Appeal from the Order of the Superior Court entered December 2, 1986, at No. 1557 Pittsburgh 1985, Affirming Judgment of Sentence of the Court of Common Pleas, Indiana County, Criminal Division, entered November 6, 1985, at No. 497 Crim. 1984 363 Pa. Superior Ct. 643 522 A.2d 663 (1986)
Robert Davis Gleason, Thomas G. Johnson, Johnstown, for appellant.
William J. Martin, Dist. Atty., Philip C. Ursu, Asst. Dist. Atty., Paul A. Bell, II, Indiana, for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ. Larsen, J., files a dissenting opinion. Papadakos, J., files a dissenting opinion in which McDermott, J., joins.
John D. Uhrinek appeals from the decision of the Superior Court that affirmed his jury conviction for homicide by vehicle, 363 Pa. Super. 643, 522 A.2d 663.*fn1 Because the trial court excluded evidence of the intoxication of the
deceased pedestrian, which was relevant to appellant's theory of the cause of the accident, we reverse his homicide by vehicle conviction and remand for a new trial.*fn2
At approximately one o'clock on the morning of October 6, 1984, appellant was driving east on Oakland Avenue in Indiana Borough. Oakland Avenue is located in the center of the Indiana University campus. The roadway consists of three lanes, one in each direction and a center, turning lane. The speed limit at the section of the highway near the intersection of Thirteenth and Oakland Avenues is posted at twenty-five miles per hour. This section is a no passing zone. Appellant struck and killed Curtis Goings, a pedestrian who was crossing Oakland Avenue with three friends, James Griggs, Michael Mooney, and Robert Butler. After the accident, appellant did not stop or attempt to aid the victim.
At the trial, the Commonwealth's chief witness, an accident reconstruction expert, testified that, in his opinion, appellant's car was traveling at a speed of fifty-one to fifty-six miles per hour, that the point of impact was in the center, turning lane, that the decedent was impacted while in a "running mode," and that appellant had been traveling in his legal lane but swerved left into the center lane, striking Goings, as a result of a panic stress reaction. N.T. of 2-19-85 (No. 497 Crim. 1984) at 113, 121-25, 140-41. A pathologist also testified for the Commonwealth that Goings died as a result of the injuries he sustained in the accident. Id. at 41, 48.
The defense testimony consisted of Messrs. Griggs and Mooney, who were with Goings at the time of the accident.*fn3 They testified that along with Robert Butler, they had just
come from a party and were crossing Oakland Avenue outside of the legal crosswalk, and that they were crossing against the light. They further testified that Goings seemed distracted by a playful argument he was having with Butler, and that he had sunglasses. Griggs also testified that he saw Goings running across the street. Neither could specify the exact point of impact.
Appellant testified that he was driving at thirty-five miles per hour down Oakland Avenue when four or five people suddenly crossed the street between intersections right in front of his car. He turned his car to avoid a collision, heard a thump, panicked, and left the scene of the accident. Id. at 311-13.
Appellant attempted to submit evidence to show that Goings was intoxicated at the time of the accident:
MR. JOHNSON [defense counsel]: I intend in furtherance of my offer with Mr. Griggs and Mr. Mooney to ask them questions regarding the amount of alcohol that Curtis Goings consumed. In furtherance of that, I intend to call Lloyd Howard from the Borough of Laboratories, Department of Health to show that he, in fact, pursuant to a request by the Indiana coroner did a blood test on the decedent, Curtis Goings, and found that his blood alcohol was .102.
In furtherance of that, I intend to call an expert witness to testify that it is a fact within the acceptable degree of medical certainty that when someone has a .102 percent blood alcohol that a number of very recognizable, ascertainable, and precise conditions can be present in an individual that has a .10 percent blood alcohol, the effect that such percentage would have on the condition of the decedent and specifically the condition of the decedent with regards to his ability to perceive things and to utilize his motor reflexes and his response time.
MR. OLSEN [Commonwealth counsel]: . . . Mr. Johnson, I believe, would have to go a step further and demonstrate it was the presence of any alcohol in the bloodstream of ...