Appeal, No. 389, Oct. T., 1963, from judgment of Court of Quarter Sessions of Philadelphia County, April T., 1962, No. 614-615, in case of Commonwealth of Pennsylvania v. Donald McLaughlin. Judgment affirmed.
Burton Spear, with him David Zwanetz, for appellant.
Burton Satzberg, Assistant District Attorney, with him Gordon Gelfond and Arlen Specter, Assistant District Attorneys, F. Emmett Fitzpatrick, Jr., First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for Commonwealth, appellee.
Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.
[ 202 Pa. Super. Page 522]
On October 7, 1961, following a collision at the intersection of 56th Street and Warrington Avenue in the City of Philadelphia, Donald McLaughlin was charged in Bill of indictment No. 614 April Sessions 1962 with operating a motor vehicle while under the influence of intoxicating liquor, and in Bill No. 615 with assault and battery. On October 8, 1963, jury trial was waived and testimony heard by President Judge ABRAHAM H. LIPEZ, specially presiding. The trial judge sustained a demurrer as to Bill No. 615, and adjudged McLaughlin guilty on Bill No. 614. A motion for new trial was overruled, and sentence was imposed. McLaughlin has appealed.
Since the sole question raised on this appeal is the sufficiency of the evidence, it will be necessary to briefly summarize the trial record. Thomas Speakman testify that the collision occurred at 3:05 A.M., that he was driving north on 56th Street and was struck by a car traveling east on Warrington Avenue, that he remembered nothing after the collision as he was injured seriously and spent forty days in the hospital. Officer Cornelius Herron testified that he and Officer James Powell arrived on the scene at 3:10 A.M., that McLaughlin admitted that he was the operator of the motor vehicle which struck the Speakman car, that he smelled a strong odor of alcohol on McLaughlin's breath, that he was incoherent in his speech, staggering in his walk, and "was under the influence of alcohol and could not operate a motor vehicle properly". Officer Powell testified to the same effect. Dr. Alexander Lieberman, Jr., a City Police and Fire Surgeon called as a witness by the Commonwealth, testified that he examined McLaughlin at 5:20 A.M., that he detected a faint odor of alcohol on McLaughlin's breath, but that he was not then under the influence. McLaughlin admitted that he and the two
[ 202 Pa. Super. Page 523]
passengers in his car had been drinking and that one of his companions "was drunk", but stated that he himself was not under the influence. "I was in a few bars but I really didn't drink that much". James Potts, one of McLaughlin's companions related their activities prior to the collision, and stated that McLaughlin was not under the influence of alcohol. James Stevens, McLaughlin's other companion, was called as a witness but had no recollection of the evening's events.
It is argued by appellants' present counsel that the Commonwealth's evidence is not sufficient to sustain the conviction because its testimony developed "inconsistent proofs". Reliance is placed on two cases which are not controlling in the instant factual situation. In Commonwealth v. McSorley, 189 Pa. Superior Ct. 223, 150 A.2d 570, we stated that, where two equally reasonable and mutually inconsistent inferences can be drawn from the same set of circumstances, a jury may not be permitted to guess which inference it will adopt. Similarly, in Commonwealth v. Bozzelli, 188 Pa. Superior Ct. 41, 146 A.2d 74, we stated that, where the testimony of the Commonwealth develops inconsistent proofs, that fact alone is sufficient to raise a reasonable doubt. However, the testimony of Dr. Lieberman in the case at bar was not necessarily inconsistent with that of the police officers because of the time element involved. His examination was made over two hours after the collision.
There can be no question that the testimony of Officers Herron and Powell justified a finding by the trial judge that appellant was under the influence of intoxicating liquor at the time the collision occurred. Intoxication is a matter of common observation on which the opinions of non-experts are generally admissible: Turner v. Pennsylvania Liquor Control Board, 161 Pa. ...