Court voids plea in traffic death
Mosey struck, killed woman and unborn child in 2015
The Pennsylvania Superior Court has vacated the guilty plea entered 27 months ago by a Bellwood-area resident, Tarence M. Mosey, who was charged with homicide by vehicle while under the influence of alcohol after his Jeep Cherokee struck and killed a woman and her unborn child on the North Eighth Street Bridge.
Mosey is incarcerated in the State Correctional Institution at Houtzdale serving a three-year minimum prison sentence imposed after he entered his guilty pleas to several charges before Blair County Judge Timothy M. Sullivan.
Two judges on the Pennsylvania Superior Court, James G. Colins and Maria McLaughlin, late last week concluded that Mosey’s guilty plea to homicide by DUI, for which he received a three- to six-year prison sentence, was not voluntary or knowing because the elements of the crime were not properly explained to him by his defense counsel.
Judge Mary P. Murray entered a dissenting opinion stating she disagreed with the conclusion that trial counsel, Hollidaysburg attorney Robert Donaldson, failed to properly advise Mosey of the elements of homicide by DUI.
Because of the majority decision, Mosey’s guilty plea and sentence have been vacated and the case returned to Blair County for further proceedings.
Mosey, 26, on Oct. 10, 2017, entered pleas to homicide by DUI, aggravated assault by a vehicle while DUI, DUI (high rate of alcohol), careless driving, speeding and operating a vehicle without a valid license.
The defendant, with the help of stand-by counsel, Mark Zearfaus, filed a post-conviction petition, which after a hearing in April 2019 was denied.
Sullivan heard from four witnesses: Mosey’s mother, Donaldson, accident reconstruction expert Richard McEldowney and Mosey himself.
The nub of the defense argument was that Mosey’s trial counsel failed to explain to him that the commonwealth, to gain a conviction for homicide by DUI, had to prove that the alcohol consumed by Mosey was the cause of the accident that led to the death of 29-year-old Brandyn Boyd and her unborn child.
The woman was standing behind her disabled vehicle on the North Eighth Street Bridge during the early morning of May 27, 2015.
He contended he entered his guilty plea after his attorney allegedly told him all the prosecution had to prove was that he was under the influence of alcohol and caused an unintentional death.
The majority judges stated, “Unfortunately, it is … clear that the advice that trial counsel gave concerning the elements of that offense (homicide by DUI) seriously misstated the elements of that offense and understated the commonwealth’s burden of proof.
“The offense of homicide by vehicle while DUI requires proof of both of the following two elements: a conviction for DUI and proof that the DUI caused the death of the victim,” according to the majority opinion.
Judges Colins and McLaughlin reported that during the plea, the elements of what the prosecution had to prove were not reviewed, and they concluded that Mosey’s plea to the most serious charge against him was “not voluntary and knowing.”
Mosey, during his post-trial hearing did not dispute he caused an accidental death but contended “that the accident would have occurred regardless of his intoxication,” according to the majority opinion.
Murray in her dissent said she “disagreed with the majority’s assessment that trial counsel’s testimony at the PCRA hearing demonstrated a misunderstanding of the causation element of homicide by DUI.”
She pointed out that Donaldson testified during the post-trial hearing that he and Mosey had “many discussions about the elements and that sort of thing.”
Murray stated she disagreed with the majority conclusion that trial counsel failed to advise Mosey about all the elements of homicide by DUI.
Mosey in his petition to the Superior Court raised many other issues.
He wanted Sullivan to recuse himself from his case, but all three judges rejected that argument declaring there was no evidence produced by Mosey to show the judge was biased, prejudiced or unfair in his handling of the case.
The majority did not address several other issues, but Murray in her opinion did:
— Mosey said his trial attorney was ineffective by not filing a motion to suppress the blood-alcohol test results that showed he was under the influence of alcohol that night.
He pleaded guilty to the charge of DUI and thus waived that issue, Murray stated.
— Mosey claimed his counsel failed to request a change of venue and failed to object to the fact there were no African Americans in the jury pool. Mosey is of African American descent.
Again, Murray pointed out these issues are moot because Mosey pleaded guilty.
— Mosey contended he was under the influence of medication during his plea.
Murray noted that Mosey was asked by the judge during his guilty plea if he was under the influence of any drug, alcohol or medication. His answer, she stated, was, “No, sir.”
“(Mosey) was bound by these statements and cannot now claim that trial counsel failed to investigate whether his medications caused him to enter an involuntary plea,” Murray wrote.