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COMMONWEALTH PENNSYLVANIA v. THOMAS K. DOUGLASS (03/14/88)

filed: March 14, 1988.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
THOMAS K. DOUGLASS, APPELLEE



Appeal from an Order entered October 10, 1986 in the Court of Common Pleas of Indiana County, No. 357 of 1986 Criminal Division, No. 357 Crim. 1986.

COUNSEL

Patrick H. Mahady, Latrobe, for appellee.

Wieand, Kelly and Popovich, JJ. Wieand and Popovich, JJ., concur in the result.

Author: Kelly

[ 372 Pa. Super. Page 231]

The Commonwealth appeals from an order dismissing a homicide by vehicle while driving under the influence (75 Pa.C.S.A. ยง 3735) complaint against appellee, Thomas K. Douglass, based upon an alleged violation of Pa.R.Crim.P. 130. The Commonwealth presents two contentions on appeal: first, that the trial court erred in concluding that an "arrest" had occurred within the meaning of Pa.R.Crim.P. 130; and second, that the trial court erred in concluding that the five day period for filing a complaint prescribed by Pa.R.Crim.P. 130(d) had expired. Appellee responds that the first contention is without merit, and that the second contention was not raised in the trial court, and therefore, has been waived. We find merit in the first contention; and accordingly, vacate the order of the trial court, reinstate the complaint, and remand for further proceedings. In light of our disposition of the Commonwealth's first contention, we do not decide whether the second issue has been properly preserved.*fn1

I.

Ordinarily, a decision to dismiss a complaint is deemed an interlocutory order, and the Commonwealth's sole avenue of redress is to bring the matter before a new issuing authority before the expiration of the statute of limitations period. See Commonwealth v. Revtai, 516 Pa. 53, 66, 532 A.2d 1, 11 (1987); Commonwealth v. Allem, 367 Pa. Super. 173, 182, 532 A.2d 845, 848 (1987). Nonetheless, this Court granted immediate appeal of an identical order in Commonwealth v. Press, 342 Pa. Super. 507, 493 A.2d 705 (1985) and, on review, our Supreme Court gave no indication that direct appeal of the discharge order was improper. Thus, we find that an order granting discharge on grounds which would ostensibly preclude the refiling of new charges is not subject to de novo review by another issuing authority, but is instead subject to direct appeal as a final order.

[ 372 Pa. Super. Page 232]

However, we are not bound by findings wholly lacking in evidence. Nor are we bound by the suppression court's conclusions of law.

358 Pa. Superior Ct. at 123, 516 A.2d at 1212-13 (citations omitted).

III.

The facts of this case were summarized by the trial court as follows:

Defendant was involved in an automobile accident at approximately 8:00 P.M. on May 12, 1986, with Steven M. Ramsey, who died as a result of this accident.

At approximately 8:50 P.M. Trooper Ault of the Pennsylvania State Police arrived at the accident scene. Trooper Ault testified that from his investigation, he determined that defendant's vehicle had crossed over the center line striking the victim's vehicle in the victim's lane of traffic. Further investigation by the officer and questioning of the defendant led Trooper Ault to believe that defendant had been driving under the influence. Trooper Ault determined that the defendant had an odor of alcohol about his person, and further defendant admitted that prior to the accident he had consumed 'a few beers'. Trooper Ault directed that the defendant remain at the accident scene while he continued his investigation. The Trooper completed his investigation at approximately 11:00 P.M. and requested the defendant to accompany him to the State Police Barracks in order that an intoxilyzer test could be administered to the defendant. The defendant complied and two tests were performed, but the differentiation in results made the tests invalid. At approximately 11:45 P.M. Trooper Ault requested that the defendant accompany him to the Indiana Hospital for the purpose of obtaining a blood sample, defendant complied. The results of the blood tests were received from the State Police Laboratory May 14, 1986, showing that the defendant's blood alcohol content was .105% on May 12, 1986. A criminal complaint was filed against the defendant

[ 372 Pa. Super. Page 234]

    by Officer Ault on May 19, 1986, charging the defendant with driving under the influence of alcohol and homicide by vehicle while under the influence of alcohol.

