No. 1152 October Term, 1978, Appeal from the Judgment of sentence entered February 27, 1978, by the Court of Common Pleas, Criminal Division, Northampton County, at No. 1631-1977.
Donald P. Russo, Public Defender, Bethlehem, for appellant.
John J. Segata, Jr., Assistant District Attorney, Bethlehem, for Commonwealth, appellee.
Van der Voort, Watkins and Montgomery, JJ. Van der Voort, J., concurs in the result.
[ 265 Pa. Super. Page 463]
This is an appeal from the judgment of sentence of the Court of Common Pleas of Northampton County, Criminal Division, by the defendant-appellant, William J. Palmer, after conviction by a jury of driving under the influence. He was fined $350.00 as a result of the conviction.
On appeal, the defendant claims that there was insufficient evidence adduced at trial in order to establish his guilt beyond a reasonable doubt.
At 2:21 A.M. on the morning of July 9, 1977 a police officer of the Upper Mt. Bethel Township police department received a call concerning an accident on Route 611 in the Village of Mt. Bethel, just south of Middle Village Road. The officer responded to the call and arrived at the scene at 2:35 A.M. where he discovered a vehicle the front end of which was hanging off the roadway over an embankment. The officer saw two men standing near the rear portion of
[ 265 Pa. Super. Page 464]
the vehicle and asked them who the driver of the vehicle was. The defendant responded that he was the driver. He then asked the defendant for his driver's license and owner's card. Although he was able to produce these documents he had great difficulty extracting them from their normal resting place as he was staggering about and fumbling for the requested items. The officer also noticed a strong smell of alcohol while talking to the defendant and the defendant's voice was unsteady, wavering and muffled.
The officer then suggested that the defendant be seated in the police vehicle while he inspected the vehicle's damages. Defendant complied with this suggestion but then left the police vehicle twice and attempted to walk to his home which was a relatively short distance away. The officer had to bring him back to the vehicle both times and during the second episode the defendant threw a punch at one of the other officers who had arrived on the scene. At that point he was handcuffed.
At trial another officer testified that the guardrail where defendant's vehicle was found was dented, that the wheels of defendant's vehicle were still warm when he arrived at the scene, and that the guardrail and a metal pole had been damaged about one-quarter mile down the roadway from where they came upon defendant's vehicle. They found a portion of defendant's vehicle's chrome at that point and paint scrapings removed from that area matched the paint on defendant's vehicle.
Defendant claims that the foregoing evidence was insufficient to convict him to driving under the influence as a matter of law as no one actually saw him driving the vehicle or behind the steering wheel. The problem with this argument is that the defendant admitted that he was the operator of the vehicle to the investigating police officer and, of course, this admission is admissible at trial as an exception to the hearsay rule. Logue v. Gallagher, 133 Pa. Super. 570, 3 A.2d 191 (1939). However, ...