*1 tо be in the event of a penalty inflicted, finding guilt; after defendant had (2) impeach testified, The Act his credibility. Supreme interpreted Court in Barron and very strictly say Davis. To the admission of conviction appellant’s previous Act of 1911 the substance proscribed by negates Court has Act. Supreme given to that in Davis,
As the Court said at 163: “Our dis- supra, type this cross-examination approval indicates for this a defendant; recognition sympathy simply under this right every person, law including a fair a trial where- defendant, impartial trial, in his innocence whereof offense guilt determined is not conduct charged past stands or record.”
I trial. would new appellant grant Hoffman, this join JJ., dissenting Jacobs opinion. Cave,
Commonwealth Appellant. *2 1971. Before J., June 14, Argued Wat- P. Wright, and Jacobs, Hoffman, Spaulding, Montgomery, kins, JJ. Cercone, him Lawrence and Sager,
Louis with Sager, Sager for appellant. Associates, Sager & Assistant Greenleaf, J. District Stewart Attorney, T. Executive Nicholas, him William Assistant with Dis- H. Parker First Wilson, attorney, Assistant trict Dis- Milton and Moss, District Attorney, trict Attorney, appellee. Commonwealth, by Opinion J., September 1971: Cercone, On September 9, 1967, approximately p.m. 2:30 Irvin F. Cave was Ms operating automobile at a rate of Mgh speed Pike in Swamp Montgomery His County. vehicle catapulted alоng pass- highway, or three two automobiles at one ing time, crossing the solid center line did yellow (no as he passing area) he sped so. As along approached a curve road, which he was unable to negotiate properly, crossed center line of the collided highway, violently head- on with an automobile being driven in the oppo- site (northerly) direction Leon S. Haraczka. Mrs. a passenger her Haraczka, husband’s automobile, was killed Defendant instantly. was charged with involun- upon trial tary manslaughter was found guilty by a He filed motions for jury. trial new and in arrest of judgment which were refused the court below. This *3 appeal followed. it
Defendant claims error was for the trial judge to have Yoblomski permitted Trooper testify an defendant, during had disclosed interview, that some- around where 2:00 on the p.m. the fatal day accident Inn he at the Fruitvillе Bar on Swamp Pike where he had imbibed “a couple then beers”, got into his and headed on automobile south Pike Swamp toward Limerick.
It is the defendant’s contention that the admission prejudicial of this error, being viola rule forth in Fisher tion of the set v. 386 Pa. Dye, 141 that “the mere fact (1956) drinking li intoxicating not admissible, being is unfairly quor un prejudicial, establishes a reasonably degree less of intoxication unfitness Critzer which drive: provеs v. Donovan, 137 A. 385, 665, 666; Pa. v. 381, 384, Landy Rosenstein, A. 855, 859; Balla Sladek, 93, 112 156, 160.” 2dA. Pa. 85.
515' of intoxicating It true the “mere” drinking is is under liquor inadmissible to that a driver was prove drive the influence of and unfit liquor intoxicating if in addi- an automobile. it is also true that However, a con- tion to facts are shown which drinking, under clusion follows that driver was reasonably the influence all the evidence, liquor, are ad- and the circumstances, drinking surrounding missible for the consideration оf the trier of facts to determine whether or not the drinking wholly of an being the cause accident which partly held responsible.
