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COMMONWEALTH PENNSYLVANIA v. ANDREW KLINGHOFFER (10/16/89)

decided: October 16, 1989.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
ANDREW KLINGHOFFER, APPELLANT



Discretionary Appeal No. 40 E.D. Appeal Dkt. 1988 from the Judgment of the Superior Court, 370 Pa. Super. 648, 533 A.2d 1075 (1987), of Pennsylvania at No. 90, Philadelphia 1986, Affirming the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Information Nos. 222-228, December Term, 1983.

COUNSEL

Stanford Shmukler, Philadelphia, for appellant.

Gaele McLaughlin Barthold, Deputy Dist. Atty., Ronald Eisenberg, Chief, Appeals Div., Jo-Ann M. Verrier, Philadelphia, for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ. Stout, former Justice, did not participate in the decision of this case. Larsen, J., files a dissenting opinion in which Papadakos, J., joins.

Author: Per Curiam

[ 522 Pa. Page 563]

ORDER

This appeal is dismissed as having been improvidently granted.

LARSEN, Justice, dissenting.

In my opinion, this appeal was not improvidently granted. To the contrary, this appeal squarely presents an issue of substantial importance in our increasingly computerized society, namely the scope of the evidentiary foundation which should be required prior to the admission of a computer-generated expert opinion on a critical issue.

Appellant was convicted by a jury in the Court of Common Pleas of Philadelphia County of two counts of vehicular homicide and related charges stemming from an accident on the Benjamin Franklin Bridge wherein appellant's vehicle crossed over two lanes and collided with two cars in the oncoming lanes of traffic, killing two people. The critical issue in the case was the speed at which appellant was operating the vehicle at the time of the accident.

Appellant had stated to police officers (while receiving treatment in a hospital) that he had been traveling at the same rate of speed as the other vehicles, about fifty-five to sixty miles per hour (mph). The posted speed limit was forty-five mph. Appellant's speedometer was frozen at sixty-eight mph. The Commonwealth introduced Dr. Thomas, an expert in the field of "vehicular dynamics" who testified that, in his expert opinion, appellant's vehicle had been traveling at approximately 75 mph at the point of the first collision. This expert opinion was generated by a computer using a program known as "Applecrash." Obviously, whether the jury believed appellant's version of the accident (that he had been traveling at the same speed as

[ 522 Pa. Page 564]

    other vehicles which was about fifty-five to sixty mph) or the Commonwealth's version (seventy five mph) was a critical factual issue, the resolution of which might well have been dispositive of ...


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