Appeal from the Judgment of the Superior Court at No. 1687 Philadelphia 1986, affirming the Judgment of Sentence at September Session, 1985, Nos, 255, 256, 259 of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section. Pa. Super. , 522 A.2d 660 (1987).
John W. Packel, Chief, Appeals Div., Peter Rosalsky, Philadelphia, for appellant.
Gaele McLaughlin Barthold, Deputy Dist. Atty., Ronald Eisenberg, Chief, Appeals Div., George Leone, for appellee.
Stuart Suss, Philadelphia, for amicus curiae -- Pennsylvania Dist. Atty.
Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ. Flaherty and Zappala, JJ., join in this opinion. Nix, C.j., concurred in the result. McDermott, J., filed a dissenting opinion in which Papadakos, J., joined. Stout, J., did not participate in the consideration or decision of this case.
OPINION ANNOUNCING THE JUDGMENT OF THE COURT
In this appeal, the appellant Manuel Gonzalez presents two questions: (I) Did the lower court err in permitting a police officer to testify as an expert and "relate back" appellant's blood alcohol level to the time of a fatal intersection accident in which appellant was involved, based upon the results of a blood alcohol test given appellant approximately three hours after the accident? and, (II) Did the lower court err in admitting into evidence a statement made by the appellant to police officers at the scene of the accident without Miranda warnings being given?
At approximately 12:40 a.m. in the early morning of July 19, 1985, the appellant was operating his green Chevrolet automobile in a southerly direction on Franklin Street in the City of Philadelphia. Riding as passengers in the automobile with him were two of his friends, Wilfredo Colon and Miguel Rivera. The appellant ran through a stop sign at forty to fifty m.p.h. at the intersection of Franklin Street and Clearfield Streets. As the appellant proceeded south on Franklin toward the next intersection, both of his passengers told him to slow down. The appellant ignored their remarks about the speed of the car and ran through a
second stop sign, this one at the intersection of Franklin Street and Indiana Avenue. He violently struck the side of a Datsun automobile which was proceeding on Indiana Avenue through that intersection.
At the time of the accident, Philadelphia police officers were in the neighborhood on an unrelated matter and heard the noise generated by the force of the collision. The officers drove to the intersection of Franklin Street and Indiana Avenue where they observed a heavily damaged Datsun containing two unconscious male occupants and a green Chevrolet damaged in the front. The appellant was sitting behind the steering wheel of the green Chevrolet. Because of the obvious injuries to the occupants of the Datsun and the fact that they would have to be forcibly removed from the twisted vehicle, the investigating officers radioed for rescue personnel. When the rescue personnel arrived on the scene, they immediately went to work extricating the injured young men from the Datsun. Both of the occupants of the Datsun eventually died from the extensive injuries received in the accident.
When the rescue personnel began their work the officers went over to the Chevrolet and there observed the appellant Gonzalez still sitting behind the steering wheel. The officers asked the appellant if he was hurt. The appellant responded that he was not injured. The officers then requested that he step out of the vehicle which he did. The officers asked the appellant what happened. The appellant replied that he was driving south on Franklin Street, went through a stop sign and struck the other car. (N.T., p. 12.) As the appellant gave this information to the officers, they noticed a strong odor of alcohol emanating from the appellant. The officers noticed that appellant's eyes were watery and blood shot; that his conduct was stuporous and sleepy; and, he was unsteady and swaying. (N.T., p. 13.)
The officers asked the appellant for his operator's license and registration card. Appellant could produce neither. He did hand to one of the officers a letter from the Bureau of Motor Vehicles which indicated that appellant's driving
privileges had been restored about a week earlier. The appellant was placed under arrest shortly after one o'clock in the morning. He was transported to the district station house and then eventually to the Police Administration Building.
At the Police Administration Building appellant was observed for twenty minutes and then given a breathalyzer test. It was 3:24 a.m. when the breath test was administered. Two samples were taken. The first sample registered a reading of .082 percent. The second sample registered a result of .087 percent. Next, the appellant was taken across the street to Metropolitan Hospital where he gave his consent to a blood test. Blood samples were withdrawn from the appellant at 3:44 a.m. Tests on the blood samples revealed a blood alcohol content of .09 percent.
The appellant was charged with and eventually tried for driving under the influence of alcohol or a controlled substance, two counts of involuntary manslaughter, two counts of homicide by vehicle, and two counts of homicide by vehicle while driving under the influence. At trial, the prosecution called as an expert witness, Corporal Thomas McGonigal, a police veteran of twenty-eight years. Corporal McGonigal was called to give testimony "relating back" the blood alcohol of the appellant to the time of the accident.