(Trial Court Opinion at 1-2).

Although this summary of the facts of the case is generally supported by the record,*fn3 for reasons which shall become apparent, infra, we find that a more precise statement of certain facts "which as read in the context of the record as a whole, remain uncontradicted" is necessary for the proper disposition of this appeal. The trial court's findings of fact are therefore supplemented as follows.

After witnesses indicated that appellee was the driver of one of the vehicles involved in the fatal crash, the investigating officer asked appellee "what happened?" and appellee responded, "I don't know what happened. I think he came over at me. This happened about 8:00." (N.T. 9/29/86 at 5-6, investigating officer; N.T. 9/29/86 at 29, appellee). The officer also asked if appellee needed medical attention; appellee responded that he did not. (N.T. 9/29/86 at 6-7, investigating officer; N.T. 9/29/86 at 29, appellee). Then, "[h]e [the investigating officer] asked me [appellee] to remain at the scene of the accident until he was done with the investigation." (N.T. 9/29/86 at 29, appellee). The investigating officer proceeded to conduct an initial traffic accident investigation, determining the identity of witnesses, securing physical evidence and appropriate measurements, and speaking with the coroner. (N.T. 9/29/86 at 3-7, 13-17, investigating officer; N.T. 9/29/86 at 29-30, appellee). During the investigation, the investigating

[ 372 Pa. Super. Page 235]

    officer occasionally looked over at, or in the direction of, appellee. (N.T. 9/29/86 at 13-14, investigating officer; N.T. 9/29/86 at 30, appellee).*fn4 At no time during appellee's detention at the scene of the accident was he told that he was under arrest. (N.T. 9/29/86 at 7, investigating officer; N.T. 9/29/86 at 35, appellee).

The trial court indicated in its opinion that the investigating officer "requested" that appellee submit to a breathalyzer test and later to a blood test, and that appellee "complied." Trial Court Opinion at 2, 4. The trial court also characterized these events by stating that appellee was "directed to remain at the accident scene, and to accompany the trooper to the State Police Barracks and to the hospital for tests of his blood and breath." Trial Court Opinion at 3. To the extent that the trial court's findings may be construed to suggest that appellee did not freely consent to being transported to the police barracks and then to the hospital for tests of his breath and blood, we find such findings wholly without support in the record and indeed contrary to the admissions of appellee and the uncontradicted testimony of the investigating officer.

Appellee testified that after the investigating officer completed his initial on-site accident investigation:

A. He asked me if I would go with him, and he asked me if I had any objections to an intoxilyzer.

Q. And what did you respond?

A. I said I did not have any objections.

(N.T. 9/29/86 at 30). Appellee rode with the investigating officer to the police barracks in a patrol car; appellee was not handcuffed. (N.T. 9/29/86 at 8, 17, investigating officer; N.T. 9/29/86 at 30, 35, appellee). At the barracks, appellee was observed for twenty minutes before the breathalyzer tests were performed; the tests were delayed an additional ten minutes when it was discovered that

[ 372 Pa. Super. Page 236]

    appellee had gum in his mouth (which could negatively affect the results of the test). (N.T. 9/29/86 at 31, appellee). Because of the variance between the test readings, the breathalyzer tests were deemed invalid under applicable regulations. (N.T. 9/29/86 at 9, 23, investigating officer; N.T. 9/29/86 at 31-32, appellee).

The investigating officer then determined that a blood test would be necessary. The investigating officer testified that appellee was asked if he would consent to a blood test and appellee responded that he had no objections. (N.T. 9/29/86 at 10). Appellee testified on direct examination:

Q. Keep your voice up. What did you -- What did he then do or direct you to do?

A. He told me we was going to Indiana Hospital to take a blood test.

Q. Did you agree with that?

A. I don't remember if I said anything or not.

(N.T. 9/29/86 at 32). Thus, we find that there is no support in the record for a finding that appellee "complied" rather than "consented," or that appellee's consent to be transported and to take breath and ...


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