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COMMONWEALTH PENNSYLVANIA v. KEITH BENSON (07/25/80)

filed: July 25, 1980.

COMMONWEALTH OF PENNSYLVANIA,
v.
KEITH BENSON, APPELLANT



No. 2809 October Term, 1978, Appeal from the Judgment of Sentence in the Court of Common Pleas of Lehigh County, Criminal Division, No. 1149-1977.

COUNSEL

Richard J. Orloski, Allentown, for appellant.

Scott Oberholtzer, Assistant District Attorney, Allentown, for Commonwealth, appellee.

Price, Gates and Dowling, JJ.*fn*

Author: Price

[ 280 Pa. Super. Page 25]

Appellant was tried before a jury on October 19, 1977, and found guilty of operating a motor vehicle under the influence of intoxicating liquor.*fn1 He filed timely motions in arrest of judgment and for a new trial which were denied by the court en banc. He takes this appeal alleging that the suppression court erred in failing to grant his motion to suppress evidence and that he was denied a fair trial by numerous instances of trial error. Finding an absence of

[ 280 Pa. Super. Page 26]

    merit in these contentions, we affirm the judgment of sentence.

The following facts were developed at trial. At approximately 12:30 a. m. on July 14, 1977, appellant was driving home from visiting friends with whom he had consumed several beers. During the journey, his vehicle crossed into the oncoming lane of traffic and collided with several parked vehicles at the side of the street. Hearing the crash, a neighbor, Roger F. Besecker, immediately rushed from his house and observed appellant's car resting against another car and appellant sitting in the driver's seat. Within the next several moments, and subsequent to appellant's departure from his car, numerous bystanders arrived at the scene of the accident.

Officer Robert Webre was summoned to the scene where he interviewed some of the onlookers and recorded several names. The officer observed that appellant, who had been moving about the crowd, was disheveled in appearance and staggering, and had noticeably bloodshot eyes. The officer escorted appellant to the police cruiser to obtain his description of the circumstances of the collision for the accident report, and sat with him in the front seat. During the five or ten minutes they were in the car, the officer noticed that appellant mumbled and that there was a definite odor of alcohol. Both appellant and the officer then exited the car; the officer proceeded to assist the tow truck driver to remove appellant's car and appellant was left milling about the area. Once the wreckage was cleared, the officer placed appellant under arrest and told him to get into the back of the police cruiser. As the officer pulled away from the curb, he read appellant his Miranda rights from a card.

Officer Webre drove appellant to the police station where he received a physical examination and performed some physical coordination tests. At approximately 1:35 a. m., appellant consented to and was given a Mobat Sober-Meter

[ 280 Pa. Super. Page 27]

    test.*fn2 The results of this test showed a reading of .12 per cent alcohol by weight in the blood.

Appellant challenges the legality of his arrest claiming that it was made without probable cause and that all evidence resulting therefrom must be suppressed. He contends that the arrest occurred when he initially entered the police car and was seated in the front to discuss the accident and that the court erred in finding the arrest occurred at a later time. We disagree.

The test for the occurrence of an arrest has often been defined as the happening of any act that indicates an intention to take the individual into custody and subjects him to the actual control and will of the person making the arrest. Commonwealth v. Farley, 468 Pa. 487, 364 A.2d 299 (1976); Commonwealth v. Allessie, 267 Pa. Super. 334, 406 A.2d 1068 (1979). An arrest may thus be effectuated without the actual use of force and without a formal statement of arrest. Commonwealth v. Daniels, 455 Pa. 552, 317 A.2d 237 (1974). The question is viewed in light of the reasonable impression conveyed to the person subjected to the seizure rather than in terms of the subjective view of the police officer. Commonwealth v. Holmes, 482 Pa. 97, 393 A.2d 397 (1978); Commonwealth v. Richards, 458 Pa. 455, 327 A.2d 63 (1974).

The instant facts reveal that no act indicating an intent to take appellant into custody or actually subjecting him to the officer's control and will occurred until appellant was formally placed under arrest and seated in the back of the patrol car. Prior to that time, appellant was apparently cooperative in filling out the accident report and willing to discuss the incident. The officer engaged in a reasonable course to separate appellant from the commotion so he could investigate the accident. The lack of control ...


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