Philadelphia criminal appeals lawyer Lloyd Long discusses details surrounding the Pennsylvania’s Superior Court’s decision in the Diehl case. A fire chief parked his emergency vehicle diagonally across the two lanes of I-83 and activated his overhead lights. Diehl drove past at 41-59 miles per hour, striking and killing the chief. An expert recreated the scene and testified that he was able to see the overhead lights 3,000 feet away. He further testified that based on the way the chief’s truck was parked, Diehl had to drive at least two feet across the fog line when going around the emergency vehicle at that speed.

Diehl was also drunk: subsequent testing revealed a BAC of 0.118. He was twice convicted previously of DUI — once each in Pennsylvania and Maryland — and part of his PA sentence included attending a DUI education class.

The Commonwealth sought to introduce evidence of both convictions under Rule 404(b), but the trial court only admitted the PA DUI conviction and attendance at the DUI awareness class. Diehl sought appellate review, and the Superior Court affirmed the trial court’s exercise of discretion.

The prior DUI and class proved Diehl’s criminal negligence, recklessness, and malice — he had greater knowledge about the dangers of driving drunk. It also tended to show the absence of mistake, and rebutted Diehl’s defense: because of the prior DUI and knowledge from the DUI class of the impact of driving drunk, Diehl could not claim that the accident was caused by a mistake or his failure to adequately respond to a rapidly developing situation. It was caused by his intoxication.

The trial court gave a cautionary instruction on the prior conviction and the jury acquitted Diehl of third-degree murder. Under those circumstances, it was impossible to conclude that the evidence unduly prejudiced the jury.

Diehl did not raise a substantial question on his claim that the sentence imposed, consisting of three consecutive terms of imprisonment, was excessive. The trial court imposed the sentence because Diehl consciously drank before driving, disregarded an obvious emergency on the road, and drove away from the collision. Diehl did not meaningfully address these reasons in his statement for allowance of appeal.

The panel would not have granted relief even if he had. The lower court considered the nature and circumstances of the offense; Diehl’s attempt to argue that certain circumstances mitigated his intoxication was unpersuasive.

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