No. 238 March Term, 1977 Appeal from Order of the Court of Common Pleas, Criminal Division, of York County at No. 1545 October Sessions, 1975.
Sheryl Ann Dorney, Assistant District Attorney, with her Donald L. Reihart, District Attorney, York, for Commonwealth, appellant.
Thompson J. McCullough, Assistant Public Defender, York, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., files a dissenting opinion.
[ 252 Pa. Super. Page 334]
This is an appeal by the Commonwealth from an order of the court below sustaining a demurrer*fn1 to a charge of involuntary manslaughter arising from a fatal motor vehicle accident on Route 74 in York County.
In reviewing a lower court order sustaining a demurrer "the test to be applied by us is whether the evidence of record and the inferences reasonably drawn therefrom would support a guilty verdict, and in making our determination we must read the evidence in the light most favorable to the Commonwealth." Commonwealth v. Bey, 221 Pa. Super. 405, 406, 292 A.2d 519, 520 (1976). So viewed, the record discloses the following.
At the scene of the accident Route 74 is a two-lane highway eighteen feet seven inches wide. One Lorne Seifert was proceeding north on Route 74, operating a dump truck towing a lowboy trailer on which a backhoe was
[ 252 Pa. Super. Page 335]
loaded. Seifert's vehicles were approximately eight to nine feet wide, and a combined length of over thirty feet. As he approached the intersection of Route 74 and Barrens Church Road, Seifert observed the appellee, Joseph Trainor, Sr., driving a large van type truck in the opposite direction. Near the intersection the two vehicles sideswiped, after which appellee's truck catapulted some forty feet and landed on an automobile to the rear of Seifert's dump truck-lowboy trailer, causing the death of two occupants of the automobile.
Seifert testified that, prior to the sideswipe, appellee's vehicle was moving "pretty fast." Seifert's girlfriend, who was riding with him, stated that appellee was going "faster than the speed limit" of 45 miles per hour for trucks. The investigating officer, State Trooper Raymond Mitchell, estimated the speed of Seifert's truck and trailer to be in the vicinity of 35 to 45 miles per hour after the sideswipe. Trooper Mitchell did not testify directly as to the speed of appellee's truck. However, on cross-examination, it was revealed that at the preliminary hearing Trooper Mitchell testified that he had calculated that, after the sideswipe, appellee's truck was traveling only at the speed of 32.7 miles per hour. Most significantly, there was no other testimony as to appellee's speed either before or after the collision with Seifert's vehicle.
Seifert and his passenger further testified that, prior to the sideswipe, they observed appellee looking off to his right toward a field and the intersecting Barrens Church Road while his truck "just kept coming over" into Seifert's lane. Despite Seifert's efforts to hug the extreme right of the berm, the left sides of the two vehicles collided. Trooper Mitchell testified that his investigation disclosed that there were four points of impact between the two vehicles during the course of the sideswipe. The trooper substantiated Seifert's testimony that the sideswipe occurred in Seifert's lane while the ...