No. 1490 Philadelphia, 1981, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division of Lackawanna County at No. 80 CR. 1378.
Michael J. Eagen, Scranton, for appellant.
Ernest D. Preate, District Attorney, Scranton, for Commonwealth, appellee.
Spaeth, Cavanaugh and Montemuro, JJ.
[ 307 Pa. Super. Page 193]
Appellant was found guilty of homicide by vehicle*fn1 and driving while under the influence*fn2 following a trial before the Honorable S. John Cottone of Lackawanna County, sitting without a jury. On appeal, appellant alleges several errors by the lower court. For the following reasons, we reverse the appellant's conviction for homicide by vehicle, and affirm his conviction for driving while under the influence.
On April 25, 1980, at approximately 12:10 a.m., appellant was driving his vehicle with two passengers, Ellwyn Beeman and Clarence Jennings, on the North Main Avenue entrance of the northbound Scranton expressway in Scranton, Pennsylvania. Due to construction which closed the right lane of the northbound expressway at that time, entering traffic was directed to come to a stop (as posted), before entering the left lane of the normally two northbound lanes. But appellant instead drove his vehicle to the right of a posted stop sign approximately 258 feet along the expressway's shoulder before colliding with a temporary concrete abutment. Officer Robert Williams testified that Mr. Beeman was killed in the accident. Appellant was taken to Scranton State Hospital for treatment of injuries sustained in the accident and a blood test was taken to determine his blood alcohol content. The test results indicate that appellant's blood alcohol level was 199.1 milligrams (approximately .20 percent), well above the level for legal presumption that the appellant was under the influence of alcohol. 75 Pa.C.S.A. § 1547(d). Appellant was later charged with homicide by
[ 307 Pa. Super. Page 194]
vehicle and driving while under the influence. Following appellant's conviction, the lower court denied post verdict motions and this appeal followed.
Appellant argues that the lower court erred in admitting the results of the blood alcohol test on April 25, 1980 because (1) the witness was not qualified to attest to the scientific reliability of the test and its proper administration; (2) her testimony failed to prove that the machine was approved by the Department of Health as required by 75 Pa.C.S.A. § 1547(c); (3) the Commonwealth failed to establish the chain of custody necessary for admission of evidence of this type; (4) the Commonwealth failed to establish that the blood test was ordered by a doctor for medical reasons and not performed at the request of an officer; and (5) had the appellant had the Commonwealth's answer to the application to suppress (which appellant erroneously perceives to be a Commonwealth admission that the blood test was taken at police request), the suppression hearing would have centered upon voluntary consent. However, we need not address these issues because we find the evidence, without the results of the blood test, to be sufficient to find the appellant guilty of driving while under the influence. Commonwealth v. Slout, 288 Pa. Super. 471, 432 A.2d 609 (1981).
The evidence, read in a light most favorable to the verdict winner, reveals that about 12:10 a.m. on April 25, 1980, the appellant had driven his 1977 AMC Javelin up the North Main Street entrance of the Scranton Expressway, traversing the expressway shoulder before crashing into a temporary concrete abutment used during highway construction. Officer Williams, responding to an emergency call, arrived on the accident scene not more than seven minutes later. Officer Williams looked into the vehicle in which appellant was sitting in the driver's position before assisting medical personnel in removing the three occupants from the vehicle. The passengers at that time were at best semi-conscious. Officer Williams stated that he immediately recognized a strong odor of alcohol on appellant's breath as he removed appellant from the vehicle. He also found seven
[ 307 Pa. Super. Page 195]
empty beer bottles in the vehicle. Accordingly, we find the evidence to be sufficient to find the appellant guilty of driving under the influence. Commonwealth v. Slout, supra.
Finally, appellant argues that the Commonwealth failed to prove that the death of Ellwyn Beeman occurred as a result of the defendant's conduct.*fn3 We agree.
Under the 1977 Vehicle Code, homicide by vehicle occurs when:
§ 3732. Homicide by vehicle
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.
1976, June 17, P.L. 162, No. 81, § 1, eff. July 1, 1977.
The Commonwealth must only establish three facts to prove homicide by vehicle:
1.) Defendant deviated from the standard of care established by the underlying Vehicle Code provision [or municipal Ordinance].
a) Defendant knew, or should have known, he engaged in the conduct claimed to be in violation of the underlying Vehicle ...