In the case before us the record discloses more now drank of beers”. than the fact that defendant “a couple those immediately drinking It also establishes that after his onto beers he into traveled and got car, Swamp Pike, in a proceeded wild, reckless, dangerous thereon place manner to the of the fatal accident which occurred mile from the Inn. A away one Fruitville clear only operated of the manner which defendant description Inn after Fruitville leaving automobile immediately disinterested witnesses. One was established three operat- Mrs. testified she was Slaybaugh, witness, Swamp automobile Pike the same south- her ing i speed as defendant a a of 55-58 direction miles erly limit was 55 miles when per hour) hour per (the speed in her rear view the defendant cross mirror, she saw, dividing line north- yellow southerly over into the lane of northerly lanes of travel travel, erly her vehicle pass and the two oncoming travel, *4 of in front her. She approximated traveling vehicles per about miles hour. When speed defendant’s in front of the two vehicles passed her, of directions traffic two was a dividing line yellow to be a line continued solid as it went one and solid the collision curve where with the north- around occurred. Mrs. vehicle did Slaybaugh Haraczka bound had automobile not see the collision because defendant’s road. her the curve view passed beyond occurred after defendant’s Evidence what vehicle line of vision was supplied went out Mrs. Slaybaugh’s traveling witnesses who werе two other disinterested the Haraczka vehicle. in the northbound lane behind he was traveling directly Marvin L. Heimbach testified on northbound that he Mr. Haraczka this lane, behind car “on the curve” over the crossing defendant’s saw into the northbound and that line lane, only yellow time he thus saw defend- seconds elapsed few collision. to the time This witness testi- car ant’s Mr. to the Hara- fied that collision immediately prior speed per reduced his about miles czka had hour, car to the out of the de- his right to steer attempting collision course. fendant’s John J. testified he was
Another witness, Hojecki, in the northbound lane behind Mr. Heim- traveling also testified he saw car Hojecki Mr. defendant’s first bach. the center line on the across with curve, “straddling” and left back wheels the northbound front the left in a direction. traveling He esti- southerly while lane, “I would say speed: going defendant’s mated hour.” He saw miles an defendant’s car over 70 only or a of a second” “second” for then “fraction for a into the northbound lane over of travel completely went blocked which was line vision Heim- of his out in front of him. Haraczka vehicles This wit- bach I I didn’t him know see no more. “Well, stated: ness fast. And coming pretty he was I I know come And often. And from quite bend estimation, around that fast that he could not going he was make I know side road, anyway.” turn, testified: Yoblomski Trooper “The impact was State northbound lane, to be the right determined lane near northbound the berm . . . portion traced be to where they positively could came vehicles
517 scrape by after the rest accident marks from point place.” impact resting to their
Mr. Haraczka’s that when he de- was saw my fendant come around the “I told he is wife corner, going just quick. to hit us. And it I was that don’t just away nothing know how far or ... far was, As partly Ias can he still was on the . . . remember, curve my just on flying, side . . . He I was don’t [defendant] know how fast.” drinking,
The evidence of defendant’s
and his con-
leaving
by
duct after
Inn
Fruitville
related
as
disin-
properly
terested
were matters
admitted into
witnesses,
judge
jury’s
evidence
the trial
consideration.
judge properly
The trial
instructed the
on this
as
follows:
thing
say
you,
I
“Another
that
should
the officer
testified that the defendant said he had
or
two
three
and the
beers,
himself, said
he
defendant,
had two
consumption
or
beverages
three
The
beers.
alcoholic
legal
Pennsylvania.
in the Commonwealth of
The
fact
or
mere
that he had two
three beers would not con-
he
under
stitute evidence that
the influence of an
intoxicating beverage, which is unlawful in the Cоm-
Pennsylvania.
In
monwealth
other
members
words,
jury, nobody
of the
testified that he was under
in-
intoxicating beverages.
fluence of
The mere fact that
or three beers would not
he had two
be sufficient evi-
under the influence of intoxicating
dence that
you
beverages.
not consider
will
So
that as an element
conduct and
rash
recklessness
that I have re-
you
find
there
to unless
ferred
some connec-
consumption
between evidence,
from the
tion,
beverages and the factual situation
alcoholic
that re-
prior
immediately
time
at
sulted
the time
occurred.”
the accident
Donovan,
Pa. 381 (1927),
In Critzer
cited
Dye, supra,
Fisher v.
relied
establish-
ment
the rule
to be invoked
sought
“It
be
this
the court reasoned as follows:
may
case,
conceded
an action wherein
or careless
reckless
that,
of intoxication
driving is
matter
issue, proof
would be relevant: Alexander
v. Humber,
Ky.
454.
appears
S.W.
When evidence of intoxication
*6
in a case
as
it is
a circum-
such
this
offered ...
to show
of the
stance from which
or carelessness
recklessness
taken as
driver
be inferred. Care should then be
may
of
or
the use
evidence. There was no allegation
such
of
nor was there
evidence
proof
intoxication,
any
of
conduсt or appearance
which a reasonable
infer-
man
ence could be drawn that
was intoxicated . . .
of
Standing
liquor
the odor
does not
nor
alone,
prove,
with
it
is it evidence
other
intoxication;
joined
of,
facts
become so: Com. v.
