Appeal from order of Court of Common Pleas of Montgomery County, April T., 1967, No. 344, in case of Commonwealth of Pennsylvania v. William Edwin Bonser.
Stewart J. Greenleaf, Assistant District Attorney, with him Richard A. Devlin, Assistant District Attorney, Parker H. Wilson, First Assistant District Attorney, and Milton O. Moss, District Attorney, for Commonwealth, appellant.
Vincent A. Cirillo, for appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Jacobs, J. Dissenting Opinion by Wright, P. J. Watkins, J., joins in this dissenting opinion.
[ 215 Pa. Super. Page 453]
On April 30, 1967, appellee struck a parked automobile while driving west on Montgomery Avenue in Lower Merion Township. He was arrested and charged with violating § 1037 of The Vehicle Code, driving under the influence of intoxicating liquor, a misdemeanor. Upon being taken to the police station, appellee, under questioning, made a number of incriminating statements. There is conflict as to whether, and to what extent, appellee was advised of his rights under the
[ 215 Pa. Super. Page 454]
Appellee waived indictment by the grand jury. His motion to suppress the incriminating admissions was denied, January 31, 1968, after a hearing by Judge J. William Ditter, who found that appellee did not intelligently waive his right to counsel, but held that Miranda did not apply to this case. Appellee was subsequently found guilty at trial before Judge Ditter without a jury in which the challenged statements were introduced into evidence. Appellee's motions for a new trial and in arrest of judgment were heard by the court en banc. The court en banc, on March 17, 1969, granted appellee's motion for a new trial upon holding that, (1) warnings required by Miranda are applicable to the charge of violating § 1037 of The Vehicle Code, and (2) appellee did not knowingly and intelligently waive the rights accorded him by the Miranda warnings. The Commonwealth has appealed.
The Commonwealth's appeal is properly brought in this case since the question of whether appellee's statements should have been suppressed as unconstitutionally obtained evidence can be categorized as a "pure question of law." See Gaskins Case, 430 Pa. 298, 244 A.2d 662 (1968); and Commonwealth v. Tabb, 417 Pa. 13, 207 A.2d 884 (1965). See also Commonwealth v. Rowe, 433 Pa. 14, 249 A.2d 911 (1969), discussed infra. While it might appear at first blush that a factual dispute as to the ability of appellee to waive his constitutional rights was decided by the court en banc, such was not the case. Both the trial judge and the court en banc agreed that appellee could not knowingly and intelligently waive his rights because of his intoxication, but differed as to the legal application of that fact.
Initially we are presented with a procedural problem. The Commonwealth argues that the court en banc
[ 215 Pa. Super. Page 455]
does not have the authority to reverse the trial judge who denied an application to suppress after a pretrial hearing. In support of this proposition the Commonwealth cites Pa. R. Crim. P. 323(j), Pa. R. Crim. P. 324(e), and Commonwealth v. DeMichel, 214 Pa. Superior Ct. 392 (1969). Pa. R. Crim. P. 323(j), effective as of February 3, 1969, provides that "[i]f the court determines that the evidence is admissible, such determination shall be final, conclusive and binding at trial" with an exception not here applicable. It makes little difference whether we apply the current rule or its predecessor, 323(e), which was effective until February ...