J-S35029-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA 

Appellant

v.

BRYAN ADAM HAMMAKER

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 166 MDA 2023

Appeal from the PCRA Order Entered December 30, 2022

In the Court of Common Pleas of York County Criminal Division at No(s): 

CP-67-CR-0007339-2019

BEFORE: PANELLA, P.J., McLAUGHLIN, J., and COLINS, J.*

MEMORANDUM BY McLAUGHLIN, J.: FILED: MARCH 15, 2024

The Commonwealth appeals from the order granting in part Bryan Adam 

Hammaker’s Post Conviction Relief Act (“PCRA”) petition. See 42 Pa.C.S.A. §§ 

9541-9546. The PCRA court reinstated Hammaker’s post-sentence and direct 

appeal rights based on his plea counsel’s ineffectiveness. We affirm.

The PCRA court provided the factual and procedural history as follows: 

On November 12, 2019, Newberry Township Police Department 

filed a criminal complaint against [Hammaker] charging him with 

two counts of third-degree murder, two counts of homicide by 

vehicle while under the influence of alcohol or a controlled

substance, aggravated assault, aggravated assault by motor 

vehicle while under the influence of alcohol, two counts of 

homicide by vehicle, aggravated assault by vehicle, six counts of 

driving under the influence, reckless driving, driving at a safe

speed, driving on the right side of the roadway, two counts of 

careless driving – unintentional death, and careless driving –

serious bodily injury.

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* Retired Senior Judge assigned to the Superior Court.
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Charges arose out of an investigation of a single vehicle crash that

occurred on December 1, 2018, on Old Trail Road in Newberry 

Township, York County, Pennsylvania. From the affidavit of 

probable cause, this court finds that the subject vehicle, with 

[Hammaker] as driver, left the roadway and the right rear 

passenger seat occupant (Stevens) was ejected from the vehicle

and died as a result of the impact. The left rear passenger seat 

occupant (Klaiber) was crushed within the vehicle, resulting in his 

death. The cause of death of the two passengers was indicated 

after autopsy from “multiple blunt force injuries.” The owner of

the vehicle (Baumgardner) was occupying the front passenger 

seat and suffered multiple fractures.

The roadway was posted for maximum speed of forty (40) miles 

per hour. [Hammaker’s] speed a few seconds prior to impact was 

estimated at eighty-nine (89) miles per hour, with speed at the 

time of impact to be estimated at sixty-two (62) miles per hour. 

[Hammaker’s] blood alcohol concentration was 0.125 and his 

blood also tested positive for THC, Fentanyl and Midazolam.

From the time of the filing of the criminal complaint through the 

entry of his guilty plea, [Hammaker] was represented by Patrick 

Lauer, Esquire (hereinafter “plea counsel”). 

***

On December 9, 2020, [Hammaker] entered a negotiated plea of

guilty to two counts of murder in the third degree, one count of 

aggravated assault, two counts of homicide by vehicle while under 

the influence, one count of aggravated assault by motor vehicle 

while under the influence and driving under the influence. 

Pursuant to the negotiated agreement, [Hammaker] was

sentenced to an aggregate period of fifteen (15) to thirty (30) 

years[’] incarceration in a state correctional institution. 

[Hammaker] is not RRRI eligible. No post-sentence motion or 

appeal was filed.

[Hammaker] filed a pro se petition for post-conviction relief on 

September 23, 2021. This [c]ourt appointed counsel on October 

8, 2021, to represent [Hammaker]. PCRA counsel filed an 

amended petition for post-conviction relief on March 28, 2022. 

During a hearing on the issues, both the Commonwealth and 

[Hammaker] presented testimony and exhibits for consideration.
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PCRA Court Opinion in Support of Order Granting in Part and Denying in Part 

Defendant’s PCRA Petition (“PCRA Ct. Op.”), filed 12/30/22, at 1-4.

After the hearing, the PCRA court granted in part Hammaker’s petition. 

It found that plea counsel was ineffective for failing to properly advise 

Hammaker as to the requirement of malice when he pleaded guilty to thirddegree murder and aggravated assault. Id. at 11. The court reinstated 

Hammaker’s post-sentence and appellate rights. Id. at 16. The 

Commonwealth appealed.

The Commonwealth raises the following issue:

Did the PCRA court err in granting [Hammaker’s] PCRA petition 

where plea counsel was aware of the malice standard required to 

prove [m]urder of the [t]hird [d]egree and [a]ggravated [a]ssault 

and appropriately advised [Hammaker] of his professional opinion 

regarding the case, including advising [Hammaker] of the facts of 

the case, the elements of the crimes, and the nature of malice 

required for conviction, and did not induce [Hammaker] in any 

way to plead guilty?

