No. 647 Pittsburgh, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas of Somerset County, Criminal Division, at No. 49 of 1979.
Joseph B. Policicchio, Somerset, for appellant.
Raymond J. Zadzilko, Assistant District Attorney, Ebensburg, for Commonwealth, appellee.
Cercone, President Judge, and Brosky and Hoffman, JJ.
[ 299 Pa. Super. Page 244]
Appellant was convicted of homicide by vehicle, driving while under the influence of alcohol, and the summary offense of meeting a vehicle proceeding in the opposite direction as a result of a two-car collision in Somerset County. On this appeal, he alleges several errors by the lower court. For the reasons that follow, we reverse appellant's conviction for homicide by vehicle, and affirm in all other respects.
On January 19, 1979, at approximately 10:30 p. m., appellant left the home of a friend after consuming eight 12-ounce cans of beer in less than three hours. Shortly thereafter, as he was headed south on Route 280, appellant's automobile crossed the center line of the highway and crashed head-on into the automobile driven by Herbert L. Ringler. Mr. Ringler was pronounced dead at the scene. Appellant was taken to Somerset Community Hospital for treatment of several facial injuries, where, at police request, he consented to a blood test to determine his blood alcohol content. The test results indicated that appellant's blood alcohol level was .32. Appellant was later charged with homicide by vehicle, driving while under the influence of alcohol, and meeting a vehicle proceeding in the opposite direction. Following his conviction on all charges, the denial of post-trial motions, and the imposition of sentence, appellant took this appeal.
Appellant contends first that the lower court erred in failing to suppress the results of his blood test. We disagree. The Commonwealth must show by a preponderance of the evidence that the challenged evidence is admissible. Pa.R.Crim.P. 323(h); Commonwealth v. Brown, 473 Pa. 562, 566, 375 A.2d 1260, 1262 (1977). In reviewing a suppression court's ruling, we must determine whether the record supports its findings of fact, inferences, and conclusions of law. Commonwealth v. Brown, supra, 473 Pa. at 566, 375
[ 299 Pa. Super. Page 245]
A.2d at 1262; Commonwealth v. Goodwin, 460 Pa. 516, 521, 333 A.2d 892, 895 (1975). When a suppression court denies the motion, we "will consider only the evidence of the prosecution's witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole remains uncontradicted." Commonwealth v. Brown, supra, 473 Pa. at 566, 375 A.2d at 1261. See Commonwealth v. Kichline, 468 Pa. 265, 280, 361 A.2d 282, 290 (1976). Read in this light, the testimony at the suppression hearing reveals that appellant's automobile unexpectedly crossed the center line of the highway and crashed into Mr. Ringler's automobile. At the hospital, the investigating officer found appellant to be conscious and coherent, but with bloodshot eyes, an unsteady gait, and the strong smell of alcohol on his breath. The officer requested that appellant submit to a blood test, and informed him of the penalty for noncompliance. Appellant consented both orally and in writing. The nurse and attending physician testified that appellant was alert and aware when he gave consent to the test. The treating physician opined that there was no reason why appellant would not remember the events at the hospital. We are satisfied that the record adequately supports the suppression court's finding of consent. Cf. Commonwealth v. Webb, 491 Pa. 329, 421 A.2d 161 (1980) (testimony of police officers and medical personnel concerning defendant's alertness, coherence, and apparent lack of distress and discomfort established that the statement was voluntarily given).*fn1
[ 299 Pa. Super. Page 246]
Appellant contends next that the trial judge should have recused himself because he had presided at the suppression hearing. We disagree. Appellant was not prejudiced by the actions of the judge. The evidence adduced at the suppression hearing did not concern the summary offense of which the judge was the sole trier of fact. As to the remaining offenses, the jury was the sole trier of fact. See Commonwealth v. Pettiford, 265 Pa. Superior Ct. 466, 469, 402 A.2d 532, 533 (1979). Appellant's vague assertions that the trial judge's dual role may have influenced his evidentiary rulings and jury instructions are simply unsupported by the record and patently frivolous.
Appellant contends next that the lower court erred in not granting his demurrer to the charge of driving while under the influence of alcohol. "In ruling on a demurrer, the proper test to be applied by the trial court is whether the Commonwealth's evidence and all reasonable inferences therefrom is sufficient to support a finding by the trier of fact that the accused is guilty beyond a reasonable doubt." Commonwealth v. Wimberly, 488 Pa. 169, 171, 411 A.2d 1193, 1194 (1979). See also Commonwealth v. Matsinger, 288 Pa. Superior Ct. 271, 431 A.2d 1043 (1981). Appellant consumed eight cans of beer in less than three hours. His automobile crossed the center line of the highway without reason and crashed into the victim's vehicle. His blood alcohol level two hours after the accident was extraordinarily high at .32. See 75 Pa.C.S.A. § 1547(d)(3) (.10 ...