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COMMONWEALTH v. KALLUS (06/13/68)

decided: June 13, 1968.

COMMONWEALTH
v.
KALLUS, APPELLANT



Appeal from judgment of Court of Quarter Sessions of Bucks County, No. 1252 of 1966 Term, in case of Commonwealth of Pennsylvania v. Paul J. Kallus, Jr.

COUNSEL

George T. Kelton, with him William J. Carlin, and Begley, Carlin, Mandio, Kelton & Popkin, for appellant.

John J. Collins, Assistant District Attorney, with him Ward F. Clark, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. Opinion by Hannum, J.

Author: Hannum

[ 212 Pa. Super. Page 505]

This is an appeal from the judgment of sentence of the Court of Quarter Sessions of Bucks County after defendant was found guilty of a violation of Section 1037 of The Vehicle Code (Act of 1959, April 29, P. L. 58, Sec. 1037, 75 P.S. Sec. 1037), by operating a motor vehicle while under the influence of intoxicating liquor.

The case was tried in the court below on November 30, 1966, by the Honorable Lawrence A. Monroe, sitting without a jury pursuant to an agreement between the parties.

The trial judge and court below found the following facts to exist:

On the night of February 5, 1966, the defendant and John Gillespie were returning to their homes by automobile from a business trip along the Upper Delaware River. While Mr. Gillespie was driving, and the

[ 212 Pa. Super. Page 506]

    defendant was occupying the front right-hand passenger seat, at about 11 p.m., on Route 202, in Solebury Township, Bucks County, the car became embedded and stuck in a snow bank, "hopelessly hung up", as Mr. Gillespie described its predicament, on the shoulder of the highway, the left rear wheel against the edge of the main traveled surface of the highway. Mr. Gillespie went in search of aid, leaving the defendant in the car and the engine running to keep the interior warm.

At 12:25 a.m. of February 6, 1966, Officer Mangan of the Solebury Township Police Department came upon the scene. The car was still embedded in the snowbank on the shoulder of the road. Defendant, who was then under the influence of intoxicating liquor to such an extent that he was unfit to operate a motor vehicle, was seated in the driver's seat of the car behind the steering wheel. The car engine was running, the car was in gear, the rear wheels were spinning, the left wheel spinning against the main traveled portion of the highway. The defendant was, he admitted to the police officer, trying to back the car onto the road. Four or five people at the same time were trying to push the car onto the road. The car was so firmly embedded in the snow that it was impossible for its operating mechanisms to remove it therefrom or move it therein.

At the conclusion of the hearing, the trial judge found the defendant guilty under Section 1037 of The Vehicle Code. Defendant filed motions in arrest of judgment and for a new trial, which were denied by the court en banc. ...


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