Commonwealth’s Br. at 4.

On appeal from the denial or grant of relief under the PCRA, our review 

is limited to determining “whether the PCRA court’s ruling is supported by the 

record and free of legal error.” Commonwealth v. Presley, 193 A.3d 436, 

442 (Pa.Super. 2018) (citation omitted).

“[C]ounsel is presumed to be effective and the burden of demonstrating 

ineffectiveness rests on” the party claiming otherwise. Commonwealth v. 

Rivera, 10 A.3d 1276, 1279 (Pa.Super. 2010). To obtain relief based on a 

claim of ineffectiveness, a petitioner must establish: “(1) his underlying claim 
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is of arguable merit; (2) counsel had no reasonable basis for his action or 

inaction; and (3) the petitioner suffered actual prejudice as a result.” 

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). 

A criminal defendant’s right to effective counsel extends to the plea 

process. Commonwealth v. Brown, 235 A.3d 387, 391 (Pa.Super. 2020). 

“Allegations of ineffectiveness in connection with the entry of a guilty plea will 

serve as a basis for relief only if the ineffectiveness caused [the petitioner] to 

enter an involuntary or unknowing plea.” Id. (citation omitted). “Where the 

defendant enters his plea on the advice of counsel, the voluntariness of the 

plea depends on whether counsel’s advice was within the range of competence 

demanded of attorneys in criminal cases.” Id. (citation omitted). “[T]o 

establish prejudice, the defendant must show that there is a reasonable 

probability that, but for counsel’s errors, he would not have pleaded guilty and 

would have insisted on going to trial.” Id. (citation omitted).

The Commonwealth argues the PCRA court erred in finding plea counsel 

ineffective because there was sufficient evidence of malice necessary to 

support the charges of third-degree murder and aggravated assault. 

Commonwealth’s Br. at 9. It maintains that plea counsel properly advised 

Hammaker of the facts of the case, the elements of the crimes, and the nature 

of malice required for third-degree murder and aggravated assault, such that

Hammaker’s plea was not unlawfully induced. Id. at 10.

The Commonwealth further argues that Hammaker signed the 

Information charging him with third-degree murder and aggravated assault at 
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the conclusion of his guilty plea, which specifically acknowledged that he 

knowingly or recklessly “under circumstances manifesting an extreme 

indifference to the value of human life” caused the deaths and serious bodily 

injury to his passengers. Id. at 14. The Commonwealth emphasizes that 

Hammaker admitted at the time of his guilty plea that he drove someone else’s 

car, which had been modified, at a grossly excessive speed of more than twice 

the speed limit after imbibing alcohol and marijuana. Id. at 15-16. The 

Commonwealth maintains that the totality of those factors was sufficient to 

establish the malice required for third-degree murder and aggravated assault. 

Id. at 16. As a result, it concludes that because there was evidence of malice, 

“plea counsel clearly had a reasonable basis for advising his client that he 

could be convicted of third-degree murder and/or aggravated assault.” Id. at 

17.

Pursuant to 18 Pa.C.S.A. § 2501(a), “[a] person is guilty of criminal 

homicide if he intentionally, knowingly, recklessly or negligently causes the 

death of another human being.” Third-degree murder is any murder that is 

not murder in the first or second degree, that is, not an intentional killing or 

one committed in the commission of a felony. See 18 Pa.C.S.A. § 2502(c).

The mens rea required for a conviction of third-degree murder is malice.

Commonwealth v. Packer, 168 A.3d 161, 168 (Pa. 2017). “Murder in the 

third degree is an unlawful killing with malice but without the specific intent 

to kill.” Commonwealth v. Dunphy, 20 A.3d 1215, 1219 (Pa.Super. 2011).
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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.C.S.A. § 2702(a)(1). Like third-degree murder, the 

mens rea for a conviction of aggravated assault is malice. Packer, 168 A.3d

at 168. 

Malice in its legal sense 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. Malice may 

be found where the defendant consciously disregarded an 

unjustified and extremely high risk that his actions might cause 

serious bodily injury.

Dunphy, 20 A.3d at 1219 (citation omitted) (cleaned up). 

