Pennsylvania Supreme Court Reports

COMMONWEALTH v. BULLOCK, 111 MAP 2005 (Pa. 12-27-2006) COMMONWEALTH OF PENNSYLVANIA, Appellee v. MATTHEW BULLOCK, Appellant. No. 111 MAP 2005. Supreme Court of Pennsylvania, Middle District. ARGUED: October 18, 2006. DECIDED: December 27, 2006.

Appeal from the Order of the Superior Court entered on
January 14, 2005, reargument denied March 18, 2005, at No.
351 MDA 2004, affirming the Order of the Court of Common
Pleas of Luzerne County, Criminal Division, entered on
November 17, 2003, at Nos. 893, 894 of 2003.




This case primarily concerns the constitutionality of
Pennsylvania’s fetal homicide statute; it additionally
entails a challenge to jury instructions given at
Appellant’s trial, where he was convicted of voluntary
manslaughter of an unborn child.


In the late 1990s, Pennsylvania’s General Assembly enacted
the Crimes Against the Unborn Child Act.[fn1] The Act added
Chapter 26 to the Pennsylvania Crimes Code, which created
several new offenses designed to protect unborn children
from unlawful injury or death. Under the Act, an individual
commits criminal homicide of an unborn child if he or she
intentionally, knowingly, recklessly, or negligently causes
the death of an unborn child, see 18 Pa.C.S. § 2603,
a term that refers to the fetus at any stage of gestation.
See 18 Pa.C.S. § 2602.[fn2] Accordingly, the Act
establishes the crimes of first, second, and third degree
murder of an unborn child, as well as voluntary
manslaughter and aggravated assault of an unborn child. See
18 Pa.C.S. §§ 2604-2606. Its criminal
provisions do not apply, however, to consensual abortion,
doctors engaged in good faith medical practice, or pregnant
women in regard to crimes against their own unborn
children. See 18 Pa.C.S. § 2608(a). Of particular
relevance to this appeal are the Act’s specifications with
regard to voluntary manslaughter:

(a) Offense defined. — A person who kills an
unborn child without lawful justification commits
voluntary manslaughter of an unborn child if at the time
of the killing he is acting under a sudden and intense
passion resulting from serious provocation by: (1) the
mother of the unborn child whom the actor endeavors to
kill, but he negligently or accidentally causes the death
of the unborn child. . . .(c) Penalty. — The penalty for voluntary
manslaughter of an unborn child shall be the same as the
penalty for voluntary manslaughter.

18 Pa.C.S. § 2605.


In late 2002, Appellant was living with his girlfriend,
Lisa Hargrave, who was 22 to 23 weeks pregnant. According
to Appellant’s statement to police, on New Year’s Eve 2002,
he and Hargrave consumed alcohol and cocaine at a party and
then returned to their apartment, where Hargrave continued
to ingest cocaine. Appellant asked Hargrave to cease using
drugs for the remainder of the night in view of her
pregnancy. When Hargrave failed to comply, an argument
ensued, during which Appellant “blacked out.” When he
awoke, he found himself on top of Hargrave strangling her
so that she was almost unconscious. Because he feared
Hargrave would call the police, he wrapped her feet and
hands with masking tape and left the room. When he could
hear her yelling and attempting to free herself, he
returned, taped her mouth shut, and left the room again.
After Hargrave continued to struggle to break free,
Appellant returned to the bedroom once more and strangled
her until she stopped breathing. He then dragged her body
into the closet.

On January 6, 2003, Appellant arrived at the Wilkes-Barre
Police Department and informed an officer that he had
strangled his girlfriend to death. When the police arrived
at the apartment, they found Hargrave’s partially
decomposed body in the closet with her hands, feet, and
mouth bound with masking tape. Appellant was charged with
the murder of Hargrave, see 18 Pa.C.S. § 2501(a),
and, pursuant to the Act, with the criminal homicide of her
unborn child as well. He filed a pre-trial motion
challenging the constitutionality of the Act on, inter
alia, due process and equal protection grounds; this motion
was denied. The matter then proceeded to trial by jury in
October 2003, at which Appellant did not testify.

