gross deviation standard in Pennsylvania

2026“Negligently” is intended to be criminal negligence which is defined as “a gross deviation from the standard of care that a reasonable person would observe.” Heck, 517 Pa. at 201 , 535 A.2d at 580 .

2026“Negligently” is intended to be criminal negligence which is defined as “a gross deviation from the standard of care that a reasonable person would observe.” Heck, 517 Pa. at 201 , 535 A.2d at 580 .

2026Our Supreme Court has emphasized, “The negligence required to merit criminal sanctions under Section 302 is certainly a heightened deviation from the standard of care applicable when civil tort liability is at issue.” Huggins, 836 A.2d at 867 .

2021Commonwealth v. Huggins, 836 A.2d 862 , 870–871 (Pa. 2003). - 11 - J-A18003-21 Here, the trial court determined that Copney’s actions “did not amount to a gross deviation from the standard of care that a reasonable person would exhibit under the circumstances.” Trial Court Opinion, 8/13/2020, at 6.

2026The Superior Court concluded “[O’Hanlon]’s initial act of driving while intoxicated was . . . sufficient to render him criminally culpable, since such behavior is a gross deviation from the standard of care a reasonable person would observe.” Id. at 617 .

2019The risk must be of such a nature and degree that, considering the nature and intent of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation. 18 Pa.C.S.A. § 302(b)(1)-(3).5 ____________________________________________ 5 Wyda further claims that, to support the aggravated assault conviction under a finding that a person acted recklessly, the “recklessness must . . . be such that life threatening injury is essentially certain to occur.” Commonwealth v. O’Hanlon

2019Recklessness under the statute denotes a “conscious disregard of a substantial and unjustifiable risk that public annoyance or alarm would result from her conduct, or a gross deviation from the standard of conduct that a reasonable person would observe in her situation.” Commonwealth v. Weiss, 490 A.2d 853, 857 (Pa. Super. [] 1985).

2017To establish recklessness, the defendant’s actions must show a “conscious disregard of a substantial and unjustifiable risk that public annoyance or alarm would result from her conduct, or a gross deviation from the standard of conduct that a reasonable person would observe in her situation.” Commonwealth v. Troy, 832 A.2d 1089, 1094 (Pa.Super. 2003) (quoting Commonwealth v. Weiss, 490 A.2d 853, 857 (Pa.Super. 1985)).

2021Commonwealth v. Kutzel, 64 A.3d 1114, 1119 (Pa. Super. 2013) (quoting Commonwealth v. Lobiondo, 462 A.2d 662, 666 (Pa. 1983)).

2017Commonwealth v. Kutzel, 64 A.3d 1114, 1119 (Pa. Super. 2013) (quoting Commonwealth v. Lobiondo, 462 A.2d 662, 666 (Pa. 1983)).

2020See Wells Fargo Bank N.A. v. Spivak, 104 A.3d 7, 16 (Pa. Super. 2014) (noting that a decision by the Commonwealth Court is not binding on this Court).

2020See Wells Fargo Bank N.A. v. Spivak, 104 A.3d 7, 16 (Pa. Super. 2014) (noting that a decision by the Commonwealth Court is not binding on this Court).

2019Id. (citing P.R., 801 A.2d at 487 ; J.B., 824 A.2d at 345 .) After the Law was amended in 2013, our Court clarified the analysis required under Section 6304(d) in Allegheny County Office of Children, Youth & Families v. Department of Human Services, 202 A.3d 155 (Pa. Cmwlth. 2018).

2018P.R., 801 A.2d at 486-87 .

2017Ketterer, 725 A.2d at 806-07 ; see also 18 Pa.C.S. § 302(b)(4) ([providing that] “[a] person acts negligently ... when he should be aware of a substantial and unjustifiable risk ... [that is] of such a nature and degree that the actor’s failure to perceive it ... involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation”) (emphasis added).

2016Ketterer, 725 A.2d at 806-07 ; see also 18 Pa.C.S. § 302(b)(4) (“[a] person acts negligently ... when he should be aware of a substantial and unjustifiable risk ... [that is] of such a nature and degree that the actor's failure to perceive it ... involves a gross deviation from the standard of care that a reasonable person would observe in the actor's situation”) (emphasis added).

2020In Commonwealth v. Kutzel, 64 A.3d 1114 (Pa. Super. 2013), this Court considered how to determine whether an actor’s conduct constituted a gross deviation from the standard of care.

2020We vacated Kutzel’s AIDPI conviction because there “was no evidence that [Kutzel’s] failure to perceive [the child] crossing the street represented a gross deviation from the standard of care to which a reasonable driver would adhere.” Id. at 1119 .

