Opinion
Argued December 5, 1974
January 29, 1975.
Motor vehicles — Suspension of motor vehicle operator's license — The Vehicle Code, Act 1959, April 29, P.L. 58 — Use of vehicle in the commission of a misdemeanor — Scope of appellate review — Findings of fact — Sufficient evidence — Error of law — Integral part of criminal act — Public indecency — Hearsay — Harmless error — Specific, numbered findings.
1. The Secretary of Transportation is empowered by provisions of The Vehicle Code, Act 1959, April 29, P.L. 58, to suspend the motor vehicle operator's license of one convicted of a misdemeanor in the commission of which a motor vehicle was used. [177-8]
2. In a motor vehicle operator's license suspension case where the court below conducts a hearing de novo, review by the Commonwealth Court of Pennsylvania is to determine whether the findings of fact are supported by competent evidence and to correct erroneous conclusions of law. [178]
3. To justify the suspension of a motor vehicle operator's license, the use of an automobile in the commission of a misdemeanor must be of such a nature and type as to be an integral part of the prescribed conduct and must contribute in some reasonable degree to the commission of the crime. [178-9]
4. Under provisions of The Vehicle Code, Act 1959, April 29, P.L. 58, a motor vehicle operator's license may be suspended when the licensee is convicted of the misdemeanor of public indecency, when the act was committed while occupying a motor vehicle or where the licensee used a motor vehicle to leave the scene of the crime. [179]
5. In a motor vehicle operator's license suspension case the improper admission of hearsay evidence is harmless where other properly received evidence was sufficient to support the action of suspension. [180]
6. A court, conducting a hearing de novo in a motor vehicle operator's license suspension case, should make specific, numbered findings of fact. [180]
Argued December 5, 1974, before Judges CRUMLISH, JR., MENCER and BLATT, sitting as a panel of three.
Appeal, No. 193 C.D. 1974, from the Order of the Court of Common Pleas of York County in case of Commonwealth of Pennsylvania v. Roger Jay Olin, No. 643 May Term, 1973.
Suspension of motor vehicle operator's license by Secretary of Transportation. Licensee appealed to the Court of Common Pleas of York County. Appeal dismissed. BLAKEY, III, J. Licensee appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Edward F. Browne, Jr., for appellant. John L. Heaton, Assistant Attorney General, with him Anthony J. Maiorana, Assistant Attorney General, Robert W. Cunliffe, Deputy Attorney General, and Israel Packel, Attorney General, for appellee.
On September 29, 1972, Roger Jay Olin entered a guilty plea in the Court of Common Pleas of Lancaster County to an indictment charging him with Public Indecency under Section 519 of the Penal Code, Act of June 24, 1939, P.L. 872, as amended, 18 Pa.C.S.A. § 4519. Thereupon the Clerk of Courts of Lancaster County forwarded a certified record of the conviction to the Bureau of Traffic Safety (Bureau) which ordered that Olin's license be suspended for one year. The authority to do so derived from Section 618(a) of The Vehicle Code, Act of April 29, 1959, P.L. 58, as amended, 75 Pa.C.S.A. § 618(a) which states:
"(a) The secretary may suspend the operating privilege of any person, with or without a hearing before the secretary or his representative, upon receiving a record of proceedings, if any, in which such person pleaded guilty, entered a plea of nolo contendere, or was found guilty by a judge or jury, or whenever the secretary finds upon sufficient evidence:
. . . .
"(2) That such person has been convicted of a misdemeanor, or has forfeited bail upon such a charge, in the commission of which a motor vehicle or tractor was used."
