Appeal from judgment of Court of Quarter Sessions of Lancaster County, Sept. T., 1966, No. 118, in case of Commonwealth of Pennsylvania v. David G. Barclay.
John W. Beyer, and Arnold, Bricker, Beyer & Barnes, for appellant.
Clarence C. Newcomer, First Assistant District Attorney, and Wilson Bucher, District Attorney, for Commonwealth, appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Wright, P. J. Dissenting Opinion by Hoffman, J. Spaulding, J., joins in this dissent.
[ 212 Pa. Super. Page 26]
David G. Barclay was indicted in the Court of Quarter Sessions of Lancaster County on Bill No. 118 September Sessions 1966, which charged the offense of racing on the highway as proscribed by the amendment to The Vehicle Code set forth in the Act of January 8, 1960, P. L. (1959) 2118, 75 P.S. 1041. Barclay entered a plea of not guilty and, being represented by private counsel, was tried before Judge Brown and a jury. Following a verdict of guilty, motions for a new trial and in arrest of judgment were filed and dismissed and sentence was imposed. This appeal by Barclay followed. The factual situation appears in the following excerpt from the opinion of the court below:
"From the record which the court has carefully considered in this matter the evidence shows that on August 24, 1966, at about 3:30 o'clock p.m., Mrs. Mary Libhart was working in her garden along the Colebrook Road northeast of Marietta, Lancaster County, Pennsylvania, when she became aware of a motorcycle and a car coming up over the hill and stopping almost in front of her garden. She testified that the road here is a macadam surface with two lanes of traffic. While there she had observed a roadster type of automobile with a light tan or yellow bottom and black or dark top and a motorcycle which were stopped side by side on the road, with the car in the left lane and the motorcycle in the right lane. She further testified that she heard one of the operators say, 'Are you ready?' and thinking that this sounded odd, she looked up and as
[ 212 Pa. Super. Page 27]
she did she heard a roaring of motors and screaming of tires and stones flying, and they took off up the hill, and it appeared that the driver was going to lose control of the car; that he swerved and finally straightened out and on up over the hill they went and disappeared over the top of the hill. She said she observed these cars for about a quarter of a mile. She then said she went back to work in her garden and it was just a matter of a few minutes when she again heard roaring engines and tires screaming and she didn't see how it was possible that they could be coming back again, but that is exactly what happened. She looked over the hill and saw them coming back and the car was on the right side returning and the motorcycle on the left side returning, at which time the vehicles were again racing in the opposite direction from the original point of departure. Mrs. Libhart then testified that as the vehicles passed her home both she and John Parker, a fourteen year old boy who was on the other side of the highway, took the license number of the automobile. The description of the automobile and the license number, which were on temporary plates, were given to Chief Marvin Foltz and it appears from the testimony that Foltz located the vehicle answering the description of the one involved in the alleged racing at or about 6:00 o'clock p.m. on the same day at the home of the defendant Barclay. The testimony of John Parker and Carl Libhart, two teenage boys who were standing on the opposite side of the road from Mrs. Libhart, also corroborated her testimony that there was racing on the highway as indicated by Mrs. Libhart".
It is appellant's contention, and this is the sole question involved in the instant appeal, that the trial judge erred in admitting testimony of a police officer as to statements made to him by appellant without any warning of his right to remain silent or to have counsel. The record discloses that, pursuant to information received,
[ 212 Pa. Super. Page 28]
the police officer called at appellant's home. The conversation which ensued is set forth in the footnote.*fn1 Appellant's contention is based primarily on Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, wherein the United States Supreme Court said: "To summarize, we hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities . . . and is subjected to questioning, the privilege against self-incrimination is jeopardized". Our own Supreme Court has stated in Commonwealth v. Sites, 427 Pa. ...