Opinion
Submitted May 15, 1987.
Decided February 26, 1988.
Appeal from the Superior Court, No. 03131 Philadelphia 1982, 341 Pa. Super. 619, 491 A.2d 921.
James T. Rague, Wellsboro, for appellant.
James Edgar Carlson, Dist. Atty., for appellee.
Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, HUTCHINSON, ZAPPALA and PAPADAKOS, JJ.
ORDER
The judgment of sentence imposed upon Appellant Franklin E. Safrit following the convictions of three counts of homicide by vehicle, 75 Pa.C.S.A. § 3732, and the summary offense under 75 Pa.C.S.A. § 3322 is vacated and the matter is remanded for a new trial. In Commonwealth v. Heck, 517 Pa. 192, 535 A.2d 575 (1987), we held that the minimum requirements of culpability set forth in 18 Pa.C.S.A. § 302(a) apply to the offense of homicide by vehicle. We note that the trial judge did not have the benefit of this Court's decision in Commonwealth v. Heck, supra, and that his charge reflected the language of appellate decisions at the time of the trial. The jury instructions in the instant case failed to inform the jury, however, that the Commonwealth must establish that the Appellant's conduct was criminally negligent or reckless. The absence of a charge on the applicable mens rea requirements warrants a new trial.
HUTCHINSON, Former Justice, did not participate in the decision of this case.
McDERMOTT, J., files a concurring opinion.
I continue to believe that Commonwealth v. Heck, 517 Pa. 192, 535 A.2d 575 (1987), was wrongly decided. Nonetheless, I must agree that the decision in that case dictates a new trial in this case.