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COMMONWEALTH PENNSYLVANIA v. JOSEPH MORETTI (10/28/86)

filed: October 28, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
JOSEPH MORETTI, APPELLANT



Appeal from the Judgment of Sentence January 22, 1986, in the Court of Common Pleas of Bucks County, Criminal No. 5095 of 1984.

COUNSEL

Jeffrey P. Garton, Langhorne, for appellant.

Christopher J. Serpico, Assistant District Attorney, Philadelphia, for Com., appellee.

Wickersham, Olszewski and Beck, JJ.

Author: Olszewski

[ 358 Pa. Super. Page 143]

Appellant Joseph Moretti was found guilty of, inter alia, two counts of homicide by motor vehicle, 75 Pa.Cons.Stat.Ann. Sec. 3732 (Purdon's Supp.1986). Appellant's post-trial motions were denied without opinion, and appellant was sentenced to a term of imprisonment. Appellant now appeals the imposition of sentence, raising three claims: (1) the evidence was insufficient to support the conviction; (2) several inflammatory photographs of the victim were admitted into evidence; and (3) trial counsel was ineffective. Finding that appellant's claims lack merit, we affirm the judgment.

Before reaching the merits of appellant's claims, we note the unusual stature of this case. Although appellant technically appeals from the imposition of sentence, the basis of this appeal is the trial court's denial of appellant's post-trial motions in arrest of judgment and for new trial. Because a ruling in appellant's favor would have affected the sentencing decision, appellant now advances the arguments made in his post-trial motions.

[ 358 Pa. Super. Page 144]

This anomaly arose because the trial judge, the Honorable Edmund V. Ludwig, assumed a seat on the federal bench after ruling on the motions but before an opinion in support of the decision could be written. The case was reassigned and appellant was sentenced by the Honorable Isaac S. Garb. Although proper procedures would have required that appellant now raise claims of error regarding his sentence, we will address the merits of appellant's arguments because of the unique circumstances present here. While we do not have the benefit of the reasons supporting Judge Ludwig's denial of appellant's motions, we are aided by the exhaustive statement of the case made by Judge Garb pursuant to Pa.R.Crim.P. 1925.

Appellant contends the evidence was insufficient to support the guilty verdict and the denial of the motion in arrest of judgment for the two counts of vehicular homicide. Viewing the evidence in a manner most favorable to the Commonwealth and giving the Commonwealth the benefit of all reasonable inferences, Commonwealth v. Maldonado, 343 Pa. Super. 154, 158, 494 A.2d 402, 404 (1985), we find the evidence presented at trial was sufficient to establish appellant's guilt on both counts.

The evidence produced at trial established that the decedent, Darryl Oliver, was struck and killed by an automobile while he was walking along the side of a busy highway. The Commonwealth's witness, Stephen Dunkleberger, testified that he and the decedent were walking about eight feet from the roadway along a grass bank. Dunkleberger also testified that traffic was heavy and that they were not hitchhiking. He stated that the decedent might have been a little behind him, but that he never saw the decedent step onto the highway. Dunkleberger did not see the car which struck the victim.

A second witness, Thomas Lenich, testified that immediately prior to the accident, he had stopped his car at a traffic light when he was almost struck by appellant's vehicle. At the time, Lenich was 100 to 150 yards from ...


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