Appeal from judgment of sentence of Court of Common Pleas of Montgomery County, July T., 1972, No. 573, in case of Commonwealth of Pennsylvania v. David Cairns.
Calvin S. Drayer, Jr., Assistant Public Defender, for appellant.
Stewart J. Greenleaf, Assistant District Attorney, with him William T. Nicholas, First Assistant District Attorney, and Milton O. Moss, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Spaeth, J. Price, J., dissents.
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Appellant argues that he should be given a new trial because his conviction for operating a motor vehicle while intoxicated was secured in part by the introduction of illegally seized evidence, i.e., the results of a Mobat sobermeter test.
At the hearing on appellant's motion to suppress, the Commonwealth presented the testimony of the arresting officer, Ruben Whittington of the Norristown Police Department. This testimony may be summarized as follows: On July 28, 1972, about 8:00 p.m. appellant's car smashed into the rear of a parked car belonging to and occupied by one David McKissic. The accident occurred near DeKalb and Summit Streets in Norristown. Officer Whittington and a fellow officer arrived on the scene in approximately five minutes. By that time, however, both appellant and McKissic were out of their cars. While questioning them, Officer Whittington noticed that appellant's
[ 234 Pa. Super. Page 333]
gait was unsteady, his eyes were "red and glassy," and he smelled of alcohol. Acting on this information, the officer informed appellant that he believed him to be "under the influence." The officer then turned to McKissic and asked him if he would sign a criminal complaint against appellant. The officer explained to McKissic that he needed a warrant in order to arrest appellant and ask him to take a breathalyzer test. McKissic agreed to sign a complaint. Appellant was then "given his rights and placed under arrest," and the officer, appellant, and McKissic proceeded to the office of District Justice George W. Zeigler, Jr. There the officer "got a criminal complaint warrant" and "[g]ave [appellant] a copy [of the warrant]," which looked like "a standard criminal complaint form;" "I believe it's a blue sheet." Appellant was then taken to Norristown City Hall, where he submitted to a Mobat sobermeter test, which indicated a blood-alcohol level of 0.154%.
In order to appraise this testimony it is necessary to consider the "Criminal Docket and Transcript" of appellant's preliminary hearing, and the accompanying papers. These were before the hearing judge on appellant's motion to suppress, and are part of the record before us. The preliminary hearing was on August 16, 1972, and was before Justice of the Peace Robert A. Saracini in Norristown.
The criminal docket and transcript contains the following imprint: "Summons issued . . ." The blank has been filled in with the typewritten statement, "Arrest 7/28/72." Left empty are blanks beside "Summons served," "Warrant issued," and "Warrant served." Among the papers accompanying the docket and transcript there is a copy of the complaint. It is marked "original." It contains the signature of Officer Whittington as the affiant (not McKissic's signature). There is impressed on it the stamp of the signature of "George W. Zeigler, Jr." He is described as the "Issuing Authority,"
[ 234 Pa. Super. Page 334]
and his signature stamp appears under the certification that the complaint was properly sworn to and that there was probable cause for the issuance of the warrant. There is no ...