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COMMONWEALTH PENNSYLVANIA v. ANTHONY F. TODARO (06/18/82)

filed: June 18, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
ANTHONY F. TODARO, APPELLANT



No. 2077 October Term, 1979, Appeal from the Order of the Court of Common Pleas of Huntingdon County, Criminal Division, at No. 81 of 1977

COUNSEL

Charles B. Swigart, Public Defender, Huntingdon, for appellant.

Stewart L. Kurtz, District Attorney, Huntingdon, submitted a brief on behalf of Commonwealth, appellee.

Brosky, Hoffman and Cirillo, JJ.*fn* Hoffman, J., files concurring opinion.

Author: Brosky

[ 301 Pa. Super. Page 3]

Appellant was involved in an automobile accident in February, 1977 as a result of which he was charged with involuntary manslaughter, recklessly endangering another person and driving under the influence. He was convicted of all charges in 1979 by a jury and sentenced to a term of imprisonment of 11 to 48 months. The case is before us following the denial of post-trial motions. Appellant contends that the lower court improperly excluded evidence of the intoxication of the deceased driver of the other automobile and that it erred in its charge to the jury. We affirm the decision of the trial court.

The facts of the case are as follows. Appellant, Anthony F. Todaro, was involved in an automobile accident on the evening of February 13, 1977. The automobile which he was driving collided with a Volkswagen "Beetle" in which six persons were travelling. The driver of the Volkswagen was killed.

Appellant's first contention is that the lower court erred in refusing to permit the introduction of evidence of alcohol found in the blood of the deceased. The parties stipulated that the blood alcohol level of the deceased driver was 0.32 percent. The district attorney, however, opposed the introduction of this evidence saying it was not relevant. We agree.

Citing McCormick on Evidence, 2nd Ed., West Publishing Company, 1972, p. 437, appellant has outlined the commonly used test of relevance. That is, "[D]oes the evidence offered render the desired inference more probable than it would be without the evidence?" Application of this test to the facts

[ 301 Pa. Super. Page 4]

    of the present case indicates that the evidence does not make the inference sought by appellant more probable.

The theory of the prosecution was that the accident occurred in the southbound lane of traffic and was caused by appellant who was driving north in that lane. In support of its theory, the prosecution produced witnesses who testified that appellant was driving north in the southbound lane shortly before the accident occurred. The passengers in the Volkswagen testified that appellant's headlights shone directly at the Beetle. Finally, a state trooper who investigated the accident scene testified that that it was his opinion, based on gouge marks, that the accident occurred in the southbound lane. Our examination of the record indicates that as the lower court found, there is no evidence to support the inference that the accident was caused by the deceased or that it occurred in the northbound lane. Of course, the burden of proof is on the prosecution to show that appellant caused the accident. Appellant need not demonstrate that it occurred in another way. However, while the burden of proof is not on appellant, he still cannot introduce evidence which does not help to prove a desired inference. Evidence of blood alcohol, alone, does not support any inference as to the cause of the accident. It was not relevant to any issue before the court.

Appellant's next assignment of error concerns the charge to the jury on the question of his intoxication. The judge instructed the jury as to the effect of voluntary intoxication. Appellant argues that the charge should have included a more thorough discussion of involuntary intoxication. He claims that although he voluntarily consumed enough alcohol to make the blood alcoot realize that medication he was taking combined with alcohol level 0.14 percent, he should be found involuntarily intoxicated because he did not realize that medication he was taking combined with alcohol, would cause him to be as intoxicated as he was. In the recent case, ...


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