Com. v. Walsh

• Decision Date: 20 June 1983
• Citation: 460 A.2d 767,314 Pa.Super. 65
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Edward A. WALSH.
• Court: Pennsylvania Superior Court

Page 767

460 A.2d 767

314 Pa.Super. 65

COMMONWEALTH of Pennsylvania, Appellant, v. Edward A. WALSH.

Superior Court of Pennsylvania.

Argued April 22, 1982.

Filed April 22, 1983.

Reargument Denied June 20, 1983.

Vram Nedurian, Jr., Asst. Dist. Atty., Media, for Commonwealth, appellant.

Eugene F. Jarrell, III, Media, for appellee.

Before WICKERSHAM, BROSKY and WIEAND, JJ.

BROSKY, Judge:

The Commonwealth appeals here from the suppression of the results of a test to measure the alcoholic content of appellee's blood. Appellant contends that appellee's consent to the test was voluntary and knowing. We agree and accordingly reverse the suppression order and remand.

Factual Background

The accident giving rise to the instant criminal prosecution occurred at approximately 11:30 p.m. on January 18, 1980 on the Commodore Barry Bridge. Appellee, Walsh, was observed driving at an estimated 70 miles per hour on the approach to the bridge, swerving past a car with only 15 feet to spare. On the bridge itself, he continued to weave in and out of traffic at an estimate 85 miles per hour. Walsh then crossed over an empty lane and hit the front fender of Deborah Reitz's car as it came from the opposite direction. Walsh's car continued on for several hundred feet, hit the guard rail and came to a stop. Reitz's car ended up facing the direction from which it had come, its front left side and hood smashed in. Deborah Reitz, aged 26, was pronounced dead at the scene, having suffered multiple head injuries.

Walsh, a 48 year-old man, received facial lacerations and broken ribs and was taken to Crozer Chester Medical Center. A passing motorist who stopped to render assistance did not smell alcohol on Walsh's breath or observe any indicators of intoxication. At the hospital, Walsh's condition was evaluated by a Dr. Gorrell. At the suppression hearing, he testified that Walsh was "awake, coherent and oriented"; that he observed no "neurological deficit"; that there was no indication of a concussion that there was no sign that Walsh didn't understand what was being said to him; and that appellee stated that he had not been unconscious as a consequence of the accident.

Patrolman Sirisky of the Delaware River Port Authority police went to the hospital and was told by Dr. Gorrell that Walsh was in a physical condition that allowed conversation with him. Sirisky stated at the suppression hearing that his subsequent conversation with Walsh occurred in the following sequence. First, Sirisky gave appellee a Miranda warning and was told by Walsh that he understood those rights. Second, he informed Walsh that someone was killed in the accident in which he had been involved. Third, he questioned appellee and heard Walsh's account of the accident. Fourth, the consent form for the alcohol in blood test was explained by Sirisky to appellee. ¹ Fifth, Sirisky was present when Walsh signed the consent form and then signed it as a witness himself. The blood sample was then taken from appellee.

Patrolman Sirisky also testified at the suppression hearing that appellee was not under arrest when the blood sample was taken; that at that time Walsh was not suspected (for lack of any knowledge about how the accident had occurred), of having committed a crime or of having violated the Motor Vehicle Code; that he didn't smell any alcohol on appellee's breath or observe that he was under the influence of alcohol.

A few days later, appellee was arrested and held for court following a preliminary hearing. Informations were then filed on the following charges: Involuntary Manslaughter; ² Reckless Driving; ³ Driving Vehicle at Unsafe Speed; ⁴ and Speeding. ⁵ Appellee pleaded not guilty and filed a motion to suppress the blood test results on the ground that his consent was involuntary in that he did not know that the blood test results were to be used in his criminal prosecution. Following a suppression hearing on June 9, 1980, the court below granted the motion to suppress. The District Attorney took a timely appeal from that order.

Appealability

The threshold issue in this case is the appealability, prior to a trial and conviction, of the suppression order. Quite recently the test to be applied in determining whether a particular suppression order is interlocutorily appealable by the prosecution has been changed. Commonwealth v. Lapia, --- Pa.Super. ---, 457 A.2d 877 (1983) (en banc). The current form of the standard is: "... an order suppressing evidence is appealable when it is apparent from the record that the order terminates or substantially handicaps the prosecution." Commonwealth v. Lapia, supra, at ---, 457 A.2d 877. ⁶

We find that this standard has been met here and the suppression order is appealable. There being no living witness to the accident itself (other than appellee), the results of the blood test are quite obviously an important element of the prosecution's case. While the absence of the blood test might not terminate the prosecution, we have no hesitation in concluding that it would at least work a substantial handicap. ⁷

Scope of Review and Burden of Proof

The proper scope of appellate review for a case of this type was defined in Commonwealth v. Curtis, 253 Pa.Super. 163 at 170, 384 A.2d 1280 at 1284 (1978).