As to third-degree murder and aggravated assault, “our courts have 

consistently held that malice is present under circumstances where a 

defendant did not have an intent to kill, but nevertheless displayed a conscious 

disregard for an unjustified and extremely high risk that his actions might 

cause death or serious bodily harm.” Packer, 168 A.3d at 168 (citations 

omitted). However, “a person who acts negligently or with ordinary 

recklessness to cause a person to suffer serious bodily injury or death has not 

committed third-degree murder or aggravated assault, respectively.” Id. at 

169.

Motor vehicle accidents seldom involve malice such as is needed to 

sustain a conviction for third-degree murder or aggravated assault. 
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Commonwealth v. McHale, 858 A.2d 1209, 1214 (Pa.Super. 2004). In the 

DUI context, “the decision to drive while under the influence of alcohol and/or 

a controlled substance does not, standing alone, constitute malice.” Packer,

168 A.3d at 170. “[I]n the vast majority of prosecutions involving deaths or 

injuries caused by defendants driving under the influence, third-degree 

murder and aggravated assault should not be charged” because the standard 

for malice “requires recklessness of consequences and the conscious disregard 

for an unjustified and extremely high risk that a chosen course of conduct 

might cause a death or serious personal injury.” Id. at 172. Therefore, “unless 

the driver has essentially a ‘death wish,’ or steamrolls through a crowd of 

pedestrians, it would seem unlikely that the recklessness would rise to the 

level sufficient to find malice.” McHale, 858 A.2d at 1214 (footnote omitted).

This Court in McHale further noted: 

In light of the reality that most motor vehicle accident cases, even 

those caused by a drunk driver, will not evidence the mens rea of 

malice, the legislature has enacted lesser offenses that can be 

charged, which were specifically designed to address a situation 

where malice is lacking but where heightened criminal punishment 

is deemed appropriate, such as aggravated assault by vehicle 

while [DUI], and homicide by vehicle-DUI related. In particular, 

the aggravated assault by vehicle while driving under the

influence offense requires only negligence and not recklessness. 

This lowered requisite intent is reflected in the classification of the 

offense as well; aggravated assault is a felony of the first degree 

whereas aggravated assault while DUI is a second[-]degree 

felony.

858 A.2d at 1217-18 (emphasis in original) (footnote omitted).
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In Packer, our Supreme Court examined appellate decisions involving 

third-degree murder and aggravated assault charges in similar contexts as 

the present case. There, the Court observed:

In Commonwealth v. O’Hanlon, a drunk driver ran a red light 

and struck another vehicle, seriously injuring the other driver. We 

found this evidence to be insufficient to sustain a conviction of 

aggravated assault. O’Hanlon, 653 A.2d [616, 618 (Pa. 1995)].

We observed that neither “ordinary negligence” nor “mere 

recklessness” is sufficient to satisfy the mens rea of aggravated 

assault. Id. at 617-18. Instead, we found that the 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 disregard of danger[.]” Id. at 618.

***

The O’Hanlon Court found that the requisite mens rea is only met 

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] the consequence 

was ignored.” Id.

We subsequently decided Commonwealth v. Comer, 552 Pa. 

527, 716 A.2d 593 (1998), another case challenging the 

sufficiency of the evidence to support a conviction of aggravated 

assault that occurred while the defendant was driving under the 

influence of alcohol and controlled substances. The defendant in 

Comer, who drove after drinking and ingesting “muscle relaxers,” 

struck two people who were waiting for a bus, killing one and 

seriously injuring the other. Id. at 595. He was observed just prior 

to the accident traveling at a high rate of speed, in excess of the 

speed limit. His right tire rubbed against the curb and his car 

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

wall, striking the two pedestrians in the process.

The Comer Court found that the evidence was insufficient to 

prove that the defendant acted with malice. The accident occurred 

immediately after he was observed speeding and his tire rubbed 

along the curb. Id. at 597. Examining his behavior before and 

after the accident, the Court found no evidence “that he was 

aware of his reckless conduct” and that he “considered, then 
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disregarded, the threat to the life of the victim.” Id. at 596–97. 

Finding the facts to be sufficiently similar to those in O’Hanlon, 

we concluded that the conviction of aggravated assault must be 

reversed. Id.

Packer, 168 A.3d at 170.

The Court, however, found the facts in Packer distinguishable from 

O’Hanlon and Comer, and found the defendant in Packer acted with the

requisite malice to support convictions of third-degree murder and aggravated 

assault. Id. at 171. In Packer, the defendant inhaled difluoroethane (“DFE”)

immediately before and while driving resulting in a deadly automobile 

accident. In finding that the defendant acted with malice, the Court stated: 

Packer huffed DFE both 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 about 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].

