Commonwealth v. Horn , 395 Pa. 585 ( 1959 )

Opinion by

Mr. Justice Bell,

Defendant was found guilty by a trial Judge, sitting without a jury, of operating a motor vehicle while under the influence of intoxicating liquor. The Judgment and Sentence of the Court of Quarter Sessions was affirmed by a unanimous Superior Court, and this Court allowed an allocatur.

On January 22, 1957, at approximately 1:00 a.m., John McKnight was driving his automobile accompanied by his wife and three children, south on A Street in Philadelphia. A Street is a one-way street south. Defendant was driving his automobile west on Clearfield Street — the wrong way on a one-way street. When McKnight’s automobile was half-way across the intersection of A Street and Clearfield Street, it was struck on the left rear side by the front of an automobile driven by defendant. Defendant knocked McKnight’s automobile completely around and his three children were thrown into the street; his car ended up on the west side of the pavement about 25 yards down A Street.

Officer Kinsella arrived at the scene of the accident very shortly after it occurred. After McKnight and his wife and their children, who were bleeding very badly, were placed in a patrol car to be taken to the hospital, the officer asked defendant where he thought he was going. Defendant did not answer the question. Officer Kinsella testified that defendant had the odor of alcohol on his breath, “that his face was kind of bloated, like, and his eyes looked kind of funny”.

Officer Hinchcliffe arrived at the scene of the accident about 1:30 to investigate the accident. He interrogated defendant at 2:15 a.m. when defendant was in the cell block of the 30th District Station. Hinchcliffe testified that defendant “had an odor of alcohol on his person, his face was flushed, his eyes blood-shot and his speech was thick, and he was under the influence of intoxicating liquor”. He further testified that defendant told him that he knew he was on a one-way street, but did not know he was going the wrong way because he was not familiar with the neighborhood, although he said he traveled this route home every night on his way back to his home at Levittown; that he was going about 15 to 18 miles an hour, and that he saw MeKnight’s car when he was about 30 feet from the intersection of A Street, and put on his brakes but could- not stop. Defendant also said that it was a misty, foggy night. Notwithstanding this fact, the weather report showed that visibility was good for an entire city block.

Defendant took the witness stand and told what the trial Judge described as a “cock-and-bull story”, a story that “reflected not only- a lack of candor but almost improvisation as the case went along ... in weighing the testimony of the witnesses the Court’s observation of defendant’s demeanor led it to reject his testimony as unworthy of belief.” A reading of the record amply supports the trial Judge’s finding that defendant’s testimony was unworthy of belief.

Defendant seeks a new trial for two main reasons: (1) the testimony of the police surgeon which was favorable to him, and (2) the statements of the trial Judge which he contends were so prejudicial as to deny, him a fair, trial.

When the Commonwealth concluded its case, the District Attorney announced there were two other witnesses named on the bill of indictment — John McKnight, an ill child aged 6, and Dr. Squillace, the police and fire surgeon, who examined defendant at about 2:30 or 2:35 a.m. The District Attorney then stated that the Commonwealth “does not choose to call Dr. Squillace but he is available to either the Court or the defendant”. Defendant then requested the Court to direct the District Attorney to call Dr. Squillace and the Court directed the Commonwealth to call him. Assuming, arguendo, that this was error, the error was prejudicial to the Commonwealth, not to the defendant.

There is no duty on the Commonwealth to call witnesses whose names appear on a bill of indictment or even eye witnesses, if it believes after examination or investigation that their testimony is unreliable, or unworthy of belief, or surplusage or irrelevant. The law in such a case merely requires a District Attorney to notify the Court and defense counsel that he does not intend to call certain persons whose names appear on the bill of indictment as Commonwealth witnesses: Commonwealth v. Palermo, 368 Pa. 28, 81 A. 2d 540; Commonwealth v. Deitrick, 221 Pa. 7, 14, 15, 70 A. 275. See also: Commonwealth v. Danz, 211 Pa. 507, 522, 60 A. 1070; Commonwealth v. Giacobbe, 341 Pa. 187, 195, 19 A. 2d 71.

In Commonwealth v. Palermo, 368 Pa., supra, the Court sustained the refusal of the District Attorney “to . . . call the only eye witness to the shooting”. The Court said (pages 32-33) : “It is a settled principle of law that the Commonwealth must try a case fairly and that the district attorney is not a ‘vindictive seeker for vengeance.’ Commonwealth v. Karamarkovic, 218 Pa. 405, 408, 67 A. 650 (1907). However, it is equally well established that the district attorney is not obliged to call all of the eye witnesses, ‘nor a particular eye witness where he has reason to- believe that the witness is unreliable.’ Commonwealth v. Thurman, 167 Pa. Superior Ct. 642, 647, 76 A. 2d 483 (1950). The calling of witnesses is within the discretion of the district attorney under the general supervision of the trial judge: Commonwealth v. Karamarkovic, supra; Commonwealth v. Deitrick, 221 Pa. 7, 14-15, 70 A. 275 (1908); Commonwealth v. Giacobbe, 341 Pa. 187, 196, 19 A. 2d 71 (1941)____”

After Dr. Squillace was sworn, the trial Judge took over his examination. Dr. Squillace testified that defendant had an odor of alcohol about him but it was not very strong, his face was slightly flushed but there was no evidence of any staggering gait; he was well dressed and well oriented. Defendant’s temperature and pulse rate were normal. Defendant stated to him and to others that he had had two or three glasses of beer at 7 o’clock that night. Dr. Squillace then testified that in his opinion defendant was not under the influence of intoxicating liquor “to such an extent that he was not fit to drive an automobile safely in traffic.” This is not a sufficient or all-inclusive test to absolve defendant.

