Appeal from judgment of sentence of Court of Common Pleas of Centre County, No. 623 of 1971, in case of Commonwealth of Pennsylvania v. Harry J. Reeves, Jr.
John R. Miller, with him Miller, Kistler, Campbell, Mitinger & Beik, for appellant.
Robert A. Mix, Assistant District Attorney, with him Charles C. Brown, Jr., District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J. Dissenting Opinion by Cercone, J. Hoffman and Spaeth, JJ., join in this dissent.
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Following a jury trial, appellant was found guilty of driving under the influence of intoxicating liquor,*fn1 and was sentenced to pay a fine of $500. In this appeal, appellant raises only the question of whether the evidence presented was sufficient to support a finding of guilt beyond a reasonable doubt. We find that the evidence was sufficient and will, therefore, affirm the judgment of sentence.
The facts briefly stated indicate that appellant was involved in a head-on collision with another car in August, 1971. Appellant was severely injured and was taken to the hospital before the investigating officer, Pennsylvania State Police Trooper Ronald Ritter, arrived at the scene. The driver of the other car was not so fortunate and was
[ 237 Pa. Super. Page 445]
killed in the crash. Trooper Ritter first talked to appellant at the hospital approximately two hours after the accident. At this time, appellant was in critical condition and in severe pain due to paralysis of the lower extremities, a neck injury, and shock. When Trooper Ritter questioned appellant, he detected an odor of alcohol on appellant's breath and noted that appellant's speech was rambling and incoherent.
In testing the sufficiency of the evidence, we must review the testimony in a light most favorable to the verdict winner. Commonwealth v. Palmer, 229 Pa. Superior Ct. 1, 323 A.2d 69 (1974). In so doing, we will accept as true the Commonwealth's evidence and all reasonable inferences arising therefrom. Commonwealth v. Hornberger, 441 Pa. 57, 270 A.2d 195 (1970). The test of the sufficiency of the evidence is whether, accepting as true all evidence, regardless of whether it is direct or circumstantial, upon which, if believed, the fact-finder could properly have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime charged. Commonwealth v. Chasten, 443 Pa. 29, 275 A.2d 305 (1971); Commonwealth v. Whiting, 409 Pa. 492, 187 A.2d 563 (1963).
So viewed, the appellant was involved in a violent head-on collision in which the operator of the oncoming car was killed instantly. Appellant's automobile crossed the center line of the highway and crashed into the decedent's automobile. This violent crash occurred when appellant's car was in the oncoming lane of traffic. Immediately before the crash, appellant's car, then in the wrong lane, had driven another oncoming car from the highway, that fortunate witness barely averting the fate of the decedent by swerving his car off the highway and clearing appellant's car by a mere six to eight inches. The weather was clear and dry. Physical evidence consisting of damage to the cars, impact marks on the berm and banks of the road and other similar facts would
[ 237 Pa. Super. Page 446]
indicate tremendous speed. After appellant was moved to a hospital, Trooper Ritter, who prior to going to the hospital had made an investigation of the accident scene, found appellant on a hospital litter, incoherent, mumbling, unaware of his surroundings and with the odor of alcohol on his breath. This state trooper at trial expressed his unequivocal opinion that the appellant was under the influence. The appellant's attending physician would not rule out this condition, but would not express an opinion.
Under this state of the record, the evidence is sufficient in law to prove beyond a reasonable doubt that the appellant is guilty of the crime of driving under the influence. The case at bar is directly controlled by the decisions of this court in Commonwealth v. Cave, 219 Pa. Superior Ct. 512, 281 A.2d 733 (1971), and Commonwealth v. Long, 131 Pa. Superior Ct. 28, 198 A. 474 (1938). In both these cases, ...