Appeal from the Judgment of Sentence dated September 10, 1975, of the Court of Common Pleas, Criminal Division, of Beaver County, at No. 80 of 1975. No. 93 April Term, 1976.
James M. Keller, Ellwood City, for appellant.
Joseph M. Stanichak, Asst. Dist. Atty., Beaver, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Cercone, J., files a concurring opinion. Van der Voort, J., dissents.
[ 244 Pa. Super. Page 185]
Appellant, following a jury trial in May, 1975, was convicted of involuntary manslaughter,*fn1 failure to stop at the scene of an accident,*fn2 and failure to stop and render assistance.*fn3
We must consider three issues raised by this appeal, the first of which is whether or not there was sufficient evidence to support the jury's guilty verdicts.*fn4 We find that there was and affirm the lower court's refusal to arrest judgment.
The second question raised is whether the trial court committed reversible error by admitting the testimony of the arresting officer concerning the assertion, by appellant of his constitutional rights at the time of his arrest.
We conclude that there was reversible error and therefore order a new trial.
In order to facilitate the new trial we must consider a third argument made by appellant, that certain physical evidence should have been suppressed on the basis that appellant's automobile was illegally stopped by the arresting officer, and that the search of the automobile following impoundment, was invalid. We hold that the lower court properly refused to suppress the evidence.
In regards to the sufficiency of the evidence question, the following was offered as evidence at trial. On December 19, 1974, shortly after 7:00 p. m., Mrs. Joanne Evans was fatally injured when she was struck by an automobile
[ 244 Pa. Super. Page 186]
while she was walking along 12th Avenue in White Township, Beaver County. No eyewitnesses were produced.
Two Commonwealth witnesses, Mr. and Mrs. Murphy, testified that at about 7:00 p. m. on the evening of the 19th, while driving along a road leading to 12th Avenue, at a point one-half mile from where Mrs. Evans was struck, they had been passed on a blind curve by a dark blue or black Mercedes-Benz automobile of 1960 or 1961 vintage. Mr. Murphy estimated the speed of the passing vehicle to be about 45 miles per hour, which would have been 10 miles per hour above the posted limit on that section of the road. Mrs. Murphy testified that the driver of the Mercedes-Benz was a young man with shaggy hair of medium color. Appellant, a young man, owned an automobile fitting the description of the one that passed the Murphys.
After completing the pass, the Mercedes-Benz pulled away from the Murphy automobile, and went out of sight as it turned north on 12th Avenue. Mr. and Mrs. Murphy also turned north on 12th Avenue, but did not again catch sight of the Mercedes-Benz. After proceeding up 12th Avenue approximately two and one-half blocks, Mr. Murphy discovered the body of the deceased along the western, or left-hand berm of 12th Avenue between 28th and 29th Streets.
Mrs. Evans was pronounced dead on arrival at a Beaver Falls hospital to which she was rushed by ambulance. Death ...