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COMMONWEALTH PENNSYLVANIA v. MARTIN R. GBUR (04/06/84)

filed: April 6, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
MARTIN R. GBUR, APPELLANT



No. 184 Pittsburgh, 1982, Appeal from the Judgment of Sentence of the Court of Common Pleas of Mercer County, 1980, Criminal No. 289.

COUNSEL

Harry Otto Falls, New Castle, for appellant.

Charles S. Hersh, Assistant District Attorney, Mercer, for Commonwealth, appellee.

Rowley, Wieand and Hester, JJ. Hester, J., concurs in the result.

Author: Rowley

[ 327 Pa. Super. Page 20]

This is a direct appeal from judgment of sentence entered on January 25, 1982, in the Court of Common Pleas of Mercer County. Following a trial by jury, appellant was convicted of involuntary manslaughter and homicide by vehicle. Post-trial motions were denied and appellant was sentenced to one to two years imprisonment.

On appeal, appellant claims that the trial court erred: 1) in allowing the introduction of evidence of intoxication at appellant's trial on the charges of involuntary manslaughter and homicide by vehicle, after a charge of driving under the influence had been dismissed; and 2) in not granting a mistrial when evidence of the accused's silence at the time of his arrest was admitted at trial. We find appellant's allegations of error to be without merit and accordingly, we affirm the judgment of sentence.

[ 327 Pa. Super. Page 21]

I.

On March 31, 1980, appellant was involved in a two-vehicle collision on Route 58 in Mercer County. As a result of this incident, appellant was charged with driving under the influence. Upon the death of the driver of the other vehicle, appellant was additionally charged with involuntary manslaughter and homicide by vehicle. Subsequently, the charge of driving under the influence was dismissed because the Commonwealth failed to bring appellant to trial within the time prescribed by Pa.R.C.P. 1100.

During the trial of this case, State Trooper Edwin Surrena, a witness for the Commonwealth, testified that appellant appeared to be driving under the influence of alcohol at the time of the collision herein involved. Appellant's objection to the introduction of evidence of intoxication was overruled by the trial judge. Subsequently, additional intoxication evidence was introduced by the Commonwealth. On appeal, appellant contends that the Commonwealth was precluded from introducing intoxication evidence at the trial on the charges of involuntary manslaughter and homicide by vehicle, since the charge of driving under the influence had been dismissed prior to trial pursuant to Rule 1100. This claim is without merit.

In order to establish that a person is guilty of homicide by vehicle under 75 Pa.C.S.A. ยง 3732 (1977), the Commonwealth must prove beyond a reasonable doubt that the defendant "engaged in the violation of any law . . . or . . . ordinance applying to the operation or use of a vehicle or to the regulation of traffic . . .". Under Pennsylvania law, the Commonwealth need not separately charge a person with a violation of the motor vehicle code in order to establish this element of the offense of homicide by vehicle. Commonwealth v. Wilkinson, 278 Pa. Super. 490, 495-96, 420 A.2d 647, 650 (1980). Thus, the Commonwealth properly attempted to prove that appellant violated a law in the ...


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