Com. v. Trefry

CourtSuperior Court of Pennsylvania
Citation375 A.2d 786,249 Pa.Super. 117
PartiesCOMMONWEALTH of Pennsylvania, Appellant, v. Calvin B. TREFRY.
Decision Date29 June 1977

Robert L. Eberhardt, Asst. Dist. Atty., and Robert E. Colville, Dist. Atty., Pittsburgh, on brief for appellant.

John R. Walters, Jr., Pittsburgh, for appellee.


This is an appeal from an order of the court below suppressing certain evidence. The Commonwealth alleges that, due to this order, it is "substantially handicapped because it cannot present all its available evidence." Commonwealth v. Bosurgi, 411 Pa. 56, 63, 190 A.2d 304, 308 (1963); see also Commonwealth v. Deren, 233 Pa.Super. 373, 337 A.2d 600 (1975). We reverse the order of the lower court.

On November 19, 1975, at approximately 2:17 a.m., appellee Calvin Trefry, driving an automobile on Route 8 in Hampton Township, Allegheny County, struck and killed Vicky Dean. Mr. Trefry apparently did not stop immediately after striking the victim, but proceeded approximately a quarter of a mile on Route 8, then turned off and continued for some distance, halting in a church driveway. Miss Dean's body was found in the driveway, approximately one-half mile from the alleged point of original impact.

The first officer to arrive on the scene was Lieutenant Lawrence J. Itri of the Hampton Township Police, who was off-duty but in uniform and wearing his badge. Lieutenant Itri saw Miss Dean's body lying in the driveway and two males, appellee and Daniel Beale, facing each other over the body. Mr. Beale, who had been Miss Dean's hitchhiking companion, accused appellee of striking Miss Dean down on the main highway, failing to stop, and dragging her body (on his automobile) to the place where it then rested. When asked by Lieutenant Itri if he had been driving the car that hit the victim, appellee responded in the affirmative. Lieutenant Itri observed that appellee's speech was slurred, he was staggering and he smelled strongly of alcohol. The officer told appellee he was under arrest for "hit and run," handcuffed him, and told him not to move.

Officer John Owens of the Hampton Township Police was one of the next arrivals at the scene. After being informed that Lieutenant Itri had placed appellee under arrest for "hit and run," Officer Owens took appellee back to his police car and advised him of his constitutional rights. Officer Owens also noticed the odor of alcohol emanating from appellee, observed appellee's unsteady gait and slurred speech, and additionally noted that appellee had sustained no visible injuries. After placing appellee in the police car, Officer Owens examined appellee's automobile and found it to be severely damaged in the front. Blood spattered the roof and ran down the rear window. The interior of the car was littered with a number of empty beer cans.

Returning to his vehicle, Officer Owens transported appellee to the Hampton Township police station and again informed him of his constitutional rights. Appellee was asked to submit to either a breathalyzer test or a blood alcohol test. He refused both alternatives. Shortly after reaching the police station, Officer Owens received information that Vicky Dean had been pronounced dead on arrival at Passavant Hospital. At this time he informed appellee that he was under arrest for the additional offense of involuntary manslaughter. Appellee was once more requested to submit to a breathalyzer or blood alcohol test and again he declined.

Following appellee's second refusal of both alcohol tests, Officer Owens telephoned to Allegheny County Night Court in an effort to obtain a search warrant for the withdrawal of blood from Calvin Trefry. Officer Owens explained the circumstances to the magistrate on duty, who rejected the possibility of his issuing such a warrant, stating that he had never heard of a search warrant for blood. Officer Owens then telephoned the Allegheny County District Attorney's Office. An Assistant District Attorney listened to the officer's account of the situation and advised him to take appellee to Passavant Hospital and have a blood sample withdrawn. A blood sample was drawn from appellee at 3:55 a.m. by Peggy Wojcikiewicz, a medical technologist at Passavant Hospital.

Appellee was charged with failure to stop and give identification, 1 driving under the influence of liquor 2 and involuntary manslaughter. 3 A suppression hearing was held on February 23, 1976, and on March 10, 1976, the court entered an order suppressing the blood sample and chemical analysis thereof.

The court below suppressed the evidence of the blood test performed on appellee because it found his arrest illegal and the test tainted by the illegal arrest. Failure to stop at the scene of an accident, the offense for which appellee was initially placed under arrest, is a misdemeanor, as are driving under the influence of liquor and involuntary manslaughter, the other crimes with which he was later charged. It is well established that, absent statutory authorization, a law officer may only make a warrantless arrest for a misdemeanor when the offense is committed in his presence. Commonwealth v. Reeves, 223 Pa.Super. 51, 297 A.2d 142 (1972); Commonwealth v. Vassiljev, 218 Pa.Super. 215, 275 A.2d 852 (1971). This aspect of the law has led to problems in the prosecution of numerous drunken driving cases, some of which have involved other offenses such as involuntary manslaughter. Where a motorist has been arrested for driving under the influence when the officer has not seen him in the act of driving, a blood alcohol test has often been administered with or without the subject's consent. The results of such tests have been suppressed as incident to unlawful arrests. See Commonwealth v. Kirkutis, 234 Pa.Super. 18, 334 A.2d 682 (1975); Commonwealth v. Quarles, 229 Pa.Super. 363, 324 A.2d 452 (1974); Commonwealth v. Brown, 225 Pa.Super. 289, 302 A.2d 475 (1973); Commonwealth v. Reeves, supra.

