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submitted: January 24, 1984.


No. 374 Pittsburgh 1983, Appeal from the Order of the Court of Common Pleas of Venango County, Criminal Division at No. SD 144 of 1982.


William G. Martin, Jr., Assistant District Attorney, Franklin, for Commonwealth, appellant.

Oliver J. Lobaugh, Seneca, for appellee.

Wieand, Tamilia and Popovich, JJ. Wieand, J., concurs in the result. Tamilia, J., filed a concurring and dissenting opinion.

Author: Popovich

[ 330 Pa. Super. Page 168]

This is an appeal by the Commonwealth from the Order of the Court of Common Pleas of Venango County (per President Judge William E. Breene) granting appellee's, James G. Monarch's, Motion for a New Trial.*fn1 We reverse.

At the outset, it requires mentioning that the Commonwealth assails the propriety of the post-trial motion judge's ruling, which is, in essence, a reversal of his earlier decision denying counsel's motion to suppress evidence -- a viewing by the police of appellee's alleged intoxicated condition -- secured during the effectuation of a warrantless arrest of the appellee for driving while intoxicated. 75 Pa.C.S.A. ยง 3731. Therefore, inasmuch as the issue posed concerns a pure question of law, the matter is properly before us. Commonwealth v. Liddick, 471 Pa. 523, 370 A.2d 729 (1977); Commonwealth v. Holderman, 284 Pa. Super. 161, 425 A.2d 752 (1981); Commonwealth v. Baldwin, 253 Pa. Super. 1, 384 A.2d 945 (1978).

Our review in this area "is limited to ascertaining whether the lower court abused its discretion or committed an error of law." (Citations omitted) Commonwealth v. White, 482 Pa. 197, 199, 393 A.2d 447, 449 (1978). In doing so, we will "analyze [ ] all the facts and circumstances[.]" Commonwealth v. Coley, 466 Pa. 53, 65, 351 A.2d 617, 623 (1976).

[ 330 Pa. Super. Page 169]

In compliance with the aforesaid, we start by examining the evidence adduced at the October 5, 1982 suppression hearing; to-wit: At 8:04 on the 5th of March, 1982, Borough of Sugarcreek Patrolman Hoover and Captain Baker received a radio bulletin of a hit-and-run accident on Front Street. Within 11 minutes the police had arrived on the scene. Captain Baker began questioning the owner (a Barry Shaw) of the damaged vehicle, while Patrolman Hoover made his way to a second vehicle, situated about 50 yards down the road, with its 4-way flashers operating. He was met by a Mr. Charles Keas, who was standing near the vehicle owned by a Mr. Seigworth and later determined not to be involved in the accident. The patrolman recalled:

Mr. Keas advised me at that time, he pointed and he said, "That's the vehicle there that hit the car," and he then told me, "His name is Monarch," . . . . (RR. 13A)

More particularly, Mr. Keas, having heard the accident and seeing "Monarch get out of his vehicle, f[a]ll down and [then go] into the house" at 162 Front Street (RR. 21A), was pointing specifically at the vehicle parked at the aforecited address.

As the patrolman made his way down the driveway, he observed a blue Toyota "with fresh damage . . . on the passenger side of the rear door. The paint was still chipped and metal was still shining underneath." (RR. 14A) Mr. Shaw's vehicle was struck in the left rear and all along the same side. (RR. 26A) Then, Patrolman Hoover was approached by Mrs. Monarch, who had seen him from inside of the house and came out to ask if there was any problem. The patrolman told Mrs. Monarch that her husband had been involved in a hit-and-run accident and that he wanted to speak with him. Mrs. Monarch responded that she had given her husband a sedative and that he was "in bed sleeping . . . because he was shook up about the accident . . . ." (RR. 14A) Nonetheless, the patrolman stated he "wanted to speak to her husband and she said, 'O.K.'" (RR. 22A) Moreover, on this question of consent, defense

[ 330 Pa. Super. Page 170]

    counsel engaged in the following exchange with the patrolman; viz.:

Q Did she tell you to come into the house?

A Yes, sir.

Q What did she say?

A She said, "O.K., come on," and we began walking up the driveway onto the front porch. (RR. 22A)

As soon as the patrolman entered the hallway, he observed Mr. Monarch, at a distance of approximately 3 feet:

Immediately thereafter, Mr. Monarch was advised of his Miranda rights and that he was under arrest for driving under the influence of alcohol. At this point, appellee requested if he could use the phone and if the patrolman would step outside during the call. The patrolman complied. By this time, Captain Baker had arrived. When Mrs. Monarch asked if one of the officers would speak to the party on the other end of the line, Baker did so. Following the conversation, the police were asked again to step outside while a second call was made. The officers agreed. However, after the officers observed the appellee retrieve a beer from their vantage point on the porch, Patrolman Hoover walked back into the hallway and removed the beer from appellee's hand because he "didn't want it to interfer [sic] with the breathalizer test." (RR. 18A)

With the conclusion of the phone conversation, appellee was transported to the police station and informed of the consequences if he refused to take the breathalizer test. Appellee refused and, thereafter, was driven back to his residence.

Captain Baker corroborated the patrolman's accounting regarding appellee's intoxication. (RR. 28A) As for Mrs. Monarch, her version deviates from that of the patrolman on the issue of consensual entry. Specifically, she testified

[ 330 Pa. Super. Page 171]

    to asking the patrolman to "wait outside" while she went into the house to see if she could get her husband. According to Mrs. Monarch, the patrolman did not do so. Rather, as she "began to enter [her] house . . . he followed [her] in." (RR. 34A) She also stated that the patrolman could not have seen her husband if he had remained on the porch. Entry was required.

The suppression court, after listening to all of the testimony, denied appellee's motion to suppress evidence of his insobriety. The court found as a fact that, "[a]t the very least, Patrolman Hoover had Mrs. Monarch's permission to stand on the defendant's porch." And, "[f]rom the porch, Patrolman Hoover could see defendant standing in his living room . . . intoxicated." Thus, the court concluded as a matter of law that, "[s]ince Patrolman Hoover was on the defendant's porch with Mrs. Monarch's permission, everything he observed prior to defendant's arrest shall not be suppressed." (Suppression Court's Opinion at 2 & 5) We find that the record supports such a conclusion. Compare Commonwealth v. Hamlin, 302 Pa. Super. 86, 448 A.2d 538 (1982), aff'd 503 Pa. 210, 469 A.2d 137 (1983).

As is relevant to a determination of the issue at bar, i.e., whether the trial court committed an error of law in holding that the Commonwealth did not establish at trial that Patrolman Hoover had Mrs. Monarch's permission to be in the position he was in when he observed the appellee in an allegedly intoxicated state, we need ...

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