“Since there was evidence Kane, driver, was the оtherwise compe- was intoxicated, tent? In of the issues here think it view raised we Proof competent not of the odor of any purpose. for certain is admissible but its nat- liquor purposes, ural is not consequence driving.” (Emphasis reckless supplied.) in Gritzer case the admission of
Thus evidence of liquor was de- indicating drinking without error because stood other alone, any clared or of conduct apрearance substantiate In of intoxication. the Gritzer reason- applying finding of the instant to the facts case, although reckless ing natural or not a ordinary consequence is of driving three of beers and standing alone such consumption of proof not be would yet joined drinking intoxication, of evidence the case other facts we conclude with correct submitting this the court evidence to the it might dеtermine in order that whether or defendant’s contributed to the fatal accident. drinking of Defendant’s mode from the operation his vehicle time he left the Fruitville Inn to the place impact one mile only was such that rea- away could infer that the fatal collision con- sonably fact a sequence the recklessness caused the defendant’s by drinking.
It was in this manner this court Common wealth v. Carnes, Superior 165 Pа. Ct. dis (1949) the Critzer tinguished : “That case, (pp. 57-58) saying case is clearly distinguishable its facts [Critzer] from the circumstances revealed this record. In an wherein reckless careless action, driving is the matter of intoxication issue, proof would be relevant. Where the manner of the operation the car is at issue, proof consumption intoxicating liquors opera tor to show he was of that deprived clarity intellеct and control which he would otherwise possess, highly where other relevant, particularly manifestations of *7 the operation car ‘under the intoxicating of influence of be liquor’ the may evidence. Here there inferred from was an abundance of evidence from which defendant’s be might reckless deduced driving the excluding testi of the drinks mony imbibed him. Evi had a dence that he few drinks preceding the accident prove not offered to necessarily drunk It intoxicated. does, however, with other aid, circum in the of operation stances the car showing ‘under the of influence intoxicating liquor’ related to the reck and lack control1 the operation lessness of his of the and is a facet relevant vehicle evidence dealing “1 claims ho lost consciousness Defendant and control of the sideswiрed by oncoming an vehicle not car when observed others the scene.”1 at or near now before us case defendant also In the claimed that he leading and had recollection of the events consciousness lost the collision. the more criminal general
with subject, wit, negligence defendant. His imbibing any degree in these and to circumstances was relevant to establish explain reckless misconduct of his operation vehicle. Superior Commonwealth Ct. Long, A. 474. Cf. 8 28, 198 Cyclopedia Automo Blashfield, bile §5475; Law, Wigmore, Evidence, (Empha §235.” sis supplied.)
In Commonwealth v. 131 Pa. Long, Ct. 28 Superior it was not that defendant disputed “had been (1938), drinking intoxicating or ear- liquors during evening ly morning prior operating” the truck. sev- However, eral witnesses testified that defendant was under the influence of intoxicating liquor before operating the truck. The court held that a as to whether finding or not defendant was under driving influence dependent was not on the testi- intoxicating beverages of those because their mony witnesses, despite testi- “Manifestations ‘under appellant’s being mony, influence of while intoxicating liquor’ the truck driving could be found the facts evidence.” The court : “In (pp. 35) reaching stated conclusion it for the to consider the course whiсh proper on the truck followed highway, way acted; ran the berm and that it over up steep embankment it proceeded upsetting; through without the orch- the excavation. With and across the other ard facts, draw some inferences from the could location and at the time it the truck came to condition rest. . . .” “ “under expression, ‘. . . The influence of in- covers not only all the liquor,” well toxicating known сonditions recognized degrees easily intoxi- *8 mental or abnormal physical but any condition cation, in of indulging the result in any degree intoxi- which tends to and which deprive liquors, one of cating that and control of of intellect himself clearness which he State possess. v. otherwise 91 Rodgers, would N.J. (Third A. and Phrases 433; Words 212, Law, Superior vol. Com. v. 7, Buoy, Series), p. 683,’: 145.” 193 A. at page 144, page Ct. court Risbon v. Pa. 155 the
In Cottom, (1956), held that the Critzer сase and distinguished again Fisher satisfied by v. were Dye, requirements supra, of defendant’s to in view permitting jury determine, from the mode of of his vehicle conduct and operation collision which of Ms to the time time drinking from occurred two his last place drinking, miles had under all the evidence Risbon’s drinking “whether, operate such Ms to automo- impair ability been as Ms bile safely.”
