Appeal from the Order of the Court of President Judge Dale F. Shughart, Court of Common Pleas of (Criminal) Cumberland County, dated May 4, 1976, Sustaining the Defendant's Application for Pre-trial Relief. (No. 280 of 1975) No. 1656 October Term, 1976.
John M. Eakin, Mechanicsburg, with him Edgar B. Bayley, District Attorney, Camp Hill, for appellant.
John B. Mancke, Harrisburg, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Van der Voort, J., files a dissenting opinion in which Watkins, President Judge, and Price, J., join.
[ 247 Pa. Super. Page 327]
This is an appeal by the Commonwealth from an order granting appellee's motion for suppression of evidence in a prosecution for driving under the influence of alcohol.*fn1 Although the issue was not raised by either party in the briefs or at oral argument, we note that the Supreme Court has exclusive jurisdiction of this case. Accordingly, we shall transfer it to that court.*fn2
On December 30, 1974, at approximately 3:00 a. m., an officer of the Carlisle Police Department came upon the scene of an accident on Interstate 81. An automobile was resting on top of the guardrail that served as a median barrier between the northbound and southbound lanes. A truck driver had stopped and was placing flares to warn other motorists. Appellee was a few feet from the automobile. After satisfying himself that appellee was uninjured,
[ 247 Pa. Super. Page 328]
the officer radioed his headquarters to summon the State Police. Apparently the scene of the accident was within their jurisdiction. When two state troopers arrived, the officer told one of them that he had a "possible 1037" (a reference to the section of the Vehicle Code that prohibits driving under the influence of alcohol; see footnote 1, supra). The trooper observed that appellee walked with a staggering gait, was disheveled in appearance, and had a glassy look in his eyes and an odor of alcohol on his breath. After asking for and receiving appellee's driver's license and registration card, the trooper asked appellee, "What happened?". In response, appellee made an incriminating statement. Appellee was then placed under arrest by the trooper and was advised of his Miranda rights. After his arrest appellee made other incriminating statements and voluntarily submitted to a breathalyzer test, the results of which were also incriminating.
Appellee was tried twice on a charge of driving under the influence; both times he was found guilty by a jury, and both times, as a result of post-verdict motions, he was granted a new trial. Before his third trial appellee filed a motion for the suppression of his pre-arrest statement to the State Police, and also for the suppression of his post-arrest statements and the results of the breathalyzer test. The lower court granted the motion, and the Commonwealth took this appeal.
The lower court suppressed the pre-arrest and post-arrest evidence for different reasons.
Appellee's pre-arrest statement was suppressed because it was made before the trooper had informed appellee of his constitutional rights, as required by Miranda. The court found that before asking appellee, "What happened?", the trooper had sufficient information to warrant the belief that appellee had committed a crime. Therefore, the court reasoned, the trooper was engaged in a criminal ...