Com. v. Kaulback
| Decision Date | 11 August 1978 |
| Citation | 389 A.2d 152,256 Pa.Super. 13 |
| Parties | COMMONWEALTH of Pennsylvania, Appellant, v. Walter G. KAULBACK, Jr., Appellee. |
| Court | Pennsylvania Superior Court |
Charles M. Guthrie, Jr., Asst. Dist. Atty., Reading, for Commonwealth, appellant.
John A. Boccabella, Reading, for appellee.
Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.
Appellee, Walter G. Kaulback, Jr., was charged with involuntary manslaughter under Section 2504 of the Crimes Code 1 arising from the death of a passenger in a car struck by appellee's car. At the conclusion of the Commonwealth's case, the trial court sustained a demurrer. As is their right, the Commonwealth has filed this appeal. We reverse.
The law in this Commonwealth is well established that the test to be applied upon consideration of the granting of a demurrer is whether the Commonwealth's evidence and all reasonable inferences therefrom are sufficient to support a verdict of guilty of the crime under consideration. The evidence must, in such cases, be read in the light most favorable to the Commonwealth. Commonwealth v. Carroll, 443 Pa. 518, 278 A.2d 898 (1971); Commonwealth v. Zeringo, 214 Pa.Super. 300, 257 A.2d 692 (1969).
With these principles in mind, the Commonwealth's evidence establishes that a violent intersection collision occurred on August 30, 1975, at about 10:30 p. m. Although it was dark, there was at least one street light illuminating the intersection. The weather was dry and clear. Traffic at the intersection was controlled by two overhead traffic signals operating on a green-yellow-red cycle. Both vehicles involved had their headlights on. Appellee entered against a red signal that had been red for a period of time sufficient to allow the other vehicle to delay for 2 to 6 seconds before starting on the green signal and then to travel 72 feet into the intersection to the point of impact.
The intersection is a right angle intersection where Museum Road and Old Mill Road, public highways in Berks County, cross. Museum Road runs east and west, Old Mill Road north and south. Each highway is about 40 feet wide and provides for traffic in both directions.
Mr. David Ullrich was operating his Cadillac automobile in a southerly direction on Old Mill Road. As his vehicle approached the intersection the traffic signal was red against him. He stopped until the light turned green and then, after delaying for 2 to 6 seconds, moved 72 feet into the intersection, intending to make a left hand turn. This placed the front of the Ullrich vehicle over the center line of Museum Road and at a point approximately 6 feet west of the east crosswalk across Museum Road. At this point the Ullrich car was violently struck by the appellee's car which was traveling in a westerly direction on Museum Road and which entered the intersection against a red light. As a result of this impact, the Ullrich car was spun around and moved 24 feet in a southerly direction. Appellee's car basically remained at the point of impact but spun around so that it faced in a southerly direction.
Appellee was alone in his car. Mr. Ullrich was accompanied by his wife and their eighteen year old daughter. Mrs. Ullrich, seated on the passenger side of the front seat, died as a result of injuries suffered in the collision. Miss Ullrich, a passenger in the back seat, was injured, as were both drivers.
After the Ullrich car entered the intersection, a period of time from 6 to 7 seconds, sufficient to allow it to travel 72 feet from a stopped position, elapsed. A permissible inference from that evidence is that the Ullrich car was in plain view of the appellee during that time. The light was red against appellee during that interval, and the light had been yellow for 8 seconds prior to that interval. Thus a 16 to 21 second period intervened between the yellow light's initial warning to appellee and the collision. The photographic evidence shows severe and extensive damage to both vehicles, with the point of impact established as the left front and side of the Ullrich car and the front of the appellee's car. Debris was scattered widely throughout the intersection by the impact.
The Commonwealth's only specific testimony as to speed was by an eyewitness to the impact, Mary Premici, who was driving a car that was stopped two cars behind Ullrich at the red light. Her testimony on the point is on direct:
On cross-examination the following appears:
"Q. In answer to one of Mr. Babb's questions, you said you were not really sure, but you estimate the Kaulback vehicle was exceeding the speed limit?
A. Yes.
Q. How did you estimate that?
A. Because it seemed like he was going faster than the other cars going down the road.
Q. Did you see other cars going down the road?
A. Yes.
Q. Going back to August 30, 1975, think very carefully of what you saw, are you positive you saw the Kaulback vehicle before the collision?
A. Maybe just one second before they collided.
Q. And you are estimating speed from that one second?
A. I estimated it with the force with which the cars collided.
Q. So you didn't see the car speeding, is that correct?
A. Yes.
Q. Have you ever been involved in anything where a car was going 30, 35 miles an hour?
A. No.
Q. You do not know how much impact that would have?
A. No.
Q. Isn't it a fact that you did not see the Kaulback vehicle before the crash?
A. Yes.
Q. Is it a fact?
A. Yes, it is. " (N.T. 24)
Of course this is not definitive testimony regarding speed, and hence it is true, as the trial court observed, that speed in terms of miles per hour is not established. 2 That is not, however, the same as saying speed was not a factor that the fact finder could consider.
Physical evidence in and of itself may permit the fact finder properly to infer speed, and this case is an example of where that principle is particularly appropriate. The Ullrich car proceeded slowly from its stopped position a distance of 72 feet before impact. Photographs establish a violent and glancing impact on its left front and side. It traveled 24 feet in a direction approximately 90o from its direction at impact. Appellee's car sustained a violent impact basically to the front end of the car, which spun it in excess of 90o from its direction at impact. Four persons were injured, one dying as a result of the injuries, and two requiring undisclosed periods of...
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