We case from the distinguish present would Fisher Critzer and v. linе of cases much the same Dye record before manner. The evidence now as us, a mode of reveals reckless already stated, operation by drunk defendant after he had immediately at Fruitville Inn. We do not have here a liquor case and a fatal accident without more drinking anything connect two. We have a chain of events leading from the the accident drinking which infer a causal cоnnection could between the reasonably and the drinking accident.
In
v. Standard M.
Vignoli
In also relied (1969), evidence a causal connection defendant, In there lacking. fact, likewise in fact been had prof- drinking, case *9 evidence to Ms visited Club relating only fered having The same in of 30. situation was found the case Cook Transit Philadelphia where (1964), Co., attempted the that the plaintiff had, show the from prior to the Bar”. accident, emerged “Crazy Supreme The Court held that the court below properly of the evidence if refused admission such because even had not that had in plaintiff denied she been that bar, there was no in the taproom still evidence that “being had in her from any way incapacitated pru- carefully, the soberly crossing street.” The court there dently concluded: the Bar’ very properly “Thus, ‘Crazy alien to in no the contributed wholly accident, way the or an hapрening explanation accident . . .” of Billow v. Trust
The case
Farmers
We court properly to determine the causal allowed connection drinMng of the defendant’s several between beers and occurred accident which one fatal mile away from Inn. the Pruitville contention in defendant’s
Nor can find merit we Dis- the Assistant a trial because entitled to new closing Attorney to the his trict had indicated passed argument around defendant had a vehicle speed, rate curve at an excessive curve or before the “defendant had indicated that whereas the pass prior completed to the curve, distance due suddenly yellow line and then divider then straddled the lane intо the northbound lane the southbound crossed *10 any significance to material curve.” We fail see at the jury’s found determination whether the to curve because northbound lane at the in the himself passing had control or because he lost a vehicle was the In either case, rounded the curve. as he his vehicle according important the uncontradicted to fact is that proper he left his witnesses, disintеrested negotiating the curve and went of travel when lane Fur- crashing automobile. on into the Haraczka head jury judge properly instructed the trial the thermore, gov- of the recollection its that was erned. presence in the that the also contends
Defendant during court’s the summations and the courtroom, young charge, and decedent’s husband decedent’s son facing jury who the sat case, a witness was who appeal prejudicial period, during and an this brief judge, sympathy. The trial who based a verdict to stating agree, proceedings, did not “there witnessed anger prejudice”. display or We of emotion, judge to hold that the error no reason find can especially in the since matter, discretion abused and clearly adequately and that emo- he cautioned could not control its deliberations. not should tions jury: “You members of the see, to court stated The you if out the would follow truth, to seek jury, order seeking you the truth, guide evidence, line of time and lot yourselves trouble, because, save will if are to very obviously, you decide this case going to the are not to according evidence, you permit going to be or bound for yourselves governed by sympathy of the involved in this any parties case, sympathy of the dead nor survivors for the woman, sympathy defendant who is with this crime. You are not charged permit to to going be yourselves governed any preju- dice that have for you might You any parties. are not permit to to be going yourselves governed be- you cause to like one of happen better attorneys or than the one of other, you happen dislike do not the other attorneys you dislike attornеy. “In other according the evidence words, means from box must remove all considera- you tions other emo- passion, sympathy, prejudice, any you tion will prevent following which oath your deciding this case the evidence.” according Defendant’s motions for and in new trial arrest of judgment were refused the court properly below, affirm the we therefore judgment conviction and sentence.
Dissenting Opiniоn J.: Jacobs, I dissent. No effort respectfully was made at trial the appellant show was driving under the influence the time liquor of the colli- testimony sion. The officer’s appellant was in a and had consumed several bar beers immediately prior irrelevant and to the collision was highly prejudicial. objected appellant When should stricken and the jury have been told to ignore it. I a new trial would grant authority Fisher v. A. 2d Pa. 472 Dye, (1956), and Morreale 258 A. 2d Prince, (1969).