Appeal from the Order entered September 9, 1987 in the Court of Common Pleas of Mercer County, Criminal Division, at No. 316 Criminal, 1987.
Lorinda L. Hinch, Assistant District Attorney, Mercer, for Com., appellant.
Christopher J. St. John, Assistant Public Defender, Greenville, for appellee.
Tamilia, Popovich and Hoffman, JJ.
[ 374 Pa. Super. Page 266]
This appeal is from the order below granting appellee's motion to suppress statements he made to the police. In granting appellee's motion, the suppression court expressly relied upon our recent decision in Commonwealth v. Bruder, 365 Pa. Super. 106, 528 A.2d 1385 (1987). Appellant, the Commonwealth, contends that the suppression court erred in granting appellee's motion, and urges us not to follow Bruder. For the reasons that follow, we affirm the order of the suppression court.
[ 374 Pa. Super. Page 267]
On April 22, 1987, appellee was arrested for driving under the influence of alcohol. See 75 Pa.C.S.A. § 3731(a)(1). Prior to trial, appellee filed a motion to suppress statements that he made to police as well as the results of an "ABC" field sobriety test.*fn1 On September 9, 1987, a hearing was held on this motion. Thereafter, the suppression court issued its findings of fact and conclusions of law, and entered an order granting appellee's motion in part. The Commonwealth timely appealed from the suppression order.*fn2
We begin with our standard of review. "[W]here the Commonwealth is appealing the adverse decision of a suppression court, a reviewing court must consider only the evidence of the defendant's witnesses and so much of the evidence for the prosecution as read in the context of the record as a whole remains uncontradicted." Commonwealth v. Hamlin, 503 Pa. 210, 216, 469 A.2d 137, 139 (1983) (plurality opinion). See also Commonwealth v. James, 506 Pa. 526, 532-33, 486 A.2d 376, 379 (1985). Moreover, the reviewing court is "bound by the findings of a suppression court if those findings are supported by the record." Commonwealth v. James, supra, 506 Pa. at 533, 486 A.2d at 379 (citations omitted).
The Commonwealth does not dispute the suppression court's fact-findings. The relevant facts were summarized by the suppression court as follows:
(1) At approximately 2:55 A.M., the defendant's vehicle was stopped and he was subsequently placed under arrest for driving under the influence;
(2) Immediately prior to the arrest, he was advised of his Miranda rights and stated that he did not wish to make any statements;
[ 374 Pa. Super. Page 268]
(3) Subsequent to the stop of the defendant's vehicle and prior to the giving of the Miranda warnings, the defendant was asked if he had anything to drink, [and] he was administered field sobriety tests, included among them was the "A-B-C Test", [to] which the defendant first responded [that] he didn't ...