236 Pa. Super. 474 | Pa. Super. Ct. | 1975
Opinion by
On January 27, 1973, the car in which appellant and his wife were riding was involved in an accident with another car on Route 30 in Lancaster County. An investigating police officer found appellant and his wife lying on the road near their car. Glindon Ashbrook, the driver of the other car, died as a result of the injuries he sustained in the collision. Appellant was arrested on April 5, 1973, and charged with involuntary manslaughter. A pre-trial motion was filed to suppress a statement by appellant that he was the driver of his car. After a hearing, the motion was denied, and appellant was brought to trial before President Judge Johnstone and a jury. At the conclusion of the Commonwealth’s case, appellant filed a demurrer to the evidence, but the trial judge overruled it. The jury in due course returned a verdict of guilty. Motions in arrest of judgment and for a new trial were denied by the court en banc, and appellant was sentenced to a term of six to twelve months in the Lancaster County Prison and was ordered to pay a fine of $200 plus costs.
Appellant raises four issues on appeal: that the trial judge erred in refusing to suppress appellant’s pre-trial statement; that he erred in admitting into evidence opin
Appellant’s post-trial motions do not raise the issues concerning the witnesses’ opinions and the inspection sticker. He therefore is precluded from raising those issues on appeal. Commonwealth v. Blevins, 459 Pa. 652, 331 A.2d 180 (1975); Commonwealth v. Bronaugh, 459 Pa. 634, 331 A.2d 171 (1975); Commonwealth v. Kearney, 459 Pa. 603, 331 A.2d 156 (1975); Commonwealth v. Reid, 458 Pa. 357, 326 A.2d 267 (1974); Commonwealth v. Agie, 449 Pa. 187, 296 A.2d 741 (1972); Pa. R. Crim. P. 1123. The other two issues, the suppression issue and the sufficiency issue, were raised in the post-trial motions. Since those issues were also raised at trial, it would seem that they were properly preserved for appeal. The court en banc, however, opens its opinion with the statement that “ [t] he only question argued by defense counsel, both orally and in his brief, was whether the defendant’s admission that he was driving the car which caused the victim’s death was properly admitted into evidence. No question was raised that the evidence did not support the verdict in quantity and quality and no error was alleged in the charge.” Slip Op. 1. The court then proceeds to consider only the suppression issue. From this it is clear that that issue is properly before us on appeal. In regard to the sufficiency issue, however, a novel question is presented: Apparently the court en banc considered the issue either waived or abandoned (the court did not say which); but was it?
A litigant must do two things in order to preserve an issue. First, he must make a timely, specific objection at trial. Commonwealth v. Williams, 458 Pa. 319, 326 A.2d 300 (1974); Commonwealth v. Kuterbach, 458 Pa.
Our appellate courts have generally considered an issue to have been abandoned when the party has properly preserved the issue at trial but then failed to pursue it on appeal. See Commonwealth v. Piper, 458 Pa. 307, 310 n.5, 328 A.2d 845, 847 n.5 (1975) (“Failure to pursue an issue on appeal is just as effective a forfeiture as is the failure to initially raise the issue.”); Yefko v. Ochs, 437 Pa. 233, 236 n.1, 263 A.2d 416, 418 n.1 (1970); Harman v. Chambers, 358 Pa. 516, 522, 57 A.2d 842, 845 (1948). So far as this court is concerned, what this means is that the appellant must file a brief with each specific issue listed as one of the “Statement of Questions Involved.” Rule 22 of the Superior Court Rules requires the appellant to file a brief before argument, and provides that if he does not, the appeal will be dismissed. Rule 42, in turn, requires the appellant to list his legal arguments in a section of the brief entitled “Statement of Questions Involved,” and warns that this requirement “is to be considered in the highest degree mandatory, admitting of no exception; ordinarily no point will be considered which is not set forth in the statement of questions involved or suggested thereby.” Accord, Supreme Court Rules, Rule 52; Rules of the Commonwealth Court, Rule 93. Therefore, any person who appeals to this court knows or should know that in order to raise an issue he
Here, the court en banc appears to have followed the same procedure that this court does. The difficulty is, however, that the court does not have any rule comparable to our Rules 22 and 42.