Id. (citations to the record omitted). The Packer Court noted that the case

was “not a typical case of ordinary recklessness that arises when someone 
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chooses to drive while intoxicated” and that because of the defendant’s history 

of losing consciousness after huffing and her knowledge of the immediacy of 

the effects of huffing on her, she could anticipate that serious bodily injury or 

death would be the likely consequence of her actions, but the consequence 

was ignored. Id. The Court emphasized that “[t]here is a significant difference 

between deciding to drive while intoxicated and deciding to drive with 

knowledge that there is a strong likelihood of becoming unconscious[,]” and 

likened the latter as a decision to play Russian roulette. Id. at 172. The Court 

reaffirmed the standard for malice “requires recklessness of consequences and 

the conscious disregard for an unjustified and extremely high risk that a 

chosen course of conduct might cause a death or serious personal injury[,]”

but concluded “this case is one of the few driving while under the influence 

cases that meets the standard of malice.” Id.

Here, the PCRA court determined that Hammaker would not have 

pleaded guilty to third-degree murder and aggravated assault if plea counsel 

properly advised him of the malice standard. PCRA Ct. Op. at 15. It determined 

that plea counsel’s “lack of knowledge in this area of the law led to a manifest 

injustice in that portion of [Hammaker’s] plea.” Id. The court noted:

[N]either the affidavit of probable cause nor [Hammaker’s]

allocution at his plea hearing address the element of malice to the

level required under current case law. This [c]ourt [which was also

the plea court] failed to adequately question [Hammaker] on the 

issue of malice, a required element of the crimes in question. 

There was no indication at the plea hearing or the PCRA hearing

that plea counsel discussed this important element with 

[Hammaker]. [Hammaker’s] allocution only acknowledges his 

BAC, drug use and high rate of speed and no advance recognition 
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that his conduct could have resulted in death or serious bodily 

injury to another. There is arguable merit to his claim that the 

allocution does not rise to the level of malice. No further 

information was put on the record by the Commonwealth or plea 

counsel. 

Id. at 14. The court also concluded that “the failure of plea counsel . . . was 

the root cause of why [Hammaker] did not seek to withdraw his plea or file a 

direct appeal.” Id. at 8. 

A review of the record confirms the PCRA court’s conclusions and 

supports its finding that counsel was ineffective under the three-prong test for 

ineffectiveness. First, Hammaker’s underlying claim that the Commonwealth 

would not have been able to prove malice on his third-degree murder and 

aggravated assault charges has arguable merit. As outlined above, only rare 

DUI cases rise to the level of the requisite mens rea of malice for third-degree 

murder and aggravated assault. The Commonwealth’s reliance on defendant’s 

“becom[ing] intoxicated and then driv[ing] a vehicle that was not his and 

which had been modified” around a curve at speeds more than twice the legal 

speed limit” is misplaced, in view of precedent. See Comer, 716 A.2d at 595.

Although Hammaker’s actions were reprehensible, the instant record is devoid 

of evidence that he consciously disregarded an unjustified and extremely high 

risk that his actions might cause death or serious bodily injury.

Next, counsel had no reasonable basis for having Hammaker plead guilty 

to third-degree murder and aggravated assault where the requirement of 

malice could not be established and was not shown during Hammaker’s guilty 

plea colloquy. Although plea counsel testified at the PCRA hearing that he 
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discussed the malice requirement with Hammaker, the PCRA court did not 

credit counsel’s testimony. “A PCRA court passes on witness credibility at PCRA 

hearings, and its credibility determinations should be provided great deference 

by reviewing courts.” Commonwealth v. Johnson, 966 A.2d 523, 539 (Pa. 

2009). Moreover, plea counsel testified that he thought the plea court 

mentioned malice in its plea colloquy, but he could not recall if the word 

“malice” was brought up at the colloquy. N.T. PCRA Hearing, 9/19/22, at 31. 

As the PCRA court recognized, the plea court did not, in fact, colloquy

Hammaker on the issue of malice. 

Lastly, Hammaker established prejudice as he showed he would not 

have pleaded guilty to third-degree murder and aggravated assault and would 

have insisted on going to trial on those charges. Accordingly, the PCRA court 

did not err in granting in part Hammaker’s PCRA petition and reinstating his 

post-sentence and appellate rights.

Order affirmed. 

President Judge Panella joins the memorandum.

Judge Colins concurs in the result.
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Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 3/15/2024