No. 399 Philadelphia, 1980, Appeal from Order of the Court of Common Pleas, Criminal Division, of Montgomery County at No. 848 of 1979.
David M. McGlaughlin, Assistant District Attorney, Norristown, for Commonwealth, appellant.
Maurind J. Rossanese, Norristown, for appellee.
Spaeth, Hester and Cavanaugh, JJ.
[ 295 Pa. Super. Page 451]
In this case, Francis X. Monaghan, the operator of a tow-truck was charged with operating a motor vehicle while under the influence of alcohol in violation of the Vehicle Code, Act of June 17, 1976, P.L. 162, No. 81, 75 Pa.C.S.A. § 3731. The court below following a hearing before Cirillo, J. granted appellant's motion to suppress evidence and the Commonwealth has appealed from the suppression order.
On February 17, 1979, at about 1:15 a. m., Officer Worstall of the Upper Moreland Township Police was on duty in his patrol car. He heard a man who was about fifty feet away from him shouting at a tow-truck which was going south on York Road to stop. The tow-truck did so. At this point the officer thought that the man calling after the truck possibly had a problem with his car. The officer was told that the tow-truck had struck an automobile and upon examining the vehicle the officer observed recent damage to the car as there was debris next to it. The officer did not observe the tow-truck strike the vehicle. The officer then proceeded to the tow-truck and told the driver, the appellant Monaghan,
[ 295 Pa. Super. Page 452]
to move his truck off the road into a parking space about ten feet away and the operator of the truck did so. The officer then asked the appellant if he hit the vehicle and he said that he had not. The appellant then got out of his truck and walked towards the damaged vehicle with the officer who at that time noticed that the appellant was staggering, his speech was slurred and there was odor of alcohol on his breath. The appellant stated that he had "tapped" the vehicle but that he had not done the damage which the officer was pointing to. There was no visible damage to the appellant's truck. The officer told the appellant that based on his observations he was in no condition to drive. Following this the appellant used profanity and insisted that he would drive. At this point the appellant was placed under arrest by Officer Worstall.
The court below found that there was no probable cause to arrest the appellant on the charge of operating a vehicle while under the influence of alcohol and granted the motion to suppress all evidence. We believe that the court's analysis of the evidence is incorrect. The court stated in its opinion at page 2: "The only purpose of the police officer stopping the defendant was to examine for a possible accident. The police officer found no evidence of any accident; and therefore, the purpose of his investigation was completed." On the contrary, before the officer approached the appellant he was directed to a vehicle which supposedly had been struck by the tow-truck. In this respect the officer testified:
Before I approached Mr. Monaghan, I looked at the car when I got information and at that point I knew there was damage, fresh damage done, because there was some debris next to the car.
In this case, we believe it is clear that the officer had the right to approach the appellant's tow-truck which had already stopped and attempt to determine what happened since he had observed someone shouting to the tow-truck to stop and he had been shown damage to ...