Commonwealth v. Wilson

312 A.2d 430, 225 Pa. Super. 513, 1973 Pa. Super. LEXIS 1561

Opinions

Opinion by

Cercone, J.,

This is an appeal from defendant’s conviction after a second trial, of the charge of “Violation of Motor Vehicle Code, Section 1037, in that he did while under the influence of intoxicating liquor operate a motor vehicle upon the highways of the Commonwealth.”

Defendant admits he was under the influence of intoxicating liquor but strenuously denies that he was the operator of the vehicle owned by him at the time it had knocked down a mailbox. He contends that he was a passenger in his vehicle and was found behind the steering wheel in the driver’s seat after the vehicle’s collision with the mailbox only because the driver, one Barry Shaffer, had fled the scene, leaving the car lights on, and he, the defendant, moved over to the driver’s seat to turn the lights off.

Defendant testified that he had a cheeseburger and several beers in The Locust Point Tavern and when he left the tavern at 5:30 P.M. he found Barry Shaffer, a young acquaintance of his, sitting in the passenger seat of his car. Barry asked for a ride to Mechanics-burg to look at a used car. Defendant testified he told Barry to do the driving since defendant had worked all night and part of the day and was tired. Barry then moved into the driver’s seat and after 15 or 20 minutes, during which he acquainted himself with defendant’s car and made the necessary adjustments, he began to drive. Barry, not being accustomed to power brakes and power steering, lost control of the car when he hit the power brakes and struck the mailbox. At both trials (the first trial resulted in a hung jury) Barry Shaffer took the stand and corroborated defendant’s testimony. Barry has since died. No Commonwealth witness saw defendant drive his car at any time prior to or at the time the car struck the mailbox. The entire Commonwealth case was based on the testimony of one Clair Gochenauer and State Trooper Larry J. Corman, both of whom arrived at the scene after the mailbox had been struck. Mr. Gochenauer, then 18 years of age, testified that he was in the garage behind his house located 30 to 50 feet from the road directly across the point of the impact. He testified he heard “a swishing and a screeching, sounded like a car going into a slide, then I took off running as soon as I heard this, and then I heard the thumping of the car hitting something, or it sounded like a car hitting something, and I was going down the driveway at that time.” Mr. Gochenauer testified it took him “less than a second” to run down the driveway, and 3 to 5 seconds to come from the garage until he reached defendant’s car where he found defendant behind the wheel on the driver’s side. He saw no one else at the scene. He did testify, however, that as he crossed in front of the car, defendant moved forward to turn the lights off and that defendant asked him, “if everybody else was O.K., or if there was anybody else involved in it.”

On cross-examination witness Gochenauer testified that as he came around the corner of his house he could not tell what part of the front seat defendant then occupied because the headlights from the car were interfering with his view; that perhaps the lights from a pole lamp further hampered his vision; that he had to pause for traffic on the road, that finally when he arrived to within ten feet of the car he saw defendant then lean forward to put the car lights out and at that time saw defendant seated behind the steering wheel; and that it was possible for someone to leave the car before he arrived if he left fast enough.

The only other witness produced by the Commonwealth was State Trooper Larry J. Gorman who also arrived at the scene after the accident. Trooper Gor-man testified he found defendant sitting behind the steering wheel of his car in the driver’s seat and that no one else was in the car. He placed defendant under arrest and drove him in the police car to the Carlisle State Police Barracks, that while en route, in response to the Trooper’s questions, defendant stated he was the driver of the car.¹ The Trooper testified that though it was certain that he was well under the influence, defendant understood the questions asked of him and his answers were coherent.

The issue in this case is whether the Commonwealth by the presentation of the testimony of Mr. Gochenauer and Trooper Gorman sustained its burden of proving defendant’s guilt beyond a reasonable doubt. If it did not, then defendant’s motion in arrest of judgment should have been granted.

The two cases relied upon by the lower court and the Commonwealth in upholding the sufficiency of the Commonwealth’s evidence are distinguishable on their facts. In Commonwealth v. Marks, 164 Pa. Superior Ct. 280 (1949), there were eyewitnesses who testified as to having seen defendant Marks driving the truck 45 minutes before, and only 15 miles away from where he was found by the state troopers.

A reading of the court’s summarization of the evidence presented in that case reveals the strength of and emphasis placed on that eyewitness testimony as part of the circumstantial evidence surrounding the accident which evidence the court found sufficient to sustain the Commonwealth’s burden of proving defendant guilty beyond a reasonable doubt.

In Com. v. Kerns, 124 Pa. Superior Ct. 61 (1936), the police officer testified that he actually saw defendant operating the vehicle, which testimony, if believed by the jury, supported a guilty verdict. In the instant case no one saw defendant drive; no eyewitness contradicted Barry Shaffer that he drove the car. In our opinion, an important aspect of Shaffer’s part in this case is that he testified at both the first and second trials that he was the driver of the car and he testified not voluntarily but under subpoena.

It is true that in a proper case circumstantial evidence may be sufficient to convict but strong suspicion, conjecture or supposition are not. Com. v. Townsend, 428 Pa. 281 237 A. 2d 192 (1968); Com. v. Dasch, 218 Pa. Superior Ct. 43 (1970). Under all the circumstances of this case — no eyewitness to defendant’s operation of the vehicle; no contradiction of Barry Shaffer’s testimony, twice given, that he was the driver; the admission testified to by the trooper (which could have been suppressed as a statement taken during an illegal arrest without a warrant)² being weakened in probative effect by the trooper’s further testimony that it was made while defendant was intoxicated — a reasonable doubt was raised as to defendant’s guilt which would prevent a conviction under the law.

The motion in arrest of judgment should therefore have been granted.

The order of the lower court is reversed.

Hoffman and Spaulding, JJ., join in this opinion. Wright, P. J., Watkins and Jacobs, JJ., would affirm on the opinion of Judge Weidner.

Footnotes

1

Defendant contends that this testimony differed from the Trooper’s testimony at the first trial in which defendant alleges the officer testified that defendant told him at the scene that he was the driver of the vehicle. However, there was no impeachment made of the Trooper’s testimony through use of any such prior inconsistent statement. Defendant contends that he cannot now compare the two trials “because of the lower court’s refusal to release the transcript of the first trial.” The Commonwealth makes no reference in its brief to the Trooper’s former testimony, avoiding the subject altogether. The lower court, however, in its opinion, answers by saying that defendant’s request for the trial transcript was not made until June 9, 1971, after the verdict of May 12, 1971 in his second trial, and that no request was made during the trial or before the verdict. In any event, says the lower court the prior inconsistent statement could not be used merely to impeach credibility. The lower court does not give any basis for this conclusion, merely citing Com. v. Cooney, 444 Pa. 416 (1971) which deals with the issue of after discovered evidence which is not here involved.

2

Commonwealth v. Reeves, 228 Pa. Superior Ct. 51 (1972).