In reviewing the lower court's determination that appellee did not voluntarily and knowingly consent to a blood alcohol test, we must consider the evidence adduced at the suppression hearing in the light most favorable to appellee and must give appellee the benefit of all reasonable inference arising from the evidence.

When the evidence is viewed by the appellate court in the manner described above, it must establish the validity of the consent.

When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given.

Bumper v. North Carolina, 391 U.S. 543 at 548, 88 S.Ct. 1788 at 1792, 20 L.Ed.2d 797 (1968). The Pennsylvania Rules of Criminal Procedure echo this placement of the burden of proof on the prosecution.

The Commonwealth shall have the burden of going forward with the evidence and of establishing that the challenged evidence was not obtained in violation of the defendant's rights.

Pa.R.Crim.Proc. 323(h).

Arrest

That the taking of blood is a search and seizure subject to the protections of the Fourth Amendment was firmly established in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).

Commonwealth v. Davenport, 453 Pa. 235 at 240, 308 A.2d 85 at 87 (1973). See also Commonwealth v. Funk, 254 Pa.Super. 233 at 241, 385 A.2d 995 at 999 (1978). Thus, we must determine whether the blood was taken from appellee in accordance with Fourth Amendment requirements.

One method of validating this type of search is its occurrence incident to lawful arrest. "And, under certain circumstances, this includes intrusion into a person's body for blood to be analyzed for alcoholic content." Commonwealth v. Murray, 441 Pa. 22 at 25, 271 A.2d 500 at 501 (1970). See also Commonwealth v. Brown, 225 Pa.Super. 289 at 293, 302 A.2d 475 at 477 (1973). The "circumstances" referred to above are those establishing probable cause for a blood test search.

The interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained. In the absence of a clear indication that in fact such evidence will be found, these fundamental human interests require law officers to suffer the risk that such evidence may disappear unless there is an immediate search.

Schmerber v. California, 384 U.S. 757 at 769-70, 86 S.Ct. 1826 at 1835, 16 L.Ed.2d 908 (1966).

However, this avenue cannot be used to legitimate the instant search. Patrolman Sirisky testified that appellee was not under arrest and that there was no probable cause for arrest or to believe that appellee was intoxicated. Further, appellant's brief concedes that this is the case and relies on appellee's consent to establish the propriety of the search. We agree that the record does not establish that, at the time the blood was taken, that appellee was under arrest or that there was probable cause for arrest or for a blood test search.

Since no warrant authorized the search, ⁸ the only remaining method of validating the search is the one appellant argues occurred--a valid consent.

Consent

One method of validating a search is consent. Zap v. United States, 328 U.S. 624 at 628, 66 S.Ct. 1277 at 1279, 90 L.Ed. 1477 (1964). See also Commonwealth v. Anderson, 208 Pa.Super. 323 at 329, 222 A.2d 495 at 498 (1966). Thus, the legal issue upon which the result in this case will turn is the validity, vel non, of the consent given by Walsh.

Appellee contends that his consent was invalid because, when the consent was given, he did not know that the results of the test would be used as evidence in a criminal prosecution rather than for medical treatment purposes. Our analysis will proceed in a two-step fashion.

First, we will consider whether appellee's theory of an invalid consent is legally correct. We conclude that the argument he advances is theoretically sound and would dispose of the case in his favor if the facts of the case made it applicable here.

Second, the facts of record will be examined to ascertain whether that type of invalid consent was present here. We find that it was not. The consent being valid, the suppression order is reversed.

I.

In considering appellee's theory of an invalid consent, the starting point is what constitutes a valid consent. Namely, the consent must be voluntarily given. Further, "The issue of whether consent has been voluntarily given is a question of fact which must be determined in each case from the totality of the circumstances." Commonwealth v. Watkins, 236 Pa.Super. 397 at 399, 344 A.2d 678 at 679 (1975).

In 1973, the United States Supreme...