No. 395 April Term, 1977, Appeal from the Order dated December 10, 1976, and entered on December 15, 1976, of the Court of Common Pleas of Clearfield County, Criminal Division at No. 76-922-CRA.
Barbara H. Schickling, Assistant District Attorney, with her Thomas F. Morgan, District Attorney, Clearfield, for Commonwealth, appellant.
James A. Naddeo, and Belin, Belin & Naddeo, Clearfield, submitted a brief for appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Jacobs, President Judge, and Spaeth, J., concurred in the result. Hoffman, J., did not participate in the consideration or decision of this case.
[ 258 Pa. Super. Page 507]
This is an appeal by the Commonwealth from the lower court's order suppressing chemical tests because they were deemed to have been performed too long after a fatal accident in which appellee was allegedly involved. We reverse the order of the lower court and remand the case for trial.
It is the Commonwealth's position that without the suppressed evidence the prosecution will be substantially handicapped and that "the suppressed evidence may well mark the difference between conviction and acquittal of the defendant." (Appellant's brief at 8). Therefore, the order before us is ripe for appellate review. Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963); Commonwealth v. Deren, 233 Pa. Super. 373, 337 A.2d 600 (1975).
Facts pertinent to our consideration of the order's propriety are the following. On September 18, 1976, a hit and run
[ 258 Pa. Super. Page 508]
accident occurred at approximately 12:15 a. m., which resulted in the death of one pedestrian and the injury of a second. A third pedestrian, also struck, sought no medical attention. One of the witnesses gave police a description of the vehicle. At approximately 1:00 a. m. that same day, a van fitting the witness' description was located across the street from appellee's home. The windshield of the vehicle was shattered, and matter believed to be human blood and hair was smeared on the van. A registration check confirmed appellee's ownership of the vehicle. Officers proceeded to appellee's home, entered there for the first time at approximately 1:15 a. m., and learned from his brother that appellee, then asleep in bed, had arrived home at approximately 12:30 or 12:35 a. m. After appellee was aroused, he was finally arrested at about 2:00 a. m. Appellee was then taken to a nearby hospital for chemical and breathalyzer tests, to which he gave his consent after conferring by telephone with his attorney. Because of confusion in getting someone to administer the tests, they were not performed until about 4:30 a. m. Appellee was charged with involuntary manslaughter,*fn1 driving under the influence of alcohol*fn2 and failure to stop at the scene of an accident.*fn3 As a result of a suppression hearing on December 10, 1976, the lower court held that the tests performed on appellee were too remote in time and place from the accident and therefore suppressed the results. It is from that order that the Commonwealth appeals.
The Motor Vehicle Code specifically provides for chemical testing to determine alcoholic content of the blood.*fn4 The statute does not specify that to be admissible into evidence a chemical test must be performed within any stated time
[ 258 Pa. Super. Page 509]
after an incident or arrest. This case presents the same question that we addressed in Commonwealth v. Trefry, 249 Pa. Super. 117, 375 A.2d 786 (1977). In that case, we held that there was probable cause that rendered the appellant's arrest legal and that therefore, the chemical tests should not be suppressed as tainted by an illegal arrest, as the lower court had held. We also determined that a one and one-half hour delay between a motorist's arrest and the performance of a blood test did not render the results inadmissible in the appellant's trial on charges of involuntary manslaughter, failure to stop at the scene and give identification and driving under the influence of liquor. We reversed the lower court's suppression order, emphasizing that: "At trial, the results of a test, as indicative of intoxication at a relevant ...