At trial, the coroner stated that, after performing
autopsies of Hargrave and her unborn child, he concluded
that Hargrave’s cause of death was “strangulation by
history,” which refers to the events immediately preceding
the death, see N.T. October 20, 2003, at 142-44; this
conclusion was apparently based, in part, upon the
occurrences as related by Appellant in his statement to
police. The coroner also found that the fetus’s death was
caused by “asphyxia due to the death of the mother by
homicide.” Id. at 148. In both cases, the coroner
determined that the manner of death was homicide.

Before deliberations began, Appellant objected to the trial
court’s refusal to charge the jury on the mens rea elements
“negligently” and “accidentally” found in the voluntary
manslaughter provision of the Crimes Against the Unborn
Child Act (see supra). The trial court overruled the
objection, however, opting to allow the jury to use the
“common and ordinary understanding” of the terms. Id. at
911. The jury found Appellant guilty-but-mentally-ill of
third degree murder as to Hargrave, and
guilty-but-mentally-ill of voluntary manslaughter of an
unborn child. Appellant was sentenced to consecutive terms
of imprisonment of fifteen to forty years for the murder of
Hargrave, and five to twenty years for voluntary
manslaughter of an unborn child. Appellant’s post-sentence
motions were denied.

After a unanimous panel of the Superior Court affirmed in a
published opinion, see Commonwealth v. Bullock, 868 A.2d
516 (Pa.Super. 2005), this Court granted discretionary
review. See Commonwealth v. Bullock, 584 Pa. 705, 885 A.2d
40 (2005) (per curiam). Only the judgment of sentence for
voluntary manslaughter of an unborn child is at issue in
this appeal.


We turn first to the question of the constitutionality of
the Crimes Against the Unborn Child Act.[fn3] It is
foundational that all legislation duly enacted by the
General Assembly enjoys a strong presumption of validity,
and “will only be declared void if it violates the
Constitution `clearly, palpably and plainly.'” City of
Phila. v. Commonwealth, 575 Pa. 542, 573, 838 A.2d 566, 585
(2003) (quoting Commonwealth, Dep’t of Transp. v.
McCafferty, 563 Pa. 146, 155, 758 A.2d 1155, 1160 (2000)).
The party challenging the statute’s constitutionality
“bears a very heavy burden to prove that it is
unconstitutional,” moreover, and all doubts on the question
are resolved in favor of a finding of constitutionality.
Payne v. Commonwealth, Dep’t of Corr., 582 Pa. 375, 383,
871 A.2d 795, 800 (2005). Because this is an issue of law,
our scope of review is plenary and our standard of review
is de novo. See Commonwealth v. Cousin, 585 Pa. 287, 294,
888 A.2d 710, 714 (2005).

A. Vagueness

Appellant initially contends that the Act violates due
process under the void-for-vagueness doctrine. He proffers
that, absent a requirement that the fetus be viable outside
the womb at the time of its death, the statute fails to
provide fair warning of precisely what conduct is
prohibited. Appellant reasons, in this regard, that, until a
fetus is viable (in the sense that it could likely survive
outside the womb),[fn4] it cannot actually be alive and,
hence, cannot suffer death. Such failure to include a
viability component, according to Appellant, permits
arbitrary application and enforcement of the statute because
it is impossible for a person of ordinary intelligence to
understand what “death” means when applied to a non-viable
fetus. See Brief for Appellant at 13-14.

The void-for-vagueness doctrine “requires that a penal
statute define the criminal offense with sufficient
definiteness that ordinary people can understand what
conduct is prohibited and in a manner that does not
encourage arbitrary and discriminatory enforcement.”
Kolender v. Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855,
1858 (1983); see Commonwealth v. Mayfield, 574 Pa. 460,
467, 832 A.2d 418, 422 (2003). Although criminal statutes
should be strictly construed in favor of lenity where there
is ambiguity, their words are, nonetheless, interpreted
according to the “fair import of their terms.” 18 Pa.C.S.
§ 105; see Commonwealth v. Booth, 564 Pa. 228, 234 &
n. 5, 766 A.2d 843, 846 & n. 5 (2001).

