dissenting:
I respectfully dissent. The Majority would conclude that the trial court abused its discretion by excluding evidence of Young’s prior criminal conviction for driving at an unsafe speed. However, upon review of the record and the applicable case law, I disagree. Moreover, I am in total agreement with the reasoning employed by the trial court in deciding to exclude this evidence. See Trial Court Opinion, filed October 27, 1986.
In Hurtt v. Stirone, 416 Pa. 493, 206 A.2d 624 (1965), our Supreme Court discussed the admission of prior criminal convictions as conclusive evidence in subsequent civil actions arising from the same set of circumstances. The rule in that decision permitted the use of such evidence. As an exception, though, Hurtt excluded from the scope of its ruling the admission of convictions of relatively minor matters such as traffic violations and lesser misdemeanors. Id. at 206 A.2d at 627. Later, in Loughner v. Schmelzer, 421 Pa. 283, 218 A.2d 768 (1966), our Supreme Court reaffirmed this position by stating that, in an action for damages arising from an automobile accident, evidence that the plaintiff had been convicted of failure to drive on the right half of the highway was inadmissible even though it arose from the facts of the accident. Id. at 218 A.2d at 769.
It is my position that Hurtt and Loughner are controlling with respect to the admission of Young’s prior conviction of driving at an unsafe speed. This violation has been classi*229fied by the Motor Vehicle Code as a summary offense. 75 Pa.C.S.A. § 6502. Thus, the prior conviction was properly excluded by the trial court.
The Majority would hold that, even though Young’s conviction for driving at an unsafe speed was a summary offense, Hurtt would not preclude its admission at trial. In Hurtt, our Supreme Court wrote that “in traffic violations, expediency and convenience, rather than guilt, often control the defendant’s ‘trial technique’. In such cases, it is not obvious that the defendant has taken advantage of his day in court.” Id. at 206 A.2d at 627. The Majority points out that Young’s conviction for homicide by vehicle hinged upon his success in contesting the driving at an unsafe speed charge. Thus, Young had reason to assert his best defense since his failure would result in substantial loss of property or freedom. From this, the Majority concludes that “Young took full advantage of his day in court in an attempt to avoid conviction for homicide by vehicle based on a conviction for driving at an unsafe speed.” Maj. op. 225. I disagree with the Majority’s approach insofar as a determination of whether or not Young indeed took “advantage of his day in court” raises an issue collateral to the case at bar. Further, I do not believe that a decision of this nature can be simply based on a review of the record. Rather, if this Court were to utilize this analysis each time the preclusion of a prior minor conviction occurred, we would need to order a hearing to ascertain whether or not the defendant asserted his/her best defense. A collateral process such as this clearly is unsupported by Hurtt’s holding.
As a practical matter, even if Young’s prior conviction were to be considered admissible, its preclusion by the trial court amounted to harmless error. During trial, Appellants were permitted to introduce evidence of Young’s driving at an unsafe speed. The trial judge aptly points out in his Opinion that the jury was then instructed on all Motor Vehicle Code sections which Appellants claimed Young violated. Driving at an unsafe speed was one of these sec*230tions. The trial court further instructed the jurors that if they found that Young violated this section of the Code, they were required to find that Young was negligent as a matter of law. The jury considered the evidence, along with the trial court’s instructions, and apparently decided that the rate of speed at which the car was travelling did not precipitate the accident. Thus, the preclusion of Young’s prior conviction was harmless.
Appellants attempt to circumvent Hurtt by stating that Young’s conviction for homicide by vehicle based on driving at an unsafe speed was admissible since it did not fall within Hurtt’s exception for minor traffic offenses. Homicide by Vehicle is a misdemeanor of the first degree. 75 Pa.C.S.A. § 3732. Appellants concede that it would have been unnecessary for the trial court to instruct the jury that Young had been found guilty of homicide by vehicle. Instead, Appellants argue that it would have been sufficient to instruct the jury that it had been conclusively established in a prior proceeding that Young was operating his vehicle at an unsafe speed and was therefore negligent as a matter of law. The trial court properly assessed the impact of this scheme by noting that the result of permitting plaintiff’s introduction of this evidence “in the instant case would be nothing more than a circuitous method to admit into evidence, as conclusive evidence of negligence, that which comprises a clearly inadmissible summary offense.” Trial Court Opinion, 10/27/86, 6.
Further, recently in Commonwealth v. Heck, 341 Pa.Super. 183, 491 A.2d 212 (1985), we found that the homicide by vehicle section of the Motor Vehicle Code was unconstitutional insofar as it violated due process of law by imposing criminal liability upon a mere showing of ordinary negligence. Id. at 491 A.2d at 221. Consequently, the legitimate connection between the homicide by vehicle conviction and Appellants’ civil action becomes even more tenuous.
Accordingly, I would affirm.