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COMMONWEALTH v. SMITH (07/21/55)

July 21, 1955

COMMONWEALTH
v.
SMITH, APPELLANT.



Appeal, No. 106, Oct. T., 1955, from judgment of Court of Quarter Sessions of Lehigh County, Sept. T., 1953, No. 17, in case of Commonwealth of Pennsylvania v. Robert E. Smith. Judgment affirmed.

COUNSEL

Paul A. McGinley, with him Harry P. Creveling, for appellant.

George J. Joseph, First Assistant District Attorney, with him M. Jack Morgan, District Attorney, for appellee.

Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside and Ervin, JJ.

Author: Ross

[ 178 Pa. Super. Page 253]

OPINION BY ROSS, J.

This is an appeal from a sentence for involuntary manslaughter after conviction by jury and refusal of new trial by the court below.

On the night of June 15, 1953 at about 11:20, the defendant, Robert E. Smith, was operating his automobile in an easterly direction on Emmaus Avenue in the City of Allentown. At 11th and Emmaus Avenue he collided head-on with the vehicle driven by Florrie Salevsky going in the opposite direction, and as a result of this collision Mae Rossmando, a passenger in the Salevsky car, was killed. Both drivers and Donald Burian, a passenger in defendant's automobile, survived. The evidence indicates that defendant left the Borough of Emmaus in excess of 75 miles per hour on a narrow, winding, high-crown road. Just before reaching 11th and Emmaus Avenue in Allentown, he applied his brakes and skidded 292 feet down a downgrade, crossed the road and collided with the Salevsky car at a right-hand curve at the foot of the downgrade.

[ 178 Pa. Super. Page 254]

The jury returned a verdict of guilty, and after defendant's motion for a new trial was refused he was sentenced by the Lehigh County court, and this appeal followed.

The defendant does not question the sufficiency of the evidence to sustain the conviction but bases this appeal upon several alleged trial errors.

One of the witnesses called on behalf of the Commonwealth was Donald Burian, a passenger in defendant's automobile at the time of the collision. On the morning following the accident this witness had given a written subscribed statement of the events leading up to the accident to the Allentown Police Department. At the trial and during the direct examination by the Commonwealth it was quite evident that the witness was reluctant to testify against his host, the defendant. The record indicates that it became increasingly necessary for the Commonwealth to extract the facts from this witness by leading questions. The witness had lapses of memory and then began contradicting his prior subscribed statement as to certain material facts. His testimony and his prior statement conflict regarding the facts of defendant's speed, the distance from which defendant first observed the oncoming vehicle, the time when defendant first applied his brakes (whether prior to observing the Salevsky car or after, and whether he applied his brakes to slow up for the curve, or to avoid the collision after observing the Salevsky car), and there is conflict concerning the defendant and Burian being followed out of the Borough of Emmaus by ...


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