SPAETH, Judge:
This is an appeal by the Commonwealth from an order granting appellee’s motion for suppression of evidence in a prosecution for driving under the influence of alcohol.1 Although the issue was not raised by either party in the briefs or at oral argument, we note that the Supreme Court has exclusive jurisdiction of this case. Accordingly, we shall transfer it to that court.2
On December 30, 1974, at approximately 3:00 a. m., an officer of the Carlisle Police Department came upon the scene of an accident on Interstate 81. An automobile was resting on top of the guardrail that served as a median barrier between the northbound and southbound lanes. A truck driver had stopped and was placing flares to warn other motorists. Appellee was a few feet from the automobile. After satisfying himself that appellee was uninjured, [328] the officer radioed his headquarters to summon the State Police. Apparently the scene of the accident was within their jurisdiction. When two state troopers arrived, the officer told one of them that he had a “possible 1037” (a reference to the section of the Vehicle Code that prohibits driving under the influence of alcohol; see footnote 1, supra). The trooper observed that appellee walked with a staggering gait, was disheveled in appearance, and had a glassy look in his eyes and an odor of alcohol on his breath. After asking for and receiving appellee’s driver’s license and registration card, the trooper asked appellee, “What happened?”. In response, appellee made an incriminating statement. Appellee was then placed under arrest by the trooper and was advised of his Miranda rights. After his arrest appellee made other incriminating statements and voluntarily submitted to a breathalyzer test, the results of which were also incriminating.
Appellee was tried twice on a charge of driving under the influence; both times he was found guilty by a jury, and both times, as a result of post-verdict motions, he was granted a new trial. Before his third trial appellee filed a motion for the suppression of his pre-arrest statement to the State Police, and also for the suppression of his post-arrest statements and the results of the breathalyzer test. The lower court granted the motion, and the Commonwealth took this appeal.
The lower court suppressed the pre-arrest and post-arrest evidence for different reasons.
Appellee’s pre-arrest statement was suppressed because it was made before the trooper had informed appellee of his constitutional rights, as required by Miranda. The court found that before asking appellee, “What happened?”, the trooper had sufficient information to warrant the belief that appellee had committed a crime. Therefore, the court reasoned, the trooper was engaged in a criminal investigation that had “focused” on appellee, and he should have informed appellee of his constitutional rights.
[329] The post-arrest evidence was suppressed on the ground that it was the result of an unlawful arrest. The court concluded that since the trooper did not see appellee driving, he was precluded by Rule 101 of the Pennsylvania Rules of Criminal Procedure from arresting appellee without a warrant.3 The Commonwealth contended that the arrest was lawful under the Act of July 20,1974, P.L. 522, No. 177, § 2; 75 Pa.C.S. § 1204(a) (1976 Supp.), which provides that a police officer may arrest a person for driving under the influence, even though he has not seen the person driving and does not have a warrant, if the case is one “causing or contributing to an accident.”4 The court rejected this contention, however, because it considered that the Act of July 20,1974, was inconsistent with, and therefore had to yield to, Rule 101.5
[330] Whether there was any inconsistency between Rule 101 and the Act of July 20, 1974, has recently been decided by the Pennsylvania Supreme Court in Commonwealth v. Levesque, 469 Pa. 118, 364 A.2d 932 (filed October 8, 1976.)6 However, since we are without jurisdiction, we are not empowered to apply that decision in this case.
Section 2027 of the Appellate Court Jurisdiction Act of 1970 provides:
The Supreme Court shall have exclusive jurisdiction of appeals from final orders of the courts of common pleas in any of the following classes of cases:
(9) Matters where the court of common pleas has held invalid as repugnant to the . . . Constitution of the Commonwealth . . . any act of Assembly of this Commonwealth . ...
Although done in a circuitous manner, which it will take a little time to explain, the lower court held that the Act of July 20, 1974, is repugnant to the Constitution.
