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COMMONWEALTH PENNSYLVANIA v. MICHAEL WILLIAM MCGINNIS (09/25/86)

decided: September 25, 1986.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
MICHAEL WILLIAM MCGINNIS, APPELLANT



Appeal from the Order of Superior Court at No. 332 Harrisburg, 1983, Affirming the Judgment of the Court of Common Pleas of Cumberland County at No. 251 Criminal 1983, Dated July 7, 1983. Pa. Superior Court , Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Hutchinson, J., files a Dissenting Opinion in which Nix, C.j., joins.

Author: Papadakos

[ 511 Pa. Page 521]

Opinion OF THE COURT

Michael William McGinnis (Appellant) seeks our discretionary review of the Opinion and Order of Superior Court affirming the judgment of sentence imposed on him by the Court of Common Pleas of Cumberland County. Appellant was arrested and charged with operating a motor vehicle while driving under the influence of alcohol*fn1 on February

[ 511 Pa. Page 52216]

, 1983. A jury trial was held in this matter before the Honorable Dale F. Shughart, President Judge of the Court of Common Pleas of Cumberland County, on May 12 and 13, 1983, after which the jury found Appellant guilty on the drunk driving charge. The trial court also found Appellant guilty of running over a firehose, a summary offense.*fn2

Timely filed post-trial motions were denied by the trial court on July 7, 1983, and Appellant was sentenced to pay a fine of $225.00 instead of the minimum $300.00 fine (see 75 Pa.C.S. § 3731(e)(1)). Ignoring the mandatory sentence of forty-eight (48) hours incarceration (see 75 Pa.C.S.

[ 511 Pa. Page 523]

§ 3731(e)(1)(i)), the trial judge imposed a nine (9) months' unsupervised probation. Appellant was also sentenced to pay a $5.00 fine on the summary conviction instead of the mandatory $25.00 (see 75 Pa.C.S. 6502(b), now part of 75 Pa.C.S. 6502(a)). These clearly improper sentences were not appealed by the Appellant or the Commonwealth*fn3 and are, therefore, not before us for consideration.

A timely appeal to Superior Court followed. That court, by its opinion and order of December 4, 1984, affirmed the trial court's judgment of sentence. Commonwealth v. McGinnis, 336 Pa. Superior Ct. 601, 486 A.2d 428 (1984). We granted allocatur to consider Appellant's claim that the trial court improperly admitted into evidence the results of a Breathalyzer test, and now reverse.

On February 16, 1983, at about 5:00 a.m., Appellant, en route to work, drove his automobile over a fire hose in such a manner that the undercarriage of the car hooked a coupling of the hose and dragged the hose a short distance along the street until Appellant was stopped by a fireman. The five-inch firehose had been laid across North Pitt Street in Carlisle Borough by firemen who had responded to a report of a burning van.

Borough police officers were also on the scene, investigating the fire and a reported burglary in a nearby restaurant. When the firemen stopped Appellant, two nearby Borough police officers were called for assistance. Both police officers testified that when Appellant was asked to produce his operator's license and owner's card, he reacted angrily by swearing at the officers. The officers detected an odor of

[ 511 Pa. Page 524]

    alcohol on Appellant's breath, observed that his eyes were bloodshot and glassy, and noted that he fumbled through his wallet ...


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