*1
513
trooper
to indicate
testimony
there is
and
him
he asked
before
the appellee
recognized
has
Thus,
card.
it
registration
license
operator’s
of facts
knew
trooper
been established
not
his investiga
in continuing
him
justify
which would
The Vehicle
violation
possible
basis of a
tion on the
of “estab
P. 323
burden
Pa. R. Crim.
Code.3 Under
evidence”
challenged
lishing
admissibility
are
it
we
satisfied that
the Commonwealth
which was
establish admis
did not meet its burden,
Common
of the evidence.
sibility
preponderance
Pa.
wealth
For affirm reasons, the above we the order of the suppressing court below evidence. P. J., dissents.
Weight, April 29, 1959, amended, L. Act as 75 P.S. §§101 seq. et light disposition case, unnecessary In of our of this discuss the other issues raised the Commonwealth’s brief. Appellant. v. Wilson, *2 March 1973. Before Wright, Submitted J., Cercone, Jacobs, Hoffman, Spaulding, Watkins, Spaeth, JJ. appellant, propria per- Lee Donald Wilson, Nr., n (cid:127)
sona. Attorney, Hess, Kevin A. Assistant District Sheely, Attorney, Harold E. District for Common- appellee. wealth, November 1973:
Opinion Cercone, J., appeal This defendant’s conviction after charge trial, a second “Violation Motor Vehicle Section while that he did Code, operate liquor intoxicating a motor the influence highways upon of the Commonwealth.” vehicle of in- under the influence he was Defendant admits strenuously liquor he was toxicating denies that but time operator him at the vehicle owned that he He contends knocked a mailbox. down passenger found behind and was his vehicle steering after the vehi- in the seat wheel driver’s the driver, because cle’s collision with the mailbox leaving Barry car scene, had fled the one Shaffer, lights over to the moved defendant, he, on, lights off. driver’s seat to turn the cheeseburger and that he had a Defendant testified in The Locust Point Tavern and when several beers he found Shaffer, left tavern at 5:30 P.M. sitting passenger young acquaintance in the of his, *3 Barry for ride car. asked a to Mechanics- seat his burg a car. Defendant testified he to look at used Barry to since defendant had told do the night part day worked all and was tired. Barry the then moved into driver’s seat after 15 during acquainted or which he himself with minutes, necessary adjustments, car and made the defendant’s Barry, being began accustomed he to drive. power power steering, lost brakes and control power he brakes and car when hit the struck the mail- (the hung trials first trial in a box. At both resulted jury) Shaffer took the stand and corroborated testimony. Barry has defendant’s since died. No Com- witness saw defendant drive his car at monwealth prior car or at time the struck time the mailbox. case on entire Commonwealth was based The testi- mony of one Clair Gochenauer and State Lar- ry of whom both arrived at the Corman, scene J. after Mr. struck. mailbox then Gochenauer, garage age, years that he was in the testified behind to 50 feet from directly located 30 the road his house point impact. he He testified heard across screeching, swishing going “a a sounded like car running I into then as I heard slide, took off as soon hitting thumping I and then of the car this, heard something, something, hitting or car it sounded like a going driveway I and was time.” Mr. down at that Gochenauer him testified it took than second” “less driveway, to run seconds to come down and 3 garage from the until he reached car where defendant’s he found on defendant behind the wheel the driver’s testify, side. He saw no one else at He the scene. did that as he however, crossed front of the defend- car, lights ant moved forward to turn the off and that de- everybody fendant asked “if or if him, else was O.K., anybody there was else involved it.” On cross-examination witness Gochenauer testified as came around corner his house he could part not tell what of the front seat defendant then oc- cupied headlights because the from the car were inter- fering perhaps lights with his view; from a pole lamp hampered further had to vision; pause finally for traffic road, when he ar- ten rived within feet of the car he saw defendant put lights then lean forward to the car out and at that steering time saw defendant seated behind the wheel; possible and that was someone to leave the car enough. if before arrived he left fast produced by other witness the Common- Trooper Larry wealth State J. Gorman who also *4 Trooper at the arrived scene after the accident. Gor- sitting man testified he found defendant behind steering wheel of his car in the driver’s seat and that placed no in one else was the car. He defendant under police and him in arrest drove car to the Carlisle response State Police that while en Barracks, in route, Trooper’s questions, defendant stated he was the though the car.1 The testified that Trooper driver of the influence, that he was well it was certain him and asked of the questions defendant understood coherent. his were answers in case is the Commonwealth
The issue whether of of Mr. Gochenauer by testimony presentation Gorman burden of proving sustained its If a reasonable it did doubt. beyond defendant’s guilt in of motion arrest not, judgment then defendant’s have been granted. should
The two relied the lower court and the upon by cases in of the sufficiency Commonwealth Com- upholding are distinguishable monwealth’s evidence their facts. In Marks, there were to hav- eyewitnesses who testified as seen defendant Marks the truck 45 minutes ing 15 miles away where he was before, found the state troopers.