Presently, the Act prescribes that it is unlawful to
intentionally, knowingly, recklessly, or negligently cause
the death of an unborn child, defined to include all stages
of gestation from fertilization to live birth. This
definition is straightforward. In the first place, the
concept of a fetus or unborn child as a potential victim of
violence is neither obscure nor difficult to grasp. See
Booth, 564 Pa. at 241, 766 A.2d at 850 (“Today it is
understood that a mother and her unborn child are separate
and distinct entities, and that medicine is generally able
to prove the corpus delicti of the homicide of an unborn
child.”). It is also clear that, by defining unborn child
to include all stages of gestation, see supra note 2, the
General Assembly intended to eliminate any viability
requirement. Accord People v. Ford, 581 N.E.2d 1189, 1198
(Ill.Ct.App. 1991) (reaching same conclusion with regard to
a similarly-worded definition of unborn child). Moreover,
as appellate courts in other jurisdictions have elaborated
in construing similar feticide enactments, the statutory
language does not purport to define the concept of
personhood or establish when life as a human being begins
and ends; rather, it imposes criminal liability for the
destruction of a human embryo or fetus that is biologically
alive. See, e.g., State v. Merrill, 450 N.W.2d 318, 324
(Minn. 1990) (“People are free to differ or abstain on the
profound philosophical and moral questions of whether an
embryo is a human being, or on whether or at what stage the
embryo or fetus is ensouled or acquires `personhood.’ These
questions are entirely irrelevant to criminal liability
under the statute.”). In this context, death occurs when
the embryo or fetus “ceases to have the properties of
life.” Id.; see also Ford, 581 N.E.2d at 1201 (“The statute
only requires proof that, whatever the entity within the
mother’s womb is called, it had life and, because of the
acts of the defendant, it no longer does.”); see also
Bullock, 868 A.2d at 522 (“Clearly, a death occurs when the
embryo or fetus no longer has the capacity to thrive or
grow.” (citing Webster’s New Collegiate Dictionary 289 (8th
ed. 1981) (defining death as “a permanent cessation of all
vital functions”))).

Appellant appears to accept that the Legislature
intentionally omitted any viability requirement associated
with the death of an unborn child under the statute, but
largely premises his vagueness claim upon an assertion that
the concept of death is difficult to understand relative to
a fetus that is not viable (again, in the sense that it
could likely survive outside the womb). We disagree, as we
believe that the concepts of life and its cessation are
readily understandable to persons of ordinary intelligence
relative to biological life forms beginning at the cellular
level — as noted, the concept of biological life
extends to organisms that retain vital functions and the
capacity to grow and thrive. Appellant offers no example of
a circumstance in which an actor who causes the permanent
cessation of all of the vital functions of an embryo or
fetus would not conventionally understand that his conduct
has caused the death of the embryo or fetus.[fn5] Moreover,
to accept that a fetus is not biologically alive until it
can survive outside of the womb would be illogical, as such
a concept would define fetal life in terms that depend upon
external conditions, namely, the existing state of medical
technology (which, of course, tends to improve over time).
See Booth, 564 Pa. at 246 n. 18, 766 A.2d at 853 n. 18
(recognizing the General Assembly’s findings concerning
“the steady reduction in the age of fetal viability”).

Accordingly, viability outside of the womb is immaterial to
the question of whether the defendant’s actions have caused
a cessation of the biological life of the fetus, and hence,
to the question of whether the statute is vague in
proscribing the killing of an unborn child. We find that
individuals of ordinary intelligence are readily capable of
discerning the conduct prohibited by the Act, and we fail to
perceive anything in the legislation giving rise to a
substantial concern that it may be discriminatorily

B. Substantive Due Process

Appellant also maintains that the statute is
“unconstitutionally broad” for similar reasons, i.e.,
because it fails to “distinguish between viable or living
organisms and nonviable or nonliving organisms.” Brief for
Appellant at 15. He contends that the statute’s allegedly
unnecessary breadth is fatal to its validity because it
affects his fundamental liberty interest in remaining free
from confinement, and thus, must be justified by a
compelling state interest. In this respect, he notes that
the United States Supreme Court has determined that a
State’s interest in fetal life only becomes “compelling” at
viability, see Roe v. Wade, 410 U.S. 113, 163, 93 S. Ct.
705, 732 (1973), a property that he alleges the unborn
victim in the present case lacked.

