Com. v. Cave

• Decision Date: 21 September 1971
• Citation: 281 A.2d 733,219 Pa.Super. 512
• Parties: COMMONWEALTH of Pennsylvania v. Ervin F. CAVE, Appellant.
• Court: Pennsylvania Superior Court

Page 733

281 A.2d 733

219 Pa.Super. 512

COMMONWEALTH of Pennsylvania v. Ervin F. CAVE, Appellant.

Superior Court of Pennsylvania.

Sept. 21, 1971.

Petition for Allowance of Appeal Denied Nov. 29, 1971.

Louis Sager, Sager & Sager, Lawrence Sager, Pottstown, for appellant.

Stewart J. Greenleaf, Asst. Dist. Atty., Chief, Appeals Div., Milton O. Moss, Dist. Atty., Norristown, for appellee.

Before WRIGHT, P.J., and WATKINS, MONTGOMERY, JACOBS, HOFFMAN, SPAULDING and CERCONE, JJ.

CERCONE, Judge.

On September 9, 1967, at approximately 2:30 p.m. defendant Ervin F. Cave was operating his automobile at a high rate of speed on Swamp Pike in Montgomery County. His vehicle catapulted along the highway, passing two or three automobiles at one time, and crossing the solid yellow center line (no passing area) as he did so. As he sped along the road, he approached a curve which he was unable to properly negotiate, crossed the center line of the highway, and violently collided, head-on, with an automobile being driven in the opposite (northerly) direction by Leon S. Haraczka. Mrs. Haraczka, a passenger in her husband's automobile, was killed instantly. Defendant was charged with involuntary manslaughter and upon trial was found guilty by a jury. He filed motions for a new trial and in arrest of judgment which were refused by the court below. This appeal followed.

Defendant claims it was error for the trial judge to have permitted Trooper Yoblomski to testify that defendant, during an interview, had disclosed that somewhere around 2:00 p.m. on the day of the fatal accident he was at the Fruitville Inn Bar on Swamp Pike where he had imbibed 'a couple of beers', then got into his automobile and headed south on Swamp Pike toward Limerick.

It is the defendant's contention that the admission of this testimony was prejudicial error, being in violation of the rule set forth in Fisher v. Dye, 386 Pa. 141, 125 A.2d 472 (1956) that 'the mere fact of drinking intoxicating liquor is not admissible, being unfairly prejudicial, unless it reasonably establishes a degree of intoxication which proves unfitness to drive: Critzer v. Donovan, 289 Pa. 381, 384, 385, 137 A. 665, 666; Landy v. Rosenstein, 325 Pa. 209, 216, 188 A. 855, 858, 859; Balla v. Sladek, 381 Pa. 85, 93, 112 A.2d 156, 160.'

It is true that the 'mere' drinking of intoxicating liquor is inadmissible to prove that a driver was under the influence of intoxicating liquor and unfit to drive an automobile. However, it is also true that if in addition to the drinking, facts are shown from which a conclusion reasonably follows that the driver was under the influence of intoxicating liquor, all the evidence, the drinking and the surrounding circumstances are admissible for the consideration of the trier of facts to determine whether or not the drinking was holly or partly the cause of an accident for which he is being held responsible.

In the case now before us the record discloses more than the fact that defendant drank 'a couple of beers'. It also establishes that immediately after drinking those beers he got into his car, traveled onto Swamp Pike, and proceeded thereon in a wild, reckless, and dangerous manner to the place of the fatal accident which occurred only one mile away from the Fruitville Inn. A clear description of the manner in which defendant operated his vehicle immediately after leaving Fruitville Inn was established by three disinterested witnesses. One witness, Mrs, Slaybaugh, testified that she was operating her automobile on Swamp Pike in the same southerly direction as defendant at a speed of 55--56 miles per hour (the speed limit was 55 miles per hour) when she saw, in her rear view mirror, the defendant cross over the yellow line dividing the southerly and northerly lanes of travel, travel into the northerly lane of oncoming travel, and pass her vehicle and the two vehicles traveling in front of her. She approximated defendant's speed at about 65 miles per hour. When defendant passed the two vehicles in front of her, the yellow line dividing the two directions of traffic was a solid one and continued to be a solid line as it went around the curve where the collision with the northbound Haraczka vehicle occurred. Mrs. Slaybaugh did not see the collision because defendant's automobile had passed beyond her view of the curve in the road.

