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COMMONWEALTH v. HICKS (06/11/64)

June 11, 1964

COMMONWEALTH
v.
HICKS, APPELLANT.



Appeal, No. 112, Oct. T., 1964, from judgments of Court of Oyer and Terminer and General Jail Delivery of Philadelphia County, June T., 1963, Nos. 1936 and 1937, in case of Commonwealth of Pennsylvania v. John Hicks. Judgments affirmed.

COUNSEL

John Hicks, appellant, in propria persona.

Philip M. Capone and Thomas M. Reed, Assistant District Attorneys, F. Emmett Fitzpatrick, Jr., First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for Commonwealth, appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

[ 203 Pa. Super. Page 308]

OPINION PER CURIAM

This is an appeal from a conviction by a jury on indictments Nos. 1936 and 1937, June Term, 1963, in the Court of Quarter Sessions of Philadelphia County, charging defendant with the failure to stop and render assistance to an injured person and with involuntary manslaughter. Defendant was sentenced on each bill of indictment to a term of not less than eighteen months nor more than three years to be served consecutively in the State Correctional Institution at Philadelphia.

No post-conviction motions were filed. Ordinarily, matters not raised in the court below will not be considered on appeal. Com v. Gomori, 192 Pa. Superior Ct. 325, 330, 161 A.2d 649. However, we have decided to consider this appeal on its merits.

Defendant questions the sufficiency of the evidence to sustain the convictions as well as the evidence concerning the identity of the defendant as the driver of the car that struck deceased.

The offense of involuntary manslaughter "consists of the killing of another person without malice and unintentionally, but in doing some unlawful act not amounting to a felony, or in negligently doing some lawful act: ... Where the act in itself is not unlawful, to make it criminal, the negligence must be such a departure from prudent conduct as to evidence a disregard of human life or an indifference to consequences: ...

[ 203 Pa. Super. Page 309]

Reckless driving upon the highway is such a departure from prudent conduct: ..." Com. v. Hartle, 200Pa. Superior Ct. 318, 324, 188 A.2d 798, 801.

A review of the evidence in a light most favorable to the verdict (Com v. Gomori, supra, 192 Pa. Superior ct. 325, 327, 328, 161 A.2d 649) establishes the following:

Arthur Gilmore, an eyewitness, testified that, at 7:15 p.m. on March 4, 1963, Harry Yeager, a pedestrian, was struck by a 1955 or 1956 Chrysler or Plymouth car which was being driven south on 17th Street. The accident occurred at the intersection of 17th Street and Columbia Avenue, Philadelphia. Mr. Gilmore described the car as being black with a red top. He estimated the speed of the car at fifty miles per hour as the light turned amber. The light was red as the car passed through the intersection. The front of the car struck Yeager who was crossing the street, throwing his body eleven feet into the air and a distance of thirty feet. He further testified that the driver stopped for a few seconds but ...


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