We interpret this claim as sounding in substantive due
process, as opposed to overbreadth, both because it appears
in Appellant’s brief under a general due process heading,
see Brief for Appellant at 12, and because overbreadth
claims only pertain in a First Amendment context. See City
of Chicago v. Morales, 527 U.S. 41, 79, 119 S. Ct. 1849,
1870 (1999) (“[W]e have not recognized an `overbreadth’
doctrine outside the limited context of the First
Amendment.” (quoting United States v. Salerno, 481 U.S.
739, 745, 107 S. Ct. 2095, 2100 (1987))). Under the
doctrine of substantive due process, the United States
Supreme Court has recognized that the Fourteenth
Amendment’s Due Process Clause, see U.S. CONST. amend. IV,
§ 1 (“nor shall any State deprive any person of
life, liberty, or property, without due process of law”),
guarantees more than fair process and the absence of
physical restraint, but “provides heightened protection
against government interference with certain fundamental
rights and liberty interests.” Washington v. Glucksberg,
521 U.S. 702, 719-20, 117 S. Ct. 2258, 2267 (1997).

Appellant characterizes the liberty interest affected by
the Crimes Against the Unborn Child Act as his fundamental
right to remain free from confinement; however, complying
with the Act would not result in confinement. Moreover,
Appellant does not reference any authority for the position
that he has a right to unilaterally kill the unborn child
carried by another person. To the contrary, the United
States Supreme Court has affirmed that states have an
“important and legitimate interest” in protecting fetal
life at all stages, even if that interest only becomes
“compelling” at viability. Roe v. Wade, 410 U.S. 113, 163,
93 S. Ct. 705, 732 (1973); see Planned Parenthood v. Casey,
505 U.S. 833, 846, 112 S. Ct. 2791, 2804 (1992) (reaffirming
that one of Roe’s essential holdings was that “the State
has legitimate interests from the outset of the pregnancy
in protecting . . . the life of the fetus . . .”); see also
Bullock, 868 A.2d at 522-24 (discussing cases); accord
People v. Davis, 872 P.2d 591, 597 (Cal. 1994) (observing
that Roe “does not hold that the state has no legitimate
interest in protecting the fetus until viability”); State
v. Merrill, 450 N.W.2d 318, 322 (Minn. 1990) (noting that
the state’s interest in protecting “the potentiality of
human life” includes protection of the unborn child,
“whether an embryo or a nonviable or viable fetus”); State
v. Alfiery, 724 N.E.2d 477, 482 (Ohio App. 1998)
(explaining that, even under Roe, “there has never been any
notion that a third party . . . has a fundamental liberty
interest in terminating another’s pregnancy”); People v.
Ford, 581 N.E.2d 1189, 1199 (Ill.App.Ct. 1991). Therefore,
as Appellant has failed to identify any fundamental right
infringed by the statute, his substantive due process claim

C. Equal Protection

Appellant next urges us to find that the statute violates
the Equal Protection Clause. See U.S. CONST. amend. IV,
§ 1 (“nor shall any State . . . deny to any person
within its jurisdiction the equal protection of the laws”).
He proffers that natural fathers who kill their unborn
children are similarly situated to pregnant mothers who kill
the fetus they are carrying. In forwarding this argument,
Appellant again maintains that fundamental rights are in
issue, this time not only his right to remain free from
confinement, but his “liberty interest to father children
and in the growth and development of the fetus.” Brief for
Appellant at 17. Thus, he posits, “[t]he fact of pregnancy
alone, encompassed within a mother’s privacy right, is not
a compelling reason for the state to excuse a mother who
perpetrates a crime against her own unborn child, yet hold
the natural father criminally responsible . . . .” Id.

While the Equal Protection Clause assures that all
similarly situated persons are treated alike, it does not
obligate the government to treat all persons identically.
See Small v. Horn, 554 Pa. 600, 615, 722 A.2d 664, 672
(1998) (citing City of Cleburne v. Cleburne Living Ctr.,
473 U.S. 432, 439, 105 S. Ct. 3249, 3254 (1985)). Thus, the
Clause does not prevent state legislatures from drawing
classifications, so long as they are reasonable. See
generally Harrisburg Sch. Dist. v. Zogby, 574 Pa. 121, 136,
828 A.2d 1079, 1088 (2003) (affirming that equal protection
precepts “do not vitiate the Legislature’s power to
classify, which necessarily flows from its general power to
enact regulations for the health, safety, and welfare of
the community”). In determining constitutional
reasonableness, this Court first ascertains the appropriate
level of judicial scrutiny to apply, which in turn depends
upon the type of categorization involved and the nature of
the right affected. Where the challenged governmental
action does not burden “fundamental” or “important” rights,
and does not make a suspect or quasi-suspect
classification, it is subject to rational-basis review.
Small, 554 Pa. at 615, 722 A.2d at 672 (citing McCusker v.
Workmen’s Comp. Appeal Bd. (Rushton Mining Co.), 536 Pa.
380, 385, 639 A.2d 776, 778 (1994)). See generally
Commonwealth v. Bell, 512 Pa. 334, 344-45, 516 A.2d 1172,
1178 (1986) (summarizing the three levels of scrutiny in
Pennsylvania law). Suspect classes are race and national
origin, and for purposes of state law, alienage;
quasi-suspect classifications are gender and legitimacy.
See Small, 554 Pa. at 615 nn. 14-15, 722 A.2d at 672 nn.

