No. 1821 October Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County as of October Sessions, 1976, Nos. 2058-2061.
Bruce W. Miller, Philadelphia, for appellant.
Randolph L. Goldman, Assistant District Attorney, with him F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 256 Pa. Super. Page 264]
Appellant raises several contentions for our review, including inter alia, that the trial court erred in imposing more than one sentence on a single, unlawful act. We agree with this argument, and we reverse and remand for resentencing.
On June 21, 1976, a Philadelphia police officer arrested appellant and charged him with driving while under the influence of an intoxicating beverage,*fn1 involuntary manslaughter,*fn2 and recklessly endangering another person.*fn3 On
[ 256 Pa. Super. Page 265]
November 17, 1976, appellant filed a motion to suppress and, after a hearing, the lower court denied it. On January 24, 1977, a jury trial commenced*fn4 and the following factual pattern emerged. Ms. Geraldine Bell, a resident of 2561 North 30th Street, Philadelphia, testified that on June 21, 1976, she was at her home looking out the window. She observed a 1970 blue and white cadillac turn left from Huntingdon Street onto 30th Street*fn5 and collide with her car which was parked in front of her home. She ran out of her home and yelled at appellant who was driving the cadillac. He responded by stating, "Lady, I'm not going anywhere." Seconds later he backed his car up a few feet, then went forward, and again struck Ms. Bell's car. Appellant immediately reversed his car again, then went forward and collided with a car parked in front of Ms. Bell's car. Finally, appellant straightened his car and drove south on 30th Street.
James Fairfax, a resident of 2555 North 30th Street testified that he looked out his window at about 9:30 on the night in question and saw appellant's car smash into his car which was parked in front of Ms. Bell's vehicle. He ran into the street and observed the cadillac for 5 or 6 seconds as it travelled down 30th Street. Mr. Fairfax estimated the vehicle's speed at 50 or 60 miles per hour. Another eyewitness, Mr. Gray, estimated appellant's speed at about 60 or 70 miles per hour.*fn6
Appellant continued on 30th Street through intersections with Cumberland Street and York Street without stopping at either stop sign. Just south of York Street appellant's
[ 256 Pa. Super. Page 266]
car jumped the curb, crashed into 2338 N. 30th St., and completely demolished the steps of the property. Three women were seated on those steps prior to the crash. The impact resulted in the death of two women and in serious injury to the third, the owner of the house.
Philadelphia police officer Burke arrived at the scene within moments of the collision. Seeing that the car was beginning to burn, Burke ran over to appellant, and asked whether anyone else was in the car. Appellant was lying in the street; he responded that he had been alone in the vehicle. Burke stated that appellant's eyes were glassy; he reeked of alcohol; and his speech was slurred. As an emergency crew removed appellant from the scene, Burke told them appellant was under arrest for drunk driving.
Lt. Geisz of the accident investigation unit of the Philadelphia police department, proceeded from the scene to Women's Medical College where he observed appellant. Lt. Geisz stated that appellant's eyes were very bloodshot, there was an extremely strong odor of alcohol emanating from him, his speech was slurred, and his face was puffy. Based upon these facts, Lt. Geisz concluded that appellant was intoxicated and incapable of operating a motor vehicle. Lt. Geisz informed appellant of his rights pursuant to the Vehicle Code*fn7 and requested that he consent to a blood test. Appellant agreed, signed a consent form, and a doctor extracted blood at about 10:45 p. m. The chemist who analyzed the blood, Joseph McBride, testified that appellant had a blood alcohol level of .25.
A few hours later, appellant was transferred to the police administration building. While there, officer Boone warned appellant of his rights pursuant to the Vehicle Code and requested that appellant consent to a breathalyzer test. Appellant agreed to the test and Boone administered it at about 2:40 A.M. The results showed appellant to have a .15 blood alcohol level. Subsequently, at about 2:45 A.M., a police surgeon, Dr. Joseph Rogers, examined appellant and performed several coordination tests all of which appellant
[ 256 Pa. Super. Page 267]
failed. Dr. Rogers stated that in his opinion appellant was under the influence of alcohol.*fn8
In his defense, appellant testified that on June 21, 1976, between 6 p. m., and 9 p. m., he consumed four alcoholic beverages, each contained one shot of vodka. On his way home a little after 9 p. m., he turned south onto 30th Street and saw a child chase a ball into the street. Appellant swerved left, struck a parked car, and bumped his forehead on the left window. Because he experienced great pain from the blow, he drove off to obtain aid. He remembered nothing else until he awoke at the hospital.
The jury found appellant guilty of all charges. Following the denial of post-verdict motions, the court sentenced appellant to 2 1/2 to 5 years' imprisonment on one count of involuntary manslaughter, 2 1/2 to 5 years' imprisonment on the charge of recklessly endangering another person, and to 1 to 2 years' imprisonment on the charge of driving under the influence; all to run consecutively.*fn9 This appeal followed.
Appellant contends that the court erred in failing to suppress the results of his blood and breathalyzer tests. First, he contends that there was no probable cause to arrest him and, therefore, the warrantless search was not incident to a lawful arrest. Appellant concedes that § 1204 of the Vehicle Code*fn10 authorizes a police officer to make a warrantless
[ 256 Pa. Super. Page 268]
arrest of any person violating § 1037 of the Vehicle Code,*fn11 upon probable cause, in cases causing or contributing to an accident, even though the officer did not view the offense. Appellant alleges that the officer did not have a sufficient factual basis upon which to effect an arrest. The test for probable cause to arrest is "whether there were facts available at the time of the initial apprehension which would justify a man of reasonable caution in the belief that a crime had been committed and that the individual arrested was the probable perpetrator." Commonwealth v. Trefry, 249 Pa. Super. 117, 375, A.2d 786 (1977). In Commonwealth v. Levesque, 469 Pa. 118, 364, A.2d 932 (1976), the Supreme Court held that probable cause to arrest existed when the arresting officer, reporting to the scene of a collision, smelled the odor of alcohol on the suspect's breath, observed his general lack of coordination, and heard the suspect's admission that he was the driver.
The instant case is almost factually identical to Levesque, supra. Burke arrived on the scene almost immediately and observed that a serious accident had occurred. Bystanders directed him to appellant who admitted to being the sole occupant of the wrecked vehicle. Burke testified at the suppression hearing that appellant's eyes were glassy, that he reeked of alcohol, and that his speech was slurred. These facts provided probable cause for the officer to arrest appellant for driving under the influence of an intoxicant.
Second, appellant argues that the court erred in failing to suppress the tests because the police failed to warn him that the results could be used against him in a manslaughter prosecution. Appellant maintains that the warning is required by constitutional considerations. We dealt with this contention in ...