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COMMONWEALTH PENNSYLVANIA v. CALVIN B. TREFRY (06/29/77)

decided: June 29, 1977.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
CALVIN B. TREFRY



Appeal from the Order of March 10, 1976, of the Court of Common Pleas of Allegheny County, Criminal Division, at Nos. CC7509261A and CC7509139A

COUNSEL

Robert L. Eberhardt, Assistant District Attorney, and Robert E. Colville, District Attorney, Pittsburgh, submitted a brief for appellant.

John R. Walters, Jr., Pittsburgh, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., files a dissenting opinion in which Spaeth, J., joins.

Author: Price

[ 249 Pa. Super. Page 120]

This is an appeal from an order of the court below suppressing certain evidence. The Commonwealth alleges that, due to this order, it is "substantially handicapped because it cannot present all its available evidence." Commonwealth v. Bosurgi, 411 Pa. 56, 63, 190 A.2d 304, 308 (1963); see also Commonwealth v. Deren, 233 Pa. Super. 373, 337 A.2d 600 (1975). We reverse the order of the lower court.

On November 19, 1975, at approximately 2:17 a.m., appellee Calvin Trefry, driving an automobile on Route 8 in Hampton Township, Allegheny County, struck and killed Vicky Dean. Mr. Trefry apparently did not stop immediately after striking the victim, but proceeded approximately a quarter of a mile on Route 8, then turned off and continued for some distance, halting in a church driveway. Miss Dean's body was found in the driveway, approximately one-half mile from the alleged point of original impact.

The first officer to arrive on the scene was Lieutenant Lawrence J. Itri of the Hampton Township Police, who was off-duty but in uniform and wearing his badge. Lieutenant Itri saw Miss Dean's body lying in the driveway and two males, appellee and Daniel Beale, facing each other over the body. Mr. Beale, who had been Miss Dean's hitchhiking companion, accused appellee of striking Miss Dean down on the main highway, failing to stop, and dragging her body (on his automobile) to the place where it then rested. When asked by Lieutenant Itri if he had been driving the car that hit the victim, appellee responded in the affirmative. Lieutenant Itri observed that appellee's speech was slurred, he was staggering and he smelled strongly of alcohol. The officer told appellee he was under arrest for "hit and run," handcuffed him, and told him not to move.

Officer John Owens of the Hampton Township Police was one of the next arrivals at the scene. After being informed that Lieutenant Itri had placed appellee under arrest for "hit and run," Officer Owens took appellee back to his police car and advised him of his constitutional rights. Officer

[ 249 Pa. Super. Page 121]

Owens also noticed the odor of alcohol emanating from appellee, observed appellee's unsteady gait and slurred speech, and additionally noted that appellee had sustained no visible injuries. After placing appellee in the police car, Officer Owens examined appellee's automobile and found it to be severely damaged in the front. Blood spattered the roof and ran down the rear window. The interior of the car was littered with a number of empty beer cans.

Returning to his vehicle, Officer Owens transported appellee to the Hampton Township police station and again informed him of his constitutional rights. Appellee was asked to submit to either a breathalyzer test or a blood alcohol test. He refused both alternatives. Shortly after reaching the police station, Officer Owens received information that Vicky Dean had been pronounced dead on arrival at Passavant Hospital. At this time he informed appellee that he was under arrest for the additional offense of involuntary manslaughter. Appellee was once more requested to submit to a breathalyzer or blood alcohol test and again he declined.

Following appellee's second refusal of both alcohol tests, Officer Owens telephoned to Allegheny County Night Court in an effort to obtain a search warrant for the withdrawal of blood from Calvin Trefry. Officer Owens explained the circumstances to the magistrate on duty, who rejected the possibility of his issuing such a warrant, stating that he had never heard of a search warrant for blood. Officer Owens then telephoned the Allegheny County District Attorney's Office. An Assistant District Attorney listened to the officer's account of the situation and advised him to take appellee to Passavant Hospital and have a blood sample withdrawn. A blood sample was drawn from appellee at 3:55 a.m. by Peggy Wojcikiewicz, a medical technologist at Passavant Hospital.

Appellee was charged with failure to stop and give identification,*fn1 driving under the influence of liquor*fn2 and involuntary

[ 249 Pa. Super. Page 122]

    manslaughter.*fn3 A suppression hearing was held on February 23, 1976, and on March 10, 1976, the court entered an order suppressing the blood sample and chemical analysis thereof.

The court below suppressed the evidence of the blood test performed on appellee because it found his arrest illegal and the test tainted by the illegal arrest. Failure to stop at the scene of an accident, the offense for which appellee was initially placed under arrest, is a misdemeanor, as are driving under the influence of liquor and involuntary manslaughter, the other crimes with which he was later charged. It is well established that, absent statutory authorization, a law officer may only make a warrantless arrest for a misdemeanor when the offense is committed in his presence. Commonwealth v. Reeves, 223 Pa. Super. 51, 297 A.2d 142 (1972); Commonwealth v. Vassiljev, 218 Pa. Super. 215, 275 A.2d 852 (1971). This aspect of the law has led to problems in the prosecution of numerous drunken driving cases, some of which have involved other offenses such as involuntary manslaughter. Where a motorist has been arrested for driving under the influence when the officer has not seen him in the act of driving, a blood alcohol test has often been administered with or without the subject's consent. The results of such tests have been suppressed as incident to unlawful arrests. See Commonwealth v. Kirkutis, 234 Pa. Super. 18, 334 A.2d 682 (1975); Commonwealth v. Quarles, 229 Pa. Super. 363, 324 A.2d 452 (1974); Commonwealth v. Brown, 225 Pa. Super. 289, 302 A.2d 475 (1973); Commonwealth v. Reeves, supra.

Some highly anomalous results have occurred in this area, as in Commonwealth v. Kriner, 234 Pa. Super. 230, 338 A.2d 683 (1975). In that case, a borough police officer found a stationary automobile in the middle of a road with the motor running, the lights on and the transmission in "drive." The driver was unconscious at the wheel. For reasons of safety the borough officer turned off the car's ignition. As he was outside his jurisdiction and thus could not arrest, he radioed

[ 249 Pa. Super. Page 123]

    the Pennsylvania State Police, informing them of a "suspected 1037," or drunken driving violation. A state trooper arrived on the scene, determined that the driver was inebriated, arrested him for driving under the influence and transported him to the police barracks. There Kriner took a breathalyzer test, the results of which were admitted at trial. Our court, with Judges Watkins, Jacobs and Price dissenting, held the arrest illegal and suppressed all the resulting evidence. Because the borough police officer had, for Kriner's safety, turned off the ...


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