A of the summarization of reading court’s the evi- dence that case reveals the presented of and strength on that eyewitness emphasis placed as testimony part testimony contends that Defendant differed from the testimony Trooper’s alleges at the first trial which defendant defendant told him at the officer testified that scene that he was However, impeachment vehicle. there was no the driver made testimony through Trooper’s prior use such incon compare contends that he cannot now statement. Defendant sistent “because the lower court’s refusal to the two trials release the transcript trial.” The Commonwealth of the first makes reference testimony, avoiding Trooper’s subject former its brief to court, however, opinion, altogether. in its The lower answers request transcript saying for the trial was not that defendant’s May 9, 1971, 1971 in after verdict June until made during request trial, be was made the trial or second prior any event, says in the lower court the In the verdict. fore merely impeach not be used could credibili statement consistent give any conclusion, basis for this ty. does lower court Cooney, citing Pa. 416 which with merely deals Com. which not here discovered involved. issue after *5 of the circumstantial the accident surrounding which evidence the court found sufficient sustain burden Commonwealth’s defendant proving guilty beyond a reasonable doubt.
In Kerns, Com. v. Ct. 61 Superior officer testified that he saw de- police actually fendant if operating which be- vehicle, testimony, lieved In by the jury, supported verdict. guilty instant case one saw defendant eyewitness drive; In contradicted Shaffer the car. drove our an opinion, aspect part Shaffer’s important case is that testified at both the first and sec- ond trials that was the of the car and he driver testified not voluntarily but under subpoena. true in a evi- case circumstantial proper
dence
bemay
sufficient
to convict but
suspicion,
strong
conjecture or
are not. Com. v. Townsend,
supposition
The motion in arrest of judgment should therefore have been granted.
The order of the lower court is reversed. and Spaulding, join JJ., this opinion. Hoffman P. J., Watkins JJ., would af- Wright, Jacobs, firm on the Judge Weidner. opinion Reeves, Ct. 51 J.: Opinion Concurring Spaeth, evidence was sufficient I believe that therefore appellant’s of drunken conviction agree opinion, Judge but dissent I Cercone’s *6 judgment have of should in arrest motion the granted. driving Com- the offense of drunken
To establish op- prove (1) was that the defendant must monwealth erating influence under the vehicle while a motor April L. liquors. intoxicating of 1959, 29, Act Appellant that when §1037. concedes 75 P.S. 58, §1037, argument is that he arrested he was drunk; was prove that was there was not sufficient driving drunk. while following presented the the Commonwealth
At trial, Judge greater detail in which is stated evidence, Cer- opinion: Appellant sedan a Cadillac owned 1959 conb’s a in front a house in Monroe that struck mailbox County. Township, A resident of a house Cumberland nearby, appellant a few moments Gochenauer, Clair saw sitting in the after the accident saw seat; driver’s Appellant point some after the accident one else. at driving a that he had been the car told State just before the accident.
By way appellant defense, witness, and testified that Shaffer was the driver at Shaffer, Appellant of the accident. time said when Shaffer lights to turn moved into driver’s seat fled, accounted Gochenauer’s testi- out, mony. granted may be Commonwealth’s case jury imposing, might acquit- not and that the
was have jury appellant. did However, re- not, ted give appellant’s con- evidence undue view we should reject jury appel- free The all of sideration. testimony, and we cannot and Shaffer’s lant’s second guilty jury. guess Given we con- verdict, must sider the evidence most favorable light Commonwealth, Commonwealth v. Young, 122, 2d 499 “as true all the evi accept dence if upon which, jury could have believed, prop erly based its verdict.” Commonwealth v. Gockley, 192 A.
Nor should too much be of the fact made one testified that he the car be- driving saw appellant fore it came to a after the mailbox. As stop striking general circumstantial evidence will rule, conviction. ac- Although Judge opinion Cercone’s rule, seems drunken driv- knowledges except cases ing by requiring direct evidence that the defend- ant was driving. courts numerous jurisdictions have wrestled
with the sufficiency of circumstantial question evidence in drunken cases. The rule general *7 that “[djirect evidence that the defendant was observed in the act of motor the vehicle is not in operating dispensable requisite operation.” his State v. prove 110 N.H. Costello, 263 A. 2d 182, 183, 672 671, See also People 87 Ill. 2d Schulewitz, 231 App. 331, 2d N.E. 678 (1967); Stephens State, 127 Ga. App. 193 2d S.E. 416, retreats from hold (court that ings proof precluded driving by circumstantial evidence). in Pennsylvania cases are accord. Neither Com- v. Marks,
monwealth
164 Pa.
Ct.
Superior
A.
nor
Commonwealth v.
(1949),
Kerns, 124 Pa.
Ct.
