WEST CHESTER – A Common Pleas Court judge on Wednesday found a Lincoln University student guilty in a 2011 fatal crash, a verdict that may see him sent to state prison for at least three years.
Judge Anthony Sarcione found Phillip Tomsic guilty of homicide by vehicle while driving under the influence, aggravated assault while DUI, involuntary manslaughter, recklessly endangering another person, and related charges, after hearing the case without a jury for three days earlier this month.
Tomsic was at the wheel of a borrowed car on Nov. 4, 2011 when it slammed into a tree on Ashum Road just off the Lincoln University campus in Lower Oxford. He and two friends, Anthony Vernon Washington and Kadeem Fulmore, had gone to get Chinese food at an Oxford restaurant and were on their way back to the campus when the crash occurred. Police said the car was travelling at an excessive rate of speed when it left the road and hit the tree.
The car burst into flames. Washington, 21, was killed instantly by blunt force trauma. Fulmore, now 23, suffered massive injuries and severe burns after being trapped in the car for some period of time before emergency crews pulled him out. Tomsic was able to pull himself from the wreckage with only moderate injuries.
All three had been drinking liquor before the crash in a university residence, a witness testified.
'This is a tragedy for everyone involved,' said District Attorney Chief of Staff Charles Gaza, who prosecuted his case, after Sarcione announced his verdict. Not only had Washington been killed and Fulmore severely injured, but Tomsic was left responsible for harming two close friends, Gaza said, and now faces a prison term.
'This type of case is an example to everyone of the dangers of drinking and driving,' Gaza said outside the courtroom. 'Not only could you harm someone you don't know, but you can harm someone you have known for years. It shows the ultimate consequences of drinking and driving, and is why everyone takes drinking and driving so seriously in this county.'
Tomsic, 23, of Bangor, Mich., did not speak following Sarcione's verdict. His mother, Diana Tomsic, who had attended the three days of trial, lowered her head when Sarcione proclaimed her son guilty of the most serious charge – homicide by vehicle while DUI – which carries with it a mandatory minimum sentence of three years in state prison.
Defense attorney William Davis Jr. of Media, who represented Tomsic, told Sarcione that his client had been expecting to return to Lincoln this fall to complete his degree, for which he is shy seven credits. Tomsic, a school baseball player, participated in the Lincoln's commencement ceremony in May.
Sarcione, however, noting the serious nature of the possible sentence facing Tomsic, ordered the $75,000 bail he had been held on since his arrest in September increased to $150,000 cash, and directed that he be taken to Chester County Prison until he could post that amount.
Outside the courtroom, Davis echoed Gaza's sentiments about the tragic nature of the case.
'This was not an intentional act,' the defense attorney said. 'He is extremely remorseful for what happened.' But Davis had argued in his case that speed was the factor that directly contributed to the crash, not alcohol, and that there was considerable doubt as to what Tomsic's blood alcohol content, or BAC, had been at the time the crash occurred.
He said the defense conceded Tomsic was guilty of homicide by vehicle, but not the more serious charge.
'I think we presented a clear case that this wasn't caused by drinking but by speed, but the judge decided it was,' he said.
In his verdict, Sarcione accepted the prosecution's case that Tomsic's BAC was between .08 percent and .10 percent within two hours after the crash. He accepted the testimony of the prosecution's expert that the BAC was at .089 at 12:15 a.m. Nov. 5, and that looking back it could be determined that at the time of the crash his BAC was .12, over the .08 legal limit for DUI.
Davis' defense expert had testified that there were too many variables and no way of knowing what Tomsic's BAC was at the time of the crash.
In testimony during the trial on Aug. 12, Ariel Steele, a former Lincoln student who had been friends with Washington and Fulmore, told Sarcione that she had seen Tomsic drinking alcohol at Fulmer's campus residence on Nov. 4, 2011. She said he had two drinks with either gin or vodka that she saw, as well as a drink he had brought with him to the informal party.
She described Tomsic as acting 'silly' at the party, walking around like an ape as members of a Lincoln fraternity he was trying to get into did. When he and Fulmore decided they wanted to drive to Oxford to get Chinese food, she told them to be careful.
'I told him I was overprotective of my brothers, and to make sure he was really good to drive,' Steele said. 'He assured me he was fine.' She said as Tomsic and Fulmore left, Washington grabbed a sweater and ran out after them.
Some time later, after the trio failed to return, she left the residence and saw a car on fire. She rushed to see what had happened to her friends, but was grabbed by a police officer at the scene. 'I told him they had been drinking and I thought that is why they crashed.'
Fulmore was eventually rescued from the burning 2004 Chevrolet Impala, but suffered devastating injuries as a result of the crash. He lost his right foot, left leg below the knee, suffered a traumatic brain injury, two collapsed lungs, and has severe burns across over 50 percent of his body. Fulmore is still hospitalized recovering from his injuries, Gaza said.
At the time of Tomsic's arrest, officials said an investigation of the crash determined the vehicle was traveling in excess of 85 miles per hour prior to the crash.
Sarcione said he would set a sentencing date for Tomsic after the completion of a pre-sentencing report.