Com. v. Hutchinson

• Decision Date: 09 March 1993
• Parties: COMMONWEALTH of Pennsylvania v. Mark A. HUTCHINSON, Appellant.
• Court: Pennsylvania Superior Court

Page 681

621 A.2d 681

423 Pa.Super. 571

COMMONWEALTH of Pennsylvania v. Mark A. HUTCHINSON, Appellant.

Superior Court of Pennsylvania.

Argued Sept. 16, 1992.

Filed March 9, 1993.

Louis M. Dayich, Waynesburg, for appellant.

David F. Pollock, Dist. Atty., Waynesburg, for Com., for appellee.

Before ROWLEY, President Judge, and CIRILLO and MONTGOMERY, JJ.

ROWLEY, President Judge:

Mark A. Hutchinson appeals from the judgment of sentence entered after he was convicted of homicide by vehicle, homicide by vehicle while driving under the influence, driving under the influence, and driving at an unsafe speed. He raises the following issues in this appeal: (1) whether the trial court erred in refusing to allow defense counsel to argue and refusing to instruct the jury that it could find that the decedent legally caused his own death by operating a farm tractor on the highway in violation of the registration requirements of the Motor Vehicle Code; (2) whether trial counsel was ineffective for failing to request an instruction concerning the decedent's operation of his tractor in violation of the lighting requirements of the Motor Vehicle Code; (3) whether the trial court erred in denying appellant's motion for curative instructions after the Commonwealth speculated on appellant's act of drinking a bottle of beer immediately prior to the accident while operating his motor vehicle; and (4) whether trial counsel was ineffective for failing to object to the imposition of consecutive terms of imprisonment for driving under the influence and homicide by vehicle while driving under the influence. After reviewing the record, we vacate the judgment of sentence and remand for a new trial.

We adopt the following statement of facts as set forth by the trial court in its opinion:

On August 12, 1990, just after midnight, the defendant, Mark Hutchinson, was involved in an accident that claimed the life of Douglas Moore. The accident occurred on First Street in the village of Mather, Pennsylvania. The night was foggy and the visibility limited.

The defendant had been drinking at the Third Base Lounge, near Mather, and was travelling through Mather, away from the direction of his home, in his 1979 Chrysler automobile. The decedent was driving his 1947 Model A John Deere tractor and was being followed by his cousin, Chad Moore, driving an Allis-Chalmers tractor, followed by the decedent's sister, Holly Moore, who was driving a 1989 Chevrolet Cavalier with its four-way flashers in operation. These vehicles were headed home from the Greene County Fairgrounds near Waynesburg.

The Moore party was approaching Mather when the defendant's automobile approached from their rear. Both Holly Moore and Chad Moore testified that the defendant's vehicle swerved off and back onto the road. Chad Moore, driving the Allis-Chalmers tractor, and Holly Moore, driving the Chevrolet, both pulled off to the side of the road in order that the vehicle driven by the defendant could pass due to their fear that he was going to hit them. However, Douglas Moore, who was in front of the other two vehicles, did not pull off the roadway. Holly Moore and Robin Diane Williams, a passenger in Ms. Moore's vehicle, both testified that the vehicle driven by the defendant passed them at a fast rate of speed. Mr. Hutchinson then hit the decedent's tractor from behind causing the front wheels of the tractor to become airborne and to veer left across the road, hitting a parked car and a tree before coming to rest. The decedent was thrown from the tractor upon impact and died as a result of injuries sustained.

At trial, the Commonwealth presented expert testimony that the defendant had been travelling at least 44.7 mph[, almost 20 mph over the posted speed limit.] In addition, the state police officer who administered the breathalyzer test testified that the blood alcohol level of the defendant, tested at approximately 2:00 a.m., was 0.162%.

Trial Court Opinion (Grimes, P.J.), 12/5/91, at 1-2 (footnote omitted).

Appellant was convicted after a jury trial of homicide by vehicle, homicide by vehicle while driving under the influence, driving under the influence, and the summary offense of driving at an unsafe speed. After denying appellant's post-verdict motions, the trial court sentenced him to a term of imprisonment of three to seven years for homicide by vehicle while driving under the influence and a consecutive term of imprisonment of six months to two years for driving under the influence. The trial court imposed no additional term of imprisonment for homicide by vehicle, finding that that charge merged with homicide by vehicle while driving under the influence. This timely appeal was then filed.

