No. 918 Philadelphia, 1981, Appeal from Order of the Court of Common Pleas, Juvenile Division, of Chester County, No. 10819.
Thomas R. Wilson, West Chester, for appellant.
John W. Liddy, Assistant District Attorney, West Chester, for Com., participating party.
Brosky, Wieand and Beck, JJ.
[ 317 Pa. Super. Page 338]
Appellant, R.R., was involved in a one car automobile accident at approximately 5:30 o'clock, p.m., on July 26, 1980. The other occupant of the vehicle, Gary Walton, died as a result of injuries sustained in the accident. Appellant, a juvenile, was charged with three summary violations of
[ 317 Pa. Super. Page 339]
the Motor Vehicle Code, i.e., drivers required to be licensed,*fn1 driving on the right side of roadway,*fn2 and driving at a safe speed.*fn3 Appellant entered a plea of not guilty to all charges, and a hearing thereon was held before a district justice on August 19, 1980. At the conclusion of the hearing, appellant was found not guilty on all charges. Thereafter, on September 17, 1980, a petition was filed in the Juvenile Court of Chester County averring that appellant was a delinquent child based upon his alleged commission of the offenses of receiving stolen property,*fn4 unauthorized use of a motor vehicle,*fn5 and homicide by vehicle.*fn6 The death of Gary Walton, it was alleged, had been caused while appellant was "engaged in the violation of the laws of the Commonwealth of Pennsylvania applying to the operation or use of a vehicle or to regulation of traffic . . . ." Appellant filed a motion to dismiss based upon Sections 109 and 110 of the Crimes Code, double jeopardy and res judicata. The trial court, upon recommendation of a juvenile master, denied the motion to dismiss. Appellant brings this appeal from the order denying his motion to dismiss.*fn7
The facts relevant to our resolution of the issues raised on appeal are as follows: On July 26, 1980, at approximately 5:30 o'clock, p.m., Mr. and Mrs. Richard McAllister were leaving a parking lot when they saw an automobile belonging
[ 317 Pa. Super. Page 340]
to Robert Caldwell pass them. Knowing the vehicle to have been reported stolen, the McAllisters determined to follow the automobile and report its location to local authorities. After they had followed the vehicle a short distance to Shoen Road, the car left the roadway and crashed into trees near the highway. At the hearing before the district justice on August 19, 1980, Mr. McAllister testified that he could not identify the driver of the vehicle, but stated that when he approached the vehicle following the accident, appellant was banging his head against the window of the door adjacent to the driver's seat, attempting to get out of the car. Another Commonwealth witness, Ralph M. McGibbin, testified that when he arrived at the accident scene, both appellant and Gary Walton were in the vehicle, Walton on the right or passenger side, and appellant on the left or driver's side. The investigating officer, Thomas A. Wilkinson of the West Whiteland Township Police Department testified that when he arrived at the accident scene, appellant, apparently in shock, was seated on the ground nearby. In response to Officer Wilkinson's question, he stated that Gary Walton had been driving the car when the accident occurred. Appellant did not testify or offer any evidence. At the conclusion of the hearing, the district justice entered a verdict of not guilty on all charges.*fn8
Thereafter, on September 17, 1980, the Commonwealth filed a petition alleging that appellant was a delinquent child. The petition contained the following averments: "On July 26, 1980, at or about 5:36 p.m. on Shoen Road, West Whiteland Township, Chester County, Pennsylvania, R___ R___, age 15 did operate a 1972 Ford Pinto automobile without the consent of its owner, Robert Caldwell; and further, on the above mentioned date, time, and ...