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COMMONWEALTH PENNSYLVANIA v. MARK A. NAY (09/19/80)

filed: September 19, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
MARK A. NAY, APPELLANT



No. 2606 October Term, 1978, Appeal from an Order of the Court of Common Pleas of Philadelphia County, Criminal Division, Nos. 1379, 80 July Term, 1978.

COUNSEL

Denis James Lawler, Philadelphia, for appellant.

Nancy Wasser, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Hester, Hoffman and Catania,*fn* JJ. Hoffman, J., files a concurring statement.

Author: Per Curiam

[ 281 Pa. Super. Page 229]

Appellant Mark A. Nay brings this appeal from a pre-trial order denying his motion to quash an Information on the grounds of double jeopardy. Specifically, we are asked, once again, to construe this State's Homicide by Vehicle Statute*fn1 and to determine the degree of culpability embraced by its provisions.

On April 3, 1978 appellant was involved in a two-car accident on Knights Road in Philadelphia in which his passenger Anthony Bronzini was killed. Testimony at the Municipal Court trial established that at approximately 7:30 p.m. on the day of the incident, one Ronald Kohl drove his car to Our Lady of Calvary Church, located on the southbound side of the 1100 block of Knights Road, in order to pick up his son. Mr. Kohl pulled his vehicle off to the right (southbound) portion of the road to wait for his son to come out of the church. When the boy got into the car, Mr. Kohl prepared to pull back onto the roadway, heading south. He activated his left turn signal, checked for oncoming traffic coming from behind, and slowly drove onto the road. Suddenly, he was struck by a car driven by appellant travelling at a high rate of speed in the southbound passing lane. Appellant's car continued to fishtail down the road until it struck a utility pole and burst into flames. Appellant's

[ 281 Pa. Super. Page 230]

    passenger Bronzini was killed instantly while appellant sustained injuries to his leg and head. He was charged with involuntary manslaughter, recklessly endangering another person, and homicide by vehicle*fn2 in the Municipal Court of Philadelphia County. Following trial, the judge on July 25, 1978 acquitted appellant of involuntary manslaughter, but convicted him of REAP and homicide by vehicle. Appellant filed his notice of appeal for a trial de novo in Common Pleas Court*fn3 and the District Attorney thereafter returned two Informations charging him with REAP and homicide by vehicle. Appellant then filed his motion to quash alleging: 1) that Sec. 3732 is unconstitutional because it imposes strict criminal liability without a requirement of mens rea; and 2) if the statute does require a degree of culpability, then the prior acquittal of involuntary manslaughter is a bar to a trial under § 3732 and REAP by virtue of collateral estoppel. The lower court, in two opinions, granted the motion as to REAP, finding the issue of recklessness now foreclosed, but denied the motion as to homicide by vehicle. Appellant then pursued this appeal, advancing the same arguments.*fn4

[ 281 Pa. Super. Page 231]

Appellant's challenge to the constitutionality of § 3732 must be rejected in view of the Supreme Court's recent opinions upholding the statute. In Commonwealth v. Burt, 490 Pa. 173, 415 A.2d 89 (1980), the court found the section not void for vagueness and in Commonwealth v. Page 231} Field, 490 Pa. 519, 417 A.2d 160 (1980) the court held that § 3732 does not impose criminal liability without fault, that is, it requires a showing of culpable conduct, and is therefore not unconstitutional. Compare, Commonwealth v. Koczwara, 397 Pa. 575, 155 A.2d 825 (1959).

The Court in Field did not have occasion to specifically determine the level of culpability embraced in § 3732 in order for criminal liability to attach thereunder.*fn5 However, in its final footnote, the Court opined:

In our view it was the legislative judgment in enacting section 3732 to expand the scope of criminal liability for violations of the Vehicle Code causing death. Compare 18 Pa.C.S. § 2504 [involuntary manslaughter]; Commonwealth v. Busler, supra note 3 [445 Pa. 359, 284 A.2d 783 ...


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