Presently, the challenged distinction consists of the
mother versus everyone else. See 18 Pa.C.S. §
2608(a)(3) (exempting the pregnant woman in regard to
crimes against her own unborn child). This classification
is neither suspect nor quasi-suspect,[fn7] and the primary
asserted right involved, i.e., the “right” to unilaterally
kill the unborn child that another person is carrying, is
neither fundamental nor important — indeed, it does
not exist. Nor is any right of fathers to produce children
and promote their development adversely affected by the
Act; rather, the statute is plainly aimed at protecting
fetal growth and development from unlawful interference.
Hence, to survive judicial scrutiny, the present
classification need only satisfy the rational basis

Under rational basis review, a classification will be
upheld so long as it bears a reasonable relationship to a
legitimate state purpose. See Harrisburg Sch. Dist. v.
Zogby, 574 Pa. 121, 136, 828 A.2d 1079, 1088 (2003).
Specifically, “the classification, though discriminatory,
will be deemed reasonable if any state of facts reasonably
can be conceived to sustain it.” Id. at 137, 828 A.2d at
1089. In undertaking this analysis, courts are free to
hypothesize grounds the Legislature might have had for the
classification. See id. at 137-38, 828 A.2d at 1089 (citing
Baltimore & Ohio R.R. Co. v. Commonwealth, Dep’t of Labor &
Indus., 461 Pa. 68, 84, 334 A.2d 636, 644 (1975); Geary v.
Retirement Bd. of Allegheny County, 426 Pa. 254, 259-60,
231 A.2d 743, 746 (1967)). It bears repeating that all
doubts on this question, as with all questions of
constitutional validity, are resolved in favor of upholding
the statute.

In our view, the General Assembly had a legitimate basis
for distinguishing between the mother and everyone else.
Simply put, the mother is not similarly situated to
everyone else, as she alone is carrying the unborn child.
Under prevailing jurisprudence of the United States Supreme
Court, the fact of her pregnancy gives her (and only her)
certain liberty interests in relation to the termination of
that pregnancy that the Legislature could reasonably have
sought to avoid infringing by exempting her from criminal
liability under this particular statute. Cf. Witters v.
State Comm’n for the Blind, 771 P.2d 1119, 1123 (Wash.
1989) (rejecting an equal protection challenge where the
classification at issue served the Legislature’s interest
in complying with constitutional requirements). Although
the Act contains a separate exemption for voluntary
abortion, see 18 Pa.C.S. § 2608(a)(1), because of
the mother’s unique connection to the fetus there are
various situations even outside of the abortion context
(such as those pertaining to drug addiction or attempted
suicide) in which she alone might bear an increased risk of
criminal prosecution were it not for the (a)(3) exception.
The Legislature could rationally have taken this into
account and sought to place the mother on a similar footing
to all other persons as respects these types of
situations.[fn8] While this does result in the mother being
treated more leniently under the Act as regards crimes
against her unborn child, such a result would only be
constitutionally problematic if it stemmed from an
arbitrary classification, which, as noted, it does not.
Accordingly, Appellant has not carried his burden of
proving that the challenged distinction is “clearly,
palpably, and plainly” unconstitutional.


We now turn to Appellant’s alternate claim that he should
receive a new trial due to an error in the trial court’s
jury instructions. The court first instructed the jury
concerning the possible verdicts as to the killing of
Hargrave, and then as to the killing of the unborn child.
In this latter portion of the charge, after delineating the
elements of murder of an unborn child, including malice,
the trial court instructed the jury on the offense of
voluntary manslaughter of an unborn child:

If you do not find that the Defendant had malice . . .
you may find him guilty of voluntary manslaughter of the
unborn child as long as you are satisfied that the
following three elements have been proven beyond a
reasonable doubt: first, that the unborn child is dead.
Second, that the Defendant killed it. And, third, that
the Defendant had the intent to kill the mother of the
unborn child.

