Commonwealth v. Benson

CourtSuperior Court of Pennsylvania
Writing for the CourtAuthor: Price
Citation421 A.2d 383,280 Pa.Super. 20
PartiesCOMMONWEALTH of Pennsylvania, v. Keith BENSON, Appellant.
Decision Date25 July 1980

421 A.2d 383

280 Pa.Super. 20

COMMONWEALTH of Pennsylvania,

Keith BENSON, Appellant.

Superior Court of Pennsylvania.

July 25, 1980

Argued June 6, 1979. [421 A.2d 384] [Copyrighted Material Omitted] [421 A.2d 385]

[280 Pa.Super. 25] Richard J. Orloski, Allentown, for appellant.

Scott Oberholtzer, Asst. Dist. Atty., Allentown, for Commonwealth, appellee. [421 A.2d 386]

Before PRICE, GATES and DOWLING, JJ. [*]

PRICE, Judge:

Appellant was tried before a jury on October 19, 1977, and found guilty of operating a motor vehicle under the influence of intoxicating liquor. [1] He filed timely motions in arrest of judgment and for a new trial which were denied by the court en banc. He takes this appeal alleging that the suppression court erred in failing to grant his motion to suppress evidence and that he was denied a fair trial by numerous instances of trial error. Finding an absence of [280 Pa.Super. 26] merit in these contentions, we affirm the judgment of sentence.

The following facts were developed at trial. At approximately 12:30 a. m. on July 14, 1977, appellant was driving home from visiting friends with whom he had consumed several beers. During the journey, his vehicle crossed into the oncoming lane of traffic and collided with several parked vehicles at the side of the street. Hearing the crash, a neighbor, Roger F. Besecker, immediately rushed from his house and observed appellant's car resting against another car and appellant sitting in the driver's seat. Within the next several moments, and subsequent to appellant's departure from his car, numerous bystanders arrived at the scene of the accident.

Officer Robert Webre was summoned to the scene where he interviewed some of the onlookers and recorded several names. The officer observed that appellant, who had been moving about the crowd, was disheveled in appearance and staggering, and had noticeably bloodshot eyes. The officer escorted appellant to the police cruiser to obtain his description of the circumstances of the collision for the accident report, and sat with him in the front seat. During the five or ten minutes they were in the car, the officer noticed that appellant mumbled and that there was a definite odor of alcohol. Both appellant and the officer then exited the car; the officer proceeded to assist the tow truck driver to remove appellant's car and appellant was left milling about the area. Once the wreckage was cleared, the officer placed appellant under arrest and told him to get into the back of the police cruiser. As the officer pulled away from the curb, he read appellant his Miranda rights from a card.

Officer Webre drove appellant to the police station where he received a physical examination and performed some physical coordination tests. At approximately 1:35 a. m., appellant consented to and was given a Mobat Sober-Meter [280 Pa.Super. 27] test. [2] The results of this test showed a reading of .12 per cent alcohol by weight in the blood.

Appellant challenges the legality of his arrest claiming that it was made without probable cause and that all evidence resulting therefrom must be suppressed. He contends that the arrest occurred when he initially entered the police car and was seated in the front to discuss the accident and that the court erred in finding the arrest occurred at a later time. We disagree.

The test for the occurrence of an arrest has often been defined as the happening of any act that indicates an intention to take the individual into custody and subjects him to the actual control and will of the person making the arrest. Commonwealth v. Farley, 468 Pa. 487, 364 A.2d 299 (1976); Commonwealth v. Allessie, 267 Pa.Super. 334, 406 A.2d 1068 (1979). An arrest may thus be effectuated without the actual use of force and without a formal statement of arrest. Commonwealth v. Daniels, 455 Pa. 552, 317 A.2d 237 (1974). The question is viewed in light of the reasonable impression conveyed to the person subjected to the seizure rather than in [421 A.2d 387] terms of the subjective view of the police officer. Commonwealth v. Holmes, 482 Pa. 97, 393 A.2d 397 (1978); Commonwealth v. Richards, 458 Pa. 455, 327 A.2d 63 (1974).

