No. 1431 PHILADELPHIA, 1980, Appeal from an Order of the Court of Common Pleas, Criminal Division, of Northampton County, Nos. 1936-1937 of 1979.
Daniel G. Spengler, Assistant District Attorney, Easton, for Commonwealth, appellant.
James C. Hogan, Easton, submitted a brief on behalf of appellee.
Hester, Cavanaugh and Van der Voort, JJ.
[ 303 Pa. Super. Page 484]
On September 3, 1979 a criminal complaint was filed against appellee, Shirley M. Setsodi, charging her with homicide by vehicle, 75 Pa. C.S.A. Section 3732. A summary citation was also filed charging her with failure to yield the right of way when making a left turn, 75 Pa. C.S.A. Section 3322. On September 5, 1979, an additional complaint was filed against appellee charging her with involuntary manslaughter, 18 Pa. C.S.A. Section 2504. After a full preliminary hearing on September 19, 1979, the district magistrate found a prima facie case on all charges.
On February 6, 1980, appellee filed a petition alleging that the Commonwealth had failed to establish a prima facie case in light of Commonwealth v. Barone, 276 Pa. Super. 282, 419 A.2d 457 (1980). By agreement of both the Commonwealth and the defendant, Judge Freedberg of the Court of Common Pleas of Northampton County, relied on the transcript of the testimony from the district magistrate's preliminary hearing. On June 9, 1980, Judge Freedberg issued an order dismissing the misdemeanor charges of involuntary manslaughter and homicide by vehicle and remanding the summary offense to the district magistrate. The Commonwealth has appealed the order of June 9, 1980.
Viewing the evidence presented at the preliminary hearing in the light most favorable to the Commonwealth,*fn1 on September 1, 1979 at approximately 3:45 p.m., the appellee was operating her vehicle in a northerly direction on Pennsylvania Route 611 on Upper Mount Bethel Township in Northampton County. Route 611 is a two-lane road running in a north-south direction. The weather was sunny and the
[ 303 Pa. Super. Page 485]
road surface was dry. As appellee approached the driveway of her daughter's home, which abuts Route 611 on the west, she activated her left turn signal, applied the brakes, slowed and turned left. Her vehicle was struck on the passenger side while in the southbound lane by a motorcycle heading south on Route 611. The cyclist had his headlights turned on. The cyclist, Bryan Gillner, was unable to avoid the collision and died as a result of injuries sustained.
The General Assembly has defined homicide by vehicle as follows:
"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." 75 Pa. C.S.A. Section 3732.
The lower court relied on Commonwealth v. Barone, supra, in concluding the Commonwealth had failure to establish a prima facie case of homicide by vehicle. Barone, supra, has, in effect, been reversed by Commonwealth v. Field, 490 Pa. 519, 417 A.2d 160 (1980), and the decision of this Court, ...