Appeal from order of Court of Common Pleas, Criminal Division, of Allegheny County, May T., 1974, No. 2827, in case of Commonwealth of Pennsylvania v. Russell J. Barkley, Sr.
Charles W. Johns and Robert L. Eberhardt, Assistant District Attorneys, John M. Tighe, First Assistant District Attorney, and John J. Hickton, District Attorney, for Commonwealth, appellant.
No appearance entered nor brief submitted for appellee.
Watkins, P.j., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J. Jacobs, J., concurs in the result.
[ 234 Pa. Super. Page 504]
The Commonwealth appeals from the order of the lower court which granted appellee's motion to suppress evidence.
[ 234 Pa. Super. Page 505]
On February 17, 1974, a complainant stopped at the state police barracks to report that a black and gray Cadillac was "weaving" on the Pennsylvania Turnpike, almost causing several accidents. This information, along with the fact that the complainant was driving a yellow Buick, was relayed to the state troopers on the turnpike. Trooper Schohn, who was in the vicinity where the Cadillac was reported, pulled off the highway to await the vehicle. Trooper Schohn spotted the car and proceeded to follow it for approximately two miles, during which time the Cadillac weaved four or five times. When the Cadillac approached the Butler Valley Plaza, the officer directed its driver to pull into the gas station. After both vehicles had come to a stop, Trooper Schohn left his car and approached the Cadillac. According to the trooper's testimony, "[a]t this time the defendant was sort of like hanging out the window. He was grinning, and he flashed two V signs and said 'Peace', and started laughing and giggling." At that point, Trooper Schohn spotted the yellow Buick driven by the original complainant. He told appellee to get his license and registration card, and instructed him not to move the car. When Trooper Schohn left to speak to the complainant, appellee attempted to drive off, but was stopped by Trooper Sennett, who had arrived on the scene. Trooper Schohn then returned to interview appellee. He testified that appellee's breath smelled of alcoholic beverage, that he had slurred speech, that his eyes were glassy, and that he staggered when asked to walk. Trooper Schohn then placed appellant under arrest for driving under the influence of intoxicating liquor.*fn1 Subsequently, a breathalyzer test was administered.
The lower court held that appellee was arrested when he was pulled off the road by Trooper Schohn. The court concluded that no probable cause existed for the arrest,
[ 234 Pa. Super. Page 506]
and, therefore, suppressed the breathalyzer test and all other evidence obtained after the arrest. It is obvious that the ruling will result in termination of the prosecution; thus, there is sufficient finality to render the order appealable. Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963); Commonwealth v. Guardiani, 226 Pa. Superior Ct. 435, 310 A.2d 422 (1973).
Although the Commonwealth argues that appellee was not placed under arrest until Trooper Schohn had completed his investigation, it is not necessary to decide this issue. The lower court's theory that no probable cause existed at the time of the initial stop to arrest appellee for driving under the influence overlooks the fact that Trooper Schohn made the initial stop "[f]or weaving on the roadway that I personally observed." If we assume that appellee was under arrest when he was directed to remain in his car, he was not under arrest for a violation of § 1037 of The Vehicle Code. Rather, he was under arrest for the summary offense of reckless driving. 75 P.S. § 1001.*fn2 Trooper Schohn's personal observation of the weaving movements of appellee's automobile clearly provided him with probable cause to believe that the driver was in violation of the code. ...