2020In Commonwealth v. Nichols, 692 A.2d 181 (Pa. Super. 1997), the Court explained “the phrase ‘under circumstances manifesting extreme indifference to the value of human life’ modifies ‘recklessly’ such that reckless conduct not circumstantially manifesting such indifference will not support an aggravated assault conviction under this subsection[, i.e., subsection (a)(1)].” Nichols, 692 A.2d at 186 (emphasis added); see also id. at 186 n.5 (stating the “recklessness defined in 18 Pa.C.S. § 302(b)(3) does not establish the malice required to convict under 18 Pa.C.S. § 2702(a)(1).” (emphasis added

2011The risk must be of such a nature and degree that, considering the nature and intent of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation. 18 Pa.C.S.A. §302(b)(3). “[F]or the degree of recklessness contained in the aggravated assault statute to occur, the offensive act must be performed under circumstances which almost assure that injury or death will ensue.” Commonwealth v. Nichols, 692 A.2d 181, 185 (Pa. Super. 1997) (citing Commonwealth v. O’Hanlon, 653

2019“Recklessly endangering another person is a crime ‘directed against reckless conduct entailing a serious risk to life or limb out of proportion to any utility the conduct might have.’” Commonwealth v. Vogelsong, 90 A.3d 717, 719 (Pa. Super. 2014) (citing Commonwealth v. Rivera, 503 A.2d 11 (Pa. Super. 1985) (en banc)).

2018“Recklessly endangering another person is a crime ‘directed against reckless conduct entailing a serious risk to life or limb out of proportion to any utility the conduct might have.’” Commonwealth v. Vogelsong, 90 A.3d 717, 719 (Pa. Super. 2014) (citing Commonwealth v. Rivera, 503 A.2d 11 (Pa. Super. 1985) (en banc)).

2024Our courts have clarified that the “concept of gross negligence is encompassed within the concept of recklessness as set forth in Section 302(b)(3).” Commonwealth v. Karner, 193 A.3d 986, 992 (Pa.Super. 2018) (citing Commonwealth v. Huggins, 86 A.2d 862 , 868 (Pa. 2003) (generally indicating that “grossly negligent” is equivalent state of mind to “recklessness”)). - 13 - J-S16037-24 To the extent that the evidence shows that Appellant was awake when he caused the accident, this Court has held that driving in the opposite lane of traffic may sufficiently establish the mens rea of recklessness.

2024Our courts have clarified that the “concept of gross negligence is encompassed within the concept of recklessness as set forth in Section 302(b)(3).” Commonwealth v. Karner, 193 A.3d 986, 992 (Pa.Super. 2018) (citing Huggins, 836 A.2d at 868 (Pa. 2003) (generally indicating that “grossly negligent” is equivalent state of mind to “recklessness”)).

2023Importantly, “[i]ntent can be proven by direct or circumstantial evidence; it may be inferred from acts or conduct or from the attendant circumstances.” Commonwealth v. Miller, 172 A.3d 632, 641 (Pa. Super. 2017) (citation and original quotation marks omitted), appeal denied, 183 A.3d 970 (Pa. 2018).

2020The risk must be of such a nature and degree that, considering the nature and intent of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation. 18 Pa.C.S.A. § 302(b)(1-3). “[I]ntent can be proven by direct or circumstantial evidence; it may be inferred from acts or conduct or from the attendant circumstances.” Commonwealth v. Miller, 172 A.3d 632, 641 (Pa. Super. 2017) (citation and original quotation marks omitted), appeal denied, 183 A.3d 970 (Pa. 2018).

2021It is clear that EWOC’s mens rea of “knowingly” involves a higher level of culpability than REAP’s mens rea of “recklessly.” See Commonwealth v. Martir, 712 A.2d 327, 329 (Pa. Super. 1998) (“[A] conviction for [EWOC] requires proof that the accused acted ‘knowingly,’ i.e., that the accused not only knew that he has a duty to protect the child but also knew that the child was placed in circumstances that could threaten the - 11 - J-A01015-21 child’s welfare.

2021It is clear that EWOC’s mens rea of “knowingly” involves a higher level of culpability than REAP’s mens rea of “recklessly.” See Commonwealth v. Martir, 712 A.2d 327, 329 (Pa. Super. 1998) (“[A] conviction for [EWOC] requires proof that the accused acted ‘knowingly,’ i.e., that the accused not only knew that he has a duty to protect the child but also knew that the child was placed in circumstances that could threaten the - 11 - J-A01015-21 child’s welfare.

