Appeal from order of Court of Common Pleas of Berks County, Feb. T., 1971, No. 191, in case of Commonwealth of Pennsylvania v. Dennis R. Hoke.
Grant E. Wesner, Deputy District Attorney, and Robert L. Van Hoove, District Attorney, for Commonwealth, appellant.
Eugene F. Wisniewski, for appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Cercone, J. Spaulding, J., dissents.
[ 223 Pa. Super. Page 321]
Dennis R. Hoke was charged in an information filed before a Justice of the Peace with operating a motor vehicle at a speed too fast for conditions, in violation of Section 1002, Subsection (a) of Article 10 of The Vehicle Code. The violation was alleged to have occurred when defendant traveled past a parked school bus and struck a schoolchild who had alighted from the bus. The information stated that he operated his vehicle at a rate of at least thirty miles per hour.
At the hearing before the Justice of the Peace there was testimony by eyewitnesses as to the defendant's manner of operation of his vehicle immediately before and at the time he struck the child. A series of witnesses testified that the school bus was stopped at the scene of the accident; that its lights were flashing; that defendant passed the bus, did not apply his brakes or slow down or attempt to slow down or stop until after the child was hit; that the impact, according to one witness, "threw her into the air"; another witness said he saw the child "spiral into the air, flew approximately 90 feet"; another witness said she flew "20 or 30 feet into the air after being hit"; another witness said he saw the hit girl "spiraling into the air"; and yet another witness stated he "saw her flying into the air".
Because of objections to the witnesses' manner of stating or describing defendant's speed, which objections were sustained by the Justice of the Peace, there was no admitted evidence of the specific speed at which defendant was traveling at the time he struck the child.
[ 223 Pa. Super. Page 322]
Therefore, defendant moved for acquittal, which motion was denied by the Justice of the Peace. The Justice of the Peace, though agreeing with defendant in his finding that no speed was ascertained, denied the motion for acquittal "on the basis that the conditions surrounding this accident, such as, the bus with children alighting, flashing lights on the bus, cars awaiting the clear signal to travel on, that approaching car was traveling at such a speed that he did not secure the life, limb or property of any person and that no defense was presented to offset this conclusion. I therefore, the Justice of the Peace, declare Dennis R. Hoke, guilty as charged, Driving Too Fast for Conditions." Defendant filed exceptions which were sustained by the court below and the Commonwealth has appealed.
The lower court agreed that: "In a prosecution of this type it is not necessary to prove an exact speed in the manner in which violations are proved for failure to comply with mandated speed limits: Commonwealth v. Klick, 164 Pa. Superior Ct. 449. In the case cited, the Superior Court stated, pp. 453-4: 'As in the case of reckless driving, the determination of what constitutes driving "too fast for conditions" is for the finder of the facts, . . .' in this case the justice of the peace."
However, the lower court held: "When the fact finder concludes as he did here that 'no speed was ascertained', the reviewing court cannot conclude that in fact the speed was improper under the circumstances." This statement is, of course, contradictory to the immediately preceding statement to the effect that it was not necessary that a specific speed be ascertained, and was also contradictory to the immediately following statement: "It is true that the fact finder does set forth certain conclusions from the testimony which strongly ...