No. 1868 October Term 1978, Appeal from the Order in the Court of Common Pleas of Delaware County, Criminal Div., No. 805 May Sessions 1978.
Sandra L. Gross, Assistant District Attorney, Media, for Commonwealth, appellant.
Roger Dale Morris, Swarthmore, for appellee.
Price, Spaeth and Lipez, JJ.
[ 278 Pa. Super. Page 493]
The Commonwealth appeals from an order quashing the preliminary hearing transcript holding appellee for trial for homicide by vehicle. See Act of June 17, 1976, P.L. 162, No. 81, § 1, 75 C.P.S.A. § 3732.
On December 27, 1977, State Trooper Thomas Semcheski swore to a complaint charging appellee with driving under the influence of intoxicating liquor and alleging the following:
Defendant did on December 23, 1977 at 5:20 p. m. operate a Ford Sedan, Pa. Registration # S61215 eastbound on U.S. Rte. # 1, in Middletown Township. Subject did cross over a medial strip into the westbound lane and strike two other vehicles 125 feet East of station marker 0/30, while under the influence of alcohol or controlled substance.
On February 1, 1978, the complaint was dismissed by a district justice after a preliminary hearing. On March 29, 1978, however, Trooper Semcheski swore to a second complaint against appellee, alleging the same facts as were alleged in the first complaint and again charging her with driving under the influence of intoxicating liquor.*fn1 In addition, the second complaint charged appellee with homicide by vehicle, alleging that John Powers, the driver of one of the cars that appellee hit, died as a result of the accident. Appellee was rearrested, and on April 6, 1978, she filed a petition for a writ of habeas corpus, which the lower court denied on April 13. On April 14, a second preliminary hearing was held. At the hearing two witnesses testified for the Commonwealth.
The first Commonwealth witness, Warren Stratton, testified as follows. On December 23, 1977, during the early
[ 278 Pa. Super. Page 494]
evening hours, he was driving westward on U.S. Route 1, a four-lane highway, when he saw appellee's car fifty to one hundred and fifty yards away, coming across the grass medial strip from the eastbound lanes of traffic. Appellee's car struck two cars driving westward in front of him. He stopped his car and rendered assistance to appellee and the victims involved in the accident. From his observations at the scene, he could not form an opinion as to whether appellee had been drinking.
The second Commonwealth witness, Trooper Semcheski, testified as follows. He arrived at the scene at 5:40 p. m., approximately twenty minutes after the accident occurred. When he arrived, appellee was sitting in the driver's seat of a car that was facing east in the center of the westbound lanes of traffic. By-standers were applying an external heart massage to John Powers, the driver of one of the other cars involved in the accident, who was lying on the ground. Powers was eventually transported to a hospital, but died the same evening. Semcheski further testified that he spoke with appellee on the night of the incident at the hospital, and asked whether she could remember why she crossed the medial strip. Appellee answered that she could not, but that she was coming from a Christmas party at which she had consumed a lot of alcoholic beverages. Semcheski then advised appellee of her constitutional rights and ...