Over the objection of the appellant, Corporal McGonigal was qualified as an expert. Over further objection of appellant, Corporal McGonigal testified concerning the absorption of alcohol into the human blood stream and the elimination rate of alcohol from the blood stream. He concluded by opining that based upon the appellant's blood alcohol of .09 percent at 3:44 a.m., and assuming that his blood alcohol percentage was declining during the three hours that elapsed from the time of the accident to the time of the test, the appellant's blood alcohol at the time of the accident could have been .125 percent.
The trial judge, sitting without a jury, found the appellant guilty of driving under the influence, guilty of two counts of involuntary manslaughter, and guilty of two counts of homicide by vehicle while driving under the influence. Appellant was found not guilty of homicide by vehicle. On the two counts of homicide by vehicle while driving under the influence, appellant was sentenced to a term of 3 to 6 years imprisonment on each count, to run concurrently. On the two counts of involuntary manslaughter, appellant was sentenced to a 2 1/2 to 5 years term of imprisonment on each count, to run concurrently with each other and with the sentence for homicide by vehicle while driving under the influence. Sentence was suspended on the charge of driving under the influence. On appeal to the Superior Court, judgments of sentence for involuntary manslaughter were vacated.*fn1 The judgments of sentence for homicide by vehicle while driving under the influence were affirmed. The appellant Manuel Gonzalez petitioned this Court for allowance of appeal which we granted.
Initially, we consider the appellant's argument that the lower court erred in admitting into evidence an extra-judicial statement made by appellant without Miranda*fn2 warnings being given. Specifically, appellant complains that his response to the questions put to him by the police officers at the scene of the accident should have been suppressed because the officers failed to give the required Miranda warnings prior to the questions.
At the scene of the accident, after the rescue personnel arrived and began work on extricating the victims from the
mangled Datsun, the investigating officers directed their attention to the appellant and asked him if he was hurt. The appellant responded that he was not injured. The officers then asked him what happened. Appellant answered by stating that he was driving south on Franklin Street, that he went through a stop sign and struck the other automobile. The trial court, citing Commonwealth v. Kloch, 230 Pa. Super. 563, 327 A.2d 375 (1974), found that under the circumstances of this case, the officers were conducting a general on-the-scene questioning to determine whether there was a crime and Miranda warnings were not required. The Superior Court, concurred with the conclusion of the trial court. We agree that the statement the appellant gave at the scene of the accident is admissible.
The officers came upon the scene of an automobile accident they did not witness. The first automobile they approached had two unconscious occupants who obviously were injured and needed help. They immediately summoned rescue assistance for those two injured victims. Once the rescue personnel arrived and commenced their work, the officers went to the next vehicle where they found the appellant behind the steering wheel. He was the only one known to be involved in the accident who was conscious and able to talk to them. The officers made two logical inquiries of the appellant: Are you hurt and, what happened?
Under Miranda v. Arizona, supra. statements of the accused arising from "custodial interrogation" are inadmissible unless the prosecution shows that the procedural safeguards required by Miranda were afforded the accused. "By custodial interrogation we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda v. Arizona, 384 U.S. at 444, 86 S.Ct. at 1612.
"This test for 'custodial interrogation' has been consistently applied in this Commonwealth, with a nuance added by subsequent developments.
[T]his jurisdiction's test of 'custodial interrogation' examines more than actual deprivation of freedom. Pennsylvania's test for custodial interrogation is whether the suspect is physically deprived of his freedom in any significant way or is placed in a situation in which he reasonably believes that his freedom of action or movement is restricted by said interrogation . . . .
Commonwealth v. Meyer, 488 Pa. 297, 306, 412 A.2d 517, 521 (1980) (numerous citation omitted); Commonwealth v. Chacko, 500 Pa. 571, 577, 459 A.2d 311, 314 (1983)." Commonwealth v. Ziegler, 503 Pa. 555, 563, 470 A.2d 56, 59, 60 (1981) (Concurring Opinion by Larsen, J.)
Although the appellant had a duty under the Motor Vehicle Code to stay at the scene of the accident and identify himself and his vehicle, and exhibit his operator's license and proof of insurance (75 Pa.C.S.A. §§ 3742, 3743 and 3744), he was not under arrest, nor was he in custody. His freedom was only restricted to the extent of his statutory obligation to stay and provide the required information. When the police officers approached the appellant at the accident scene and asked him if he was hurt and what had happened, appellant was not in custody, nor could he have reasonably believed he was in custody for purposes of Miranda. At that time, the appellant was not under arrest and he has not shown that he was subjected to restraints comparable to those associated with an arrest. The appellant was asked a minimal number of questions at the scene of an accident on a public street. Those questions cannot be characterized as "custodial ...