N.T. October 20, 2003, at 907. As discussed above, the
applicable statutory definition of manslaughter of an
unborn child clarifies that the defendant must have been

acting under a sudden and intense passion resulting from
serious provocation by the mother of the unborn child whom
the actor endeavors to kill, but he negligently or
accidentally causes the death of the unborn child.

18 Pa.C.S. § 2605(a)(1) (emphasis added). Appellant
states that the Act establishes a minimum mens rea,
relative to causing fetal death, of negligence or accident,
which the judge refused to define for the jury.

A. Negligence

In the present context, the term “negligence” means
criminal negligence, see 18 Pa.C.S. § 302, official
cmt., which is defined as follows:

A person acts negligently with respect to a material
element of an offense when he should be aware of a
substantial and unjustifiable risk that the material
element exists or will result from his conduct. The risk
must be of such a nature and degree that the actor’s
failure to perceive it, considering the nature and intent
of his conduct and the circumstances known to him,
involves a gross deviation from the standard of care that
a reasonable person would observe in the actor’s

18 Pa.C.S. § 302(b)(4); see Commonwealth v. Heck, 517
Pa. 192, 201, 535 A.2d 575, 580 (1987); Commonwealth v.
Ketterer, 725 A.2d 801, 806-07 (Pa.Super. 1999). This is a
higher level of negligence than ordinary tort negligence.
See Commonwealth v. Huggins, 575 Pa. 395, 404, 836 A.2d
862, 867 (2003).

Appellant argues that the judge’s failure to define
criminal negligence allowed the jury to convict on the
basis of ordinary negligence. The Commonwealth counters
that the charge must be read as a whole, and that the judge
had previously defined gross negligence. Therefore,
according to the Commonwealth, the judge’s overall
instructions accurately reflected the law. See Brief for
Appellee at 19. While the judge did define gross
negligence, see N.T. October 20, 2003 at 895, this
definition was provided as part of the charge on the
homicide of the mother, and not the unborn child. The
Commonwealth’s suggestion that the jury must have
understood the same definition to apply to mere negligence,
a distinct term recited as an element of a different
offense, is not well taken. We find that the trial court
erred in refusing Appellant’s request that it define
criminal negligence for purposes of the offense of
voluntary manslaughter of an unborn child. See Commonwealth
v. Safrit, 517 Pa. 484, 485, 538 A.2d 1335, 1335 (1988)
(per curiam) (noting the necessity of a charge on the
applicable mens rea requirement); see also Commonwealth v.
Mason, 474 Pa. 308, 311, 378 A.2d 807, 808 (1977) (“The
trial court’s refusal to charge the jury concerning the
element of intent necessary to convict of voluntary
manslaughter was error.”).

This raises the question of whether the error was harmless.
The Superior Court deemed the error harmless by observing
that the evidence adduced at trial was sufficient to
support a finding of criminal negligence. See Bullock, 868
A.2d at 526. Evidentiary sufficiency, however, is not the
correct standard where the trial court errs. Rather, under
the harmless error doctrine, the judgment of sentence will
be affirmed in spite of the error only where the reviewing
court concludes beyond a reasonable doubt that the error
did not contribute to the verdict. See Commonwealth v.
Samuels, 566 Pa. 109, 112-13, 778 A.2d 638, 641 (2001).

Upon review under this standard, we conclude that the trial
court’s error in failing to define “negligently” was
harmless. The jury received the charge set forth above and
ultimately convicted Appellant of voluntary manslaughter of
an unborn child. One of the elements that the trial judge
recited for this offense was that Appellant must have “had
the intent to kill” the mother. Thus, pursuant to the
instructions — which the jury is presumed to have
followed, see Commonwealth v. Williams, 581 Pa. 57, 78, 863
A.2d 505, 517 (2004) — the guilty verdict for
manslaughter of an unborn child subsumed a specific finding
by the jury that Appellant intended to kill Hargrave.[fn9]
Further, it is undisputed that Appellant was aware of
Hargrave’s pregnancy, and that the jury knew of this
awareness on Appellant’s part.[fn10] Any failure on
Appellant’s part to perceive that killing Hargrave would
also result in the death of her unborn child, considering
the nature and intent of his conduct and the circumstances
known to him, would plainly “involve[] a gross deviation
from the standard of care that a reasonable person would
observe in [Appellant’s] situation.” Thus, as the degree of
culpability actually found by the jury was at least criminal
negligence with respect to the unborn child, the court’s
failure to define this term could not have contributed to
the verdict.

