No. 101 Harrisburg, 1980, Appeal from Order of the Court of Common Pleas, Criminal Division, of Adams County, 1980, No. CC-161-79.
Robert E. Campbell, Gettysburg, for appellant.
Robert G. Teeter, Assistant District Attorney, Gettysburg, submitted a brief on behalf of Commonwealth, appellee.
Price, Wieand and Lipez, JJ. Wieand and Lipez, JJ., concur in the result.
[ 298 Pa. Super. Page 321]
This appeal arises out of an automobile accident which occurred on May 16, 1979, in the village of Brushtown, Adams County. Mae R. Lloyd was operating her automobile in a westerly direction on Route 116. The weather was clear and dry. Appellant's pickup truck crossed the center line of the highway from the oncoming lane of traffic and crashed head-on with her car. The impact of this violent collision jerked Mrs. Lloyd's car over the berm of the road onto the front porch of an adjacent home. Appellant's truck careened onto its right side facing west in the eastbound lane. As a result of the collision, Mrs. Lloyd was killed.
On November 30, 1979, appellant was tried before a jury in the Court of Common Pleas of Adams County on a charge of homicide by vehicle.*fn1 A mistrial was declared, however, when a police officer stated on direct examination that he had detected a trace of alcohol on appellant's breath immediately after the crash. Thereafter, appellant filed a motion to dismiss the charge on double jeopardy grounds because of prosecutorial misconduct. This motion was denied and an immediate appeal was taken to this court.*fn2 For the reasons stated herein, we affirm the trial court's order denying appellant's motion for discharge.
At trial, the Commonwealth called as its expert witness Dennis J. Hagerman, the investigating officer present at the accident scene. During the course of Hagerman's direct examination, defense counsel repeatedly objected that no
[ 298 Pa. Super. Page 322]
foundation had been laid for the officer's proffered testimony concerning the point of impact. These objections were sustained until the trial court finally granted a recess in order for the prosecution to organize its case-in-chief.*fn3 When the trial had resumed and the proper foundational questions had been asked, the trial court ruled, at defense counsel's behest, that the investigating officer could not render an expert opinion as to the cause of the collision. Immediately after this ruling, however, testimony regarding the point of impact was admitted. The prosecutor then asked Officer Hagerman about his observations of appellant following the crash:
Q. [ASSISTANT DISTRICT ATTORNEY] Did you observe Mr. Buffington on the scene?
A. [OFFICER HAGERMAN] Yes, sir, I did.
Q. Did you notice anything about his demeanor ...