Appeal from order of Court of Common Pleas of Cumberland County, Feb. T., 1971, No. 49, in case of Commonwealth of Pennsylvania v. Donald Lee Wilson, Sr.
Donald Lee Wilson, Sr., appellant, in propria persona.
Kevin A. Hess, Assistant District Attorney, and Harold E. Sheely, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Cercone, J. Hoffman and Spaulding, JJ., join in this opinion. Wright, P. J., Watkins and Jacobs, JJ., would affirm on the opinion of Judge Weidner. Concurring Opinion by Spaeth, J.
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This is an appeal from defendant's conviction after a second trial, of the charge of "Violation of Motor Vehicle Code, Section 1037, in that he did while under
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the influence of intoxicating liquor operate a motor vehicle upon the highways of the Commonwealth."
Defendant admits he was under the influence of intoxicating liquor but strenuously denies that he was the operator of the vehicle owned by him at the time it had knocked down a mailbox. He contends that he was a passenger in his vehicle and was found behind the steering wheel in the driver's seat after the vehicle's collision with the mailbox only because the driver, one Barry Shaffer, had fled the scene, leaving the car lights on, and he, the defendant, moved over to the driver's seat to turn the lights off.
Defendant testified that he had a cheeseburger and several beers in The Locust Point Tavern and when he left the tavern at 5:30 P.M. he found Barry Shaffer, a young acquaintance of his, sitting in the passenger seat of his car. Barry asked for a ride to Mechanicsburg to look at a used car. Defendant testified he told Barry to do the driving since defendant had worked all night and part of the day and was tired. Barry then moved into the driver's seat and after 15 or 20 minutes, during which he acquainted himself with defendant's car and made the necessary adjustments, he began to drive. Barry, not being accustomed to power brakes and power steering, lost control of the car when he hit the power brakes and struck the mailbox. At both trials (the first trial resulted in a hung jury) Barry Shaffer took the stand and corroborated defendant's testimony. Barry has since died. No Commonwealth witness saw defendant drive his car at any time prior to or at the time the car struck the mailbox. The entire Commonwealth case was based on the testimony of one Clair Gochenauer and State Trooper Larry J. Corman, both of whom arrived at the scene after the mailbox had been struck. Mr. Gochenauer, then 18 years of age, testified that he was in the garage behind his house located 30 to 50 feet from the road directly
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across the point of the impact. He testified he heard "a swishing and a screeching, sounded like a car going into a slide, then I took off running as soon as I heard this, and then I heard the thumping of the car hitting something, or it sounded like a car hitting something, and I was going down the driveway at that time." Mr. Gochenauer testified it took him "less than a second" to run down the driveway, and 3 to 5 seconds to come from the garage until he reached defendant's car where he found defendant behind the wheel on the driver's side. He saw no one else at the scene. He did testify, however, that as he crossed in front of the car, defendant moved forward to turn the lights off and that defendant asked him, "if everybody else was O.K., or if there was anybody else involved in it."
On cross-examination witness Gochenauer testified that as he came around the corner of his house he could not tell what part of the front seat defendant then occupied because the headlights from the car were interfering with his view; that perhaps the lights from a pole lamp further hampered his vision; that he had to pause for traffic on the road, that finally when he arrived to within ten feet of the car he saw defendant then lean forward to put the car lights out and at that time saw defendant seated behind the steering wheel; and that it was possible for someone to leave the car before he arrived if he left fast enough.
The only other witness produced by the Commonwealth was State Trooper Larry J. Corman who also arrived at the scene after the accident. Trooper Corman testified he found defendant sitting behind the steering wheel of his car in the driver's seat and that no one else was in the car. He placed defendant under arrest and drove him in the police car to the Carlisle State Police ...