B. Accident

As part of this claim, Appellant also takes issue with the
trial court’s “failure to instruct on the mens rea
component of `accidentally.'” Brief for Appellant at 10;
see N.T. October 20, 2003, at 911 (reflecting the judge’s
decision to allow the jury to rely on the “common or
ordinary” meaning of the term). Preliminarily, we find
doubtful Appellant’s suggestion that “accidentally” is a
mens rea, or guilty mental state. Rather, it is a term of
common usage that, in the present context, signifies the
lack of any purpose or intention to kill the unborn child.
For example, as the Superior Court observed, “the death of
an unborn child could be considered `accidental’ if the
perpetrator was not aware the mother was pregnant. . . .”
See Bullock, 868 A.2d at 526. In this respect, the offense
as described under Section 2605(a)(1) embodies the concept
of transferred intent, similar to that reflected in the
traditional manslaughter offense when the actor
“negligently or accidentally” kills someone other the
individual whom “the actor endeavors to kill.” 18 Pa.C.S.
§ 2503(a)(2).[fn11] Appellant does not reference any
authority for the position that “accidentally” must be
defined by the trial court, and we are unaware of any;
indeed, the jury would appear capable of applying a
common-sense meaning to the term. Cf. Commonwealth v.
Lambert, 529 Pa. 320, 339, 603 A.2d 568, 577 (1992)
(indicating that the term, “knowingly created a grave risk
of death to others,” need not be defined by the trial
court, as the jury was able to apply a common-sense
meaning).[fn12] Finally, as we have already determined that
the evidence was uncontested that Appellant was criminally
negligent in the killing of the unborn victim, whether or
not the jury had an incorrect understanding of the term
“accidentally” is inconsequential.


For the reasons stated, the judgment of sentence for
voluntary manslaughter of an unborn child is affirmed.

Mr. Chief Justice Cappy, Mr. Justice Castille, Madame
Justice Newman, Mr. Justice Eakin and Madame Justice
Baldwin join the opinion.

Mr. Justice Baer files a concurring opinion.

[fn1] Act of October 2, 1997, P.L. 379, No. 44, effective
March 31, 1998 (as amended, 18 Pa.C.S. §§ 2601-2609).

[fn2] Section 2602 provides this definition by reference to
the Abortion Control Act, 18 Pa.C.S. §§ 3201-3220.
See 18 Pa.C.S. § 3203 (defining both
“unborn child” and “fetus” as “an individual organism of the
species homo sapiens from fertilization until live birth”).

[fn3] As noted, a contention surrounding the jury
instructions given at trial is before the Court. However,
the constitutional question must be addressed because, even
if Appellant were to prevail with regard to the jury
instruction issue, a new trial on the fetal homicide charge
could only be required if the Act is deemed constitutional.

[fn4] Although the Act does not reference the concept of
viability, we note that the Abortion Control Act defines
viability as “[t]hat stage of fetal development when, in
the judgment of the physician based on the particular facts
of the case before him and in light of the most advanced
medical technology and information available to him, there
is a reasonable likelihood of sustained survival of the
unborn child outside the body of his or her mother, with or
without artificial support.” 18 Pa.C.S. § 3203.

[fn5] Appellant does argue that the statute leaves room for
speculation in unusual cases in which, for example, brain
activity in a developed fetus may have ceased but other
vital functions remain. See Brief for Appellant at 14. It
is well settled, however, that, outside the First Amendment
context, vagueness challenges are examined in light of the
facts of the case at hand, rather than abstract,
hypothetical scenarios. See Commonwealth v. Heinbaugh, 467
Pa. 1, 5, 354 A.2d 244, 245 (1976) (quoting United States
v. Mazurie, 419 U.S. 544, 550, 95 S. Ct. 710, 714 (1975)).
If a defendant’s conduct was clearly prohibited by the
challenged statute, he will have received fair warning even
though there may be doubts about the statute’s
applicability in other situations.

[fn6] This Court has sometimes used the term “sensitive
classification” when referring to quasi-suspect
classifications. See id.

[fn7] Notably, this is not a gender classification, as male
and female perpetrators (other than the mother) are treated
identically under the Act.

