No. 2501 October Term, 1978, Appeal from Judgment of Sentence of the Court of Common Pleas of Luzerne County, Criminal Division, No. 2150-51 of 1976.
Joseph J. Musto, Wilkes-Barre, for appellant.
Anthony J. Lucadamo, Assistant District Attorney, Wilkes-Barre, for Commonwealth, appellee.
Hester, Hoffman and Catania,*fn* JJ.
[ 274 Pa. Super. Page 422]
Appellant Raymond M. Guiliano was convicted by a jury in the Court of Common Pleas of Luzerne County of two counts of involuntary manslaughter. Post-trial motions were argued and denied and sentences of nine to eighteen months imprisonment were imposed on each count, to run consecutively. This direct appeal followed.
Facts adduced at trial established the following. At approximately 11:30 p. m. on July 9, 1976, appellant lost control of his car and smashed into a pole on Route 315 in Plains Township, Luzerne County. Two passengers were killed instantly, while appellant sustained only minor injuries. From the scene, appellant was transported by ambulance to Wilkes-Barre General Hospital where, after preliminary examination and X-rays, a blood sample was drawn from his arm at the direction of the investigating officer. Chemical analysis established a reading of .11% blood alcohol level.
[ 274 Pa. Super. Page 423]
Appellant first contends the court erred in refusing to suppress the results of the blood test. At the pre-trial suppression hearing, it was shown that appellant was first interviewed at the hospital by Officer George Mikelski of the Plains Township police force. After receiving a statement from appellant relative to the accident, Officer Mikelski summoned his superior, Sergeant Frank Pizzella, to the hospital. Pizzella had observed appellant briefly at the accident scene and, with Mikelski, was suspicious of appellant's explanation of how the smash-up had occurred.*fn1 At the hospital, Pizzella noticed appellant's eyes were dilated, his pupils were a pinkish color, and his speech fluttered. Suspecting appellant had been drinking, the officer asked appellant if he would submit to a blood test. After some discussion, appellant signed a consent form and the test was performed. Appellant was not arrested or charged with any crimes until the following month. He now contends his consent was not voluntary and intelligent, Commonwealth v. Curtis, 253 Pa. Super. 163, 384 A.2d 1280 (1978), that he was not under arrest, Commonwealth v. Murray, 441 Pa. 22, 271 A.2d 500 (1970) and therefore the test results should have been suppressed. We need not decide these issues for it is clear that probable cause existed to extract the blood sample. In Commonwealth v. Funk, 254 Pa. Super. 233, 240, 385 A.2d 995, 999 (1978), this Court stated:
We recognize that as a blood test is a search, its administration on a suspect unable to refuse it must pass the test of constitutionality. In Commonwealth v. Quarles, 229 Pa. Super. 363, 324 A.2d 452 (1974) applying this test, we looked to Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973), and held that a blood test may be taken against a suspect's wishes and without
[ 274 Pa. Super. Page 424]
an arrest, where the police have probable cause to believe the suspect was driving while intoxicated, in order to get evidence of the blood alcohol level, evidence that is particularly evanescent.
We do not hesitate in deciding that probable cause was present to believe that appellant had been drinking while driving. Appellant's pupils, eyes, and speech all suggested consumption of alcohol. Further, a serious one-car accident had occurred, thus corroborating other evidence of intoxication. Funk, supra. Moreover, the test was performed in a reasonable manner by a qualified technician in a hospital. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Finally, the decision to take a blood test, as opposed to a breathalyzer was reasonable. ...