In his opinion for the lower court, President Judge SHUGHART concluded that appellee’s arrest was unlawful under Rule 101, but he did not set out his reasoning. Rather, he “concurred] in the conclusion of Judge WEIDNER in his opinion filed in this case on October 14, 1975.” Opinion of President Judge SHUGHART at 4r-5. Judge WEIDNER, in his opinion, which was filed after a suppression hearing before appellee’s first trial, also concluded that the arrest was unlawful under Rule 101, but he too did not set out his reasoning, instead citing the reasons stated by President Judge SHUGHART in his opinion in Commonwealth v. [331] Smith, 26 Cuinb.LJ. 134 (C.P.1975). Opinion of Judge WEXDNER at 4-5. In Smith, President Judge SHUGHART concluded that during the interval between passage of the Act of July 20, 1974, and amendment of Rule 101, effective September 1, 1975,8 the Act and the Rule were in conflict. He resolved this perceived conflict by deferring to the Rule, citing the opinions of President Judge GATES in Commonwealth v. Marcozzi, 15 Lebanon L.J. 145 (1975), and Commonwealth v. Bennetch, 15 Lebanon L.J. 151 (1975). In Marcozzi, President Judge GATES also perceived a conflict between the Act and the Rule, and found the Rule controlling. He interpreted Article V, section 10(c), of the Pennsylvania Constitution to require the suspension of the Act. That section of the Constitution provides:
The Supreme Court shall have the power to prescribe general rules governing the practice, procedure, and the conduct of all courts, justices of the peace and all officers serving process or enforcing orders. ... All laws shall be suspended to the extent that they are inconsistent with rules prescribed under these provisions.
President Judge GATES held that although the Rule was promulgated before the Act, until the Rule was amended to take the Act into account, the Rule and the Act were inconsistent. Therefore, he found the Act to be unconstitutional:
Free access — add to your briefcase to read the full text and ask questions with AI
SPAETH, Judge:
This is an appeal by the Commonwealth from an order granting appellee’s motion for suppression of evidence in a prosecution for driving under the influence of alcohol.1 Although the issue was not raised by either party in the briefs or at oral argument, we note that the Supreme Court has exclusive jurisdiction of this case. Accordingly, we shall transfer it to that court.2
On December 30, 1974, at approximately 3:00 a. m., an officer of the Carlisle Police Department came upon the scene of an accident on Interstate 81. An automobile was resting on top of the guardrail that served as a median barrier between the northbound and southbound lanes. A truck driver had stopped and was placing flares to warn other motorists. Appellee was a few feet from the automobile. After satisfying himself that appellee was uninjured, [328] the officer radioed his headquarters to summon the State Police. Apparently the scene of the accident was within their jurisdiction. When two state troopers arrived, the officer told one of them that he had a “possible 1037” (a reference to the section of the Vehicle Code that prohibits driving under the influence of alcohol; see footnote 1, supra). The trooper observed that appellee walked with a staggering gait, was disheveled in appearance, and had a glassy look in his eyes and an odor of alcohol on his breath. After asking for and receiving appellee’s driver’s license and registration card, the trooper asked appellee, “What happened?”. In response, appellee made an incriminating statement. Appellee was then placed under arrest by the trooper and was advised of his Miranda rights. After his arrest appellee made other incriminating statements and voluntarily submitted to a breathalyzer test, the results of which were also incriminating.
Appellee was tried twice on a charge of driving under the influence; both times he was found guilty by a jury, and both times, as a result of post-verdict motions, he was granted a new trial. Before his third trial appellee filed a motion for the suppression of his pre-arrest statement to the State Police, and also for the suppression of his post-arrest statements and the results of the breathalyzer test. The lower court granted the motion, and the Commonwealth took this appeal.
The lower court suppressed the pre-arrest and post-arrest evidence for different reasons.
Appellee’s pre-arrest statement was suppressed because it was made before the trooper had informed appellee of his constitutional rights, as required by Miranda. The court found that before asking appellee, “What happened?”, the trooper had sufficient information to warrant the belief that appellee had committed a crime. Therefore, the court reasoned, the trooper was engaged in a criminal investigation that had “focused” on appellee, and he should have informed appellee of his constitutional rights.
[329] The post-arrest evidence was suppressed on the ground that it was the result of an unlawful arrest. The court concluded that since the trooper did not see appellee driving, he was precluded by Rule 101 of the Pennsylvania Rules of Criminal Procedure from arresting appellee without a warrant.3 The Commonwealth contended that the arrest was lawful under the Act of July 20,1974, P.L. 522, No. 177, § 2; 75 Pa.C.S. § 1204(a) (1976 Supp.), which provides that a police officer may arrest a person for driving under the influence, even though he has not seen the person driving and does not have a warrant, if the case is one “causing or contributing to an accident.”4 The court rejected this contention, however, because it considered that the Act of July 20,1974, was inconsistent with, and therefore had to yield to, Rule 101.5
[330] Whether there was any inconsistency between Rule 101 and the Act of July 20, 1974, has recently been decided by the Pennsylvania Supreme Court in Commonwealth v. Levesque, 469 Pa. 118, 364 A.2d 932 (filed October 8, 1976.)6 However, since we are without jurisdiction, we are not empowered to apply that decision in this case.
