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04/29/97 COMMONWEALTH PENNSYLVANIA v. GARY LEE

April 29, 1997

COMMONWEALTH OF PENNSYLVANIA
v.
GARY LEE MILLIGAN, APPELLANT



Appeal from JUDGMENT OF SENTENCE May 14, 1996, in the Court of Common Pleas of CHESTER County, CRIMINAL, No. 3030-95. Before OTT, J.

Before: Kelly, Ford Elliott, and Olszewski, JJ. Opinion BY Olszewski, J. Dissenting Statement BY Kelly, J.

The opinion of the court was delivered by: Olszewski

OPINION BY OLSZEWSKI, J.:

FILED APR 29 1997

On March 14, 1996, a jury found appellant Gary Lee Milligan guilty of driving under the influence of alcohol. He was subsequently sentenced to 48 hours to 23 months imprisonment and fined $300. This appeal follows wherein Milligan presents the following issues for our review:

1. Whether the trial court erred in failing to suppress certain inculpatory statements made to the police.

2. Whether the trial court erred in failing to instruct the jury on flight as consciousness of guilt concerning a person alleged to have been at the scene of the accident before police arrived.

3. Whether trial counsel was ineffective for failing to call, as a witness, a police officer who had stopped the appellant's vehicle earlier in the evening.

Our standard for reviewing a denial of a motion to suppress is well settled. We must determine

whether the factual findings are supported by the record. In making this determination, we must consider only the evidence of the prosecution's witnesses, and so much evidence of the defense that remains uncontradicted when fairly read in the context of the record as a whole. When the evidence supports the factual findings, we are bound by such findings, we may reverse only if the legal Conclusions drawn therefrom are erroneous.

Commonwealth v. Medley, 531 Pa. 279, , 612 A.2d 430, 432 (1992).

Instantly, the trial court's following findings of fact are supported by the record:

1. On April 5, 1995, Officer Timothy Hoppes, of North Coventry Township, was dispatched to the scene of a traffic accident on Laurelwood Road.

2. Upon arriving at the scene, the officer observed a single car with heavy front-end damage resting at a telephone pole.

3. The officer observed that there was considerable damage to the car windshield which, in his eight years of experience as a police officer and investigating traffic accidents, he believed was consistent with someone hitting their head against the windshield.

4. The officer observed [Milligan] sitting across the street from the vehicle on a bank and observed lacerations on his mouth and head which were bleeding, but not excessively.

5. The officer was told by bystanders that another person was observed walking away from the accident.

6. The officer questioned [Milligan] during the approximate three to four minute period while they were ...


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