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filed: September 19, 1988.


Appeal from the Judgment of Sentence entered March 23, 1987, in the Court of Common Pleas of Centre County, Criminal Division, at No. 1985-887.


Allen P. Powanda, Assistant Public Defender, Bellefonte, for appellant.

Mark S. Smith, Assistant District Attorney, Bellefonte, for Com., appellee.

Cirillo, President Judge, and Wieand and Del Sole, JJ.

Author: Del Sole

[ 378 Pa. Super. Page 12]

Following a jury trial, the Appellant was convicted of involuntary manslaughter, homicide by vehicle, recklessly endangering another person, and various summary offenses. The Appellant was sentenced on these convictions to the following concurrent prison terms: 2 1/2 to 5 years for involuntary manslaughter; 2 1/2 to 5 years for homicide by vehicle; and 1 to 2 years for recklessly endangering another person.*fn1 The Appellant challenges the admission of certain

[ 378 Pa. Super. Page 13]

    photographs, expert testimony and his sentences. We affirm the convictions but vacate a portion of the sentence.

The relevant facts are as follows: The Appellant is a self-employed tractor-trailer operator who drives for North American Van Lines, Inc. As he was descending a mountain on Route 144, the brakes on his tractor-trailer failed. In order to stop his truck, he crossed over the center line toward a large yard adjacent to the left-hand side of the road. While attempting this maneuver, his tractor-trailer struck an oncoming automobile. The driver of this automobile was killed and three occupants were injured as a result of the accident.

At the scene of the accident, a Pennsylvania State Trooper and a truck mechanic conducted a preliminary examination of the Appellant's truck. Photographs were taken at the scene of the accident. The trooper arrested Appellant and ordered that his truck be impounded and towed to a local garage. Approximately 5 days later, the truck was examined pursuant to search warrants. This examination revealed several mechanical problems including: a defective air governor, leaky air relay valves, wear on the brake pads, and grease on the brake pads of the tractor-trailer's rear drive axle. During the Appellant's trial, the court admitted testimony and photographs in regard to the condition of the vehicle and the after-collision appearance of the victim's automobile. The trial court admitted these photos after denying the Appellant's Motion in Limine at a special hearing (Hearing testimony, p. 7).

The Appellant's first contention is that the trial court erred in admitting photographs of the accident scene into evidence which depicted the body of the deceased in her damaged car. Appellant argues that these photographs were inflammatory and that they had no probative value since they were not relevant to any issue in dispute.

In Commonwealth v. Garcia, 505 Pa. 304, 479 A.2d 473 (1984), the Pennsylvania Supreme Court stated:

[ 378 Pa. Super. Page 14]

The admission into evidence of photographs depicting the corpse of the homicide victim or the location and scene of the crime lies within the sound discretion of the trial judge. See Commonwealth v. Hudson, 489 Pa. 620, 630, 414 A.2d 1381, 1386 (1980); Commonwealth v. Gilman, 485 Pa. 145, 152, 401 A.2d 335, 339 (1979); Commonwealth v. Gidaro, 363 Pa. 472, 474, 70 A.2d 359, 360 (1950). A photograph which is admissible if "it is relevant and can assist the jury in understanding the facts." Commonwealth v. Gilman, 458 Pa. at 153, 401 A.2d at 339. A gruesome or potentially inflammatory photograph is admissible if it is of "such essential evidentiary value that [its] need clearly outweighs the likelihood of inflaming the minds and passions of the jurors." Commonwealth v. McCutchen, 499 Pa. 597, 602, 454 A.2d 547, 549 (1982) (quoting Commonwealth v. Petrakovich, 459 Pa. 511, 521, 329 A.2d 844, 849 [1974]).

Id., 505 Pa. at 313, 479 A.2d at 478. A trial court, in determining whether to admit photographs must apply a two-part analysis.

The trial judge must initially decide whether the photographs possess inflammatory characteristics. If they do not, the photographs are admissible as are any evidentiary items, subject to the qualification of relevance. If the photographs are deemed inflammatory, then the trial judge must decide whether the photographs are of such essential evidentiary value ...

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