scofie ld , 521 A.2d 40 (Pa. Super. Ct. 1987). In Scofield , the defendant's car "scrap[ed] up against the left fron t bumper [of a car] that was parked on the east side of Broa d 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 d rive away. Id. at 41. The court found that Scofield's erratic driving prior to the accident established that he w as reckless, and his actions in leaving the scene show ed 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 o f the
defendant in Scofield . After driving unpredictably in a much longer distance than the distance involved in Scofi eld , 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 t he accident, which caused McGowan to take steps to avoid him, an d his inexplicable driving at the time of the accident, s how that he exhibited the conscious disregard of danger requ ired 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 exp lanation for Orban's conduct that might negate the required mens rea for recklessness under the statute. As the stat e trial court said in its July 3, 1992 opinion, "[Orban] of fered 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 h is

9conviction for aggravated assault was proper even u nder

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 ev en 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 t he state of mind necessary to sustain a conviction for aggra vated assault. After all, completely noncriminal driving can bring about the most disastrous consequences. Nevertheles s, there is no question but that a driver can commit a n aggravated assault. In this unusual case, the absen ce of circumstances sufficient to negate the required men s 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 reckle ssly endangering another person were based upon insuffic ient 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, howe ver, a conviction for recklessly endangering another perso n does not require that the prosecution show that the defe ndant acted in "circumstances manifesting extreme indiffe rence to
the value of human life."

Orban's actions justified his convictions for reckl ess endangerment. Pennsylvania courts frequently have f ound that motor vehicle drivers exhibited the required l evel of recklessness while driving to justify a conviction for recklessly endangering another person. In In Intere st of
Becker , 536 A.2d 1370 (Pa. Super. Ct. 1988), the defendan t and his friend were in separate cars traveling eith er side by side or closely following one another. Id. at 1372-73. While the friend's car ran a red light and killed the dri ver of a different car, the defendant stopped at the light a nd was in the correct driving lane. Id. at 1371. However, the evidence of the defendant's uncontrolled driving prior to th e accident

10was sufficient to support a finding that the defend ant

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 d riving straight through an intersection rather than turnin g 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 th e evidence of the defendant's running through a stop sign and blocking the path of other drivers while fleeing fr om 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 th e weapon and a threat to kill two people, was suffici ent to convict the defendant for recklessly endangering an other person).

The facts in this case were more dramatic than thos e in
the cases we discuss above and demonstrate that Orb an's convictions for recklessly endangering another pers on were proper. Orban was in his truck cutting across multi ple lanes of traffic just prior to the accident, and in doing so he posed an extremely dangerous threat to other driver s. Orban's erratic driving which resulted in the death of three people and injury to two others establishes that th e evidence justified the convictions for recklessly e ndangering another person.

V. CONCLUSION

We are satisfied that Orban's actions justify his convictions for aggravated assault and for reckless ly endangering another person. The district court's or der entered November 6, 1996, to the extent it granted Orban's petition for habeas corpus and vacated his convicti ons for aggravated assault and recklessly endangering anoth er

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3. The Superior Court nevertheless reversed his adj udication of delinquency on the ground that he had not been char ged properly with
the offense of which he was convicted.

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

the district court to enter an order reinstating th e judgment
of conviction and sentence entered in the state cou rt.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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