Appeal from order of Court of Common Pleas of Northampton County, Aug. T., 1973, No. 91, in case of Commonwealth of Pennsylvania v. Roland Hawk Ward.
John J. Segata, Jr., Assistant District Attorney, and Charles H. Spaziani, District Attorney, for Commonwealth, appellant.
Thomas W. Houser, for appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J. Dissenting Opinion by Price, J. Watkins, P.j., joins in this dissenting opinion.
[ 235 Pa. Super. Page 551]
The Commonwealth, appellant herein, contends that the lower court erred in granting appellee's motion to arrest judgment of sentence. The lower court held that appellee's arrest was illegal because the police officer lacked statutory authority to make an arrest under Section 2 of the Act of January 14, 1952, P.L. (1951) 2016; 53 P.S. § 732.
[ 235 Pa. Super. Page 552]
On June 16, 1973, Officer Howard Frankenfield, an auxiliary policeman with nineteen years experience on the Borough of Hellertown police force, received a radio call to proceed to the scene of an accident in the 600 block of Main Street. The officer arrived at the scene moments later and observed the appellee trying to get out of his car. Appellee's car had struck a parked car just beyond the intersection of Main and Penn Streets. As the officer assisted the appellee, he noticed a strong smell of alcohol emanating from appellee's car. He also observed a liquor bottle and a six-pack of beer in the car. Appellee's gait and speech also led the officer to believe that the appellee was intoxicated. Subsequently, the officer drove appellee, a youth who witnessed the accident, and the owner of the damaged vehicle to police headquarters to complete the investigation.*fn1
Prior to questioning appellee further, Sergeant Michael Petrovich gave appellee his Miranda warnings. Appellee refused to submit to the "balloon" test for intoxication, but agreed to have a blood test performed. The test, performed at St. Luke's Hospital, revealed an alcohol content of .08. Appellee's performance on other police tests was fair.*fn2
The Commonwealth's eyewitness to the accident, Terry Snyder, a sixteen-year-old youth, and the owner of the
[ 235 Pa. Super. Page 553]
damaged vehicle, Drewe Abel, also smelled the odor of alcohol emanating from the appellee and observed his wobbly gait.
On June 27, 1973, Officer Frankenfield swore out a criminal complaint wherein he accused appellee of operating a vehicle while under the influence of alcohol pursuant to § 1037 of The Vehicle Code.*fn3 Thereafter, the Grand Jury returned a true bill of indictment. The matter was tried before President Judge Palmer, who found appellee guilty as charged. On November 19, 1973, appellee flled motions in arrest of judgment and for a new trial. Judge Palmer granted the appellee's motion in arrest of judgment. The Commonwealth appealed from that order.
There are two issues for decision: one, whether auxiliary police are properly called to active duty absent an emergency; two, whether an auxiliary police officer improperly called to duty has the authority to make a lawful arrest.
Section 2 of the Act of January 14, 1952, supra, 53 P.S. § 732 provides for the appointment of auxiliary policemen:
"(a) The chief of police of any municipality may nominate persons as auxiliary policemen who have satisfactorily completed such training as he may prescribe.
"(b) All such persons so nominated shall, before they enter upon their duties, be confirmed and sworn by the mayor of the city, the burgess of the borough or town, or the chairman of ...