Appeal, No. 210, Oct. T., 1957, from judgment of Court of Quarter Sessions of the Peace of Philadelphia County, August T., 1956, No. 860, in case of Commonwealth v. Ronald Levin. Judgment affirmed.
William A. Gray, with him Cormac J. Malloy, for appellant.
Juanita Kidd Stout, Assistant District Attorney, with her James N. Lafferty, First Assistant District Attorney, and Victor H. Blanc, District Attorney, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 184 Pa. Super. Page 437]
Ronald Levin has appealed from his conviction and sentence on a charge of involuntary manslaughter. The contention of his present counsel is that "The Commonwealth failed to establish that the conduct of the appellant was a proximate cause of the death of the decedent". The case was tried before President Judge BOK without a jury. Appellant did not demur to the evidence, or file a motion in arrest of judgment. While reference is made at several points in the transcript to a motion for a new trial, the docket entries do not disclose that such a motion was actually filed, and it is not contained in the original record. Nor do we have the benefit of an opinion below. See Superior Court Rule 43. Since the contention appellant presently
[ 184 Pa. Super. Page 438]
advances was not properly raised in the lower court, this appeal should be dismissed upon the authority of Commonwealth v. Mays, 182 Pa. Superior Ct. 130, 126 A.2d 530. However, because the precise question is alleged to be one of the first impression in Pennsylvania, we will dispose of the appeal upon the merits.
Between five and six o'clock in the morning of May 14, 1955, appellant and four other young men were together in a diner at Sixty-third and Lancaster Avenue in the City of Philadelphia. They departed in a car owned and operated by one of them, Robinson. At 5151 Dakota Street appellant transferred to his own car, and drove down Dakota Street. Robinson, with his three passengers, drove down the adjoining street. Both drivers turned right on Fifty-first Street, appellant's car being to the rear. They then turned into Wynnefiled Avenue, going west. At Fifty-fourth and Wynnefield Avenue, appellant attempted to pass the Robinson car. Realizing that appellant was trying to pass, Robinson accelerated his speed. The drivers kept going faster, appellant's car being along the side of the Robinson car to the left, in such proximity that it could have been touched by the passengers in the Robinson car. When the two cars arrived at Woodbine Avenue, they again bore left. As they approached the 5700 block of Woodbine Avenue, the cars were going approximately 80 miles per hour. One of the passengers, who was seated left rear in the Robinson car, opened his window, and shouted to appellant to get away. Appellant persisted in maintaining his position. The passengers called to their driver, Robinson, to slow down, and he replied: "Well stop being chicken". The speed finally attained 85 to 95 miles per hour. As the cars reached Fifty-seventh Street, appellant turned sharply to the right in front of Robinson,
[ 184 Pa. Super. Page 439]
who thereupon lost control of his car, and hit a tree. One of the passengers, Klinghoffer, was thrown to the road and fatally injured.
It is readily apparent from the testimony that appellant and Robinson were participating in a race or speed contest. Such unlawful conduct constitutes reckless driving. Act of 1929, P.L. 905, Section 1001(c), 75 P.S. 481(c). Appellant endeavors to escape responsibility for Klinghoffer's ensuing death on the ground that "his car did not come into contact with the victim or some instrumentality which contacted the victim". We are not in accord with this argument. To the contrary, we are in agreement with the position of the trial judge at the time of Robinson's ...