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COMMONWEALTH PENNSYLVANIA v. SAMUEL A. LITZENBERGER (09/07/84)

filed: September 7, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
SAMUEL A. LITZENBERGER, APPELLANT



No. 2461 Philadelphia, 1982, Appeal from Order and Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Bucks County, No. 847, 1977.

COUNSEL

Ralph W. Litzenberger, Easton, for appellant.

William Merz, Assistant District Attorney, Doylestown, for Commonwealth, appellee.

Cavanaugh, Wieand and Cirillo, JJ.

Author: Wieand

[ 333 Pa. Super. Page 474]

Samuel A. Litzenberger, a practicing attorney, was tried non-jury and was found guilty on a charge of driving while under the influence of alcohol which had been brought after his involvement in a vehicular accident in Bucks County. On direct appeal from the judgment of sentence, Litzenberger contends: (1) the evidence was insufficient to sustain the conviction; (2) the trial court erred when it refused to suppress the results of a breathalyzer test showing that Litzenberger's blood alcohol had been .22 percent; and (3) trial counsel employed by Litzenberger was constitutionally ineffective.*fn1 We find no merit in these contentions and, accordingly, affirm the judgment of sentence.

[ 333 Pa. Super. Page 475]

When considering the sufficiency of the evidence, we are required to view the evidence, together with all reasonable inferences to be drawn therefrom, in the light most favorable to the Commonwealth, which has won the verdict. The test is whether the evidence, when so viewed, is sufficient to permit a finding of guilt beyond a reasonable doubt. Commonwealth v. Stoyko, 504 Pa. 455, 462, 475 A.2d 714, 718 (1984); Commonwealth v. Hamm, 325 Pa. Super. 401, 407-408, 473 A.2d 128, 131 (1984). In making this determination, we consider all the evidence adduced at trial, whether the court's evidentiary rulings thereon were correct or not. Commonwealth v. Gray, 322 Pa. Super. 37, 40, 469 A.2d 169, 170 (1983); Commonwealth v. Fields, 317 Pa. Super. 387, 395, 464 A.2d 375, 379 (1983). Conflicts in the evidence must be resolved by the trier of the facts, in this case the trial judge, who alone must decide the credibility and weight of the evidence. See: Commonwealth v. Smith, 502 Pa. 600, 604, 467 A.2d 1120, 1122 (1983); Commonwealth v. Hamm, supra, 325 Pa. Superior Ct. at 407-408, 473 A.2d at 131; Commonwealth v. Taylor, 324 Pa. Super. 420, 425, 471 A.2d 1228, 1229-1230 (1984).

On the evening of January 3, 1977, at or about 9:30 p.m., appellant was operating a vehicle at a high rate of speed on Route 212 in Pleasant Valley when it collided with a vehicle emerging from a private driveway and being operated by Sharon LaBarr. Chief Alex Chasar and Officer Robert Kramer of the Springfield Township Police arrived shortly thereafter. Chasar placed flares on the roadway, and Kramer interviewed the two drivers. Kramer observed an odor of alcohol emanating from appellant, as well as his disorientation and slurred speech. When asked for an operator's license and owner's card, appellant experienced difficulty in producing them. During the time that Kramer was writing his report, he observed appellant walking around in the roadway and admonished him on several occasions to stay out of the road. When appellant entered

[ 333 Pa. Super. Page 476]

    the vehicle of his wife, who had arrived at the scene in response to appellant's telephone call, and gave evidence of an intent to leave the accident scene, Chasar instructed Kramer to have appellant sit in the police vehicle. Kramer then read to appellant his rights under Miranda and told him that he was being placed under arrest for driving while under the influence. With Litzenberger in his police vehicle, Kramer set out for the State Police Barracks in Dublin for purposes of administering a sobriety test to appellant. While en route, Kramer was advised by radio that the equipment at Dublin was inoperative. Therefore, he took appellant a distance of fifteen miles to the barracks of the State Police located at Bethlehem. There a breathalyzer test was administered and disclosed a blood alcohol content of .22 percent.

This evidence was clearly sufficient to support appellant's conviction. He contends, however, that the breathalyzer test was unlawfully administered (a) because his arrest had been without probable cause; and (b) because the test was administered in a county different than that in which the alleged offense occurred. The suppression court found that appellant had been arrested by Officer Kramer after Kramer had probable cause to believe that appellant had been under the influence of alcohol at the time the accident occurred. In reviewing the findings of the suppression court, we will not disturb that court's findings if they are supported by the record; in making such a determination, we look only to the prosecution's evidence and so much of the evidence of the defense as, looking at the record as a whole, remains uncontradicted. Commonwealth v. Frederick, 327 Pa. Super. 199, 206, 475 A.2d 754, 758 (1984). The suppression court's order is fully supported by the record in this case. Although the offense which appellant was ...


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