Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal, of Washington County, No. 412a,b, June 17 1975. No. 764 April Term, 1975.
Francis C. Sichko, Washington, for appellant.
Robert N. Clarke, Assistant District Attorney, Washington, Jess D. Costa, District Attorney, Bentleyville, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., concurs in the result. Watkins, President Judge, and Van der Voort, J., dissent.
On this direct appeal appellant raises a substantial issue regarding the competency of his trial counsel.*fn1 We therefore remand for an evidentiary hearing to determine whether appellant was denied his Sixth Amendment right to effective assistance of counsel at his trial.
Appellant was convicted by a jury on two counts of involuntary manslaughter. The charges arose out of the crash of an automobile on May 24, 1974, in Washington, Pennsylvania, in which two young passengers were killed. The crash ended a long night of drinking and marijuana smoking by appellant and other occupants of the automobile. Although appellant testified that one of the other survivors of the crash was driving, the Commonwealth introduced a substantial amount of evidence that appellant was the driver, and that he was driving recklessly. The Commonwealth's evidence included the testimony of the two surviving passengers and a witness who saw the automobile just before the crash. The Commonwealth also introduced an admission by appellant that he was the driver. The admission was made to a police officer while appellant was at a local hospital being treated for injuries he sustained in the crash. While appellant was being treated he gave permission for a blood sample to be taken from him. The result of a test of that blood sample, that appellant's blood contained .11 percent alcohol, was also introduced in evidence by the Commonwealth.
Appellant's argument is that his trial counsel was ineffective because he made no motion to suppress either appellant's admission or the results of the blood test. Appellant contends that this evidence should have been suppressed because he did not voluntarily and intelligently
waive his Fourth Amendment right to decline to give a blood sample, cf. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), and his Fifth Amendment right to remain silent. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). He points to several facts in the record that he says would have supported suppression of the evidence had the proper motions been made.*fn2 These facts are as follows. At the time appellant was apprehended by the police officer he had somehow made his way from the scene of the crash to his home. He was found lying on a couch covered with blood and suffering from head injuries. The officer informed him of his Miranda rights at that time. Appellant's admission and his permission for a blood sample to be taken from him were given at the hospital, in unfamiliar surroundings, and separated in time and place from his Miranda warnings.
The test to be applied by this court in reviewing the constitutional sufficiency of trial counsel's assistance is stated in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604-605, 235 A.2d 349, 352-353 (1967):