Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Lehigh County, No. 1332 of 1984.
Robert J. Magee, Allentown, for appellant.
Henry Perkin, Assistant District Attorney, Allentown, for Com.
Cirillo, President Judge, and Wieand and Olszewski, JJ. Cirillo, President Judge, files a dissenting opinion.
[ 358 Pa. Super. Page 532]
The principal issue in this appeal is whether the criminal offenses defined in 75 Pa.C.S. § 3731(a)(1) and 75 Pa.C.S. § 3731(a)(4) are "cognate" offenses for the purpose of applying Pa.R.Crim.P. 225 to the preparation of a criminal information.
At or about midnight on July 20, 1984, Brian Slingerland lost control of his motorcycle while operating it on Cetronia Road in South Whitehall Township, Lehigh County. When Tpr. Theodore Kohuth arrived at the scene of the accident, Slingerland had already been placed in an ambulance. Kohuth
[ 358 Pa. Super. Page 533]
completed his investigation at the scene of the accident and then followed the ambulance to the Lehigh Valley Hospital Center. When he arrived shortly after 1:00 a.m. and observed Slingerland lying on a hospital gurney, he detected an odor of alcohol about Slingerland's person and observed that Slingerland was disoriented and glassy eyed. Kohuth was of the opinion that Slingerland was under the influence of alcohol; and, therefore, he requested that a blood sample be drawn. Pursuant to this request, blood was taken from Slingerland at 1:23 a.m. and, when tested, disclosed a blood alcohol content of .13%.
Kohuth filed a criminal complaint averring that Slingerland had operated a motor vehicle while under the influence of intoxicating liquor to an extent which rendered him incapable of safe driving, in violation of 75 Pa.C.S. § 3731(a)(1).*fn1 After a preliminary hearing had been held and the criminal proceedings had been returned to court, the District Attorney prepared and filed an information which alleged, in addition to a violation of 75 Pa.C.S. § 3731(a)(1), that Slingerland had operated a motor vehicle when the alcoholic content of his blood exceeded .10%, this being a violation of 75 Pa.C.S. § 3731(a)(4). Slingerland filed an omnibus pre-trial motion requesting, inter alia, that the added charge be quashed as being in violation of Pa.R.Crim.P. 225. This motion was denied. Subsequently, a jury found Slingerland not guilty of violating 75 Pa.C.S. § 3731(a)(1) but guilty of driving while his blood alcohol content exceeded .10% in violation of 75 Pa.C.S. § 3731(a)(4). Post-trial motions were denied, and Slingerland was sentenced to pay a fine of three hundred ($300) dollars and undergo imprisonment for not less than thirty (30) days nor more than six (6) months. Slingerland appealed.
He argues on appeal that the second count in the information, which charged him with violating Section 3731(a)(4), should have been quashed because it had not been included in the criminal complaint filed by the prosecuting state
[ 358 Pa. Super. Page 534]
trooper. Pa.R.Crim.P. 225(b)(5) requires "a plain and concise statement of the essential elements of the offense substantially the same as or cognate to the offense alleged in the complaint . . . ." (Emphasis added). In Commonwealth v. Donaldson, 339 Pa. Super. 237, 239-240, 488 A.2d 639, 640-641 (1985), this Court said that Rule 225(b)(5)
does not require that the crime charged in the Information be identical to that charged in the Complaint as long as the charge is cognate to the one laid in the Complaint. Commonwealth v. Taylor, 324 Pa. Super. 420, 471 A.2d 1228 (1984); Commonwealth v. Wilkinson, 278 Pa. Super. 490, 420 A.2d 647 (1980); Commonwealth v. El, 273 Pa. Super. 1, 416 A.2d 1058 (1979); Commonwealth v. Epps, 260 Pa. Super. 57, 393 A.2d 1010 (1978).
In Wilkinson, supra, we wrote:
As stated in Commonwealth v. Cortes, 182 Pa. Super. 602, 605, 128 A.2d 155, 156 (1956), "The police and other law enforcement officers and justices of the peace who formulate the complaints are not expected to be learned in the law." If the complaint puts the defendant on notice of the substance of the crime for which he is being charged, it is sufficient. 278 Pa. Super. at 498 n. 6, 420 A.2d at 651 n. 6.
The two counts of the formal information prepared by the District Attorney in this case charged appellant with violating different subsections of the same section of the Vehicle Code. Section 3731(a) of the Vehicle Code (75 Pa.C.S. § 3731(a)), provides as follows:
(a) A person shall not drive, operate or be in actual physical control of the ...