The Pennsylvania Rules of Criminal Procedure do not require that briefs be filed with post-trial motions. In fact, Rule 1123 states that “[i]f the grounds asserted do not require a transcript, neither the filing nor argument of post-verdict motions shall be delayed for lack of a transcript of the notes of testimony.” Nor do the Lancaster County Rules of Court require briefs with post-trial motions. Those rules are divided into two parts: the Rules of the Court of Common Pleas, and the Rules of the Courts of Oyer and Terminer and General Jail Delivery and Quarter Sessions, the former dealing with civil cases, the latter with criminal. For the criminal cases, there are two rules dealing with post-trial motions. Rule 11.10 provides: “Oral Motions for a New Trial and in Arrest of Judgment must be made on the day on which the jury verdict is rendered and written Motions, together with supporting reasons, must be filed within seven days following the verdict.” Rule 11.11 provides: “All written Motions for a New Trial and in Arrest of Judgment must be accompanied by an affidavit made by the attorney for the moving party that said Motion is not made for the purpose of delay, but because it is believed that an injustice has been suffered.”
In these circumstances, we conclude that appellant did not abandon the sufficiency issue; to say that he had, would be to penalize him for failing to do something he was not required to do. We do not hold that an issue cannot be abandoned before a lower court unless the court has rules comparable to our Rules 22 and 42. However, in the absence of such rules the record must show abandonment. Since here it does not, we shall consider not only the suppression issue but also the sufficiency issue.
I
The record of the suppression hearing discloses that appellant was seriously injured in the accident and was in the hospital for approximately fifteen days (eight days in a coma). State Trooper McVitty, who investigated the accident, tried to speak with appellant the day of the accident but was unable to. He did not try again until early March because he did not want to aggravate appellant’s injuries in any way. Finally, on March 7, 1973, McVitty and Lancaster Detective Fletcher went to appellant’s home to question him. There McVitty, using a card, immediately read the Miranda warnings to appellant. When asked, appellant said he understood his rights. McVitty then asked appellant about his health and whether he felt up to talking; appellant said he did. McVitty then asked appellant whether he had been the driver of the car involved in the accident, and appellant said he had been. At that point, McVitty was handed the telephone and was advised by defense counsel that appellant did not wish to answer any more questions. No further questions were asked.
Appellant’s testimony at the suppression hearing did not rebut that presented by the Commonwealth except for one crucial point. Appellant denied ever saying he
It is clear that an individual may waive his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 444 (1966); Commonwealth v. Goodwin, 460 Pa. 516, 333 A.2d 892 (1975); Commonwealth v. Taper, 434 Pa. 71, 253 A.2d 90 (1969). This waiver does not have to be in writing, United States v. Stuckey, 441 F.2d 1104 (3d Cir. 1971), but the Commonwealth must show by the preponderance of the evidence that the waiver was knowingly and voluntarily made. Commonwealth v. Goodwin, supra; Commonwealth v. Starkes, 461 Pa. 178, 335 A.2d 698 (1975); Commonwealth v. Taper, supra. See generally, Johnson v. Zerbst, 304 U.S. 458 (1938). There is no fixed rule by which one can judge voluntariness; rather, all the attending factors and. circumstances must be considered. Commonwealth v. Goodwin, supra; Commonwealth v. Starkes, supra.
