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NEW CASTLE, PA. Homicide charge dropped



Published: Fri, June 22, 2001 @ 12:00 a.m.



Jason Bair will pay $35 in fines, plus court costs.

By LAURE CIOFFI

VINDICATOR NEW CASTLE BUREAU

NEW CASTLE, Pa. -- Jason Bair won't be held responsible for the death of 14-day-old Kody Bair.

A judge ruled that prosecutors did not have enough evidence to hold Jason Bair on reckless driving charges, which are needed to support a charge of homicide by vehicle for Kody's death.

Bair, 30, of Taylor Street, New Castle, was found guilty of driving without a seat belt and driving on the wrong side of the road in the Sept. 8 car crash that left his estranged wife, Cathy Sue Bair, in a coma. He will pay $35 in fines, plus court costs.

Prosecutors withdrew a charge of unauthorized use of a vehicle when the owner of the full-sized Dodge van could not testify at Wednesday's hearing.

Accident: Police said Bair, his estranged wife, and her boyfriend, Joseph Funkhouser, were driving north on Pa. Route 65 at about 1:18 a.m. Sept. 8 when Jason Bair lost control of the full-sized van and it crashed into a large Maple tree.

Bair was found on the ground next to the van, bleeding and complaining of pain in his lower body, police said. Cathy Sue Bair, who was about 34 weeks pregnant, was unconscious and slumped between the passenger and driver's seats after being hit in the back of the head with a table saw, police said. The van was a construction company's tool truck.

She was rushed to Mercy Hospital in Pittsburgh where she slipped into a coma and doctors delivered Kody via Caesarean section later that day.

Kody was immediately put on a respirator and died Sept. 22, according to court records.

Funkhouser, who was Kody's father, was trapped in the van and had to be extricated by firefighters, according to police.

No basis: The judge decided there was no basis for the reckless driving charge after Pennsylvania State Police Trooper Robert Donaldson testified Bair was driving about 37 miles per hour before impact. The speed limit is 45 miles per hour on Route 65.

And while Bair admitted he had been drinking beer before the accident, his blood alcohol level, 0.03, was below Pennsylvania's legal limit for driving under the influence, 0.10.

No cause for the crash was given during Thursday's preliminary hearing. Bair told police he thought a tire had blown out, but Donaldson testified that all four tires were in tact after the crash.

Bair's attorneys said there may have been some mechanical problem with the van. Donaldson said he could not find any mechanical problems as part of his investigation.

Assistant District Attorney Robert Barletta said the reckless driving charge was needed to support the homicide by vehicle charge.

Standards: District Justice David Rishel also said the homicide by vehicle charge did not meet Pennsylvania's standard, which says the death must involve a person.

Pennsylvania law does not consider a fetus a person, Barletta said.

However, when the Lawrence County accident occurred and prosecutors decided to charge Bair, the Pennsylvania Commonwealth Court ruled in a Westmoreland County case that a viable fetus killed as a result of a car accident was a person, according to Barletta.

But in February 2001, the Pennsylvania Supreme Court overturned that decision, saying that the Pennsylvania Legislature must address the issue, not the courts, Barletta said.

Barletta said because the judge dismissed the reckless driving charge in Kody's death, the district attorney's office will not be able to prosecute Bair if his estranged wife eventually dies from her injuries.




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