Appeal from order of Court of Common Pleas of Delaware County, Dec. T., 1973, No. 652, in case of Commonwealth of Pennsylvania v. John M. McCarthy.
Ralph B. D'Iorio, Assistant District Attorney, with him Stephen J. McEwen, Jr., District Attorney, for Commonwealth, appellant.
George S. Saulnier, for appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, and Spaeth, JJ. (Van der Voort, J., absent). Opinion by Cercone, J., in Support of Affirmance. Hoffman and Spaeth, JJ., join in this opinion. Opinion by Jacobs, J., in Support of Reversal. Watkins, P.j., joins in this opinion. Opinion by Price, J., in Support of Reversal.
[ 234 Pa. Super. Page 364]
The six Judges who heard this appeal being equally divided, the order of the court below is affirmed.
Opinion by Cercone, J., in Support of Affirmance:
The appellee, John McCarthy, was arrested and indicted for operating a motor vehicle while under the influence
[ 234 Pa. Super. Page 365]
of intoxicating liquor.*fn1 Following the return of a true bill by the grand jury, appellee moved to quash the indictment and the transcript. Although the court initially denied this petition, upon further consideration, the court withdrew its first ruling and granted appellee's motion. From this decision the Commonwealth brings the instant appeal, in which the sole issue presented is whether the court erred in finding that appellee was not operating his automobile in the presence of the arresting officer.*fn2
On November 10, 1973, John McCarthy was involved in a two car, rear-end collision on Chester Pike in Delaware County. Mr. McCarthy was the driver of the second car. Officer McNichol, who was in the vicinity of the accident, arrived at the scene shortly after the mishap. In fact, when Officer McNichol arrived Mr. McCarthy was still behind the wheel of his automobile, although its engine was not running. Officer McNichol leaned into McCarthy's automobile to ascertain the ...