Olin appealed to the Court of Common Pleas of York County where he resided and after a hearing, that court issued the following order:
"We believe that the issue presented in this case is whether a motor vehicle was used in some significant, as opposed to an incidental, manner in connection with the misdemeanor which admittedly occurred. We do not accept the argument of defense counsel that the motor vehicle must be used in some essential integral manner. There is no doubt from the confession that the offense occurred, and we have the date and time. We have the officer's testimony relating to the use of a motor vehicle by the Defendant immediately thereafter, at the time he was apprehended. We have the fact and circumstances that this occurred in a parking lot, some distance from town. We think the record is sufficient to support the inference which we make and the conclusion which we reach that the automobile was, in fact, used. Having reached that point, we feel that the suspension, which we view as discretionary, was justified, and we overrule and dismiss the appeal."
Olin now appeals that order to this Court.
Our scope of review in a case such as this, where the court below has held a de novo hearing is to determine whether or not the findings of fact are supported by competent evidence and to correct conclusions of law erroneously made. Commonwealth v. Denham, 12 Pa. Commw. 593, 317 A.2d 328 (1974).
The sole issue in this case is whether or not the misdemeanor of which Olin was convicted sufficiently involved the use of a motor vehicle within the meaning of Section 618(a)(2) of The Vehicle Code. In Department of Transportation v. Bechtel, 5 Pa. Commw. 621, 625, 290 A.2d 713, 715 (1972) our Court interpreted the statute as follows: "The 'Misdemeanor' of which The Vehicle Code speaks, and requires, is that which, in its commission, a 'motor vehicle or tractor' is employed as an integral part of the perpetration of an act of misdemeanor magnitude. The use of the 'motor vehicle or tractor' must be of such a nature and type that it be an integral part of the proscribed conduct. For example, the use of a 'getaway car' before or after a burglary would be an obvious integral part of a Penal Code crime."
In Commonwealth v. Critchfield, 9 Pa. Commw. 349, 305 A.2d 748 (1973) we again considered Section 618(a)(2) of The Vehicle Code and there we emphasized that the key inquiry is not "whether or not the 'offense could have occurred without the use of an automobile,' but whether or not the automobile was an integral element in, and contributed in some reasonable degree to, the commission of the crime." 9 Pa. Commw. at 353, 305 A.2d at 750.
The lower court erred, therefore, in stating that "(w)e do not accept the argument of defense counsel that the motor vehicle must be used in some essential integral manner." The cases indicate that a motor vehicle need not be essential to the commission of the misdemeanor but the vehicle must be an integral element in the commission thereof.
Nevertheless, and despite the lower court's inaccurate statement of the law, the facts as it found them necessitated that it reach the result that it did. The lower court referred to the testimony of a police officer (Officer Cummings) as supporting the inference that an automobile was used in the commission of the misdemeanor. Officer Cummings testified that on July 21, 1972, he received a call to report to the Dutch Wonderland in Lancaster County where he and another trooper were to investigate reported acts of public indecency by Olin. While the two policemen were making inquiries in the parking lot there, Olin, who had left the scene, returned in his car and was promptly arrested. Officer Cummings testified that he personally observed that "when the vehicle was stopped, Mr. Olin had his trousers unzippered, and they were hanging open." We hold that this uncontradicted testimony was sufficient for the court to draw the inference that the vehicle was used in the commission of the crime. Use of that vehicle was an integral element in the crime where Olin committed acts of public indecency while occupying the vehicle or where he employed the vehicle to leave the scene of the crime.
Olin asserts that the officer's testimony relating to what certain witnesses to the crime told him was hearsay and should have been excluded. We believe that the admission of this hearsay evidence was harmless because the Bureau did not need to prove again that the crime had actually been committed. The conviction report, which was properly admitted, adequately established that. The Bureau needed only to show a sufficient connection between the crime and the use of a motor vehicle. Officer Cummings' personal observations to the effect that Olin was driving his car in a state of partial undress only shortly after his acts of public indecency were reported, sufficiently established that connection.
We wish to express our concern previously expressed in Critchfield, supra, that the lower court make specific findings of fact from the evidence adduced at the hearing. Although in this case we are able to determine from a reading of the order what facts the lower court found, we would much prefer, for purposes of review, numbered findings of fact which are labeled as such.
The order of the lower court is, therefore, affirmed.