[fn8] This Court need not presently opine regarding the
legal propriety of a hypothetical criminal prosecution of
the mother in such circumstances. The relevant point here
is that the classification is not arbitrary, but is based
on the Legislature’s recognition that the mother is
differently situated from everyone else in relation to her
unborn child.

[fn9] Any inconsistency between this finding and the jury’s
failure to convict Appellant of first-degree murder of
Hargrave is of no moment. See generally Commonwealth v.
Magliocco, 584 Pa. 244, 266, 883 A.2d 479, 492 (2005) (“[A]
mere facial inconsistency in verdicts is not a valid basis
upon which to upset a conviction which is otherwise proper,
since consistency in verdicts is not required.”).

[fn10] For example, in his signed statement to the police
— which was shown and read to the jury, see N.T.
October 20, 2003, at 83, 85 — Appellant indicates:
“She [Hargrave], being 6 months pregnant, I asked her to
slow down [in her use of drugs].” The officer who took the
statement also provided uncontested testimony that, upon
turning himself in to the police, Appellant orally admitted
he knew Hargrave was pregnant. See id. at 73.

[fn11] See generally Commonwealth ex rel. McCant v. Rundle,
418 Pa. 394, 396, 211 A.2d 460, 462 (1965) (describing the
transferred intent rule); State v. Brady, 903 A.2d 870,
875-78 (Md. 2006); In re T.K., 849 N.E.2d 286, 289 (Ohio
2006) (“[U]nder the doctrine of transferred intent, an
offender who intentionally acts to harm someone but ends up
accidentally harming another is criminally liable as if the
offender had intended to harm the actual victim.”); State
v. Horne, 319 S.E.2d 703, 704 (S.C. 1984) (explaining the
operation of transferred intent in a common-law fetal
homicide scenario).

[fn12] We note that the Act’s general definition of criminal
homicide of an unborn child indicates that that the offense
includes the mens reas of intentionally, knowingly,
recklessly, and negligently, see 18 Pa.C.S. §
2603(a), whereas the specific definition of voluntary
manslaughter of an unborn child clarifies that an accidental
cause of death suffices so long as the actor endeavored to
kill the mother. See id., § 2605(a)(1). There is no
conflict between these two provisions, however, because
Section 2603 does not preclude liability where the death of
the unborn child is accidental. Furthermore, even if a
conflict were deemed to exist, the particular definition of
voluntary manslaughter would control. See 1 Pa.C.S.
§ 1933 (providing that, in statutory construction,
specific provisions prevail over general ones where a
conflict exists).



I join the decision of the Majority in full. I write
separately only to emphasize certain matters implicit in
our decision which I believe are of particular importance
and, thus, are worth reiteration.

As the Majority correctly observes, the United States
Supreme Court, through Roe v. Wade, 410 U.S. 113 (1973),
and its progeny, has clearly concluded that states have an
important and legitimate interest in protecting fetal
gestation from the outset of a pregnancy through the birth
of a child. See generally Maj. Slip Op. at 9-10. The
legislature was, therefore, within its prerogative in
enacting the Crimes Against the Unborn Child Act (the
“Act”), 18 Pa.C.S. §§ 2601-2609, in
furtherance of that interest. In doing so, the legislature
sought to criminalize certain acts that would result in the
cessation of the gestational process. As aptly noted by the
Majority, however, the legislature’s effort in this regard,
“does not purport to define the concept of personhood or
establish when life as a human being begins and ends;
rather, it imposes criminal liability for the destruction of
a human embryo or fetus that is biologically alive.” Maj.
Slip Op. at 6 (citing State v. Merrill, 450 N.W.2d 318, 324
(Minn. 1990)) (“People are free to differ or abstain on the
profound philosophical and moral questions of whether an
embryo is a human being, or on whether or at what stage the
embryo or fetus is ensouled or acquires `personhood.’ These
questions are entirely irrelevant to criminal liability
under the statute.” (emphasis added).

Accordingly, I stress that, in my view, our decision today
upholding the legislation in question should not, and
cannot, be interpreted as an attempt in any way to define,
generally, a fetus as a life-in-being or as endorsing the
notion that the interruption of the reproductive process is
the killing of human life. Roe and its progeny remain the
law in this nation and any attempt, based upon the
legislature’s choice of language in the Act, to undermine
its constitutional imperative is unavailing.