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COMMONWEALTH v. GOCHENAUR (06/24/75)

decided: June 24, 1975.

COMMONWEALTH
v.
GOCHENAUR, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Lancaster County, Nos. 616 and 617 of 1973, in case of Commonwealth of Pennsylvania v. Paul A. Gochenaur.

COUNSEL

William A. Atlee, Jr., with him Geisenberger, Zimmerman, Pfannebecker & Gibbel, for appellant.

Michael H. Ranck, Assistant District Attorney, with him Mary Anne Motter, Assistant District Attorney, and D. Richard Eckman, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J.

Author: Hoffman

[ 234 Pa. Super. Page 590]

Appellant was found guilty by a jury of involuntary manslaughter*fn1 and failing to stop and render assistance*fn2

[ 234 Pa. Super. Page 591]

    in connection with a fatal automobile accident. Appellant contends that the lower court erred in denying his motion for a demurrer to the manslaughter charge because the Commonwealth failed to produce sufficient evidence to convict. In regard to the charge of failing to stop and render assistance, appellant argues that testimonial reference by the Commonwealth to his silence during custodial interrogation requires that a new trial be granted.

At approximately 12:15 a.m. on January 6, 1973, a hit and run accident occurred on Lancaster Avenue in Columbia Borough. The evidence produced at trial indicates that Maria Santiago, who died as a result of the injuries she sustained in the accident, and Donna Haug were walking on the north side of Lancaster Avenue. The highway does not have sidewalks but there is a gravel berm approximately three feet wide. The investigating officers determined the point of impact from the location of the victim's pocketbook and apron. The victim's body came to rest 122 feet away from the point of impact. Although she was unable to witness the accident because she was walking slightly ahead of the victim, Donna Haug testified that the deceased was walking entirely on the berm. The point of impact is located at a slight curve with little illumination. There was no evidence of skid marks at the scene, and the Commonwealth offered no testimony concerning the speed of the automobile which struck Maria Santiago.

Several people at the spot where the deceased's body came to rest informed the police that the car was a darkcolored, late model with possible damage to its right front fender and a missing headlight. The police immediately issued a county-wide call for assistance in locating the car. The police gathered small pieces of glass and paint chips from the area around the point of impact and from

[ 234 Pa. Super. Page 592]

    the deceased's body. On the afternoon of January 6, 1973. Officers Roberts and Landis of the Columbia Police Department were notified by a third policeman that an automobile answering the description given by the witnesses was located at the Grinnell parking lot in Columbia. The two officers brought the paint samples with them when they went to investigate the lead. Upon observing that the automobile fit the general description and that the paint on the vehicle seemed to match the paint samples, the officers believed that probable cause to remove paint samples from the automobile existed. Officer Landis remained at the parking lot while Officer Roberts obtained a search warrant. Upon returning, Officer Roberts took paint samples from the car and sent them to the police laboratory along with the paint samples obtained from the scene of the accident and from the deceased's body.

The officers determined that the car was registered to appellant. At approximately 3:30 p.m., appellant came out of the Grinnell plant and approached his car. The officers read the search warrant to him, infomed him of his constitutional rights, and asked him to accompany them to the police station. At the station, appellant was again given "Miranda" warnings.*fn3 Officer Roberts testified

[ 234 Pa. Super. Page 593]

    that during the interrogation appellant asked if he could contact an attorney. The following ...


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