Appeal from order of Superior Court, Oct. T., 1969, No. 284, affirming judgment of sentence of Court of Oyer and Terminer of Cumberland County, May T., 1968, No. 11, in case of Commonwealth of Pennsylvania v. Robert A. Murray.
W. H. McCrea, Jr., with him McCrea & McCrea, for appellant.
Harold E. Sheely, District Attorney, for Commonwealth, appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Eagen. Dissenting Opinion by Mr. Justice Pomeroy. Mr. Chief Justice Bell and Mr. Justice Jones join in this dissent.
Robert A. Murray was convicted by a jury in Cumberland County on two indictments charging him with involuntary manslaughter. A motion for a new trial was denied, and a prison sentence was imposed. An appeal filed in the Superior Court resulted in a per curiam affirmance without opinion. We granted allocatur and now reverse because we conclude the use of certain evidence at trial violated constitutional due process.
The basic facts are undisputed.
About 5:30 p.m. on March 21, 1968, an automobile operated by Murray, while traveling on a two lane highway, left its lane of traffic, crossed over to the other side of the highway, and crashed into an automobile coming from the opposite direction. Injuries suffered in the collision caused the death of two occupants of the second vehicle. Murray himself was seriously injured and removed to a hospital.
About 7:10 p.m. of the same evening, a test of Murray's blood was made by technicians in the hospital at the instance of an investigating police officer. This occurred without Murray's consent or the prior issuance of a search warrant. An analysis of the blood sample indicated an alcoholic content of 2.06 milligrams per c.c. The following day, a complaint was filed and arrest warrants issued. Because of Murray's condition and hospitalization, execution of the warrants was delayed until April 3rd, or until the time Murray was being discharged from the hospital.
Based on the information gained from the analysis of the sample of Murray's blood, under the circumstances before related, a competent medical pathologist
testified at trial, "I think there was a 95% chance that he (Murray) was intoxicated."
A timely filed pretrial motion to suppress evidence of the blood test was denied and an objection to its ...