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COMMONWEALTH v. PATERICK (03/29/76)

decided: March 29, 1976.

COMMONWEALTH
v.
PATERICK, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Mercer County, July T., 1974, No. 58, in case of Commonwealth of Pennsylvania v. Charles E. Paterick, Jr.

COUNSEL

J. Kerrington Lewis, Joseph I. Lewis, and Lewis & Stockey, submitted a brief for appellant.

Robert F. Banks, First Assistant District Attorney, with him Joseph J. Nelson, District Attorney, for Commonwealth, appellee.

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

Author: Cercone

[ 239 Pa. Super. Page 3]

On the evening of April 2, 1974, David Glen Rimer, age 16, was struck and killed while riding his bicycle on Pennsylvania Route 18 in West Salem Township. Appellant was charged and convicted by a jury of violation of Section 1027(a) and (b) of The Vehicle Code.*fn1

[ 239 Pa. Super. Page 4]

Section 1027(a) imposes a duty upon the operator of a vehicle involved in an accident, resulting in injury or death to any person or damage to property, to stop. Section 1027(b) imposes a duty upon the operator to identify himself and render reasonable assistance if necessary. Appellant's post-verdict motions were denied and he was sentenced to pay a fine of $225 and to undergo imprisonment for a period of one to twelve months. Appellant now appeals to this court raising four issues.

Appellant first argues that the Commonwealth has offered into evidence two conflicting factual accounts and therefore has failed to prove its case as a matter of law. In this argument appellant attempts to show that the facts offered by the Commonwealth bring the instant case into the class of cases stemming from Commonwealth v. New, 354 Pa. 188 (1946). In that case the court stated:

"When two equally reasonable and mutually inconsistent inferences can be drawn from the same set of circumstances, a jury must not be permitted to guess which inference it will adopt, especially when one of the two guesses may result in depriving a defendant of his life or his liberty. When a party on whom rests the burden of proof in either a criminal or a civil case, offers evidence consistent with two opposing propositions, he proves neither." 354 Pa. at 221. See also Commonwealth v. Zeringo, 214 Pa. Superior Ct. 300, 304 (1969) and Commonwealth v. Donald, 192 Pa. Superior Ct. 276, 282 (1960). Cf., Commonwealth v. Rothman, 226 Pa. Superior Ct. 319, 323 (1973).

The basis for this argument is the testimony of Commonwealth's witness David Owen Dick. Mr. Dick testified that on the evening of David Rimer's death he was traveling south on Route 18 behind a blue and white vehicle which could have been either a Chevelle or a Buick Gran Sport. Appellant was driving a General Motors pickup truck at the time. Mr. Dick observed

[ 239 Pa. Super. Page 5]

    sparks coming from underneath the blue and white car and then when reaching the point where the sparks had appeared he observed bicycle parts on the highway. On the side of the highway was the body of David Rimer. Mr. Dick checked the body and found it had no pulse. Mr. Dick further observed that at this time there was a stream of blood two and a half feet running from the upper portion of the body. Noticing that the car ahead of him had momentarily stopped in the parking lot of the Blue Sky Inn but then began leaving, Mr. Dick gave chase for approximately a half a mile at speeds up to 100 m.p.h. Realizing he could not catch the other vehicle Mr. Dick returned to the Blue Sky Inn and reported the incident to the police.

Appellant contends that it could have been the automobile observed by Mr. Dick which struck and killed the decedent and, therefore, the jury should not have been permitted to guess whether it was his truck or the other vehicle which struck the deceased. The fault in appellant's argument is that it fails to consider the monumental evidence against him. Appellant himself testified that on the night of the death of David Rimer he was traveling south on Route 18 in the area of the Blue Sky Inn when he heard a loud cracking noise and he observed that the right top corner of his windshield had been broken. Appellant testified that he pulled over, backed up a little and then not seeing anything proceeded on. Appellant assumed that he hit a speed limit sign. His pickup truck was later discovered by the police as a result of an anonymous tip. Yellow and red paint was found on the white front bumper, the right headlight was broken and ...


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