NO. 182 MARCH TERM, 1979, Appeal from the judgment of sentence in the Court of Common Pleas of York County, No. 1138 CA, 1978.
John D. Finchbaugh, Assistant Public Defender, York, for appellant.
Thompson J. McCullough, Assistant District Attorney, York, for Commonwealth, appellee.
Brosky, McEwen and Beck, JJ. McEwen, J., concurs in the result.
[ 301 Pa. Super. Page 388]
Appellant was charged with homicide by vehicle,*fn1 driving under the influence of alcohol,*fn2 and failing to stop at a stop
[ 301 Pa. Super. Page 389]
sign.*fn3 The charges arose from a fatal collision in which appellant's vehicle collided broadside in the middle of an intersection with a vehicle driven by the deceased. After a non-jury trial, appellant was found guilty of homicide by vehicle and failing to stop at a stop sign. He was found not guilty of driving under the influence of alcohol. Post-trial motions were timely filed and denied, and appellant was sentenced to from six to eighteen months incarceration.
Appellant advances one argument: the homicide by vehicle statute is unconstitutional in that it carries with it the possibility of a jail sentence without any finding of culpability. That statute states:
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.
This Court has recently reinterpreted the homicide by vehicle statute in Commonwealth v. Koch, 297 Pa. Super. 350, 443 A.2d 1157 (1982). The Koch majority followed Commonwealth v. Field, 490 Pa. 519, 417 A.2d 160 (1980) which supplied a culpability requirement for that statute.
The Field court held that "section 3732 requires the Commonwealth to prove that appellee has deviated from the standard of care established by section 3703, the underlying Vehicle Code provision allegedly violated here." Id., 490 Pa. at 524, 417 A.2d at 163 (footnote deleted). Field stated that the culpability requirement of section 3703 "leaves for determination at trial whether appellee knew, or should have known, he engaged in the conduct claimed to be in violation ...