In his first two issues, appellant contends that the jury was not properly instructed with regard to the consideration it should give to the decedent's own conduct in determining the cause of the decedent's death. He first contends that the trial court erred in refusing to allow defense counsel to argue and refusing to instruct the jury that the decedent was driving his tractor on a public highway in violation of the Motor Vehicle Code's registration requirements. Although we conclude, for reasons discussed below, that appellant was not entitled to such an instruction, we agree that sufficient evidence was presented to show that the decedent operated his tractor on a public highway in violation of the Vehicle Code's registration requirements.

Section 1302 of the Vehicle Code, titled "Vehicles exempt from registration," provides exemption status to:

Any implement of husbandry or trailer determined by the department to be used exclusively for agricultural operations and only incidentally operated upon highways. Vehicles exempt from registration under this paragraph shall be used exclusively upon a farm or farms owned or operated by the owner of the vehicle or upon highways between:

(i) Parts of one such farm.

(ii) Such farms located not more than 25 miles apart.

(iii) Such farm or farms and a place of business located within a radius of 25 miles from the farm for the purpose of buying or selling agricultural commodities or supplies or for delivery, repair or servicing of the vehicle.

75 Pa.C.S. § 1302(2). In the present case, Trooper Joseph Palmer, the state trooper presented as a Commonwealth witness, testified that tractors are not allowed to operate as passenger vehicles on the highways because they are not registered. Trooper Palmer also testified that such a tractor operator would be subject to a citation, depending upon whether the tractor is being used for farm work and whether it is within the legal distances. Upon further questioning, he stated that the decedent's tractor was not being used for farm work or within the permissible distances. More importantly, it was uncontroverted that the decedent was returning home from a tractor pull at a county fair.

Accordingly, it was inaccurate for the trial court to conclude that there was insufficient evidence that the tractor in question was in violation of the registration requirements of the Vehicle Code. Sufficient evidence was presented considering that a county fair tractor pull is not a part of the decedent's farm, is not an additional farm of decedent, and is not for the purpose of buying or selling agricultural commodities or supplies or for the delivery, repair or servicing of the vehicle.

Similarly, we have reviewed the record and conclude that there was sufficient evidence that the decedent violated the lighting requirements of the Vehicle Code. Section 4303, titled "General lighting requirements," provides, in relevant part: "Every vehicle operated on a highway shall be equipped with a rear lighting system including, but not limited to, rear lamps, rear reflectors, stop lamps and license plate light, in conformance with regulations of the department." 75 Pa.C.S. 4303(b). The following testimony was elicited at trial:

Q. [By defense counsel] What basically does an authorized vehicle for use on the highway need to have by state regulations?

A. [By Trooper Palmer] Red lights to the rear.

* * * * * *

Q. Did the tractor have a red light on it?

A. No, sir, it did not.

Reproduced Record at (4)a. Additionally, Trooper Palmer testified that the tractor would not be allowed on the roadway because it was not equipped with proper lighting.

In light of this testimony, we hold that sufficient evidence was presented to support the conclusion that the decedent operated his vehicle in violation of the Vehicle Code. In addition, although we conclude that appellant is not entitled to a new trial on the basis that the trial court erred in refusing to instruct the jury regarding the Vehicle Code's registration requirements, we hold that trial counsel was ineffective for failing to request an instruction on the lighting requirements.

As the following cases reveal, the decedent's conduct is not irrelevant in a homicide by vehicle case. Although the decedent's own actions are not a defense to a criminal action, they may diminish the defendant's responsibility as the legal cause of the accident. Commonwealth v. Clowser, 212 Pa.Super 208, 215, 239 A.2d 870, 873 (1968).

In Commonwealth v. Uhrinek, 518 Pa. 532, 544 A.2d 947 (1988), the Supreme Court reversed the defendant's homicide by vehicle conviction because the trial court improperly excluded evidence of the deceased pedestrian's intoxication. In so doing, the Court stated, "The causation theory properly applied in criminal cases is not the same as the civil 'proximate cause' standard. The defendant's conduct must be a direct and substantial cause of the injury." Id. at 540, 544 A.2d at 951. The Court also determined that "[t]he trial court's refusal to permit the appellant to introduce evidence of the decedent's intoxication, where the appellant was prepared to support his theory with expert testimony, prevented him from challenging the causal connection between...