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COMMONWEALTH PENNSYLVANIA v. MICHAEL JAMES BURT (05/30/80)

decided: May 30, 1980.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
MICHAEL JAMES BURT



No. 61 March Term, 1979, Appeal from the Order of the Court of Common Pleas of the 37th Judicial District of Pennsylvania, Warren County Branch, Criminal Division at No. 449 of 1978, entered March 19, 1979, Homicide by Vehicle.

COUNSEL

Richard A. Hernan, Jr., Dist. Atty., William F. Morgan, James C. Blackman, Asst. Dist. Attys., Warren, for appellant.

John R. Gavin, Oil City, for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ.

Author: Roberts

[ 490 Pa. Page 174]

OPINION OF THE COURT

Under section 3732 of the Vehicle Code,

"Any person who unintentionally causes the death of another person while engaged in the violation of any law of this Commonwealth or municipal ordinance applying to the operation or use of a vehicle or to the regulation of traffic is guilty of homicide by vehicle, a misdemeanor of the first degree, when the violation is the cause of death."

[ 490 Pa. Page 17575]

Pa.C.S. ยง 3732. On this pre-trial appeal, the Commonwealth seeks reversal of an order of the Court of Common Pleas of Warren County holding section 3732 unconstitutionally vague. We agree with the Commonwealth that the court of common pleas erred in so holding and remand with instructions.*fn1

On the evening of August 22, 1978, appellee Michael Burt and a few other people were at a campsite near Titusville, Pennsylvania. Two friends of appellee, Joseph Miller and Carrie O'Connor, asked appellee to take them for a ride in his new "Datsun 240Z." Appellee agreed and the three left the campsite in the vehicle, appellee driving, Miller sitting in the passenger seat, and O'Connor sitting in the cargo area. Appellee drove the vehicle on a dirt road for a few hundred yards. He then turned onto a macadam road, which he drove on for about one mile. Upon reaching the point where the macadam road ended and another dirt road began, appellee turned his car around and began to return on the macadam road.

As he returned, appellee came upon a right-hand curve in the road. As appellee started to negotiate the curve, Miller cautioned appellee to slow down. The right front tire of the car, however, tipped the berm. This in turn threw the vehicle across to the left and off the road. The car travelled approximately 180 feet from the roadway, hit a large tree, travelled another forty-five feet, and hit a barbed-wire fence. The vehicle then flipped end over end a couple of times, coming to rest upside down. Neither appellee nor Miller was seriously injured. O'Connor, however, who had been thrown out of the vehicle, was killed.

Appellee told investigating State Trooper John Herzog that he "was coming down the road, ...


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