Superior
61, 188
holds that
to make
out
of drunken
charge
the
there
must be testi-
that he saw the
mony by someone
defendant driving.
each
those cases that
happened
there were eye-
passing upon
witnesses,
sufficiency of the
court
that
evidence this
considered
fact. The critical
Commonwealth v. Walker,
case is
165 Pa. Superior Ct.
There
A. 2d 435
evidence
was that
car
through
guardrail
the defendant’s
had crashed
with
embankment,
foot
down a
plunged
twenty
apparent
inside.
It was
trapped
defendant
must have been
circumstances
that
defendant
one
testified
although
driver. Accordingly,
court upheld
seen
defendant
drive,
having
on ap-
of drunken
true that
(It
conviction
driving.
cir-
counsel for
that
peal
the defendant conceded
had
that
defendant
cumstantial
evidence showed
but
did
rest
its decision
this court
driving,
on
cir-
that
that
concession,
emphasizing
instead
the car
cumstantial evidence was “abundant
'proof
. . been
defend-
.
operated
highway’
ant.
at
Facts often
louder than
Id.
speak
words.”
It should be noted connection that need not exclude totally monwealth the possibility do in another as it was able to person driving, earlier deci Walker. This court has said: “Although sions enunciated the rule that to warrant conviction on circumstantial alone such evidence must evidence exclude to a moral but that certainty every hypothesis or must be inconsistent and irreconcilable guilt, inno reasonable hypothesis with the accused’s the more recent the rule to be decisions state cence, warrant a on circumstantial conviction the facts and circumstances established such evi dence must be such a character as a moral to produce a reasonable but certainty need not be beyond doubt, with innocence.” absolutely incompatible Common wealth v. Feinberg, 113, *8 is to principle applied present When case, will be seen that the evidence produced by it the Com- to sufficient monwealth was verdict. The could have found jury Gochenauer, Common- who in the witness lived vicinity wealth’s acci- was the scene fast in dent, enough, and a position see to exclude the enough that Shaffer was possibility driving and immediately fled from car. The jury could have found that appellant enough was sober be accurate he when told the that he Trooper driving, and that the was truthful Trooper when tes- tified to this admission. hearing difficulty with the does not case, my view, lie in deciding upon sufficiency the evidence but rather arises the fact counsel appellant’s made no timely objection to introduction of ap pellant’s which damaging said admission, Trooper made arrest for following appellant’s warrantless drunken driving.* a motor vehicle under
Operating the influence of ais A intoxicating liquors misdemeanor. warrantless for arrest a misdemeanor can be made when the officer has cause to probable believe that it is being committed Pa. R. presence. C. P. 102. Conse the officer where quently, does see someone “[op a erating vehicle”, motor cannot make a warrantless for arrest drunken driving. Commonwealth Brown, Ct. A. 2d Superior 289, 302 Com 475 (1973); monwealth v. Reeves, 297 A. 2d 142 Thus (1972).** arrest appellant’s was illegal, * pro appellant brief, se In bis states at the first trial (when jury disagreed) testified the admission during investigative questioning. was made before arrest and ** desired, require may leaves much to be This rule for an illegal making leaving between arrest officer choose driver on the road where is menace both to himself drunk may possible A solution to this dilemma be in §5505 found others. seq. Code, et §101 Crimes 18 Pa. S. which of the New reads summary guilty appears person “A of a offense if he as follows: manifestly public place influence of alcohol endanger persons may prop- degree or other or himself that he vicinity.” annoy persons erty, §5505. in his Pa. S. It would or may be arrested breach of with- §5505 driver drunk seem that *9 on timely could the arrest following and Ms admission fruit. See Common excluded as its have been objection 214 A. Pincavitch, v. 206 Pa. Superior wealth 2d (1965). to introduction objection mentioned,
As preclude would made. Normally the admission was the heart the admission was review. Here, however, it Without the evidence case. Commonwealth’s As the verdict. would been insufficient support have fail- to be advantage gained was no strategic there omission cannot be said that counsel’s it ing object, effectuate his “had reasonable basis designed some Washington ex rel. client’s interest.” Commonwealth 2d 349, 235 A. Maroney, 599, 604, 427 Pa. of the admission constituted Thus the introduction error”. Commonwealth v. Jen- “basic and fundamental A. 2d 767 nings, ; Pa. Since Williams, clear the admission the Commonwealth that without is I cannot that we should re- charge, agree and order discharged. verse appellant Having out a search warrant. R. Crim. 102. been thus le- subequent gally detained, his statements would be Al- admissible. lawfully facility so, be taken where his intoxication he could scientifically ascertained, and, importantly, most could be he would suggested longer himself and others. Tt be menace to police to herd citizens to used as a device stations §5505 be beyond inquiries that their extend state of intoxi- to conduct order why apply appears cation, it should not to the but no reason drunk or has in an accident committed the offense has been who driver presence of witnesses on whom the offi- of drunken rely. reason to cer has