2020See Commonwealth’s Brief at 8 (citing to Commonwealth v. Packer, 168 A.3d 161 (Pa. 2017), Commonwealth v. Smith, 956 A.2d 1029 (Pa. Super. 2008) (en banc), and Commonwealth v. Kling, 731 A.2d 145 (Pa. Super. 1999)).

2018“The risk must be of such a nature and degree that, considering the nature and intent of the actor’s conduct and the circumstances known to [the actor], its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation.” Id. -4- J-S47023-18 To establish recklessness in the context of an aggravated assault charge, the defendant’s conduct “must be such that one could reasonably anticipate death or serious bodily injury would likely and logically result.” Bruce, 916 A.2d at 664 (quoting Commonwealth v. Kling, 731 A.2d 145, 148 (P

2015This Court has previously observed that, The Crimes Code provides that the negligence required for commission of the offense of aggravated assault by vehicle DUI is present “when [a person] should be aware of a substantial and unjustifiable risk ... [that is] of such a nature and degree that the actor's failure to perceive it ... involves a gross deviation from the standard of care that a reasonable person would observe in that actor's situation.” Commonwealth v. Miller, 810 A.2d 178, 181 (Pa. Super. 2002) (internal quotation and punctuation marks in original), appeal denied, 825 A.2d 638 (Pa.

2009“The Crimes Code provides that the negligence required for commission of the offense of [AA-DUI] is present ‘when [a person] should be aware of a substantial and unjustifiable risk ... [that is] of such a nature and degree that the actor’s failure to perceive it ... involves a gross deviation from the standard of care that a reasonable person would observe in that actor’s situation.’ ” Commonwealth v. Miller, 810 A.2d 178, 181 (Pa.Super.2002) (quoting 18 Pa.C.S. § 302(b)(4)). ¶ 9 Here, the record indicates that Appellant, after imbibing 5 to 6 sixteen-ounce cans of beer, over a period of appro

1990See Commonwealth v. Moore, 463 Pa. 317, 330, n. 15 , 344 A.2d 850, 857, n. 15 (1975), concurring opinion of ROBERTS, J.).

1990See Commonwealth v. Moore, 463 Pa. 317, 330, n. 15 , 344 A.2d 850, 857, n. 15 (1975), concurring opinion of ROBERTS, J.).

2020See Commonwealth’s Brief at 8 (citing to Commonwealth v. Packer, 168 A.3d 161 (Pa. 2017), Commonwealth v. Smith, 956 A.2d 1029 (Pa. Super. 2008) (en banc), and Commonwealth v. Kling, 731 A.2d 145 (Pa. Super. 1999)).

2018In Commonwealth v. Smith, 956 A.2d 1029 (Pa.Super. 2008), appeal denied, 989 A.2d 917 (Pa. 2010), this court recognized that a heightened degree of recklessness, akin to malice in a murder case, is required for aggravated assault convictions: To prevail on a theory of recklessness [in an aggravated assault prosecution], the Commonwealth must show an assailant’s recklessness rose to the level of malice, a crucial element to sustain a conviction for aggravated assault.

2026Our decision in Commonwealth v. Cheatham, 615 A.2d 802 (Pa. Super. 1992), provides helpful analysis on criminal negligence standards and their application to the evidence.

2026Cheatham, 615 A.2d at 806 .

2026The risk must be of such a nature and degree that, considering the nature and intent of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation. 18 Pa.C.S. § 302(b)(3). ____________________________________________ 7 While Kling’s question as presented references causation, his brief does not discuss that element. - 22 - J-A27038-25 The “conscious disregard” of a risk requires knowledge of the risk on the actor’s part, and thus the Commonwealth must show that Kli

2026“In other words, to be guilty of reckless driving, a person must be aware that there exists a substantial risk that injury will result from his driving and yet continue to drive in such a manner, thus callously disregarding the risk created by his own reckless driving.” Id. at 532.

2017Similarly, even if the accused was not aware of the risk he ran of achieving the actual result, a court can find him guilty of criminally reckless conduct if "the actual result involves the same kind of injury or harm as the probable result and is not too remote or accidental in its occurrence .... " Commonwealth v. Moore, 395 A.2d 1328, 1331 (Pa. Super.

1979See Commonwealth v. Bowden, 442 Pa. 365 , 276 A.2d 530 (1971) (inflicting ruthless beating on six year old child shows reckless disregard of probability of serious bodily *542 injury); Commonwealth v. Moore, 261 Pa.Super. 92 , 395 A.2d 1328 (1978) (severe and prolonged beating of seven year old child shows recklessness).