Appeal from order of Court of Common Pleas, Criminal Division, of Allegheny County, Sept. T., 1972, No. 7989A, in case of Commonwealth of Pennsylvania v. David R. Greer.
Robert L. Campbell and Robert L. Eberhardt, Assistant District Attorneys, John M. Tighe, First Assistant District Attorney, and John J. Hickton, District Attorney, for Commonwealth, appellant.
John R. Cook, Trial Defender, John J. Dean, Chief, Appellate Division, and George H. Ross, Public Defender, for appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Van Der Voort, J. Dissenting Opinion by Price, J. Spaeth, J., joins in this dissenting opinion.
[ 232 Pa. Super. Page 449]
The instant appeal was taken by the Commonwealth following the lower court's action in sustaining a defense demurrer at the conclusion of the presentation of the Commonwealth's case. The appellee, David Greer, was charged with involuntary manslaughter after a passenger in his automobile was killed in a traffic accident. The accident in question occurred on June 2, 1972 on a bridge in Pittsburgh. The record shows that the appellee, then aged 20, was driving two young girls home from a birthday party at approximately 11:20 P.M. His sixteen year old male friend, the deceased, was sitting in the front passenger seat of the car. The two girls were seated in the back seat.
Some two blocks before the bridge, appellee, in the right lane, stopped at a red light. In the left lane, another car was stopped at the light on this 4 lane (two lanes in each direction) street. When the light turned green, both cars started towards the bridge; the speed limit was posted at 35 miles per hour. The driver of the other car testified he was driving at approximately 20-25 miles per hour. One of the female passengers testified that the appellee tried to pass by the other car, but that the other car was "moving back and forth not to let us pass him." The road narrows at the bridge entrance to one lane in each direction.
The appellee increased his speed and pulled past the other driver about a half block before the bridge -- a witness stated that the other driver's bumper swerved into appellee's lane as he was passing. Appellee started swerving on the wet surface and apparently lost control as he came onto the bridge. He hit bridge barriers on either side of the bridge and spun several times before coming to a rest in the middle of the bridge. Nobody was hurt other than the male passenger, who was thrown from the car while it spun. He died from his injuries eight days later. The testimony of various Commonwealth witnesses
[ 232 Pa. Super. Page 450]
placed appellee's speed at anywhere between 33 and 45 miles per hour as he passed by the other car and approached the bridge.
The Commonwealth claims that evidence of speeding by appellee, together with his act of passing on the right side of the other car provide the necessary "reckless, careless or wanton" conduct necessary to support an involuntary manslaughter conviction. See Commonwealth v. Clowser, 212 Pa. Superior Ct. 208, 239 A.2d 870 (1968). We must disagree.
We have held that not every violation of law or unlawful act in the operation of a motor vehicle will render an operator criminally liable for deaths which may result. Commonwealth v. Clowser, supra. In Commonwealth v. Busler, 445 Pa. 359, 361, 284 A.2d 783 (1971), which involved an analogous situation, it was held that the defendant's driving conduct must ". . . evidence a disregard of human life or an indifference to consequences" to sustain an involuntary manslaughter conviction. We find the evidence in the instant case falls far short of that standard. While it cannot be maintained that appellee ...