# Commonwealth v. Throckmorton

> Superior Court of Pennsylvania · June 28, 1976 · 241 Pa. Super. 62

URL: https://www.frixlaw.com/law-library/cases/9696355

## Case

- **Full name:** COMMONWEALTH of Pennsylvania v. James Archie THROCKMORTON, Appellant
- **Court:** Superior Court of Pennsylvania
- **Decided:** June 28, 1976
- **Citations:** 241 Pa. Super. 62; 359 A.2d 444; 1976 Pa. Super. LEXIS 2028
- **Precedential status:** Published
- **Opinion:** Concurrence by Spaeth
- **Judges:** Watkins, Jacobs, Hoffman, Cercone, Price, Van Voort Spaeth, Spaeth, Van Voort
- **Cited by:** 21 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9696355

## Opinion text

SPAETH, Judge
(concurring):
I join Judge Hoffman’s opinion but wish to add a comment on an issue that he touches upon but does not discuss.
The Commonwealth has argued at p. 448 et seq. of its brief that appellant validly consented to the breathalyzer test. If he did, the results of the test would derive not from the illegal arrest but from his consent, and so would be admissible. Commonwealth v. Quarles, 229 Pa.Super. 363, 377-78 , 324 A.2d 452, 460 (1974). It is, however, the Commonwealth’s burden to prove that the consent was knowing and voluntary. Schneckloth v. Bustamonte, 412 U.S. 218, 222 , 93 S.Ct. 2041 , 36 L.Ed.2d 854 (1973).
When asked about the administration of the breathalyzer test, Trooper Peters testified:
. . . and then we got to the barracks and I advised him more fully about the operation of the breathalyzer, and then he wasn’t going to take the breathalyzer test if we used it against him. I told him we couldn’t make any deals. I said will you submit to a chemical test of your breath. And at this time Mr. Throckmorton began to cry, and then he volunteered again to take the breathalyzer test . . .
(Record 133a-134a)
As Judge Hoffman indicates, at 446 this shows that appellant’s consent was “reluctant [ ] if not contradicting it at least precludes a finding that consent was voluntary.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9696355. Public record. Not legal advice.