In United States v. Del Porte, 357 F. Supp. 969 (S.D.N.Y. 1973), aff’d, 483 F.2d 1399 (1973), the court was confronted with a claim similar to appellant’s. The police officers there were very kind when questioning the accused. There, as here, it was claimed that this kindness was a form of trickery or psychological coercion serious enough to justify a finding of involuntariness. The court, however, rejected this claim, stating: “While recognizing that emotional pressures can reach such levels, this Court finds that such was not the case here. These are not the
II
In determining whether evidence is sufficient to sus-stain a conviction, all the evidence must be regarded in the light most favorable to the Commonwealth, and the Commonwealth must be given the benefit of all reasonable inferences arising from it. Commonwealth v. Busler, 445 Pa. 359, 284 A.2d 783 (1971); Commonwealth v. Gladden, 226 Pa. Superior Ct. 13, 311 A.2d 711 (1973). So regarded, the following facts were established at trial. In September, 1972, appellant purchased for $100 a 1956 Chevrolet. The car was not operative, so appellant towed it to his parents’ garage and began to rebuild it. He did such things as put in a new engine, replace the transmission, fix the electrical system, repair the chassis and the interior, add a roll bar, and put on new tires. His hope was to make the car suitable for general family use. Appellant’s interest in automobiles was not limited to this one car; he was interested in a career as an automobile mechanic. To that end, he enrolled in a course at Willow Street Vo-Tech on December 4, 1972. There he was on the third shift and was taught “about cars and inspections and the driver training, the motor and all of this.” Much of the work he did on his car was done at the Vo-Tech workshop. After he got the car running, appellant noticed that the wide tires he had bought for the rear wheels of the car were rubbing and therefore an adjustment would have to be made. Pending making this
The classic definition of involuntary manslaughter is “the killing of another without malice and unintentionally, but in doing some unlawful act not amounting to a felony nor naturally tending to cause death or great bodily harm, or negligently doing some act lawful in itself, or by the negligent omission to perform a legal duty.” Commonwealth v. Busler, supra at 361, 284 A.2d at 784; Commonwealth v. Mayberry, 290 Pa. 195, 198, 138 A. 686, 687 (1927); Commonwealth v. Piper, 183 Pa.
In the present case, appellant was driving his car in violation of The Vehicle Code, supra. The car had not been inspected as required by the Code, supra at §834 (h), and the rear tires did not meet the requirements of the Code, supra at §841. Appellant was therefore clearly committing an “unlawful act.” Our courts, however, have expressly held that conduct made unlawful by The Vehicle Code is not necessarily the kind of “unlawful act” included within the definition of involuntary manslaughter. Commonwealth v. Busler, supra; Commonwealth v. Clowser, 212 Pa. Superior Ct. 208, 239 A.2d 870 (1968).
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There is no direct evidence that appellant decided to drive his car in disregard of human life or with indifference to the possible consequences. This may, however, be inferred from the surrounding circumstances. Commonwealth v. Hicks, 203 Pa. Superior Ct. 307, 201 A.2d 294 (1964); Commonwealth v. Hartle, 200 Pa. Superior Ct. 318, 188 A.2d 798 (1963). The most important of those -circumstances is that appellant chose to drive his car with defective tires. The defect was not latent, but rather the tires were visibly worn, if not bald. Trooper McVitty immediately noticed this when he examined the car after the accident. If McVitty could make this observation, so could appellant. He was not unfamiliar with cars; rather, by his own admission, he had practically built the car himself, and he was taking a course in automobile mechanics. The jury could therefore reasonably infer that appellant could spot a worn tire and would realize that it was dangerous. Fur
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In deciding whether appellant’s conduct was the cause of Ashbrook’s death, the standard to be used is not the familiar proximate cause requirement that the conduct must be the direct cause of the death. See generally, Commonwealth v. Root, supra. Here, an eyewitness watched practically the whole sequence of events. As has been mentioned, appellant’s car was travelling down the highway when the rear began to fishtail, and shortly thereafter it went into a spin, crossed the median, and crashed into Ashbrook’s car. It is the fishtailing that is significant, for from this the jury could reasonably infer that the tires lost their grip on the road due to slipping. This was the very danger inherent in the use of worn tires, on a wet highway, at high speed. We therefore conclude that appellant’s actions were the direct cause of Ashbrook’s death.
The judgment of sentence is affirmed.
. This court is aware that the Lancaster County Rules of the Court of Common Pleas require a party to file a brief before arguing a motion. Rule 5.30. However, this rule is not relevant here. As mentioned, there is one set of rules for civil cases and another for criminal. If the promulgators wished to make such a rule as Rule 5.30 applicable to criminal cases, they should have expressly done so in the rules applicable to such cases.
. The Pennsylvania Crimes Code, Act of Dec. 6, 1972, P.L. 1482, No. 334, §1, eff. June 6, 1973, 18 Pa.C.S. §2504, does not govern the present case because the accident occurred before the effective date of the Act.