Evidence of what occurred after defendant's vehicle went out of Mrs. Slaybaugh's line of vision was supplied by two other disinterested witnesses who were traveling in the northbound lane behind the Haraczka vehicle. Marvin L. Heimbach testified he was traveling directly behind Mr. Haraczka on this northbound lane, that he saw defendant's car 'on the curve' crossing over the yellow line into the northbound lane, and that only a few seconds elapsed from the time he thus saw defendant's car to the time of the collision. This witness testified that immediately prior to the collision Mr. Maraczka had reduced his speed to about 5 miles per hour, attempting to steer his car to the right out of the defendant's collision course.

Another witness, John J. Hojecki, testified he was also traveling in the northbound lane behind Mr. Heimbach. Mr. Hojecki testified he saw defendant's car first 'straddling' across the center line on the curve, with the left front and left back wheels in the northbound lane, while traveling in a southerly direction. He estimated defendant's speed: 'I would say he was going over 70 miles an hour'. He saw defendant's car only for a 'fraction of a second' or a 'second' for then it went completely over into the northbound lane of travel out of his line of vision which was blocked by the Heimbach and Haraczka vehicles in front of him. This witness stated: 'Well, I know I didn't see him no more. And I know he was coming pretty fast. And I come around that bend quite often. And from that estimation, I know he was going that fast that he could not make that turn, not on his side of the road, anyway'.

State Trooper Yoblomski testified: 'The impact was determined to be in the northbound lane, in the right portion of the northbound lane near the berm * * * the vehicles could positively be traced to where they came to rest after the accident by the scrape marks from the point of impact to their resting place.'

Mr. Haraczka's testimony was that when he saw defendant come around the corner, 'I told my wife he is going to hit us. And it was just that quick. I don't know just how far away it was, or nothing * * * As far as I can remember, he was still partly on the curve * * * on my side * * * He (defendant) was just flying, I don't know how fast.'

The evidence of defendant's drinking, and his conduct after leaving Fruitville Inn as related by disinterested witnesses, were matters properly admitted into evidence by the trial judge for the jury's consideration. The trial judge properly instructed the jury on this evidence as follows:

'Another thing that I should say to you, the officer testified that the defendant said he had two or three beers, and the defendant, himself, said that he had two or three beers. The consumption of alcoholic beverages is legal in the Commonwealth of Pennsylvania. The mere fact that he had two or three beers would not constitute evidence that he was under the influence of an intoxicating beverage, which is unlawful in the Commonwealth of Pennsylvania. In other words, members of the jury, nobody testified that he was under the influence of intoxicating beverages. The mere fact that he had two or three beers would not be sufficient evidence that he was under the influence of intoxicating beverages. So you will not consider that as an element of the rash conduct and recklessness that I have referred to unless you find that there was some connection, from the evidence, between the consumption of alcoholic beverages and the factual situation that resulted at the time or immediately prior to the time that the accident occurred.'

In Critzer v. Donovan, 289 Pa. 381, 137 A. 665 (1927), cited and relied on in Fisher v. Dye, supra, in the establishment of the rule sought to be invoked by defendant in this case, the court reasoned as follows: 'It may be conceded that in an action wherein reckless or careless driving is the matter at issue, proof of intoxication would be relevant: Alexander v. Humber, 86 Ky. 565, 6 S.W. 453, 454. When evidence of intoxication appears in a case such as this it is offered * * * to show a circumstance from which recklessness or carelessness of the driver may be inferred. Care should then be taken as to the use of such evidence. There was no allegation or proof of intoxication, Nor was there any evidence of conduct or appearance from which a reasonable inference could be drawn that the man was intoxicated * * * Standing alone, the odor of liquor does not prove, nor is it evidence of, intoxication: Joined with other facts it may become so: Commonwealth v. Eyler, 217 Pa. 512, 66 A. 746. Hence it was error for the trial court to admit the evidence as proof of intoxication.'

'Since there was no evidence that Kane, the driver, was intoxicated, Was the testimony otherwise competent? In view of the issues here raised we think it was not competent for any purpose. Proof of the odor of liquor is admissible for certain purposes, but its natural consequence is not reckless driving.' (Emphasis supplied)

Thus, in the Critzer case, the admission of evidence indicating intoxication was declared error because it stood alone, and, without any evidence of conduct or appearance to substantiate a finding of intoxication. In applying the Critzer reasoning to the facts of the instant case, although reckless driving is not a natural consequence of the consumption of three beers and that standing alone such drinking was not proof of intoxication, yet joined with other facts of evidence in the case we conclude that the court was correct in submitting this evidence to the jury in...