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decided: September 21, 1971.


Appeal from judgment of Court of Common Pleas of Montgomery County, Nov. T., 1967, No. 517, in case of Commonwealth of Pennsylvania v. Ervin F. Cave.


Louis Sager, with him Lawrence Sager, and Sager & Sager Associates, for appellant.

Stewart J. Greenleaf, Assistant District Attorney, with him William T. Nicholas, Executive Assistant District attorney, Parker H. Wilson, First Assistant District Attorney, and Milton O. Moss, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Cercone, J. Dissenting Opinion by Jacobs, J.

Author: Cercone

[ 219 Pa. Super. Page 514]

On September 9, 1967, at approximately 2:30 p.m. defendant Irvin F. Cave was operating his automobile at a high rate of speed on Swamp Pike in Montgomery County. His vehicle catapulted along the highway, passing two or three automobiles at one time, and crossing the solid yellow center line (no passing area) as he did so. As he sped along the road, he approached a curve which he was unable to negotiate properly, crossed the center line of the highway, and violently collided head-on with an automobile being driven in the opposite (northerly) direction by Leon S. Haraczka. Mrs. Haraczka, a passenger in her husband's automobile, was killed instantly. Defendant was charged with involuntary manslaughter and upon trial was found guilty by a jury. He filed motions for a new trial and in arrest of judgment which were refused by the court below. This appeal followed.

Defendant claims it was error for the trial judge to have permitted Trooper Yoblomski to testify that defendant, during an interview, had disclosed that somewhere around 2:00 p.m. on the day of the fatal accident he was at the Fruitville Inn Bar on Swamp Pike where he had imbibed "a couple of beers", then got into his automobile and headed south on Swamp Pike toward Limerick.

It is the defendant's contention that the admission of this testimony was prejudicial error, being in violation of the rule set forth in Fisher v. Dye, 386 Pa. 141 (1956) that "the mere fact of drinking intoxicating liquor is not admissible, being unfairly prejudicial, unless it reasonably establishes a degree of intoxication which proves unfitness to drive: Critzer v. Donovan, 289 Pa. 381, 384, 385, 137 A. 665, 666; Landy v. Rosenstein, 325 Pa. 209, 216, 188 A. 855, 859; Balla v. Sladek, 381 Pa. 85, 93, 112 A.2d 156, 160."

[ 219 Pa. Super. Page 515]

It is true that the "mere" drinking of intoxicating liquor is inadmissible to prove that a driver was under the influence of intoxicating liquor and unfit to drive an automobile. However, it is also true that if in addition to the drinking, facts are shown from which a conclusion reasonably follows that the driver was under the influence of intoxicating liquor, all the evidence, the drinking and the surrounding circumstances, are admissible for the consideration of the trier of facts to determine whether or not the drinking was wholly or partly the cause of an accident for which he is being held responsible.

In the case now before us the record discloses more than the fact that defendant drank "a couple of beers". It also establishes that immediately after drinking those beers he got into his car, traveled onto Swamp Pike, and proceeded thereon in a wild, reckless, and dangerous manner to the place of the fatal accident which occurred only one mile away from the Fruitville Inn. A clear description of the manner in which defendant operated his automobile immediately after leaving Fruitville Inn was established by three disinterested witnesses. One witness, Mrs. Slaybaugh, testified that she was operating her automobile on Swamp Pike in the same southerly direction as defendant at a speed of 55-56 miles per hour (the speed limit was 55 miles per hour) when she saw, in her rear view mirror, the defendant cross over the yellow line dividing the southerly and northerly lanes of travel, travel into the northerly lane of oncoming travel, and pass her vehicle and the two vehicles traveling in front of her. She approximated defendant's speed at about 65 miles per hour. When defendant passed the two vehicles in front of her, the yellow line dividing the two directions of traffic was a solid one and continued to be a solid line as it went around the curve where the collision with the northbound Haraczka vehicle occurred. Mrs. Slaybaugh did

[ 219 Pa. Super. Page 516]

    not see the collision because defendant's automobile had passed beyond her view of the curve in the road.

Evidence of what occurred after defendant's vehicle went out of Mrs. Slaybaugh's line of vision was supplied by two other disinterested witnesses who were traveling in the northbound lane behind the Haraczka vehicle. Marvin L. Heimbach testified he was traveling directly behind Mr. Haraczka on this northbound lane, that he saw defendant's car "on the curve" crossing over the yellow line into the northbound lane, and that only a few seconds elapsed from the time he thus saw defendant's car to the time of the collision. This witness testified that immediately prior to the collision Mr. Haraczka had reduced his speed to about 5 miles per hour, attempting to steer his car to the right out of the defendant's collision course.

Another witness, John J. Hojecki, testified he was also traveling in the northbound lane behind Mr. Heimbach. Mr. Hojecki testified he saw defendant's car first "straddling" across the center line on the curve, with the left front and left back wheels in the northbound lane, while traveling in a southerly direction. He estimated defendant's speed: "I would say he was going over 70 miles an hour." He saw defendant's car only for a "fraction of a second" or a "second" for then it went completely over into the northbound lane of travel out of his line of vision which was blocked by the Heimbach and Haraczka vehicles in front of him. This witness stated: "Well, I know I didn't see him no more. And I know he was coming ...

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