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COMMONWEALTH PENNSYLVANIA v. PHILIP N. TOANONE (01/19/89)

filed: January 19, 1989.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
PHILIP N. TOANONE, APPELLEE



Appeal from the Order of August 3, 1987, in the Court of Common Pleas of Delaware County, Criminal Division, at No. 213 of 1987.

COUNSEL

Joseph J. Mittleman, Assistant District Attorney, Media, for Com., appellant.

Edward J. Zetusky, Jr., Chester, for appellee.

Wieand, Beck and Melinson, JJ. Wieand, J., concurs in the result.

Author: Beck

[ 381 Pa. Super. Page 338]

This is an appeal by the Commonwealth from an order suppressing evidence relating to the charge that Philip N. Toanone operated a motor vehicle while under the influence of alcohol. We reverse.

The relevant facts are not in dispute. On January 8, 1987, at approximately 8:30 P.M., Officer Donahue of the Springfield Township Police was waiting in his police car at a traffic light on Baltimore Pike when he was approached by Mr. Gerald Plasmeier. Mr. Plasmeier stated that the car he was driving had just been struck by a white Lincoln Continental which was also waiting at the traffic light. Shortly afterward, Officer Donahue received a radio report of a hit and run accident involving a car with a description which matched the white Lincoln Continental. After following the Lincoln Continental for several blocks, Donahue stopped the vehicle and asked the driver, defendant Philip Toanone, for identification. While Donahue was examining the defendant's driver's license, owner's card, and insurance information, two other police cars arrived on the scene, one

[ 381 Pa. Super. Page 339]

    of which was driven by Officer Thomas J. Hannigan. Hannigan had previously received a report of an incident in the area involving a drunk driver, but he did not know whether this incident was connected with the hit and run accident that Donahue was investigating.

After conferring with Officer Donahue, Officer Hannigan asked the defendant to step out of his vehicle and answer some questions. When the defendant left the car, Hannigan noticed that the defendant was unsteady on his feet and smelled of alcohol. Hannigan then administered field sobriety tests. He initially asked the defendant about his educational background, and the defendant said that he had graduated from high school. Hannigan then instructed the defendant to recite the alphabet; the defendant tried to comply but could not remember past the letter "W". Hannigan next asked the defendant to stand on one leg and count to ten; the defendant was unable to maintain his balance. At the conclusion of the sobriety tests, Hannigan arrested the defendant and transported him to the police station where he first received Miranda warnings.

Defendant was charged with driving while under the influence of alcohol, failing to give information and render aid following an accident, and other violations of the Motor Vehicle Code. See 75 Pa.Cons.Stat.Ann. ยงยง 3731, 3744 (Purdon 1977 & Supp.1988). He filed a motion to suppress, and on July 3, 1987, Officers Donahue and Hannigan appeared and testified at a suppression hearing before the Court of Common Pleas of Delaware County. The court concluded that the police had violated defendant's constitutional rights, and issued an order prohibiting the use at trial of the evidence obtained by the police. The Commonwealth filed a timely appeal to this court. Since the Commonwealth has certified in good faith that the suppression order if given effect would substantially handicap or terminate its prosecution of the defendant, we have jurisdiction to entertain this appeal. See Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985); Commonwealth v. Slovikosky, 374 Pa. Super. 441, 543 A.2d 553 (1988).

Our standard of appellate review is well established.

[ 381 Pa. Super. Page 340]

In reviewing the findings of a suppression court where the Commonwealth is appealing, we 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, 469 A.2d 137 (1983) (plurality opinion). While we are bound by the lower court's findings of fact if supported by the record, we are not bound by the court's legal conclusions which are drawn from the facts of the case. Commonwealth v. Cortez, 507 Pa. 529, 491 A.2d 111 (1985).

Commonwealth v. Lagana, 517 Pa. 371, 375-76, 537 A.2d 1351, 1353-54 (1988). See also Commonwealth v. Robinson, 518 Pa. 156, 541 A.2d 1387 (1988); Commonwealth v. Stine, 372 Pa. Super. 312, 539 A.2d 454 (1988).

We do not agree with the legal conclusions of the trial court. The court suppressed evidence of the sobriety tests on alternative grounds. We shall address both of the ...


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