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COMMONWEALTH PENNSYLVANIA v. MICHAEL DIXON (10/04/85)

filed: October 4, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
MICHAEL DIXON, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Bucks County at Nos. 1247 and 1248 of 1983.

COUNSEL

John J. Kerrigan, Jr., Newtown, for appellant.

Stephen B. Harris, Assistant District Attorney, Warrington, for Commonwealth, appellee.

Wickersham, Beck and Cercone, JJ.

Author: Wickersham

[ 346 Pa. Super. Page 37]

Michael Dixon appeals from the judgment of sentence imposed upon him by the Court of Common Pleas of Bucks County after a jury found him guilty of driving under the influence of alcohol*fn1 and homicide by vehicle while under the influence of alcohol.*fn2 These charges arose out of a motor vehicle accident involving appellant, which resulted in the death of Nanette Humphreys.

[ 346 Pa. Super. Page 38]

The evidence indicates that the accident occurred on Second Street Pike, a two lane highway in Upper Southampton Township, Bucks County, on February 14, 1983. Although there had been a recent heavy snowfall, the road surface was clear; it was wet, but not slippery. The snow was plowed into banks on the sides of the road.

Appellant, driving a dark-colored Ford, was headed south on Second Street Pike at approximately 50-60 miles per hour in a 40 miles per hour zone. Appellant's vehicle struck the 1976 Mazda driven by Nanette Humphreys as she attempted to make a right hand turn onto Second Street Pike from the driveway at the Bethanna Home. Ms. Humphreys died several days later.

Several witnesses testified that appellant had been driving erratically immediately prior to the accident. Furthermore, the investigating police officer observed that appellant appeared to be intoxicated, his breath smelled of alcohol, and his vehicle was littered with beer cans. The officer arrested appellant for driving under the influence of alcohol and transported him to the police station. A breathalyzer test revealed that appellant had a blood alcohol content of .20%. After Ms. Humphrey's death, appellant was also charged with homicide by vehicle while driving under the influence of alcohol.

On June 24, 1983, a jury found appellant guilty of both counts. The Honorable William Hart Rufe, III sentenced appellant to a term of imprisonment of not less than 36 months nor more than 72 months on the homicide by vehicle while under the influence of alcohol charge as mandated by 75 Pa.C.S. ยง 3735(a). Appellant received a concurrent term of 6 to 12 months imprisonment on the driving under the influence charge. Following judgment of sentence, appellant filed this timely appeal.

Appellant asks us to consider the following issues:

1. Was the evidence sufficient to convict [appellant] of violating ...


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