Section 2027 of the Appellate Court Jurisdiction Act of 1970 provides:
The Supreme Court shall have exclusive jurisdiction of appeals from final orders of the courts of common pleas in any of the following classes of cases:
(9) Matters where the court of common pleas has held invalid as repugnant to the . . . Constitution of the Commonwealth . . . any act of Assembly of this Commonwealth . ...
Although done in a circuitous manner, which it will take a little time to explain, the lower court held that the Act of July 20, 1974, is repugnant to the Constitution.
In his opinion for the lower court, President Judge SHUGHART concluded that appellee’s arrest was unlawful under Rule 101, but he did not set out his reasoning. Rather, he “concurred] in the conclusion of Judge WEIDNER in his opinion filed in this case on October 14, 1975.” Opinion of President Judge SHUGHART at 4r-5. Judge WEIDNER, in his opinion, which was filed after a suppression hearing before appellee’s first trial, also concluded that the arrest was unlawful under Rule 101, but he too did not set out his reasoning, instead citing the reasons stated by President Judge SHUGHART in his opinion in Commonwealth v. [331] Smith, 26 Cuinb.LJ. 134 (C.P.1975). Opinion of Judge WEXDNER at 4-5. In Smith, President Judge SHUGHART concluded that during the interval between passage of the Act of July 20, 1974, and amendment of Rule 101, effective September 1, 1975,8 the Act and the Rule were in conflict. He resolved this perceived conflict by deferring to the Rule, citing the opinions of President Judge GATES in Commonwealth v. Marcozzi, 15 Lebanon L.J. 145 (1975), and Commonwealth v. Bennetch, 15 Lebanon L.J. 151 (1975). In Marcozzi, President Judge GATES also perceived a conflict between the Act and the Rule, and found the Rule controlling. He interpreted Article V, section 10(c), of the Pennsylvania Constitution to require the suspension of the Act. That section of the Constitution provides:
The Supreme Court shall have the power to prescribe general rules governing the practice, procedure, and the conduct of all courts, justices of the peace and all officers serving process or enforcing orders. ... All laws shall be suspended to the extent that they are inconsistent with rules prescribed under these provisions.
President Judge GATES held that although the Rule was promulgated before the Act, until the Rule was amended to take the Act into account, the Rule and the Act were inconsistent. Therefore, he found the Act to be unconstitutional:
Thus it is clear that the procedure providing for a warrantless arrest in the amended Section 1204(a) [i. e., provided by the Act of July 20, 1974] is unconstitutional. Such an arrest cannot be held valid until the Supreme Court alters its rules to allow for a warrantless arrest for a misdemeanor as provided in Pa.R.Crim.P. 101(2) for a felony, or until the legislature makes violation of Section 1037 of the Motor Vehicle Code a felony.
Commonwealth v. Marcozzi, 15 Lebanon L.J. at 149 (emphasis added).
Since President Judge SHUGHART, in his opinion in the instant case, relied on the reasoning of Marcozzi, we must [332] conclude, although he does not say so in so many words, that he found the Act “invalid as repugnant to the . Constitution of the Commonwealth.” That being the case, the appeal from his decision must be not to this court but to the Supreme Court.
The correctness of this conclusion is confirmed by the opinion of the Supreme Court in Commonwealth v. Levesque, supra. There, the Court of Common Pleas of Dauphin County, sitting en banc, found a conflict between Rule 101 and the Act of July 20, 1974, and, relying on Article V, section 10(c), of the Pennsylvania Constitution, held that the conflict had to be resolved in favor of the Rule, and ordered the evidence suppressed. The Commonwealth appealed, not, as here, to this court but to the Supreme Court. In accepting the appeal, the Supreme Court cited Section 202 of the Appellate Court Jurisdiction Act, supra, quoting the grant to the Court of “exclusive jurisdiction” of appeals “where the court of common pleas has held invalid as repugnant . to the Constitution of this Commonwealth . . . any act of Assembly . . . .” Commonwealth v. Levesque, 469 Pa. at 123, n. 5, 364 A.2d at 934, n. 5.
Accordingly, the appeal in this case is transferred to the Supreme Court.
VAN der VOORT, J., files a dissenting opinion in which WATKINS, President Judge, and PRICE, J., join.