No. 172 PITTSBURGH, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Westmoreland County, No. 68 January Term, 1979.
Ross S. Bash, Delmont, for appellant.
Patrick H. Mahady, Assistant District Attorney, Greensburg, for Commonwealth, appellee.
Hester, Brosky and Van der Voort, JJ.
[ 299 Pa. Super. Page 440]
On September 16, 1978, appellant, Dolores Rose Pavlocak, was traveling east on U.S. Route 30 in Westmoreland County, Pennsylvania, when her automobile, traveling at 50 m.p.h., went through a red light and collided with an automobile operated by Patricia Marie Long at an intersection commonly referred to as "Mountain View". Mrs. Long was lawfully traveling across Route 30 on an intersecting road with a green light. Shortly after the collision, Patricia Marie Long was pronounced dead as a result of injuries sustained as a result of the impact. A subsequent blood sample extracted from appellant at Westmoreland Hospital, showed a blood alcohol content of 0.11%. Appellant was charged with driving under the influence of alcohol, homicide by vehicle, and involuntary manslaughter. Immediately prior to trial, the Commonwealth moved for a nolle prosse as to the charge of involuntary manslaughter, and the lower court dismissed that charge with prejudice. A jury deadlocked on the charge of driving while intoxicated, but returned a verdict of guilty on the charge of homicide by vehicle.
Appellant filed timely motions for a new trial and in arrest of judgment, which were denied by the lower court on January 15, 1980. On February 22, 1980, appellant was
[ 299 Pa. Super. Page 441]
sentenced to imprisonment for a period of six to twelve months.
Appellant initially attacks the constitutionality of the statute charging homicide by vehicle, Act of July 17, 1976, P.L. 162, No. 81, 75 Pa. C.S.A. Section 3732. This issue has been decided by our Supreme Court in Commonwealth v. Field, 490 Pa. 519, 417 A.2d 160 (1980). Recently, this Court, sitting en banc, further refined the level of culpability embraced by Section 3732 of the Pennsylvania Motor Vehicle Code. Commonwealth v. Koch, 297 Pa. Super. 350, 443 A.2d 1157 (1982).
On the basis of Field, supra, and Koch, supra, we affirm appellant's conviction of homicide by vehicle. Although the lower court did not charge the jury in complete conformity with Field, supra, and Koch, supra, we find that the lower court's charge, in fact, required the Commonwealth to sustain a stricter burden of proof.*fn1 In the instant case, the lower court charged that the jury must find, beyond a reasonable doubt, ". . . that the defendant was operating a vehicle in violation of either driving under the influence of alcohol and/or failure to stop for a steady red indication of a traffic control signal, and that the defendant's acts in violating the law were a direct cause of Mrs. Long's death."
Appellant asserts various other errors allegedly committed by the lower court during her trial by jury. Following our full review of the record, we conclude that the lower court has fully and adequately addressed and disposed of these issues.
However, appellant also contends that it was error for the lower court to interrogate her at the sentencing hearing concerning the assertion of her constitutional right to remain silent, and to thereafter rely on her silence as the ...