The statute does not require that a person be drunk, or intoxicated, or unable to drive his automobile safely in traffic, but merely that the Commonwealth prove beyond a reasonable doubt that defendant was operating his automobile while under the influence of intoxicating liquor. It is very difficult to define “drunk”, or “intoxicated” or “under the influence of intoxicating liquor”. Intoxication is. a matter of common observation and knowledge, and because of observation, knowledge or experience, the opinions of laymen are admissible and medical opinion, while of course admissible, is not required: Commonwealth v. Eyler, 217 Pa. 512, 66 A. 746; Commonwealth v. Smith, 174 Pa. Superior Ct. 533, 102 A. 2d 243; Turner v. Penna. Liquor Control Board, 161 Pa. Superior Ct. 16, 53 A. 2d 849.

The statutory expression “under the influence of intoxicating liquor” includes not only all the well known and easily recognized conditions and degrees of intoxication, but also any mental or physical condition which is the result of drinking alcoholic beverages and (a) which makes one unfit to drive an automobile, or (b) which substantially impairs his judgment, or clearness of intellect, or any of the normal faculties essential to the safe operation of an automobile. Cf. Commonwealth v. Smith, 174 Pa. Superior Ct. 533, 102 A. 2d 243; Commonwealth v. Schutzman, 169 Pa. Superior Ct. 72, 82 A. 2d 317; Commonwealth v. Phillips, 169 Pa. Superior Ct. 64, 82 A. 2d 587; Commonwealth v. Buoy, 128 Pa. Superior Ct. 264, 267, 193 A. 144.

Courts cannot say as a matter of law how many drinks an individual can take without becoming under the influence of intoxicating liquor. The reasons for this are so well known as not to require recitation.

Defendant complains that the trial Court committed reversible error in examining or cross-examining Dr. Squillace, although he requested the Court to order the police surgeon to be called by the District Attorney and took no exception to his examination by the Court. In Commonwealth v. Watts, 358 Pa. 92, 56 A. 2d 81, the Court said (page 96) : “It is always the right and sometimes the duty of a trial Judge to interrogate witnesses, although, of course, questioning from the bench should not show bias or feeling nor be unduly protracted.” See also: Commonwealth v. Myma, 278 Pa. 505, 123 A. 486; Commonwealth v. Del Giorno, 303 Pa. 509, 154 A. 786.

Dr. Squillace’s testimony was exceptionally favorable to defendant, so it is obvious, for each of the above mentioned reasons, that there is no merit in this contention.

Defendant also is in error in treating the evidence in the light most favorable to himself. “Defendant, like most defendants, proceeds on the assumption that a part of or none of a defendant’s [or a witness’s] statements, confessions or testimony”: Commonwealth you must believe all of his statements or confessions; of course, that is erroneous; a jury can believe all or v. Homeyer, 373 Pa. 150, 153, 94 A. 2d 743.

The trial Judge based his findings, conclusions and decision to a large extent on thé credibility of the witnesses whom he saw and heard; he believed the Commonwealth’s witnesses^* but did not believe Dr. Squillace or the defendant; and on this basis the evidence was sufficient to justify the verdict of the trial Judge.

Defendant further contends that he was deprived of a fair trial by the manner and statements of the trial Judge. Judge Woodside, speaking for a unanimous Superior Court, aptly said: “It is customary for arguments by counsel directed to a trial judge sitting without a jury to be far less formal than the arguments made to a jury. The trial judge frequently enters into a discussion with counsel concerning both the facts and the law. The informality of these arguments, through the discussion method, not only saves time, but also frequently enables the counsel to discover the court’s predilections on particular issues. This gives counsel an opportunity to direct the trial judge’s attention to evidence which he may have overlooked on such issues, to argue reasons for the trial judge to believe or disbelieve certain evidence bearing on them, and to emphasize reasons why the court should draw favorable inferences from certain evidence. This, it seems to us, is an advantage to the defendants which would be lost to them if trial judges were required to avoid stating their thoughts during an argument made after all the evidence had been presented . . . .”

Without discussing in detail the statements of the trial Judge which defendant believes were highly prejudicial, it will suffice to say that several of them appear to be too impulsive, unwise and lacking in judicial restraint, but they were not sufficient to warrant a new trial on the ground of bias or prejudice or a violation of defendant’s Constitutional right to a fair trial.

The Judgment of the Superior .Court affirming the Judgment and Sentence of the Court of' Quarter Sessions of Philadelphia County is affirmed.

* Tbe trial Judge, because be believed be did not permit adequate cross-examination, did not consider tbe testimony of McKnight, wbo testified defendant staggered as be got out of bis ear, or tbe testimony of Officer Garvin wbo testified that as be picked up McKnigbt’s children be noticed a very strong odor of alcobo1 on defendant’s breatb.