Appeal from order of Court of Common Pleas of Bucks County, No. 170 of 1970, in case of Commonwealth of Pennsylvania v. James Harris.
Stephen B. Harris, Assistant District Attorney, with him Ward F. Clark, District Attorney, for Commonwealth, appellant.
Rodney D. Henry, Public Defender, for appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Montgomery, J.
[ 220 Pa. Super. Page 103]
Ostensibly this is an appeal from an order of the lower court sustaining a demurrer in a non-jury trial of this defendant on a charge of operating a motor vehicle under the influence of intoxicating liquor. As pointed out by the Commonwealth in its brief, the Commonwealth has the right to appeal from such an order. Commonwealth v. Mason, 211 Pa. Superior Ct. 328, 236 A.2d 548 (1967).
Although we will resolve the issues in this case without reaching the merits of the controversy, the facts involved are quite similar to those in the recent case of Commonwealth v. Kallus, 212 Pa. Superior Ct. 504, 243 A.2d 483 (1968), which, coincidentally, was before the same lower court Judge, The Honorable Lawrence A. Monroe. We quote from its brief the Commonwealth's statement of facts on the instant appeal, as follows: "At 8:35 p.m. on January 17, 1970, Officer Kenneth Hopkins of the Bensalem Township Police Department was called to 4329 Somerton Avenue, Trevose, Bucks County, Pennsylvania. The appellee was seated behind the wheel of an automobile that was embedded in the garage wall. The engine of the automobile was running and the car was in reverse gear. The weather was rainy and tire tracks led from a public highway, Somerton Avenue, approximately 50 feet across the pavement onto the grass to the automobile embedded in the garage wall.
"The Appellee did not reside at the premises where the garage was located.
"The Appellee was taken to the Pennsylvania State Police Barracks at Trevose, Pennsylvania, where a Breathalyzer test was given. The result of that test was 0.20 percent of alcohol in the blood stream."
The transcript of the trial of this case shows that counsel for the defendant demurred after the Commonwealth
[ 220 Pa. Super. Page 104]
rested its case, then the Assistant District Attorney and defendant's counsel argued the motion, and that thereafter, the court stated, "Circumstantial evidence might support the various inferences, but not enough to convince me beyond a reasonable doubt, so the demurrer is sustained."
We thus have before us the unusual situation where the lower court at trial made the statement, "Circumstantial evidence might support the various inferences," which would indicate that in the opinion of the court, the Commonwealth had made out a prima facie case, and that thus a demurrer should have been overruled; however, in the same breath, the court, who was the trier of fact, indicated that the Commonwealth's evidence could never succeed in convincing him beyond a reasonable doubt. In our opinion, the latter statement is tantamount to a finding or ruling in favor of the defendant. Indeed, the lower court in its well reasoned opinion, filed in compliance with our Rule No. 46, reiterated its finding in the following words, "Since I, sitting as the Court, was the trier of the facts and was not convinced of ...