No. 1408 October Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas of Lycoming County, Criminal at No. 77-10,580
Karl K. Baldys, Williamsport, for appellant.
Robert F. Banks, Assistant District Attorney, Williamsport, for Commonwealth, appellee.
Spaeth, Brosky and Van der Voort, JJ. Van der Voort, J., dissents.
[ 292 Pa. Super. Page 110]
Appellant was convicted of driving under the influence of alcohol and recklessly endangering another. The charges arose out of an accident which occurred on May 5, 1977 in Williamsport.
Thompson described the accident as resulting from a dip in the highway causing his car to "bottom out" and subsequently lose control. Witnesses to the accident alter appellant's story only to the extent that the automobile bottomed out not because of a dip in the road -- though a dip was present -- but because of the excessive speed at which the vehicle was driven.
Appellant suffered numerous injuries. Thompson's wife, who was also injured in the accident, stated her husband was incoherent when taken to the hospital, though conscious. After appellant's injuries were stabilized, police requested that a blood test be given him to determine the amount of alcohol in his body. Thompson asserts he never gave any consent for blood to be taken. Hospital records include a consent form signed by appellant. Thompson testified he had several beers and a shot before the accident.
A motion was presented to suppress evidence of the blood test on August 4, 1977. A hearing was scheduled for August 17, 1977, but the Commonwealth requested and received a continuance because the investigating police officer was suspended and unavailable. The hearing was postponed to the next term of court.
The Commonwealth did not call the case at the next term but waited until the subsequent term to request a suppression hearing be rescheduled. It was scheduled for November 2, 1977. At that hearing, the investigating officer gave
[ 292 Pa. Super. Page 111]
testimony, however, was once again unavailable for trial which would have been held between November 8 and November 11.
The Commonwealth received an extension of time under Pennsylvania Rule of Criminal Procedure 1100 (hereinafter Rule 1100) on November 10, 1977. The original Rule 1100 date -- November 14, 1977 -- was extended to the December trial term.
At trial, the judge allegedly incorrectly instructed the jury. "The [appellant] objected to the Judge's charge which seemed to state that a finding of driving under the influence would result in a conviction of recklessly endangering." Appellant's brief, page vii.
Thompson presents four issues for our resolution. First, did the trial court properly extend the time for trial under Rule 1100? Second, did the trial court properly refuse to suppress evidence of the blood test? Third, was the trial judge's instructions proper. Fourth, was ...