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COMMONWEALTH PENNSYLVANIA v. EDWARD A. WALSH (04/22/83)

filed: April 22, 1983.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
EDWARD A. WALSH



No. 1512 Philadelphia, 1980, Appeal from the Suppression Order of the Court of Common Pleas of Delaware County, Criminal Division, at No. 638 of 1980

COUNSEL

Vram Nedurian, Jr., Assistant District Attorney, Media, for Commonwealth, appellant.

Eugene F. Jarrell, III, Media, for appellee.

Wickersham, Brosky and Wieand, JJ. Wieand, J., concurs in result.

Author: Brosky

[ 314 Pa. Super. Page 68]

The Commonwealth appeals here from the suppression of the results of a test to measure the alcoholic content of appellee's blood. Appellant contends that appellee's consent to the test was voluntary and knowing. We agree and accordingly reverse the suppression order and remand.

Factual Background

The accident giving rise to the instant criminal prosecution occurred at approximately 11:30 p.m. on January 18, 1980 on the Commodore Barry Bridge. Appellee, Walsh, was observed driving at an estimated 70 miles per hour on the approach to the bridge, swerving past a car with only 15 feet to spare. On the bridge itself, he continued to weave in and out of traffic at an estimate 85 miles per hour. Walsh then crossed over an empty lane and hit the front fender of Deborah Reitz's car as it came from the opposite direction. Walsh's car continued on for several hundred feet, hit the guard rail and came to a stop. Reitz's car ended up facing the direction from which it had come, its front left side and hood smashed in. Deborah Reitz, aged 26, was pronounced dead at the scene, having suffered multiple head injuries.

[ 314 Pa. Super. Page 69]

Walsh, a 48 year-old man, received facial lacerations and broken ribs and was taken to Crozer Chester Medical Center. A passing motorist who stopped to render assistance did not smell alcohol on Walsh's breath or observe any indicators of intoxication. At the hospital, Walsh's condition was evaluated by a Dr. Gorrell. At the suppression hearing, he testified that Walsh was "awake, coherent and oriented"; that he observed no "neurological deficit"; that there was no indication of a concussion; that there was no sign that Walsh didn't understand what was being said to him; and that appellee stated that he had not been unconscious as a consequence of the accident.

Patrolman Sirisky of the Delaware River Port Authority police went to the hospital and was told by Dr. Gorrell that Walsh was in a physical condition that allowed conversation with him. Sirisky stated at the suppression hearing that his subsequent conversation with Walsh occurred in the following sequence. First, Sirisky gave appellee a Miranda warning and was told by Walsh that he understood those rights. Second, he informed Walsh that someone was killed in the accident in which he had been involved. Third, he questioned appellee and heard Walsh's account of the accident. Fourth, the consent form for the alcohol in blood test was explained by Sirisky to appellee.*fn1 Fifth, Sirisky was present when Walsh signed the consent form and then signed it as a witness himself. The blood sample was then taken from appellee.

Patrolman Sirisky also testified at the suppression hearing that appellee was not under arrest when the blood sample was taken; that at that time Walsh was not suspected (for lack of any knowledge about how the accident had occurred), of having committed a crime or of having violated the Motor Vehicle Code; that he didn't smell any alcohol on appellee's breath or observe that he was under the influence of alcohol.

[ 314 Pa. Super. Page 70]

A few days later, appellee was arrested and held for court following a preliminary hearing. Informations were then filed on the following charges: Involuntary Manslaughter;*fn2 Reckless Driving;*fn3 Driving Vehicle at Unsafe Speed;*fn4 and Speeding.*fn5 Appellee pleaded not guilty and filed a motion to suppress the blood test results on the ground that his consent was involuntary in that he did not know that the blood test results were to be used in his criminal prosecution. Following a suppression hearing on June 9, 1980, the court below granted the motion to suppress. The District Attorney took a timely appeal from that order.

Appealability

The threshold issue in this case is the appealability, prior to a trial and conviction, of the suppression order. Quite recently the test to be applied in determining whether a particular suppression order is interlocutorily appealable by the prosecution has been changed. Commonwealth v. Lapia, 311 Pa. Superior 264, 457 A.2d 877 (1983) (en banc). The current form of the standard is: ". . . an order suppressing evidence is appealable when it is apparent from the record that the order terminates or substantially handicaps the prosecution." Commonwealth v. Lapia, supra, 311 Pa. Superior at 364, 457 A.2d 877.*fn6

We find that this standard has been met here and the suppression order is appealable. There being no living witness to the accident itself (other than appellee), the

[ 314 Pa. Super. Page 71]

    results of the blood test are quite obviously an important element of the prosecution's case. While the absence of the blood test might not terminate the prosecution, we have no hesitation in concluding that it would at least work a substantial handicap.*fn7

Scope of Review and Burden of Proof

The proper scope of appellate review for a case of this type was defined in Commonwealth v. Curtis, 253 Pa. Super. 163 at 170, 384 A.2d 1280 at 1284 (1978).

In reviewing the lower court's determination that appellee did not voluntarily and knowingly consent to a blood alcohol test, we must consider the evidence adduced at the suppression hearing in the light most favorable to appellee and must give appellee the benefit of all reasonable inference arising from the evidence.

When the evidence is viewed by the appellate court in the manner described above, it must establish ...


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