Commonwealth v. Conrad

• Decision Date: 03 April 1981
• Parties: COMMONWEALTH of Pennsylvania, v. Galen CONRAD, Appellant.
• Court: Pennsylvania Superior Court

428 A.2d 192

285 Pa.Super. 571

COMMONWEALTH of Pennsylvania, v. Galen CONRAD, Appellant.

Superior Court of Pennsylvania.

April 3, 1981

Submitted March 6, 1980.

Harold F. Woelfel, Jr., Selinsgrove, for appellant.

Thomas C. Clark, Dist. Atty., Middleburg, for Commonwealth appellee.

Before CERCONE, President Judge, and WATKINS and MONTGOMERY, JJ.

MONTGOMERY Judge:

The Appellant, Galen Conrad, was convicted after a jury trial on charges of involuntary manslaughter ^[1] and engaging in a speed contest. ^[2] Following the denial of post-trial motions, and sentencing, the Appellant filed the instant direct appeal raising several allegations of error. After a thorough review, we have concluded that there is merit in the Appellant's claim that there was insufficient evidence to support his conviction of involuntary manslaughter, and we will reverse that conviction.

The test for sufficiency of evidence is whether accepting as true all of the evidence and all reasonable inferences deductible therefrom, upon which the jury could have based its verdict the evidence and inferences are sufficient in law to prove guilt beyond a reasonable doubt. Commonwealth v Ilgenfritz, 466 Pa. 345, 353 A.2d 387 (1976). In evaluating the sufficiency of the evidence, we accept all of the evidence favorable to the Commonwealth as true, and resolve all disputed facts in favor of the Commonwealth. Commonwealth v. Ingenfritz, supra.

The record, read in that light, shows that on May 3, 1975, the Appellant was driving a brown Plymouth automobile on U. S. Route 104, in a southerly direction from Middleburg, in Snyder County, towards Shade Mountain. One Roger Lee Heintzelman, while driving a red Pontiac, approached from the rear and began "tailgating" the Appellant's automobile. The Appellant increased his speed and Heintzelman also increased his speed, over some distance, but Heintzelman eventually overtook and passed the Appellant, and pulled away from the Appellant, increasing the distance between them. Approximately one-half mile after the Appellant's car was passed by Heintzelman, the Appellant turned his vehicle around and returned in a northerly direction on Route 104 toward Middleburg. After proceeding some distance in the southerly direction after he had passed the Appellant, Heintzelman apparently also decided to turn around and head back in a northerly direction towards Middleburg. He did so at a high rate of speed. When Heintzelman eventually caught up with the Appellant's vehicle, close to Middleburg, Heintzelman again attempted to pass on the two lane highway. When he veered into the left lane, Heintzelman saw another vehicle in that lane heading in a southerly direction. He pulled back into the right lane, behind the Appellant's car, but was unable to brake his vehicle sufficiently to avoid a collision with the rear end of the Appellant's car. The Appellant's car spun out of control as a result, and collided with the vehicle approaching from the southerly direction on the other side of the road. Appellant's young daughter was a passenger in his car at the time of the collision and tragically lost her life as a result of the accident.

It is the theory of the Commonwealth that the Appellant was engaging in a speed contest, in violation of the Motor Vehicle Code, at the time of the collision, and was criminally responsible for the death of his daughter which resulted from that conduct.

In order to sustain a conviction for involuntary manslaughter, there must be evidence of a disregard for human life or an indifference by the Defendant to the consequences of his actions. Commonwealth v. Busler, 445 Pa. 359, 284 A.2d 783 (1971); Commonwealth v. Kaulback, 256 Pa.Super. 13, 389 A.2d 152 (1978); Commonwealth v. Greer, 232 Pa.Super. 448, 335 A.2d 770 (1975); Commonwealth v. Clowser, 212 Pa.Super. 208, 239 A.2d 870 (1968). In determining the presence of such disregard or indifference, we must look to the violation itself together with all of the surrounding circumstances. Commonwealth v. Busler, supra; Commonwealth v. Clowser, supra. It is the position of the defense while there may have been evidence to show that the Appellant was engaged in a contest of speed several minutes prior to the time of the collision, when Heintzelman first tailgated the Appellant and then passed him as the cars proceeded in a southerly direction, there was insufficient evidence to prove that the Appellant was engaged in any violation of the Vehicle Code, specifically including a speed contest, as he traveled in a northerly direction at the time of the accident several minutes later. We agree with that contention.

In support of its position that sufficient evidence was produced to indicate that Appellant was engaged in a speed contest on his return trip to Middleburg, the Commonwealth relies upon the evidence offered by witnesses Ronald Schon and Anna Fogel. A review of the testimony of Ronald Schon reveals that on the date of the accident he was walking along Route 104 in a southerly direction, trying to hitchhike a ride. He saw and described the conduct of the two vehicles as they proceeded past him in the southerly direction, from Middleburg toward Shade Mountain. He then was asked to describe his observation of the two cars as they passed him a few minutes later going in the northerly direction. He first noticed the Appellant's brown car going in a northerly direction at a speed he described as "fast but not extremely fast". He estimated the speed to be approximately 60 to 65 miles per hour. A few seconds later, he noticed the red Heintzelman vehicle following in the same northerly direction. When he first noticed the two cars the red car was approximately 400 feet behind the Appellant's vehicle, but closing the gap between them quickly. The Heintzelman vehicle crossed the center line of the road as it came around a corner and he estimated its speed at between 70 and 75 miles an hour. He watched the cars as they went past and it appeared to him that the Appellant's car was slowing down as it approached the town. He saw the Heintzelman car moving very quickly up towards the rear of the Appellant's car, and then start to pass. The witness stated he next observed the Heintzelman car swerve back behind the Appellant's car, saw the brake lights come on and heard the sound of brakes being applied. Schon then lost sight of the vehicles because of the elevation of the road, but almost immediately heard a crash. Reading all of this testimony in a light most favorable to the Commonwealth, we do not find sufficient evidence upon which one could base the conclusion that the Appellant was engaged in a speed contest with Heintzelman just before the unfortunate accident in which the Appellant's daughter was killed.

We then turn to the evidence offered by Anna Fogel, as well as the testimony of her husband. Mrs. Fogel testified that she observed the two cars proceeding north as they passed her home on Route 104. In testifying as to their speed, she could only state that "they were really going". Just as they passed her house, proceeding in a northerly direction, she said that the cars were about three car lengths apart, with the Appellant's vehicle in front. She saw that the Heintzelman vehicle was gaining rapidly on the Appellant's vehicle. After they passed her house, she watched them proceed down the road and she saw the lights appear on the back of the Heintzelman car, presumably the brake lights. A couple of seconds after that she heard the sounds of a collision and saw dust and smoke. It is further noted that both Anna Fogel and her husband testified that they believed that both vehicles may have been going at high speed because they heard the "roar" of engines as the cars passed. Our review of this evidence again leads us to the conclusion that it was insufficient to establish that the Appellant was engaged in a speed contest with Heintzelman, as both cars proceeded in a northerly direction on Route 104, just prior to the collision. The combined testimony of the Fogels and Schon lead to the firm conclusion that the Appellant was decreasing his speed as he passed by them, but that Heintzelman increased his and attempted to pass the Appellant at high speed.

In our review of the sufficiency of the evidence issue, we should also summarize the testimony relevant to this issue presented by other witnesses. Roger Heintzelman testified essentially that after he turned around at the top of Shade Mountain and began his return trip in a northerly direction...