Some highly anomalous results have occurred in this area, as in Commonwealth v. Kriner, 234 Pa.Super. 230, 338 A.2d 683 (1975). In that case, a borough police officer found a stationary automobile in the middle of a road with the motor running, the lights on and the transmission in "drive." The driver was unconscious at the wheel. For reasons of safety the borough officer turned off the car's ignition. As he was outside his jurisdiction and thus could not arrest, he radioed the Pennsylvania State Police, informing them of a "suspected 1037," or drunken driving violation. A state trooper arrived on the scene, determined that the driver was inebriated, arrested him for driving under the influence and transported him to the police barracks. There Kriner took a breathalyzer test, the results of which were admitted at trial. Our court, with Judges Watkins, Jacobs and Price dissenting, held the arrest illegal and suppressed all the resulting evidence. Because the borough police officer had, for Kriner's safety, turned off the ignition of his automobile, the majority found that the state trooper had not seen the offense committed and the misdemeanor arrest was therefore illegal.

In an effort to alleviate this problem the legislature amended section 1204 4 of The Vehicle Code, entitled "Arrests on view or with warrant", by adding the following sentence:

"A peace officer may, upon view or upon probable cause without a warrant, arrest any person violating section 1037 of this act (footnote omitted) in cases causing or contributing to an accident." 5

An addition was subsequently made to Pa.R.Crim.P. 101, entitled "Means of Instituting Proceedings in Court Cases", in order that it harmonize with the statute. Rule 101 provides, in pertinent part:

"Criminal proceedings in court cases shall be instituted by:

4. an arrest without a warrant upon probable cause when the offense is a misdemeanor not committed in the presence of the police officer making the arrest, when such arrest without a warrant is specifically authorized by statute. " 6

Commonwealth v. Levesque, 469 Pa. 118, 364 A.2d 932 (1976), involved the warrantless arrest of a motorist, who had been involved in an accident, for violation of section 1037 (drunken driving) by an officer who did not see the driver operating his vehicle. The date of the arrest was subsequent to the amendment of 75 P.S. § 1204 but prior to the addition of number 4 to Pa.R.Crim.P. 101. The Supreme Court of Pennsylvania held that the arrest under section 1204 was legal although Rule 101 had not been changed, at that time, to provide for the initiation of criminal proceedings following such an arrest. The Court found no conflict between the statute and the rule because "when Rule 101 was promulgated, a warrantless arrest for a misdemeanor not committed within the view of the arresting officer was not within the contemplation of the rule." Commonwealth v. Levesque, supra at 125, 364 A.2d at 935. Providing for the warrantless arrest and subsequent prosecution of a section 1037 violator by an officer who has not seen the offense committed is the evident objective of both 75 P.S. § 1204 and Pa.R.Crim.P. 101(4). In Levesque, supra, our Supreme Court upheld the legality of these provisions and the procedure they afford. Under section 1204 and Rule 101(4), both pertinent to the instant case, appellee's arrest was clearly legal.

It is clear that Lieutenant Itri and Officer Owens had probable cause to arrest appellee for violation of 75 P.S. § 1037, driving under the influence of alcohol, as well as for leaving the scene of an accident. The test for probable cause to arrest is "whether there were facts available at the time of the initial apprehension which would justify a man of reasonable caution in the belief that a crime had been committed and that the individual arrested was the probable perpetrator. (...

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  • Commonwealth v. Williams
    • United States
    • Superior Court of Pennsylvania
    • January 16, 1990
    ...statutory limitations or the more restrictive language of then applicable rules of criminal procedure. See e.g. Commonwealth v. Trefy, 249 Pa.Super. 117, 375 A.2d 786 (1977); Commonwealth v. Gallagher, 242 Pa.Super. 289, 363 A.2d 1274 (1976). Moreover, where the officer is empowered to affe......
  • Commonwealth v. Lapia
    • United States
    • Superior Court of Pennsylvania
    • February 4, 1983
    ...reflecting upon our thrashing about, and re-examining the law, we have reached three conclusions. Our first conclusion is that Commonwealth v. Trefry, supra, Commonwealth v. Deren, supra, must be overruled, if, indeed, they have not already been overruled sub silentio. Commonwealth v. Hill,......
  • Com. v. Lapia
    • United States
    • Superior Court of Pennsylvania
    • April 12, 1983
    ...may go outside of but must not be inconsistent with the record, of why that is so. It also involves overruling Commonwealth v. Trefry, 249 Pa.Superior Ct. 117, 375 A.2d 786 (1977), and Commonwealth v. Deren, 233 Pa.Superior Ct. 373, 337 A.2d 600 (1975), where we held that "we must accept" a......
  • Com. v. Williams
    • United States
    • Superior Court of Pennsylvania
    • January 16, 1990
    ...statutory limitations or the more restrictive language of then applicable rules of criminal procedure. See e.g. Commonwealth v. Trefy, 249 Pa.Super. 117, 375 A.2d 786 (1977); Commonwealth v. Gallagher, 242 Pa.Super. 289, 363 A.2d 1274 (1976). Moreover, where the officer is empowered to affe......
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