Appeal from the Judgment of Sentence entered on September 9, 1974 of the Court of Common Pleas of Somerset County, Criminal Division at No. 194 of 1972. No. 52 April Term, 1975.
James B. Yelovich, Kimmel, Rascona, Yelovich & Bowman, Somerset, for appellant.
Frederick F. Coffroth, Dist. Atty., Thomas G. Saylor, Jr., 1st Asst. Dist. Atty., Somerset, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a concurring opinion. Price and Van der Voort, JJ., dissent.
[ 241 Pa. Super. Page 64]
Appellant contends that the results of a breathalyzer test should have been suppressed because the test was conducted pursuant to an illegal arrest.
On May 12, 1972, appellant, a resident of Virginia, approached the toll booth at exit 10 of the Pennsylvania Turnpike in Somerset Borough, Somerset County, Pennsylvania. Because appellant was unable to find his turnpike toll ticket, he was directed by the toll collector to pull his vehicle into a closed lane of traffic. A short time later, the appellant asked the toll collector to summon a police officer. At about 12:50 a. m. two Pennsylvania
[ 241 Pa. Super. Page 65]
State Troopers arrived. The officers found appellant seated on the passenger side in the front seat with the car's ignition turned off. Initially, the officers were concerned that appellant was ill or hurt. A long conversation ensued regarding appellant's inability to find his toll ticket, although the officers could plainly see the toll ticket on the floor near appellant's feet. They instructed appellant to pick the ticket up. The officers smelled the odor of alcohol and observed that appellant's speech was slurred and that his eyes were bloodshot. Appellant was asked to step out of the car, and the officers observed that appellant's gait was unsteady. Field sobriety tests indicated that appellant was under the influence of alcohol. The officers placed appellant under arrest and drove him to the State Police Barracks. At the Barracks, appellant reluctantly consented to a breathalyzer, which registered a reading of .22. The officers charged appellant with driving under the influence of alcohol.*fn1
After committing appellant to jail, the officers returned to the toll station to move appellant's car. Under the front seat, the officers noticed a loaded revolver and an unopened bottle of whiskey. They secured a warrant for a search of the car and found more unopened liquor and beer containers in the trunk.
Appellant was indicted for driving under the influence of alcohol and violation of the Uniform Firearms Act.*fn2 The appellant was tried on November 29-30, 1972. The jury convicted him of the motor vehicle violation but acquitted him of the firearms charge. On July 9, 1973, the court en banc granted appellant a new trial because it determined that the introduction of the unopened liquor containers into evidence was error. Before retrial, on July 31, 1973, appellant filed his first motion
[ 241 Pa. Super. Page 66]
to suppress. The court held a hearing on November 27, 1973, and denied appellant's motion. On the same day, a jury convicted appellant of driving under the influence of alcohol. Appellant filed timely post-verdict motions which were denied on April 17, 1974. The court sentenced appellant on September 9, 1974, to pay a ...