The instant facts reveal that no act indicating an intent to take appellant into custody or actually subjecting him to the officer's control and will occurred until appellant was formally placed under arrest and seated in the back of the patrol car. Prior to that time, appellant was apparently cooperative in filling out the accident report and willing to discuss the incident. The officer engaged in a reasonable course to separate appellant from the commotion so he could investigate the accident. The lack of control exercised by the police officer is particularly evident because the officer left appellant alone at the car without any instructions to [280 Pa.Super. 28] stay there. Cf. Commonwealth v. Meyer, 488 Pa. 297, 412 A.2d 517 (1980) (defendant told to wait at scene of crime had a reasonable belief that his freedom had been restricted). Appellant was entirely free to leave and, in fact, did wander around the area.

Clearly, the arrest occurred when the officer later approached appellant and formally placed him under arrest. Although the Commonwealth argues that probable cause for an arrest was present at the time appellant first entered the patrol car, we find this conclusion even more firmly established at the time he was placed in the back of the car. While appellant's stumbling walk and mumbled speech could have been consistent with possible injury from the accident, the information gained by the officer while appellant was filling out the accident report-the odor of alcohol on appellant's breath and the circumstances of the accident which corroborated the other evidence of driving while intoxicated-established strong probable cause to believe that he was driving while under the influence of alcohol. Commonwealth v. Funk, 254 Pa.Super. 233, 385 A.2d 995 (1978); Commonwealth v. Trefry, 249 Pa.Super. 117, 375 A.2d 786 (1977).

Since we conclude that appellant's arrest was grounded upon probable cause, the evidence gathered as a result thereof, including the results of the coordination tests and the reading from the Mobat Sober-Meter test, was not the fruit of an unlawful arrest. Appellant contends, however, that the lack of adequate Miranda warnings renders the results of these tests inadmissible despite the legality of the arrest. This argument ignores the fundamental distinction between compelling the production of real or physical evidence and compelling testimonial or communicative evidence. The former is covered by the protection of the fourth amendment and only the latter is within the cover of the fifth amendment privilege against self incrimination, which requires that Miranda warnings be given informing that one cannot be compelled to be a witness against one's self. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 [280 Pa.Super. 29] L.Ed.2d 1149 (1967); Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Requiring a driver to perform physical tests or to take a breath analysis test does not violate the privilege against self incrimination because the evidence procured is of a physical nature rather than testimonial, and therefore, no Miranda warnings are required. [3] Commonwealth v. Reynolds, 256 Pa.Super. 259, 389 A.2d 1113 (1978); Commonwealth [421 A.2d 388] v. Kloch, 230 Pa.Super. 563, 327 A.2d 375 (1974); Commonwealth v. Rutan, 229 Pa.Super. 400, 323 A.2d 730 (1974).

Appellant's final attack upon the admissibility of the results of the Mobat Sober-Meter test concerns the lack, at the time of testing and trial, of regulations by the Department of Health approving the use of the Mobat Sober-Meter as required by the Motor Vehicle Code of June 17, 1976, 75 Pa.C.S. § 1547 (effective July 1, 1977), commonly known as the implied consent law. This statute provides, in pertinent part:

"(a) General rule.-Any person who operates a motor vehicle in this Commonwealth shall be deemed to have given consent to a chemical test of breath or blood for the purpose of determining the alcoholic content of blood if a police officer shall have reasonable grounds to believe the person to have been driving a motor vehicle while under the influence of alcohol. The test shall be administered by qualified personnel and with equipment approved by the [280 Pa.Super. 30] department. Qualified personnel means a physician or a technician acting under the physician's direction or a police officer who has fulfilled the training requirements in the use of such equipment in a training program approved by the department.

(c) Test results admissible in evidence.-In any summary proceeding or criminal proceeding in which the defendant is charged with driving a motor vehicle while under the influence of alcohol, the amount of alcohol in the defendant's blood, as shown by a chemical analysis of his breath or blood, which analysis was conducted with equipment of a type approved by the Department of Health and operated by qualified personnel, shall be admissible in evidence." (emphasis added).

It is important to notice that section 1547(a) dealing with the actual administration of the test calls for approval by the "department", which term is defined in 75 Pa.C.S. § 102 to mean the Department of Transportation, while section 1547(c) dealing with the receipt of the test results into evidence requires approval by the Department of Health.

Appellant first raised the inadmissibility of the Mobat Sober-Meter results in his motion to suppress claiming that the police officer "(f)ailed to administer the sobermeter test in accordance with the requirements of the statute." At argument during the suppression hearing, appellant's counsel argued only that the Secretary of Transportation had not enacted regulations. (N. T. Suppression Hearing at...

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