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COMMONWEALTH v. ROBINSON (02/26/73)

decided: February 26, 1973.

COMMONWEALTH
v.
ROBINSON



Appeal from the Order of the Court of Common Pleas at Delaware County in case of Commonwealth of Pennsylvania v. Francis J. Robinson, No. 8104 of 1971.

COUNSEL

Carmen P. Belefonte, with him Garland D. Cherry and Kassab, Cherry & Archbold, for appellant.

Stuart A. Liner, Assistant Attorney General, with him Anthony J. Maiorana, Assistant Attorney General, Robert W. Cunliffe, Deputy Attorney General, and Israel Packel, Attorney General, for appellee.

Judges Crumlish, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 7 Pa. Commw. Page 522]

On June 29, 1971, Francis J. Robinson (appellant) was apprehended by an officer of the Radnor Township Police Department for operating a motor vehicle while under the influence of intoxicating liquor, a violation of Section 1037 of The Vehicle Code, Act of April 29, 1959, P.L. 58, as amended, 75 P.S. § 1037, and, after being so charged, refused to submit to a breathalyzer test as provided in the so-called "Implied Consent Law," Section 624.1(a) of the Code, 75 P.S. § 624.1(a). Having received a report of this refusal, the Secretary of Transportation, under Section 624.1(a), suspended appellant's operator's license for six months, effective August 3, 1971. The Court of Common Pleas of Delaware County, after granting a supersedeas on July 28, 1971 (appellant's license was restored August 4, 1971), upheld the Secretary's suspension.

As justification for its decision, the lower court stated the following:

"Briefly stated, the Commonwealth's case showed, by testimony from the arresting officer, that defendant was observed staggering about the parking lot of a country club looking disheveled, that his car was then observed speeding out of the parking lot and chased 200 yards on a public road before being stopped, that

[ 7 Pa. Commw. Page 523]

    the smell of alcoholic beverage was on defendant's breath, that defendant's manner was abusive, that defendant was placed under arrest for violating § 1037 of the Motor Vehicle Code . . ., that he was transported to the police station and requested to submit to a 'Mobat Test' and that defendant refused.

"Though defendant presented testimony and cross-examination to the contrary, the hearing Judge chose to credit the police officer's testimony. In so doing, the Court found that the arrest for the stated violation was proper, that defendant was requested and refused to take a chemical test of his breath. These findings are supported by the evidence presented."

Our duty is to examine the testimony to determine whether the findings of the court are supported by competent evidence, and to correct conclusions of law erroneously made. Commonwealth v. Buffin, 2 Pa. Commonwealth Ct. 404, 278 A.2d 366 (1971); Commonwealth v. Halteman, 192 Pa. Superior Ct. 379, 162 A.2d 251 (1960). The action of the lower court will not be disturbed on appeal except for manifest abuse of discretion. Yockers v. Department of Transportation, 4 Pa. Commonwealth Ct. 95, 285 A.2d 893 (1972); Commonwealth v. Pison, 2 Pa. Commonwealth Ct. 522, 279 A.2d 84 (1971).

Appellant first contends that the arresting officer did not lawfully arrest him, thereby rendering the suspension unlawful. We are directed to Section 624.1(a) which states, inter alia, that any breath test is to be administered "at the direction of a police officer having reasonable grounds to believe the person to have been driving while under the influence of intoxicating liquor;" and that "if any person is placed under arrest. . . ." (Emphasis added.) It is ...


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